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Full text of "Cobbett's complete collection of state trials and proceedings for high treason and other crimes and misdemeanors from the earliest period to the present time ... from the ninth year of the reign of King Henry, the Second, A.D. 1163, to ... [George IV, A.D. 1820]"

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From  the  yarboc  Library 


lEUini-SIAIIiflRDaVNKHtVtgVERSnY 


y 


■•-^ 


State    Trials. 


VOL.  XX. 


COMPLETE    COLLECTION 


•  •!.•»  «       •?  J    r, 


•  «  s  •  a  a  « 


.  •  --.  .  ^ .  •  .-OF  :  •  •  •     •     -  -•  :  !• 


State 


AND 


PROCEEDINGS   FOR   HIGH   TREASON   AND   01 

CRIMES  AND  MISDEMEANORS 


FROM  THE 


EARLIEST  PERIOD  TO  THE  PRESENT  tiME, 


WITH  XOTES  AKD  OTHER  ILLUSTRATIO 

COMPILED  BY 

T.  B.  HOWELL,  Esq.  F.R.S.  P.S.A. 


VOL.  XX. 

A.D.  1771—1777. 


LONDON: 

PRINTED  BY  T.  C.  HANSARD,  PETERBOROUGH-COURT,  FLEET-STREET : 

FORU)NOMAN,  HUROT,  REE8,  ORME,  &  BROWN;  J.RICHARDSON;  BLACK, 
PARRY,  &  CO.;  £.  JEFFERY  ;  J.  HATCHARD;  £.  LLOYD;  BUDD  6i 
CALKIN;  J.  FAULDER;  J.  BOOKER;  CRADOCK  &  JOY;  R.  H.  EYANi; 
J.  BOOTH ;  AND  T.  C.  HANSARD. 

1814. 


*  •  • 


t'^'-.^.-v^ 


.^iL 


ADVERTISEMENT, 


IN  this  Volume  the  Cases  reported  in  the  last  FoUo  Mdiiion 
rftke  State  Trials  are  brought  to  a  termination;  the  Case 
•/  Home,  p.  651^  being  the  last  contained  in  that  Collection. 
After  which  commences  the  New  Series  of  Proceedings,  con^ 
Hmung  that  Edition  to  the  present  time. 

In  order  to  render  the  present  Work  more  applicable  to 
Hme  Law  Books  in  which  references  are  made  to  the  FoUq 
MUkm,  a  Table  of  Paralisl  Hmfhrmkcm,  exhibiting  at 
jtrtl  nght  the  Pages  in  the  present  Edition  corresponding 
wilk  those  of  the  Folio  (fries,  is  now  in  compilation,  and  will  be 
fublished  wUh  the  next  Volume. 

Fm.  1814. 


»-.      •      « 


TABLE   OF  CONTENTS 


•  •      • 


TO 

VOLUME  XX. 


^u 


REIGN  OP  KING  GEORGE  THE  THIRD. 

i&.  The  Case  of  JAMES  SOMMERSETT,  a  Negro,  on  a  Habeas 

Corpus,  A.  D.  1771-1772    1 

Addenda  to  this  Case  • «  1369 

H9.  Proceedings  in  an  Action  by  Mr.  ANTHONY  FABRIQAS,  against 
Lieutenant-General  MOSTYN,  Governor  of  Minorca,  for  False 
Imprisonment  afad  Banishment,  a.  d.  1773-1774 » 88 

KO.  The  Case  of  the  Inland  of  Grenada ;  in  relation  to  the  Pajrment  of 
Four  and  one-half  in  the  Hundred  of  Goods  exported  therefrom ; 
between  ALEXANDER  CAMPBELL,  esq.  Plaintiff,  and  WIL- 
LIAM HALL,  esq.  Defendant,  a.d.  1774 239 

Addenda  to  this  Case  •; 1387 

Sbl.  The  Trial  of  ELIZABETH,  calling  herself  Duchess  Dowager  of 

KINGSTON,  for  Bigamy,  a.  d.  177(S 355 

SS2.   Proceedings  against  JOHN  HORNE,  Clerk,  on  an  Information  in 

the  King  6-Bench  by  the  Attorney-General,  for  a  Libel,  a.  d.  1777    651 

Addenda  to  this  Case  • • 13S9 

*«*  This  is  ike  concluding  Article  of  the  Folio  Edition. 


COMMENCEMENT  OF  THE  NEW- SERIES. 

Si  The  Trial  of  JOHN  ALMON,  Bookseller,  upon  an  Information, 
filed  Ex-Officio,  by  William  De  Grey,  esq.  his  Majesty's  Attor- 
ney-General, for  selling  Junius's  Letter  to  the  King,  a.  d.  1770...     803 

5M.  The  Trial  of  JOHN  MILLER,  Printer,  before  Lord  Mansfield, 
and  a  Special  Jury  of  Citizens  of  London,  at  Guildhall,  for  re- 
prioting  Junius's  Letter  to  the  King,  in  the  London  Evening  Post, 
of  the  19th  of  December,  1769,  a.  d.  1770 870 


TABLE  OF  CONTENTS. 

Page 
Kb.    The  Caie  of  HENRY  SAMPSON  WOODFAIX,^  an  InTor- 

matioD,  filed  bj  the  Attomej-General,  for  publishiiig  Junius'i 

Letter  to  the  King,  ▲.  d.  1770 895 

Sb6.    The  Trial  of  Maha  Rajah  NUNDOCOMAR,  Bahader,  for  Forgery. 

At  Calcutta,  in  the  Fkrovince  of  Bengal,  a.  d.  1775 • 9M 

567.  The  Trial  of  JOSEPH  FOWKE,  FRANCIS  FOWKE,  Maha 
lajrfi  NUNDOCOMAB,  aad  ROT  lADA  CHURN,  for  a 
Conspin^  against  Warren  Hastings,  esq.  Governor-General  of 
die  Presidency  of  Fort  ^TtHliam  in  BengaL  At  Calcutta  or  Fort 
William  in  Bengal  aforesaid,  a.  d.  1775  • •  1078 

.£58.  The  Trial  of  JOSEPH  FOWKE,  Maha  Rajah  NUNDOCOMAR, 
and  ROT  RADA  CHURN,  for  a  Conspiracy  agakist  Richard 
Barwell,  esq.  one  of  the  MenAers  of  the  Simreme  Council  for  the 
Province  of  UengaL  At  Calcutta  or  Fort  Wi&iam,  in  Bengal 
afinesaid,  a.  d.  1775 1186 


fl59.  The  Trials  on  the  Informations  whidb,  in  punuance  of  an  Order  of 
the  House  of  Commons,  were  filed  by  his  M^esty's  Attorney 
General  against  RICHARD  SMITH  and  THOMAS  BRAND 
HOLLIS,  esqrs.  for  .having  been  (haSlij  of  notorioas  Bribery,  .  ** 
and  thereby  procuring  themselves  to  be  elected  and  returned 
Burgesses  to  serve  in  Pariiament  for  the  Borough  of  Rindon, 
A.  D.  1776    .• 1288  ; 

• 

MO.  The  Trial  of  ao  ActiM  brought  by  STEPHEN  S AYRE»  esq. 
against  the  Right  Hon.  WILLIAM  HENRT  Earl  of  ROCH- 
FORD,  one  of  his  Majesty's  most  Hon.  Privy  Council,  and 
tberetofoie  one  of  hn  Majea^'s  Princ^al  Seeretaries  of  State,  for 
False  Imprisonment,  a.o.  1776.«. 1286 

661.  The  Trial  of  JAMES  HILL,  otherwise  JAMES  HINDE,  other- 
wise  JAMES  ACTZEN  or  AITKEN,  (known  also  by  the 
name  of  John  the  Painter)  for  feloniously,  wilfully,  and  malici« 
ously  setting  Fire  to  the  Rope  House  in  hn  Majesty's  Dock  Yard 
at  Portsmouth,  A.  D.  1777  «.....••...• ^..... 1318 


■  \ 


A     COMPLETE    COLLECTION 

OF 

STATE     TRIALS, 


548.  The  Case  of  Jahes  Somhersctt,  a  Negro,  on   a  Habeas 
Corpus,*  KingVBench :  12  Geouge  III.  a.  d.  1771-72. 


Of  thia  Gate  only  a  Statement  of  the  Pacts, 
tnd  Mr.  HBi^nve's  learned  Argmnent  wen 
inMTted  ID  the  former  edition  of  tkis  Work. 
1  biTe  here  added  the  olber  Aigumeola,  aad 
lilt  Jud^meut  of  the  Court,  from  Lofffa  Re- 
perls,  m  which  is  a  Note  of  the  Case  noder 
thcnameof  Sammenett  againat  Stewarl. 

0>  ibe  3il  of  December  1771,  nffidtTils  were 
muk  k/  Thomaa  Walkhn,  Elizabeth  Cade, 

„...._   M__i_._.     .1...    I a ^    J 


*  The  TCT7  important  (natters  which  thii 
OB  iarolTcd,  Tiz.  fir»t,  The  rigbia  over  the 
pnM  «f  K  negro  reaident  here,  claimed  by 
MMitr  penioo  aa  the  owner  of  the  negro  ; 
iW.  n|jpo9ing  such  righta  to  e)Uat,  aecoDilly, 
Tie  uicnt  of  tbem ;  and  thirdly.  The  meaua 
•f  mfarcing'  tbem,  were.  1  belieTs,  nerer,  ex- 
apt  in  this  ea»e,  made  tile  lubjecl  of  a  luit  at 
hw  in  England.  But  in  Scotland  two  caaa 
of  ihi*  tort  have  occurred  before  the  Court  ol 
Kmiod  ;  1,  That  of  Sheildani^aioit  Sbeddtn, 
•  a.  IT&6  ;  3,  That  of  Knight  agwnat  Wed- 
4(tli'nni,  a.  D.  177S— 1778. 

or  these  two  cases  the  followlne  reports  are 
fnnied  from  the  >  Dictiooary  of  Decisions,'  lit. 
'  aare,'  *oI.  33,  pp.  14,545,  e(  itq.  : 


"  *  NecTO,  who  hail  been  boaght  in  \ 
fiaia,  anil  brought  to  Britain  to  be  tauelit  * 
trtde,  anit  who  liad  been  baptized  in  Britain, 
biiinif  rUimnl  his  liberty,  againit  his  master 
Rqben  Slitd'lan,  who  had  put  him  on  board  a 
itiip,  to  carry  hioiback  to  Virginia,  llif  Liirds 
a^'pniain)  counsel  for  t\x  negfto,  and  ordered 
BKrnorials,  and  afterwarila  a  hearin);  in  pre 
■vriKc,  upon  the  refpeclive  cluima  of  liberty 
aul  >eriitude  by  the  master  and  Ibe  negro. 

>■  But,  durintc  the  hearing  in  presence,  the 
•q[ra  died ;  *o  the  point  wu  not  dgteriniiied." 
VOL.  3U. 


mander,  lyi    , 

Jamaica ;  and  lord  Manstield,aD  an  apphcation 

supported  by  these  sfiidavits,  allowed  a  wrilr 

iif  Habeas  Corpot,  direoteil  to  Mr.  Knowlea, 

sod  re<]uiring  bim  to  return  (be  body  of  8om- 

■nenyett  before  his  lotdsbip,  witii  the  cause  of 

itetainer. 

Mr.  Rnowlea  on  the  9th  of  December  pro- 
Jnced  the  body  of  Sommeraett  before  lord 
MansQeld,  and  relumed  for  caase  of  detainer, 
ihat  Sommersett  was  the  negro  slate  of  Char 


ihat  Sommersett  was  the  n^o  slaf  t 
SteuBTt,  esq.  who  bad  dehrered  E 


"  Tlie  conimaoder  of  a  Tcssrt,  in  the  African 
trade,  baring  ini|iorted  a  cargo  of  negroes  into 
Jamaica,  sold  Joseph  Knight,  one  of  tlieoa,  aa 
a  slave,  to  Mr.  Wedderbum.  Kuight  was 
then  a  boy,  seemingly  about  twelve  or  tbirleea 
years  of  age. 

"  Some  time  after,  Mr.  Wedderbum  came 
orer  to  Scotland,  and  brought  (his  negro  aloi^ 
will)  liio),  as  a  personal  serrant. 

"  The  negro  continued  to  serf  e  bim  for  seve- 
ral years,  without  murmuring,  and  married  ia 
the  cDuolry.  But,  afteinardi,  prompted  to  as- 
sert bis  freedom,  he  look  the  resolution  of 
(earing  Mr,  Wedtlrrburo's  service,  who,  being 
inlbrmed  of  it,  got  biih  apprehended,  on  a  war- 
rant  of  Ibe  Justices  of  pe:ice.  Knight,  un  hia 
eiaminaliuD,  acknowledged  bis  puipose.  The 
juBlici|f»Hbund  '  the  petitioner  entitled  (a 
.'■Amglii's  services,  and. iliat  he  must  continiM 
'  as  before.' 

■<  Knigiit  then  appticd  to  the  sheriff  of  ilie 
county,  (Perthshire),  by  jietilion,  selling  forth, 

■  Tbst  Mr.  Wedderburn  iuuistcd  on  bis  con- 

■  tinning  a  personal  serranl  with  him,'  iind 
prayed  the  sheriff  lo  And,  '  Tbnl  he  cannot  bo 

....  11. ^f  slavery,  or  compelled 

i  and  lo  discbarge  Mr. 
yelitiifpfr 


3] 


12  GEORGE  III. 


The  Negro  Case. 


[4 


into  Nr.  Koowlcs's  custody,  in  order  to  carry    firtnia,  and  had  afterwards  brooght  him  into 
bim  to  Jamaica,  and  there  sell  him  as  a  slave.  !  Eng^land,  whfre  he  left  bis  master's  service; 


Affidavits  were  also  made  by  Sir.  Steuart  and  j  and  that  his  refusinfif  to  return,  was  the 

two  other  {rentlemen,  to  prove  that  Mr.  Stenart  j  sion  of  his  beings  carried  onboard  Hr.  Knowlea'a 

had  purchased  Sommersett  as  a  slave  in  Vir-  ;  ship. 


**  Afler  some  procedure  in  this  process,  the  ;  in  all  the  ancient  nations,  and  in  all  the  modera 
sberiiT  found,  *  That  the  state  of  slavery  is  not    European  nations,  for  many  at^es.    In  lonie 

*  recognized  by  the  Inns  of  this  kingdom,  and  is  ( of  them  it  still  remains;  and  in  none  of  then 

*  inconsistent  with  the  principles  thi^eof ;  that  j  has  it  been  abolished  by  positive  enactments,  de- 
<  the  re^rulations  in  Jamaica,  conccrniniif  slaves,  j  clnring  it  unjust  and  iilej^al,  but  gone  into  dis- 


'  do  not  extend  to  this  kin{;^om  ;  and  repelled 
*  the  defender's  claim  to  a  perpetual  service.' 
Mr.  Wedderhurn  havin{f  reclaimed,  the  sheriff 
found,  *  That  perpetual  service,  without 
'  wa^res,  is  slavery  ;  and  therefore  adhered.* 

**  The  defender  removed  the  cause  into  the 
court  by  advocation.  The  lord  ordinary  took 
it  to  report,  npon  informations.  Beinj;  a  ques- 
tion of  general  im|M)rtance,  the  Court  ordered 
a  hearin(r  in  presence,  and  afterwards  informa- 
tions of  new,  upon  which  it  was  adiised. 

«*  Pleaded Jor  the  Master:  That  be  had  a 
right  either  to  the  perpetual  service  of  the 
negrro  in  Ibis  country,  or  to  send  him  back  to 
tbo  plantations  from  which  he  was  brought. 
His  claim  over  the  negro,  to  this  extent,  was 
argued  on  the  tbllowing  grounds : 

**  The  productions  of  the  colonies,  ever 
since  they  were  settled,  have  been  cultivated 
by  the  means  of  negro  slaves  imported  from 
the  coast  of  Africa.  The  supply  ing  the  colo- 
nies with  these  slaves  has  become  an  extensive 
trade;  without  which,  the  valuable  objects  of 
commerce,  now  furnished  by  the  plantations, 
could  not  be  cultivated.  British  statutes  have 
given  sanction  to  this  trade,  and  reco^fnized  the 
property  of  the  master  in  such  slaves ;  lOtli 
W.  3,  c.  26 ;  5th  Geo.  2,  c.  7 ;  23J  Geo. 
9,  c.  3. 

**  The  property  which,  in  Jamaica,  was  es- 
tablished m  the  master  over  the  negro,  under 


use  by  degrees,  in  consequence  of  many  difle- 
rent  causes.  Though,  therefore,  the  maniei- 
pal  law  of  this  country  does  not  now  admit  of 
this  state  of  slavery  in  the  persons  of  citiacMb 
yet,  where  for^gners,  in  that  state,  are  broogfit 
into  the  conntry ,  the  right  of  their  masters  ofW 
them  ought  not  to  lie  annihilated. 

*'  In  this  case,  the  master  is  not  insisting  §k 
the  exercise  of  any  n'cforous  |)owef8.  He  o^f. 
demands,  that  he  sbail  be  intiiled  to  the  peiso* 
nal  services  of  the  negro,  in  this  country,  dar- 
ing life.  His  right  to  this  extent,  et  lemt,  k  , 
not  immoral  or  unjust ;  nor  is  it  even  icfio- 
bated  by  the  municipal  law  of  this  coonlry. 
A  person  may  bind  himself  to  a  service  for  life; 
Ersk.  Inst,  hi!  l,t.  7,  §  62. 

"  But,  in  the  last  place,  if  this  is  denied,  Ihs    . 
master  roust,  at  least,  be  permitted  to  ooBfd 
the  negro  to  return  to  the  plantations,  firM 
whence  he  was  brought;  otherwise  he  is  ]Mf 
tirely  forfeited  of  his  right. 

"  Some  cases  from  the  English  lav-boohs    > 
were  adduced  to  show,  tbat,  in  Englsnd,  ths 
master's  right  of  property  in  his  negro  remsiH   -: 
after  be  is  brought  into  that  country ;  BaM 
contra   Penny,    1677 ;    Keble's  Rep,  p.   S| 
p.  785.     Gilfy  contra  Cleves;    5tli   WUEmi   , 
and  Mary,  lord  Unymond,  Rep.  5,  p.  I4lf%  i 
and  the  opinion  of  two  very  erament  UwyoH|  i 
in  the  year  1729,  sir  Philip  Vorke,  then  aUsi^  '^ 
ney-general,  and  !\Ir.  Talbot,  solicitor- geosral^   ;. 
in  these  words :  *  >Ve  are  of  opiniooi  that  IS  i 

*  slave,    by    coming  from   the    West-IndiiB^    ' 

*  either  with  or  nithout  his  master,  to 


these  statutes,  and  the  municipal  law  there, 
cannot  he  lost  by  a  mere  change  of  place.    On 

Erinciples  of  equity,  rights  acquiretl  under  the 
iws  of  foreign  countries  are  supported  and  I  *  Britain  or  Ireland,  doth  not  become  free ; 
inforced  by  the  courts  of  law  here.     A  right  of   *  that  his  master's  property  or  right  in  I 
property  will  be  sustained  in  every  qountry    *  not  thereby  determineil  or  varied  ;  and 
where  the  subject  of  it  may  come.    'The  status    *  tisin  doth  ni»t  bestow  freedom  on  bim, 
of  |)ersi>ns  attend  them  wherever  they  go ;  | '  make  any  altenuion  in  his  temporal  cood 
Huber,  hb.  1,  t.  3,  c.  12.  !  *  in  these  kingdoms.    U'e  are  aJso  of  oninini, 

*'  The  law  of  the  colonies  is  not  to  be  con-  |  *  that  the  master  may  legally  compel  nia  H 
sidered  as  unjust,  in  authorizing  this  coudition  '  return  to  the  plantations.' 
of  slavery.  The  statutes  which  encourage  the  "  Anstceredjhr  the  Negro :  The  only  litlaaB 
African  trade  show,  that  the  lecislature  does  which  any  right  of  dominion  is  claiioed  Ofsr 
not  look  on  it  in  that  light.  The  state  of '  this  African,  is  the  institution  of  the  roaaidpal 
slavery  is  not  contrary  to  the  law  of  nations. ,  law  of  Jamaica,  which  authoruEea  Uieslavwy 
IVriters  upon  that  law  have  enumerated  seve-  •  of  Africans  brought  into  that  island,  TJuitlr 
ral  just  and  lawful  origins  of  slavery  ;  such  as  ■  that  law,  this  negro,  a  child  when  brought  iola 
contract,  conquest  in  a  just  war,  and  punish-  ;  Jamaica,  while  he  remained  there,  was  wtk^ 
ment  of  crimes.  In  cases  where  slavery  is  au-  fjected  to  the  unjust  dominion  which  itgifcs 
thorizinl  by  the  laws  of  Jamaica,  it  must  be  pre-  !  over  these  foreigners ;  but  the  municipal  law 
snnied  to*  have  proceeded  on  a  lawful  origin,  of  the  colonies  has  no  authority  in  thb  eountryu 
The  municipal  law  of  no  country  will  be  pre-  ;  On  grounds  of  equity,  the  Coon,  in  soow 
sunied  unjust.  !  cases,  gives  eflecl  to  the  laws  of  ether  coMh 

**  A  state  of  slavery  has  been  universally  re-  '  tries ;  but  the  law  of  Jamaica,  in  this  instaKib 
Mived  in  the  practice  of  natioDS,    It  took  place   will  not  be  supported  by  the  Court ;  bscamtt 

i 


5] 


The  Negro' Case. 


A.  D.  1771. 


[6 


Laid  Mam$field  chniioff  to  refer  the  matlar 
tD  Ike  teermiiMtion  of  ttie  court  of  King's- 
bdck,  SMnmeroett  wiib  sureties  was  bi>uoci  in 
nisaiiee  for  his  appearsDce  there  on  the 
[day  of  the  next  Hilary  term  ;  and  his 

■ifyHpiPt  to  tlie  first  principles  of  morality 


•*  SabordinattoD,  to  a  certain  extent,  is  ne* 
tmmy ;  bat  there  are  certain  bounds,  beyond 
vbidif  if  any  institution,  subjecting  one  indi- 
fital  to  anolher,  should  go,  the  injustice  and 
mlity  of  It  cannot  admit  of  a  doubt, 
is  tlie  institution  of  slavery,  depriving 
of  the  most  essential  rights  that  attend 
ezisieace,  and  which  are  of  a  nature  that 
not  of  any  equivalent  to  be  ^iven  for 
ibca.  The  most  express  consent,  given  in  a 
ffdonlary  contract,  cannot  authoriie  tne  assum- 
m^  of  tliese  rights,  or  bind  the  consenting  party 
Is  sidbmit  to  the  condition  of  a  slave.  A  stipu- 
of  tbat  kind  affords  intrinsic  evidence  of 
judue  advantage  taken,  and  is  therefore 

It  to  Toid  the  contract. 
**  Bat,  although  it  were  justifiable  to  admit 
if  a  sbvery  proceeding  on  a  title  of  contract, 
t,  or  of  punishment,  the  law  of  Ja- 
would  not  be  the  less  unjust.  In  sub- 
the  Africans  to  slavery,  that  law  re- 
Mcs  no  title  under  any  of  these  grounds. 
The  drenmstancc,  that  the  negroes  are  brought 
iats  Jamaica,  is  all  that  is  requisite  to  fix  on 
IbiB  indiacrimiuately  the  condition  of  slavery. 
It  iR,  therefore,  a  slavery  established  on  force 
aad  osdrpntion  alone,  which  no  writer  on  the 
k«  of  nations  has  vindicated  as  a  justifiable 
of  slavery. 
**  If  the  law  of  Jamaica  had  made  any  dis- 
BCtisB,  or  required  any  title  to  the  slavery  of 
1  ifiian,  this  negro  would  never  have  been 
by  it  to  that  state.  Being  a  child 
he  was  brought  into  Jamaica,  he  could 
into  DO  contract,  commit  no  crime,  and 
cannot  give  a  right  to  kill  or  enslave 
cwUrcn. 

"  The  means  by  which  those  who  carried 
dlii  child  from  his  own  country  got  him  into 
Ihcir  bands,  cannot  be  known  ;  because  the 
bv  of  Jamaica  makes  no  inquiry  into  that  cir- 
coBsiance.  But,  whether  he  was  ensnared, 
ar  bought  from  his  |>areDts,  the  iniquity  is  the 
Siow. — That  a  state  of  slavery  has  been  ad - 
nitled  of  in  many  nations,  does  not  render  it 
ins  anjust.  Child -murder,  and  other  crimes 
if  a  deep  dye,  have  been  auihorlbed  by  the 
lavs  of  different  states.  Tyranny,  and  all 
sms  of  oppression,  might  be  vindicated  on  the 
Mine  grounds. — iNeiiher  can  the  advantages 
pnicured  to  this  country,  by  the  slavery  of  ihe 
Mfrues,  be  heai  kened  to,  aa  any  argument  in 
tkii  qnention,  as  to  the  justice  or  it.  Oppres- 
■Mo  and  iniquity  are  not  palliated  by  the  gain 
sodadvautage  acquired  to  theauthont  of  them. 
boi  ibe  ex|iedieucy  of  the  institution,  even  for 
Ike  subjects  of  Great  Britain,  is  much  doubted 
•f  by  those  who  are  best  acquainted  with  the 
tttta  of  the  colonies ;  and  soma  culightened 


lordship  allowed  till  that  day  for  settling  the 
form  of  the  return  to  the  Halieas  Corpus.  Ac- 
cordingly on  tbat  day  Sommersett  appeared  in 
the  court  of  King's- bench,  and  then  the  follow- 
ing return  was  read : 

men  of  modern  times  have  thought,  that  augar 
and  tobacco  might  be  cultivated  without  tht 
slavery  of  negroes. 

*'  The  dominion,  therefore,  given  by  the 
law  of  Jamaica  over  the  pui-suer,  a  foreigner 
there,  being  unjust,  can  receive  no  aid  from 
the  lawa  of  this  country.  The  modificatiun 
proposed  of  this  claim  of  alavery,  makes  no 
difierence  on  the  merits  of  the  question.  It  is 
plain,  that,  to  give  the  defender  any  right  over 
the  pursuer,  the  pobitive  law  of  Jamaica  muat 
always  be  resorted  to ;  consequently,  the  ques- 
tion recurs,  Whether  that  law  ought  to  be  en- 
forced beyond  its  territory  ?  But  a  service  for 
life,  without  wages,  is,  in  fact,  slavery.  The 
law  of  Scotland  would  not  support  a  voluntary 
contract  in  these  terms ;  and,  even  where  wages 
are  stipulated,  such  a  contract  has  been  voided 
by  the  Court ;  Allan  and  Mearns  contra  Skene 
and  Burnet,  No.  5,  p.  9454,  voce  Pactum 
lllicitum. 

'*  The  answer  was  given  to  the  other  claim, 
of  sending  the  negro  out  of  this  country,  with- 
out his  consent,  tbat  it  supposes  the  (fominion 
given  over  the  pursuer  by  the  law  of  Jamaica 
to  be  just.  The  negro  is  likewise  protected 
against  this  by  the  statute  1701,  c.  6,  which 
expressly  prohibits  the  carrying  aiiy  persons 
out  of  the  kingdom  without  their  consent. 
The  words  are  general,  and  apply  to  all  per- 
sons witlyn  the  realm. 

**  In  support  of  this  argument  for  the  negro, 
authorities  of  French  writers  were  adduced,  to 
show,  that  formerly,  by  the  lavis  of  France, 
negroes  brought  into  that  couutry  from  tlie 
plantations  became  free.  This  was  their  law, 
until  lately,  that,  by  special  edicts,  some  alter- 
ations were  made  u|H)n  it;  Denissrt,  tom.  3, 
V.  Negro.  On  the  law  of  England,  several 
cases  were  mentioned,  in  which  different 
judges  had  expressed  opinions,  that  a  negro 
coming  into  England  is  free  there ;  1  Salk. 
666,  Hmhh  contra  Brown  and  Cooper ;  Shanley 
contra  Nalvey,  in  Chancery  1762 ;  Har- 
grave's  Arg.  p.  58. 

"  But  the  late  case  of  Sommersett,  the  ne- 
gro, decided  in  the  Kin^'M-beuch,  in  the  year 
1772,  was  chiefly  relied  on,  and  said  to  be  in 
point;  at  least  upon  this  question.  Whether 
the  negro  could  be  sent  out  of  England  ? 

*'  The  Court  were  of  opinion,  that  the  do- 
minion assumed  over  thisi  negro,  under  the  law 
of  Jamaica,  being  unjust,  could  not  be  sup- 
ported in  tliis  country  to  any  extent :  that, 
therefore,  the  defender  had  no  right  to  tlie 
negro's  service  for  any  space  of  time,  nor  to 
send  him  out  of  the  country  against  his  con- 
sent :  that  the  negro  was  likewise  protected 
under  the  act  1701,  c.  6.     [The  *  Act  for  pre- 

*  venting  wrongous  imprisonment,  and  u{f:iin*(t 

*  undue  delays  in  Trials,'   more  particularly 


7] 


12  GEORGE  III. 


The  Negro  Case, 


t» 


*<  I,  Jolin  Knowleff,  cominfuider  of  the  Tessel 
calleil  the  Ann  aud  Blary  in  Uic  writ  hereunto 
annexed,  do  inust  huiubly  certify  and  return  to 
our  present  mo^t  serene  so?ereign  the  king^ ;  that 

mentiuued  l;elow]  from  being  sent  out  of  the 
country  a^aini«t  his  cousenL^The  judgmeuts 
of  the  dheriff  were  approved  of,  and  the  Court 

*  reiuiUed  tlie  cause  simpUciterJ  " 

I   have  been  favoured  i«  iili  the  use  of  six 

*  Memorials'  or  '  Informations,'  which  in  the 
course  of  these  tHo  litigations  were  delivered 
into  the  Court  of  Session.  Five  of  them  appear 
to  have  been  iirepared  by  men  of  very  high 
eminence  in  their  profession,  one  for  Sbeddan 
the  negro  by  air  David  Dairy mple,  aiWr* 
wanls  a  jnilge  with  the  title  of  lord  Hailes  ; 
two  ibr  Knight  the  negro,  by  Mr.  M'Lourin, 
aAer wards  lord  Dreghom,  andMr.Maconochie, 
now  lord  Mcadonbank,  and  two  for  Wedder- 
burn  (Knight's  maj*ter),  by  Mr.  Ferguson,  af- 
terwards lord  Pitfonr,  and  Mr.  Cnllen,  after- 
wards lord  Culleo,  res|)ective)y  :  they  display 
a  copiousness  and  variety  of  curious  learning, 
ingenious  reasoning,  and  acute  argumentation, 
intimately  connected  with  the  case  now  be* 
fore  us. 

With  respect  to  <  Memorials'  or  *  Informa- 
tions,' in  causes  depending  in  the  Court  of  Ses- 
sion, aud  to  the  general  course  of  proceeding 
in  that  court,  see  the  Edinburgh  Review  for 
January  J 807.  For  the  alterations  which  in 
the  vear  1808  were  made  in  the  constitution 
of  that  court,  see  stat.  48  G.  3.  c.  151. 

Mr.  Barrington,  in  his  Observations  on  stat.  1 
fitch.  2,  (note  [j/]  in  the  third  edition)  mentioned 
tliat  ''many  of  the  labourers  in  the  salt- works 
and  collieries  in  Scotland  still  continue  *  glebce 
adscriptitii'  and  cannot  be  hired  without  the  pro- 
prietor's consent."  And  as  to  this  he  referred  to 
a  case  in  the  Dictionary  of  Decisions,  vol.  1, 
I).  812.  I  know  not  what  case  that  was.  In 
Morison*s  Dictionary  of  Decisions  there  are 
under  title  Coalier  twelve  cases,  in  all  of  which 
the  Ber\  ile  condition  of  the  class  is  recognised. 

In  the  Memorials  which  were  presented  in 
the  case  of  Knight  v.  Wcdderburn,  tho  con- 
dition of  the  coalliers  and  suiters  of  Scotland 
was  considered.  1  will  here  insert  w  hat  was 
said  of  it  by  lord  Me.aduwbank  and  lord  Pitfour. 

*'  The  defender,"  observed  the  first  of  those 
learned  persons,  **  has  mentioned  the  situation 
of  coalliers  and  salteiti  as  an  evidence,  that  the 
law  of  Scotland  is  not  repugnant  to  slavery. 
It  has  bren  already  shown,  that  although  vil- 
lenage  still  existed,  although  this  high  court 
would  even  now  record  an  acknowledgment  of 
vtlicnage,  and  alihon^h  other  kinds  of  slavery 
were  adopted  by  the*  laws  of  this  country,  yet 
that  the  common  taw  could  not  be  understood 
to  favour  the  defender's  claim.  As  long  as  the 
common  law  acknowledges  the  law  of  nature  to 
be  its  great  principal  and  rule,  so  long  must  it 
reject  a  claim  to  a  right  of  property  iu  a  man, 
or  in  his  labour  and  industry,  founded  iu  his 
being  born  of  a  captivt  or  a  criminali  or  in  hit 


at  the  time  herein  after-mentioned  of  bringing 
the  said  J  ameaSomoiersett  from  Africa,  and  long 
before,  there*wrcre,  and  from  thence  hitherto 
there  have  been,  and  still  are  great  nambera  ^ 

being  seized  on  violently  by  a  third  person,  and 
sold  to  the  claimant,  it  has,  hqwever,  been 
urged,  that  coalliers  and  salters  arc  living  prooiii 
of  the  former  prevalence  of  villenage :  it  is, 
therefore,  not  unnecessary  to  bestow  a  ftew  oIh 
servations  on  their  situation ;  the  use  of  pit- 
coal  is  of  so  late  invention  that  villenage  must, 
at  any  rate,  have  disappeared  in  Scotland  long 
before  the  working  of  coal  could  have  become 
a  profession.  Purehas  (in  vol.  3,  p.  88,  of  hit 
collection)  giving  an  account  of  Marco  Paolo's 
travels,  has  the  follow  lug  curious  passage  ex- 
tracted from  them :    *  Throughout  the  whole 

*  province   of  Katai   (China),  certain    black 

*  stones  are  digged  out  of  the  mountains, 
'  which,  j)ut  into  the  fire,  burn  like  wood,  and 
'  being  kmdied,  preserve  fire  a  long  time :  aa 

*  if  they  be  kindled  in  the  evening,  they  keep 

*  quick  fire  all  the  night ;  and  many  use  thoae 

*  atones,  because,  that  though  they  have  store 
*•  of  wood  yet  there  is  such  frequent  uae  of 

*  stones  and  leathes  thrice  every  week  that  the 

*  wood  would  not  serve.'  The  same  observa- 
tion is  transcribed  into  the  Histoire  G^n^alede  * 
Voyages,  torn.  9,  p.  366.  It  was  one  of  the 
circumstances,  which,  at  the  publication  of 
Paolo's  travels,  was  considered  as  a  proof  that 
they  were  fabulous.  There  is  a  passage  in 
JEneas  Sylvius'  (afterwards  Pius  3.)  account  of 
Europe,  which  shows  more  directly,  that  the 
use  of  pit-coal  must  have  been  very  rare  and 
very  inconsiderable  in  his  time  even  in  Soot- 
land.  Treating  of  Scothind,  he  observes,  that 
he  was  here  (as  a  iegnte)  in  the  time  of  Ja- 
cobus quadratus,  and  enquired  about  a  roira« 
culous  tree,  which  had  been  said  to  grow  in 
Scotland :  He  adds,  *  De  qn&  re  cum  audivimua 

*  investigaremus  [soinorig.]didicimusmiracula 
'  semper  remotiiis  fugere,famoiiamquearboreu 

<  non  in  S(M>tift,  sedT  apud   Orcades  inveniris 

*  Illud  tamen  in  Scotid  miraculum  represen- 
'  tatum  est ;  nam  pauperea  pen^  uudoa  ad 
'  tempb  mendicantes  acceptis  lapidibuseleemo- 

*  syniB  gratis  datis  latos  abiisse  conspeximus : 

*  id  genus   lapidis,  sive  sulphured  sive  ali4 

<  pingui  materia,  pro  ligno,  quo  regie  nuda  est, 

*  comburitur.'  it  is  plain,  from  this  account,  thai 
coals  muat  have  been  ifery  rare  iu  Scotland. 
It  otherwise  would  have  k!een  quite  absurd  to 
take  notice  of  them  only  as  used  by  beggara, 
Beskles,  he  observes,  that  they  were  only  used 
wliere  the  country  was  barren  of  wood ;  and 
it  is  well  known,  that  Scotland  was,  durincf 
the  reigns  of  the  Jameses,  very  much  covered 
with  it ;  so  there  could  be  very  little  occasion 
for  coals.  On  the  other  hand,  as  there  are  re- 
gular records  extant,  from  the  days  of  James 
1,  it  is  impossible  that  villenage  could  then 
have  existed,  without  sufficient  evidence  con* 
cerning  it  appearing  in  the  acta  of  parliaroentv 
charters,  transfers  of  prapertv,  and  various 
deeds  anxNig  indivklMisy  vkisk  ate  bawM 


•'  Xhe  Nfgro  Case. 

.^  kitM  m  A/ru-a  i  aoj  that  (luring  all  ihe 
^A  ft.-- .ii'l  Xbtif  hvlli  been,  hikI  slill  is  • 
tn«  .rt.-'l  <m  ky  bU  mijttiy's  Bubjeuls, 
|r<a*>^   !•  bu  tuBJeity'i  colonies  or  phtii- 

* u iH  lilt  ihenrur* plain, (bat  llie  pfii* 
pm  J  iiijlliias  tliiJ  uul  comiueiKe  curly 
«^  lo  lute  M:cei*e<l  tlie  rviuuiiia  of  tl>'e 
W9  nileiiis.  Tl>e  cireurosliiiCffs  of  a  coal  • 
•  4**«c  iuilicatc  a  virjr  tlitTerrnt  oiigin. 
*(^tfvn  >c*>  ihM  liura  adttriptiSii.  A  coal 
to*«a  profeaaion  whicti  iaTuliialarily  eni- 
Ihs^  u>J.  Iikr  oilier  priHviiitiuna,  is  regulilcil 
lf)*r«coUT  laira.  Hbicli  we  more  Or  leu 
*M.  anxiliD^  AS  It"-  iolerra  ut'  the  public 
a^^t  III rv(i>ire.  TlivMatjeaofa  coallicr. 
•iMh  uI  lalmurera  in  any  ollirr  (irolvsginii, 
.jaij  iu  Duurif  excluKvf!,  aie  liightr  ihiin 
:3ia  i>iirL.iiien  receive,  lit  arqiiirei  pro- 
-T-,  Hd  irMDstnita  it;  wid  bas  lt(«D  tbuiid, 
-  «  E»c  of  RutherglM,  (l->L-iilea  SO  Fe- 
ksfj  If*7,  iniiileil,  as  well  %s  toy  oilier 
ll^«.(al<B>  coansellir  ol  a  burgli ;  Uv  mim, 
i*  i^ul  rratun.  be  capable  ol'  being  rieulcil 
■1^  or  parliament.  Thesi>  purtiuulars 
bwai  ctiilmcp,  ilial  tite  condition  uf  a 
I  ■«  )>ertecdy  di&renl  I'roni  tliHl  of  a  >il- 
Tlir  art  ol  wurltilig  coal  auccesst'nlty 
9  iitnig  practice  lo  allaio,  and  is  tirriu- 
Ibe  bcaUb  ul'  tliute  wlio  lire  Dot  early 
It  WM,  iberefure,  extremely 
works  ttcie  beuun  to  lie  set 
lb«  pniprwiiin  UioulJ,  in  return 
_  ^.  waives  ilifv  gave  ihe  workuien, 
Hlfa>  boiuiil  to  continue  iu  their  ser«ice 
^it^rte""  «l' y»'»rs,  or  forlite)  accord- 
^•eBiid,  tlial  it  was  at  fir«l  ciiatomary  to 
%vli  bouilft  fi'om  coallien ;  Htiil,  it  it 
h^tttsi  tlie  practice  coniinued  arier  tbe  in- 
^Mn  of   parhaiueni  bad  ■upeneiled  tbe 

'IhBe'ilNKTvalians.tbe^urtuerliiimbly  up- 
M«i)t>,  (iifficicitU^  uxpUiu  any  ibiujf  parii- 
nriB  ibotaieol  ooallirra.  la  tbe  iiifuncy 
*^ni<nticnl  inifli  are  apt  tu  ailiipl  expe- 
na  lar  inawHifc  tbe  obtlruciinos  it  meets 
^  -  '  oiUrt  Mils  «bicli  lliry  IVfI,  but  tbe 
L  aBcLiual  rcmediti  uf  wlucli  ibey  itu 
~  '  '  I'bui  inewpurations  and 
oux  lituii,  and  uu  ib«  wlier, 
Ml  tbp  airiulieni  cif  incorpomliont 
'  lis  liue  (uij^nated,  In  ibe 
.  tery  natural  lo  seek  a  curb 
orrapiiciouonessof  coalliam, 
kiaU  uaifM,  like  ibnw:  uf  many  other 
I  af  tioHiiueii,  disposed  ibem  m  idlfnera, 
-  ^i,  «v  affiicaui^e.  AH  rettuliiiuos,  huw- 
-.  Irwmd  wiiit  such  liews,  are  Btideiitly 
^iWTvial,  aail  uever  can  be  construed  na 
T  hraahng  liberty  ur  ulavery.  any  more 
tbe  •<•  uf  iiavij^atiuni  or  any  otbcr  lbloi[ 
'  jc  laaw  iMIura.  It  Diii;bl  Iw  pruvd,  ibal 
«a»  a  tlitf  n  iiiii  ihe  same  princi|ile 
.     The  acts  163T,  c.  61,  and  I&ST, 


M  IIm  Mher,  iIm  ci 


nibe  ' 


n  pleBjtn  W  in 


A.  D.  1771.  HO 

(UionlDrVirg-inin  and  Jamaica  in  America,  aoil 
Otber  coloiiJM  ■ml  planiativns  belongint;  lo  bis 
iiiajpsly  in  Aiiierit:a,  for  ibe  ueccaMry  aupply- 
in|r  ot'ihealiircsaid  colonies  suil  plaataliooa  witk 


(lalul«s  wvie ever  urijed as itittiiulit* of  ilaTvry, 
TliF  same  obw rtalioa*  are  in  ijvneral  so  appb- 
c~ble  lo  tlie  Mule  of  sullen,  liul  ii  is  uuneccs- 
sarv  to  consider  il." 

On  Uie  pail  of  tbe  defecder  it  wot  arened  lijr 
Mr.  Fer|[Uiaii  (lord  Pit  four,)  "  Tliere  still  exists 
in  this  country  h  species  of  periwiuil  serritude, 
(irxbably  llie  reuiaiiiH  of  the  oriuiiml  '  aiiscrip- 
'  lilii  glebte,'  ur  villeins,  wbiah  is  supparle<l  by 
Inle  sialuies,  nuil  by  daily  pmclice.  via.  TbM 
which  takes  pluce  with  regard  lo  the  caallier* 
and  sailer*,  where,  from  the  »iii((le  cireuin- 
siance  of  enlerini;  to  work  afier  puberly,  tliej 
are  bound  In  iwrpelual  service,  and  sold  along 
with  the  wurlis ;  and  indeed,  in  our  law,  ibcr* 
are  several  nlber  examplea  of  persons  being 
bound  ('>  servitude  during  tbeir  lives.  Tbe  act 
of  parhameAl  1597.  cap.  J7S,  eiiacU,  '  That 
slark  beggars  and  their  bairn*  be  employed  in 
common  works,  and  Jieir  serrice,  mentioned 
ill  the  act  uf  iiarliameal  1S79,  to  be  prurogala 
during  ibeir  liletimes.'  And,  ttilboul  going 
furiher,  it  is  Ihe  case  with  every  soldier  aud 
sailor.  tb«  former  of  ivhoiii  i*  shnt,  if  lie  en- 
deatuurs  to  niube  bis  escape  al  any  period  of 
his  life,  by  express  law ;  and  tlie  lador  is  sub- 
jected, during  the  same  sjiace  by  a  practice 
universally  admitted,  to  be  leiied  by  force,  and 
Lent  agninst  liis  uill  lo  the  remotesi  corners  of 
tbe  world. 

"  Tbe  pursuer  is  pleased  to  nr^iic,  thai  the 
coalliers  and  sattets  ate  tiut  a  remains  of  *jl- 
lenage ;  and  bis  arfriiment  for  tbis  is.  ibat  llie 
use  of  cual  in  Kcoilaad  is  sn  late  a  disuovery, 
thai  it  must  have  taken  place  lonir  after  villen- 
age  disappeared :  and  tu  ui'uve  thii,  he  cites  a 
passage  from  Marco  Paolo,  and  annllier  from 
£iiGa«  Sylvius ;  from  which  it  would  appear, 
Ihat  these  aulbors  bad  been  unncquainleJ  with 
that  mineral,  till  the  former  saw  it  in  China, 
and  the  UitPr  in  Scotland,  And  ftbe  pursucf 
adds,)  £n«iis  Sylrius  observes,  that  coal  waa 
only  Uiied  in  Scotland  where  it  was  barren  of 
wudd  ;  and  w  it  is  well  known  ihst,  during  the 
reiifii  of  the  Jameses,  ticoliund  wurery  inuoU 
covered  wiih   wood,  there  could  be  very  little 

>■  Thii  circuiiiKlance  seems  lo  he  tillle  con- 
neclol  wilb  Ihe  present  i|Uestion  ;  but  the  pur- 
suer's ui-iioiueolk  niipearlo  bnve  no  Tendency  to 
prove  tii..l  lliL-  stiile  of  the  e<ialliert  in  ScntlaDd 
u  mil  D  lUiiliou^Hrin  of  lite  ancient  tilleuage. 
By  tbe  churl,  r  ubnre  reciled.  that  instilntion  is 
irucod  dowr.  to  the  year  1368 ;  and  in  all  pruba- 
biliiy  it  continued  a  cuniiderable  time  longer. 
Marco  Paolo  tveut  in  China  abnut  100  year* 
before  Ibal ;  so  turrly  no  inlereore  can  be 
drawn  from  ibe  llalitns  being  unacquiiinled 
wilh  cual  iu  the  year  tSTO,  that  ibis  mineral 
was  not  diacoveied  iu  tJcotland  before  the  year 
1368. 


11]  12  GEORGE  III. 

negrro  slaves ;  ind  that  negro  slaves,  brought 
in  the  course  of  the  said  trade  from  Africa  to 
Virginia  and  Jamaica  aforesaid,  and  the  said 
other  colonies  and  plantations  in  America,  by 


The  Negro  Case. 


p« 


*  JEneas  Sylvius  vras  in  Scotland  in.  James 
the  Ist's  time.  The  defendtir  does  not  know  if 
the  pursuer  means  by  the  expression  of  Ja- 
cobus quadratus  to  insinuate  that  it  was  in 
James  tne  4th's  time ;  but  if  he  does  so,  it's  a 
mistake,  for  £neas  Sylvius  died  pope  in  the 
5th  year  of  James  3,  viz.  S3  years  before 
James  4  succeeded;  and  tberr  is  no  doubt 
that  his  joum^  to  Scotland  was  in  James  the 
Ist's  time,  probably  about  the  year  1430.  He 
then  describes  coal  to  have  been  in  comoion 
use  in  Scotland  ;  and  it  would  appear  very  odd 
if  there  had  been  no  coal- pits  in  Scotland  60 
years  before  that,  to  which  the  charter  above 
recited  brings  down  the  existence  of  villeins  or 
nativi. 

"  The  quotation  therefore  from  JSneas  Syl- 
vius is  a  proof  of  the  direct  contrary  of  what 
the  pursuer  endeavours  to  infer  from  it. 

**  The  circumstance  of  two  Italians  being 
surprised  at  seeing  pit -coal  affords  no  pre- 
auniption  that  it  had  not  been  used  for  many 
centuries  in  Scotland.  It  happens  every  day, 
that  Englishmen  are  not  believed  in  that  coun- 
try, when  they  describe  our  coal  to  them  even 
at  present 

'*  The  defender  does  not  know  what  the  pur- 
suer means  by  asserting,  that  it  is  well  known, 
Scotland  was  very  much  covered  with  wood 
during  the  reignb  of  the  Jameses.  As  iBneas 
Sylvius,  who  was  an  eye-witness,  declares, 
that  in  the  time  of  James  1,  it  was  perfectly 
bare  of  wood ;  and  it  is  exceedingly  probable, 
that  the  immemorial  use  of  pit-coal  before  that 
period,  had  induced  the  inhabitants  to  cut  down 
all  the  wood,  without  leaving  or  providing  suf- 
ficiently for  that  kind  of  fuel. 

'*  It  is  needless  to  enter,  with  the  pursuer, 
into  the  disquisition,  whether  the  state  of  coal- 
liers  be  a  severe  kind  of  slavery  or  not ;  as  it  is 
certainly  much  more  so  thau  that  to  which  the 
defender  claims  to  reduce  him." 

It  is  perhaps  worthy  of  notice  in  this  place, 
that  though  the  memorial  of  Mr.  Maconochie 
(lord  Meadowbauk)  bears  date  April  S5,  1775, 
and  that  of  Mr.  I<erguson  (lord  Pitfour)  bears 
date  July  4,  1775,  no  notice  is  taken  of  the 
statute  15  Geo.  3,  c.  28,  by  which  aOer  recit- 
ing that  by  the  statute  law'  of  Scotlaml,  as  ex- 
plained by  the  courts  of  law  there,  many  col- 
liers and  coal  bearers,  and  salters,  are  in  a  state 
of  slavery  or  bondage,  bound  to  the  collieries 
and  salt  works,  where  they  work  for  life,  trans- 
ferable with  the  collieries  and  salt  works,  when 
their  orifj^inal  masters  have  no  farther  use  for 
them,  it  is  enacted,  that  colliers,  coal  bearers, 
and  salters,  shall  not  be  bound  to  any  colliery 
or  salt  work,  or  to  the  owner  thereof,  in  any 
way  or  manner  different  from  what  is  per- 
mitted by  tbe  law  of  Scotland,  with  regard  to 
■crvants  and  labourers. 

Tbb  sutute,  it  sppetiw,  by  the  Lords'  Joor* 


the  laws  of  Virginia  and  Jamaica  aforesaid  and 
the  said  other  colonies  and  plantatMMis  in  Ame- 
rica, during  all  the  time  aforesaid,  have  been, 
and  are  saleable  and  sold  as  goods  and  chattels, 

nal,  was  passed  on  the  S3d  day  of  May,  1775. 
After  which,  it  seems  (see  Mr.  Benet's  account 
of  Dudingston,  in  the  18th  vol.of  sir  John  Sin- 
clair's Statistical  Account  of  Scotlabd,  p.  370,) 
that  the  coal  masters  strove  to  insure  the  de- 
pendenceof  their  coalliers,  and  consequently  tbe 
perpetuity  of  their  services,  by  seducing  them 
mto  their  debt:  to  remedy  which,  by  stat.  39 
Geo.  3,  c.  50,  among  other  provisions  respect- 
ing colliers  in  Scotland,  it  was  enacted,  « That 
no  action  shall  be  competent  for  ^oney  ad- 
vanced by,  or  on  behalf  of  coal  owners  or 
lessees  to  colliers,  except  for  snp|K>rt  of  their 
families  in  case  of  sickness,'  in  which  case  a 
specific  mode  of  procedure  is  provided. 

In  the  negro  case  in  France,  which,  under 
the  title  of '  La  Libert^  reclam^e  par  un  n^re 
centre  son  maitre  qui  I'a  ameoi  en  France,'  is 
reported  in  tbe  ISlh  vol.  of  *  Lea  Causes  G^* 
l^bres,'  See,  p.  492,  edit,  of  1747,  and  which  I 
apprehend  was  determined  in  the  year  1738,  or 
soon  afterwards,  the  questions  before  the  Court 
appear  to  have  been,  1st,  Whether  the  party 
claiming  the  negro  was  such  a  person,  as,  by ' 
the  French  king's  edict  of  October  1716,  was 
permitted,under  certain  formally  prescribe<l  con- 
ditions, to  bring  negro  slaves  from  the  French 
West  Indian  colonies  into  France,  and  to  retain 
them  there :  and  Sdly,  Whether  he  had  per- 
formed those  conditions;  with  respect  to  which 
it  was  provided  in  the  edict,  that,  "  faute  par 
lea  m&itres  des  esciaves  d'observer  les  forma- 
lity pr^rites  par  les  pr6ced^ns  articles,  let 
dits  esciaves  seront  libres,  eS  ne  pourront  dtre 
reclames."  For  though  M.  le  Clerc,  Pro- 
cureur  du  Roi,  did  indeed  mention,  that  nei- 
ther the  .edict  of  March  1685,  nor  that  of  Oc- 
tober 1716,  had  been  registered  in  the  parlia- 
ment of  Paris,  or  transmitte<l  to  the  proper 
officer  of  the  court  of  admiralty,  yet  it  very 
cleariy  appears,  that  he  did  not  lay  much  stress 
on  these  topics. 

But  tbe  eloquence  of  M.  le  Clerc  and  the 
ofher  advocates  who  argued  the  case  expa- 
tiated far  beyond  the  narrow  limits  of  the  dry 
and  uninteresting  quesiiuns  of  mere  positive 
law  which  I  have  stated.  The  powers  of  their 
learning  and  of  their  oratory  were  called  forth  ia 
all  their  vigour,  to  describe  the  character  and 
narrate  the  history  of  slavery,  to  display  its 
incongruity  with  the  benevolent  doctrines  of 
Christianity,  and  above  all  to  impress  upoo 
their  hearers,  that  slavery  was  utterly  and  ir- 
reconcilably opposite  to  the  nature  of  France 
and  of  Frenchmen,  and  to  the  original  principles 
and  established  administration  of  their  consti- 
tution and  government ;  insomuch,  that  to 
touch  the  soil  or  to  inspire  the  air  of  Franca 
was  to  be  free.  Thronghout  the  arguments 
this  last  position  not  only  was  undisputed  by 
either  party,  but  was  by  all  parties  either  as- 
sumed, or  admittedi  as  the  inoootrovertibls  as- 


13J 


ne  Negro  Can. 


A.  D.  1771. 


[I* 


ud  «fMi  Ibe  sale  thereof  hare  become  and 
bRtt,  aad  are  the  slaves  and  property  of  the 
pmthiri  thereof,  and  hare  beea,  and  are 

1 —         - I  -  -  ■!     1 • 

SfftM  of  a  notorious  (act.  Yet,  at  the  same 
im,  A  was  on  all  sides  propoanded  and  incul- 
oAil,  with  a  dilin^enee  and  copioasness  of  repe- 
MM,  which  is  not  commonly  expended  upon 
tkt  owinleDaoce  of  indisputable  truths.  I  hare 
fitraetcd  frono  the  rp|M>rt  the  followiogf  pas- 
Hirct,  whirh,  I  heliere,  will  sufficiently  con- 
n  vhat  I  bare  stated.  They  may  also  afford 
HBuwineDt,  if  not  instruction,  bv  exhibiting 
the  complacency— perhaps  I  should  rather  say 
the  triumph — with  which,  under  the  reign  of 
Lnrii  the  15th,  the  descendants  of  the  an- 
ciort  Franks  could  rhapsodise  concerning  li- 
krtr:» 

'*II  s^est  toojours  regard^  comme  libre, 
kfm  qu'il  a  mis  le  pied  en  France,"  p.  495. 

**  D^  qu*an  esclare  y*'  [se.  en  France]  *<  a 
■ii  ie  pied,  it  y  acquiert  la  liberty,"  p.  504. 

"  Vig  qn'un  esclare  est  entr6  en  France, 
i  de? ieot  hbre,'*  p.  504. 

**  11  faot  conclure  que  Pesctare  est  derenu 
ftrc,«I^  le  premier  instant  de  son  arrir^en 
Fnoce,''  p.  508. 

**  L'eotr^e  dans  la  riUe  de  Paris  assure  le 
Busticu,  etdevient  I'asile,  de  la  liberty.— « £st' 
[k.  LntetiaJ  *  sacro-saocta  ciritas,  qnie  pne- 
*Wt  emnibns  libertatis  atrium  quoddam,  asi- 
'Iraaqae  immanitatis,' "  pp.  511. 526. 

^Je  ne  me  propose  point  ici,de  porter  la 
■sbdre  atteinte  ao  plus  pr6;ieux  de  nos  biPiis : 
je  ae  pi^tens  point  enrier,  k  I'heorenx  climat 
^  WNN  babitotts,  cette  pr^rogatire  ^minente, 
stocMe  a  la  eeule  entree  en  ce  royaume,"  [this 

Vhnsetecnrs  again  in  n.  5SS.]  *'  et  oui  forme 

kfsrele  plus  assort  ae  la  liberie,  Jont  nous 
/ssSmas  nous-m^mes,"  p.  512. 

"Je  ne  craindrai  pas  d'arouer  arec  tons  les 
ismri,  qa*on  ne  conndtt  point  d'esclare  en 
Friaee,  ct  que  si  tcH  qn'im  esclare  Stranger  a 
isii  le  pied  sor  notre  continent,  il  est  g^tifii 
de  Is  rdiert^,"  p.  520. 

**  On  ne  conndit  point  d'esclare  en  France, 
ctqoicoMioea  mis  le  pied  dans  ce  royaome,  est 
ratifi^  de  la  libert^,'^.  595. 

^  Testator  Benedictns,  *  senros,  qui  Tholo- 
*  nm  aufogerant,  urbis  ingressu  ipso,  liberos 
'aciosetcires,*'*p.  527. 

**  Ups  maximea  si  pr^cienses  du  droit  Fran- 
pb  accordent  k  la  seule  entr<^e  dans  ce  roy- 
:arop,  au  seul  air  qu'on  y  respire,  le  droit  de 
b  lihert^,  ledon  de  la  franchise ;  j'ai  adopts  ces 
aaxunes,  je  leur  ai  rendu  tout  IMiommage, 
^'elle«  4§xigent  des  coeurs  rraiment  Frau* 
joii,"  p.  532. 

'*  La  France  se  fait  gloire  de  comrouniquer 

*  Mr.  Dnrke  (Reflections  on  the  ReroUition 
n  Fnoce,  See.  4th  ed.  p.  93)  remarks,  that  *<  it 
*ai  is  the  most  patient  period  of  Roman  ser- 
*jftDde  that  tbemes  of  tyrannicide  made  the  or- 
diaary  exercise  of  boys  at  school — *  ciim  pe- 
ns* iceoa  classis  nnmerosa  tyrannos.' "  The 
&as  is  in  Jartnalt  Sat  7,  t.  151. 


saleable  and  sold  by  the  proprietors  thereof  aa 
goods  and  chattels.  And  I  do  further  certify 
and  return  to  our  said  lord  the  king,  that  Jame« 

le  beau  privilege  d'affrancbisseroent  k  tous  les 
esclares,  lorsqu'ils  entrent  dans  ce  climat  hen- 
reux,  dont  le  seul  nom  r^paod  de  toute  part  la 
bonne  odeur  de  la  liberte,"  p.  539. 

"II  n'est  point  d'esclare  en  France ;.DOf 
constitutions,  nos  usages  ^tendent  la  farenr  de 
la  liberie  k  tous  les  hommes  en  g<Sn^ral  qui 
Pbabitent,"  p.  539. 

**  II  ne  peot  y  avoir  d 'esclares  dans  ce  roy- 
aume,  il  soffit  m6me  d'y  etre  eubli,  ou  d'r 
faire  sa  residence,  pour  acqu^rir  le  bien  pr& 
cieux  de  la  lilwrt^,"  p.  544. 

'*  Nos  privileges  ont elfar.^  jusqu' ^  I'id^  de 
I'esclarage  en  France,'*  p.  546. 

"  II  n'y  a  en  France  aucuns  esclares ;  et 
la  contume  y  est  telle,  que  non  seulement  les 
Francois,  mais  aussi  les  etrangers,  prenant  port 
en  France,  et  criant  France  et  Liberli,  sont 
hors  de  la  puissance  de  celui,  qui  la  poss^doit,** 
p.  549. 

*'  La  France,  m^re  de  liberty,  na  permet  au- 
cuns esclares,"  p.  549. 

**  Les  esclares  ont  en  France  le  pririlbge  de 
se  remettre  en  possession  de  leur  libeni,  an 
moment  qu'ils  sont  entr^s  dans  les  terres  de  ce 
royaume,"  p.  551. 

*'  De  terns  immemorial  Pesclarage  n'a 
point  lieu  en  France,  et  I 'esclare  ^tranerer  de- 
rient  libre,  aussitdt  qu'il  y  aborde,"  p.  551. 

"  Donter  si  en  France  un  homme  est  libre, 
si  un  esclare  acquiert  sa  liberty  par  son  entree 
en  France,  c'est  attaquer  I'autorit^  aoureraine 
de  nos  rois,  et  faire  injure  ^  la  nation,*'  p.  498. 

To  these  may  be  added  the  following  mors 
early  authority : 

'*  Toutes  pcrsonnes  sont  franches  en  ce  roy- 
aume,  et  sitost  qu'un  esclare  a  attoint  les 
marches  diceluv  se  faisant  baptizer,  il  est  af- 
franchi."  Institutes  Coustumi^reS)  (published 
at  Paris  in  1679)  p.  2,  cited  by  Mr.  Barringtoa 
in  bis  Obs.  on  stat.  1  Rich.  2,  where  he  has  col- 
lected some  curious  particulars,  relating  to  slfl- 
rery. 

Bf .  Tribard,  who  pleaded  against  the  pre- 
tensions of  the  negro,  admitted  aud  maintain* 
ed  the  proposition  that  there  were  no  slaves  in 
France,  as  a  general  rule ;  but  contended  that 
the  case  of  negroes,  belonging  to  French  West 
Indian  colonists,  was,  by  the  eilict  of  1685^ 
specifically  excepted  from  its  operation. 

"  Si  en  France,"  says  he,  **  on  ne  conndit 
poiat  d'esclares,  si  la  seule  arrir^^e  dans  ca 
rovaume,  procure  la  liberty,  ce  priril^ge  cessa 
k  r^rd  oes  esclares  n^gres  Fran9ois :  quelle 
en  est  la  raison?  C'est  qu'en  France,  c'est 
que  par  une  loi  de  la  France  meme,  les  esclares 
n^gies  da  nos  colonies  sont  constitu^s  dans  un 
esclarage  n^cessaire  et  autoris^,"  p.  529. 

After  noticing  an  *  Arret'  of  the  parliament 
of  Toulouse,  reported  by  Bodio,  he  proceeds, 
*■  Quel  peat  6tra  I'effet,  quelle  peut  ^tra  Tin* 


I5J  12  GEOnCE  III. 

SomineTieU,  in  the  said  writ  hercDDto  nnn«ei] 
named,  it  a  nfCTo,  and  a  niliTe  of  AtKca  ;  and 
that  the  uid  Jantcs  Kommeraelt,  tong^  before 
the  coming  of  llieuiil  nnt  to  me,  to  wit,  on 


n  61itqi]i  deux 


The  Ncgra  Case.  f  16 

tbc  IDlb  day  nf  March  in  the  year  of  oor  Lord 

waa  a  ne^ro  alart  in  Africa  alnresBid, 

and  afterwarilB,  to  nit,  on  llie  satiie  day  and 

y^er  lait  aforeaniil,  being  siich  negro  slave, 


duciioD  de  cet  arr6t,  r\ 

aitclea  aprii,  pour  k 

<tBl,  ]es  ta^<^ea  ct  la  piiiissnce  de  la  naliou,  »  j 

ttabli  une  leriiiuile  uCceMnire  car  cette  parlie 

de»  iujetBduroi?"  |i.  531. 

Again  "  Voilii  done  la  teiile  induction,  uni- 
quement  pai:  rapporl  ani  firaugera,  el  aux 
a»cla<reade«  «irangers,"  p.  S97. 
i"'Ituiuiitbe  cnnfe«scd  tliat  llie  pleading  of  SI. 
Trihard  wa«  not  >cry  cnutincing.  Of  the  style 
aud  co^«Dcy  uf  bis  nrguTnentation  the  ful- 
loiiinic  nbturd  faJEc  anil   despicaUe  common 

f  laces  may  siifli(.-e  as  aatnpleH :  "  Ceux  t|ai 
iul'oriuue  de  la  guerre  amuji^issuil  nux  vain- 
qururs  furent  appelltii  eivlaves,  icrci,  liien 
UMiiisil  leraiendo,  qu'ii  ttrTnuilo,"  \i.  514. 

*'  Neijue  enim  libertas  tulior  ulta  est,  qiu^m 
Amino  serrire  bono,"  |i.  UK. 

Judgment  ira's  giieu  fur ihc  Negro. 
Tiie  6'oife  A'oiV,  as  it  trMscallcd,ir3san  edict 
bearing  date  in  Alarcli  1G85,  nliicli  was  Isourd 
by  Lewit  the  14lh.  It  coiiliiini  varioDs  regu- 
laliqiu  rfE|irctiuK  llie  roniiitinn  and  Irealntcnt, 
the  rights  and  duties  of  negni  sliicii,  end  freed 
MTgroea,  and  of  tlie  Kreocli  Wett  Indian  <.-ol»- 
nieD.*  This '  Code  Noir'  is  citetl  in  llie  plead- 
ings ill  tlie  net^ro  case  reported  in  tlie  *  t'ansea 
Ci:lelires ;'  but  I  do  niit  pTcnre  that  it  at  all 
COiiceruH  that  particular  easr,  except  in  so  far 
as  it  recognizes,  nud  e.tlabliiJiea  the  i/(i(uii  of 
alavery  ;  iin  wbicli  aeenunt  indi>eil  mucli  re- 
liance was  placed  on  it  in  itic  pli'ailiii;;s  Ibrihc 
party  irliu  claimed  to  be  •inneriif  thi'  lu'gro. 

Ill  Oclnlwr  iriO,  li-wis  the  l.^ilb  pnllisht^l 
■n  edict,  *  conccrnant  Ics  niclaves  nr'^^icsdcs 
eolonifs,'  hy  wliicli, alter  recitin:;,  iiiUr  alia, 
"  conim''  nous  avons  vid  infiirmd^,  epic  plii- 
■ienrs  lialiilans  <lo  niM  isles  de  TAnitriquc  d^- 
rircul  enioyer  en  France  <pielques  uus  de  icur* 

*  In  Air.  Ilargrave's  Arguii-ent  in  the  text, 
this  eilici  n  said  to  have  been  made  in  Muy 
IGQj.  bill  ill  tlie  copy  of  tlieeilict  trliicb  ia  iii- 
tertcd  in  the  13tli  vuluini:  uf  the  "  Causes  C^- 
Ifl>res,"  the  date  is  tn  ice  iiieiiiioiied  to  bu  Marcli 
1685.  Inlliatrntumcihe  edict  lies n  tbe  ful- 
Inwing  lille,  "  Le  Code  Noir  ou  Kdil  du  Itui 
•ervant  de  r£glement  pour  le  uouTciiiemcut  et 
radininislrattnndelajiislii'eetikiiolicedcB  Isles 
Fraii^'«i$es  de  I'Anicriqnu.  et  pour  la  diKcipline 
et  le  cuniincrce  des  no;:reii  el  esclaien  daiiH  le 
dil  pays."  In  the  preiimbk' tlieobjerla  of  the 
tdict  ar«  ststed  to  be  "  y  mainleiiir  la  dnciplins 
tie  I'iighse  ciitliolii|iie,  apusl«h<|ue,  el  rouiaiiie, 
•>  y  nigler  ce  iiui  oonccrne  I'eial  el  la  quslilc 
de  nos  envlaveii  datia  nu*  diles  itiloii."  And  ac- 
cordingly all  its  proiistuiis  relate  to  thecnncrros 
of  religion,  of  alaiet,  or  of  freed  jierMins.  In 
Ibe  mnnlb  of  AugUBt,  liiUS,  the  king  issued 
•nolbcr  edict  fur  the  eiiuiblhihiueui  of  courts 
of  jutiice  in  St.  Domingo, 


eaclares,  ponr  lea  conflrmcr  dana  les  inslroe- 
liops  et  dans  les  fxercicea  de  nntrc  religion,  et 
pour  lenrfaire  apprenih'c  q<ielque  art  et  niftier, 
dont  li-s  colonies  recefroient  bi'aiicixip  d'ulilitd 
par  le  relour  de  cea  esclaves  ;  mais  que  cea 
hiibitans  craignent  que  les  csctoTes  ne  prClen- 
dent  tire  libres  en  arrirant  en  France,  cc  qui 
pnurrnit  causer  aux  dits  haiiitBusnneperle  con- 
siderable, atlesd^tounierd'uiiubjet  aussi  pieux 
et  luisi  utile ;" 

"  Le  Itoi  ordnnne  que  *\  quelqucs  una  dei 
hahitans  des  colonies,  ou  ilea  officiera  employ^ 
dans  I'olat  veitlent  amcner  avec  cux  des  es- 
c1avesn<^gret<le  I'unondel'iuitTesexe,  en  qua- 
lity lie  iltunestiqueB  un  antremenl.poiir  lc<for- 
lilierdDDsta  religiun,  ^.  leH  proprietairecscront 
tcnus  d'en  olitenir  la  perinisstiin  ite«  goiiTerit- 
cnrs  g^iit-ruux  on  rouiinanduiiB  daoii  chnque 
isle,  lr.i{iii'!le  permission  cuiitiendra.  le  noin  do 
prnprielaire,  celuidesescliive«,leur  ilge,et  leur 
signal  emenl. 

~"  Lps  pmprlf'taircs  de*  dils  eirclaTea  veront 
pa rritie merit  obliges  de  fairo  ciirpgistrer  ladilo 
(lermisiiion  an  grrtTi-  di'  la  jurisdidion  dii  lien 
deleiir  r(:iidei:i-«  iiv.-iiit  !eur  i'c|<iirl,  etencelui 
ite  ramimui^  du  lieu  >hi  ri(''i:in>iiement,  dans 
huiiaine  apiis  I<-ut  nrrii  I'a  en  I'Vunce." 

Tbe  eilict  next  proceeds  to  eslabliali  corres- 
pondent reguLtinns  for  the  case  uf  negro  hUvea 
whom  llii-ir  uwuers  shall  send  under  the  care 
of  other  pemaiM  fi-om  llie  culoiiiea  tu  France. 

It  iIhiii  iinlaini  ib.it  regrim  sci  by  their 
owners  brnngbt  or  aeot  into  Franco  aliall  nut 
by  reusou  iliurcuf  acquire  any  right  to  their 
Ir'cedom,  but  nhall  he  coinpeUBble  lo  return  lo 
the  colonies  at  the  will  of  their  owner* :  it  in  pn>- 
vidnl  bowerer,  that  in  case  tlio  onuers  ha*« 
lu^lcclk^  tu  comply  with  tlie  prescribed  regula- 
IJoiiH,  tlie  negmeii  shall  become  tree,  and  Iba 
uwiiera  sball  lose  all  property  in  tbem. 

The  remainder  uf  the  edict  does  doI  affect 
the  case  liclbre  ua, 

nir.  Baron  Maicrcs  (Ilislnriie  Anglicannj  Se- 
lecla  Monumenta,  pp.  13,  3U1,)  oliserrea  of  a 
passage  in  the  Encomium  Bminie  that  "  it  plain- 
ly xbeH'stI  ml  there  were  at  this  lime  in  Uenmnrk 
Kei'iml  men  in  astute  of  sla>ery,  called  in  tbia 
|Kis>iigeM'7i't  .-  and  otberstbat  were  I'reed-men, 
firlhni,  ufler  having  been  slaves,  bnd  been  mad* 
free,  it  icnit  tilrili ;  and  a  Ibiid  sit  of  men 
nhn  liHil  alwavH  \<rvn  tVt-c,  but  were  nut  mible, 
and  ubo  are 'in  this  pasii^igu  cnlleri  ignoHletf 
and  priibably  were  the  hiitiliiiiTihiieii  and  tiamly- 
crafisiiien  uf  the  coumry  ;  aud,  liKtJy.a  fourlll 
Rcl,  who  were  colteil  nolitenien,  uubiffi,  and 
u  bo  si'eni  til  have  Ik^cu  the  warriors,  nr  mili- 
tary part  nl'  ihe  people,  and  who  niusi  hare 
been  lery  nnoieroiis,  since  bI)  the  whn^rurmj 
of  Caniile  the  Daue,  it  hen  he  invaded  EnglaiM 
after  tlie  death  of  Ling  Swein,  his  father.  It 
said  to  have  been  compoMil  of  men  of  this  clan, 


TAe  yegro  Case. 

■  twgfc*  in  Uie  Gouree  uf  ibe  saiJ  trade  u 
■  MCMMVe  from  Africa  aforesaid  to  VirginJB 
rfewni^  to  be  ibere  Eold;  and  aftcrwarda,  lo 
«il,MtlM  1st  ibjr  of  Auguu  Id  the  year  last 


•■M*  wm  emit  nobilea.'  And  Ibe  people 
rfftgl^nil  were,  probably,  at  ihiaperiud  dis- 
tifMhvl  iaU  differenl  ciastas  of  nearly  tbe 
■M  Iml*-  At  teail,  it  it  rvrtaio,  tbal,  before 
••  Ihniui  ConqueM  aa  well  ai  after  It,  the 

Sboiltr  of  the  cott«|;en  and  li  a  ndy craftsmen 
M  fibclumithi,  millero,  and  cart-irrigbla) 
nirj  vtllafea  were  alares,  or  what  our  utd 
ba  baoln  oUled  '  rilldtii  regardant,'  or  belong- 
iiftoliie  manor,  or  serviodscriptitii  gUia,iud 
«fR  alienated,  as  sucb,  by  name,  togelber 
m4 llieir  fatiiiliee,  and  all  tbe  goodi anilcbal- 

tranicribed  from  Ingul- 
|tai  ft  Branl  Dlade  by  Thorold  in  tbe  year 
Wl  to  UM  «l>b<<y  of  Crowlaod  of  >•  totum  ma- 


,  (ud  elvvEa  others) 
MH,  mm  omoilius  lioois  et  calaliia,'  qiicc 
Mmt  m  •tidft  Tillii,  et  in  campis  ejus,  ei  in 
MOKic,  mbsqiK  uUo  de  omnibus  rctioemeDio." 
Aru  Wales,  Rowlanil*,  in  recnuating  the  ob- 
Mmtina>  respecting  tbe  "  true  staLa  and  con- 
J-|i«*f  ibe  Brititb  gorernmeDt,"  and  of"  the 
-  -'M  Bntieh  leiiurea,  and  the  former  cus- 
M  aad  iMHVea  thereof,"  which  be  bB<1  col- 
•  n>d  fron  Uioio  materials  uf  information, 
vbcJi  "  our  own  careleai  neglect  bad  omitted, 
bet,  *•  •  jual  reproach  to  our  wretched  osci- 
^urj  aail  nrmiunMi,  the  covelousnesa  of  our 
»■»  wwchf'iil  conqueror*  took  care  lo  record 
*Mt  fumarte  fat  us ;  that  ia  ihe  Eo^ilish  mo- 
aMitl,wtiaii  ibry  ({otlhemiehea  FFlsed  of  Ihe 
h«fi— iuiwfuur  British  royalties,  and  fouod 
u  ■aJc  lUemteltea  intilled  or  interested  by 
4«M  ar  oviiqueal  lo  tbe  ancient  re  vena  es  of 
■e  BntUh  prineei,"  says  (Mona  Antiqua 
BMHsMa.  410.  Sd  ediliou,  London  1766  ;  Ihe 
baer  vMimm  wat  pnbhxheil  in  Dublio,  in 
IM,  Ih*  JFMT  of  tbe  anibor'a  dealli  :)  "  We 
r  '.J,  that  Ihe  tenants  of  bond-lands  and  ill- 
if^  ac  tliay  were  of  a  qui>lity  below  and 
'<nar  to  fraeliolders,  so  Ibey  were  obliged  tu 
.:>*Mr  drailgerirs,  anil  employed  in  more 
-•lie  work*,  and  were  to  be  diKjiosed  of  in 
iitj  Uiiagi,  at  ibeir  lords  and  princes  pleased 
jic  them.  Aud  of  llicae  suiue  were  free 
-iitia,  and  anmo  pure  natirei.  The  free  na- 
Lfi*.  I  lake  lu  be  Ihoae,  ivbo  had  some  degree 
•(fiecJutn,  who  might  ki>  where  tliey  wunid, 
m^t  buy  anal  acll,  and  had  tuany  immun* ' 
■    *(s(  tbey  werecallcd) 

<t  a«  lliev  liste<l.  And 
'isenber  lu  hate  mel,  in  air  William  Gruf- 
•I's'  bewk,  with  an  abstract  of  a  deed,  where 

'  nawtamU,  »peak>i)||i>l  'l>^o1d  returns  aud 
r^aa  which  had  been  mid*  by  jurors  to  tbe 
I  of  coijuiry  irilo  taourea, 

nuxx. 


aforeaaid,  the  aaid  James  Sommer«ell,  betiq> 
aod  continuing  such  negro  slate,  was  told  io 
Virginia  aforesaid  to  ons  Charles  Sleuut,  enj. 
who  then  was  an  inhabitant  of  Virginia  afure- 


ihe  natives  of  tbe  lownsbip  of  Porlhoethwy, 
many  years   alter  the  lime  of    the    British 

Ktinces,  were  sold  a^  part  of  tbeeslnle  of  those 
inds  ihey  belonged  lo  ;  and  of  wbiob,  and  of 
others  of  that  aiirl  I  ha*e  giren  elsewhere  large 
inslmoea.  And  1  hare  by  meacopyof  iujuoc- 
lion,  issued  out  by  Henry  the  seventh,  king  of 
England,  commanding  escheators,  end  all  other 
minisiei'ial  oiGcers,  to  see  that  Ibe  king's  nalite 
Icnenla  kept  wllbin  tlieir  priiper  limili ;  and  if 
any  of  them  were  found  to  stray  and  wander 
from  tbeir  home,  to  drive  iliero  back,  like 
beasts  to  their  plofolds,  with  the  greatest 
severity." 

And  in  a  book  intilled  Beauties  of  Rncrland 
and  Wales,  toI,  irii,  by  the  Rev.  J.  Evans, 
8vo,  IBia,  1  have  met  with  the  following  pas- 
sage : 

*■  Among  the  boons  bestowed  u|H>n  tbe  cor- 
poration ot  Beaumaris,  tio  late  even  as  tlia 
fourth  year  of  Elizabeth's  reigo,  the  following 
grant  appears:  '  All  and  sioKulur  tbe  king's 
'  luiids,  lenemetils,  and  berciliiamenis  in  Bodi- 
'  new,  aodhis  villagers (culiirelors)  in  (be  same 
'  town,  if  any  be,  with  their  offspring.'  But 
this  was  probably  no  more  than  an  eieinplift- 
calion  of  a  grant,  madj  lung  before,  by  way 
of  conRrmatioa. 

■■  The  fallowing  is  one,  out  of  three  docu- 
ments, Bilduoed  by  Ur.  Itowlands.  '  Edynfed 
Vychsn  ap  Edynfed,  alias  diclus  Ednyled  ap 
Arihelw  01  Uavydd  ap  Grutfyd  et  Howe)  ap 
Dsvydd  an  Ryryd,  alias  dictus  Howel  ap  Ar- 
ihelw uz  Uavydd  ap  Gryffydd,  Ubtri  lenentea 
D'ni  Regis  villcc  de  Rbandei  Gadog,  Sec.  de- 
dimuB  et  confirmavimus  Wilhmo  ap  Gryf- 
I'yild  ap  Gwilim  armtgero  et  libera  tenenti  de 
Porlbainet,  ice.  septem  nalivos  nostroB ;  viz. 
Howel  ap  Darydd  Dew,  Malln  ap  Uavydd 
Ui^w,   Jevan   ap    Etau    Ddu,    Llewelyn    ajt 


t  ap  Sit 


Dew,  Howet  ap  Slatio  ap  Davydd  Dew,  et 

Sec.  says  (p.  lao)  '*  For  what  light  we  have 
from  these  records,  wo  ought  to  be  much 
obliged  to  the  generous  care  aud  industry  of 
that  very   worthy   and  deserveitly   celebrated 

Cersiin,  sir  William  Grulfydd  ot  Peoryhon, 
night  and  charoherlain  of  Norlh  Wales  ; 
who  preserved  these  records  from  perishing, 
by  collecting  so  many  ol  them  ns  he  could  re- 
trieve from  moth  and  corruplton  ;  and  then 
causing  those  scatlereil  rolls  and  fragmenla 
whichlie  oauld  meet  with,  to  be  tiiirty  wriilen 
by  one  JenkyoGwyn,  iu  two  large  booki  of 

EiaTchmrut,  lor  the  informalioo  of  posterity. 
>ne  whereof  is  that  bunk,  bupl  always  m  the 
Chaniberliiin'*  office,  cbW  by  ihe  name  uf  the 
Extent  of  North  Wales  ;  and  the  oilier  ha 
transinitled  into  the  Auilitor's  uffioo  at  Louden, 
where  it  is  preserved  to  Ihu  day." 


.  "^trc 


<«.<.      >«*•«> 


IV  S'esTo  Case, 


[SO 


t 

IW 


•  A-i** 


nanaaiiaed,  enfrancbisetl,  wt  free,   or  du« 

.nia^^vJ ;  lod  tbat  the  same  James  Somroer" 

wu.  90  bciDZ  the  negro  slmve  and  property  of 

«iiv^  7«f».'a     a.m  tUc  »aid  Charles  Steuart,  and  the  laid 


^       "^u    .  '«iK-  -'an  ?vr-im  ^•{UkIia 
.   ,  ..,««..•»•      »*»*.•« »iiui»    MC    'tiiii/oas 

.  .^   -.^.  .**  X       ^W5*v   ^  iiiutu  t»fuif\d  ap 

,•* i,.;v>  .•-    i>9*:»*i4us  *a».afwr]ie- 

^ •.v.tt    V, '.Mi  x.iJ.i«i..' Ga»i*»C.  iO  die 

N  .  :v«:  V  ye  '  i>faii;.ef.  5cc/  it  is  slated 
*K..  ■  .»  :ic  ♦■.•N«''x /ans  cr'EciiUDd.if  some 
«M  .t»  i  -.  9..-.U  .*•-  '.s^i.  xu  u^uji  coDilitioD  is,  to 
.4. v.-  A.1  'i-  j.'K':tJi...vs  up<ia  them,  male  and 
MSti:.'.c.  '  r.  >  ici  vfT.i^T  denominates  '-an 
c-.t-cvi  ..•  i- a   j^^erip^  projl' of  persons  be- 

l>e  .»':o!e  ot"  Mr.  Burcott's sixteenth  chap- 
1^  ^r.ca';>c-  Oh  the  Criminal  Law  of  Scol- 
1.1  .K-'  :3»  1  C'.ni'.inentary,  cx'eniliiin'  throu«;b 
sc««r.:t%  -i'n«*  iiopa^.*,  upon  the  ^  Act'  (already 
boIavO)  *  tvr  preveLi:in^  wron£;ous  imprison- 

*  meui,  aud  a^aiust  undue  delays  in  trials' 
(chap.  c> «  f  tite  eiirhlh  and  ninth  sessions  of  king; 
^\  iiliaar:!  |-:irliaixic*ut  1701).  He  says  of  it 
tb.it  it  coii>|>i!$t:s(in  some  respects  with  (greater 
•tvnritv  to  the  Uberty  of  the  subjects)  the  pro- 
vi>ion<*  of  all  the  several  statutes  which  the 
lekfislaiure  of  Eusjland  has  passed  for  the  per  • 
•i>nal  ht^rty  of  the  subject,  and  that  therefore 
it  justly  may  beteimed  the  Ma^na  Charta  of 
K'Oilaiid.  Ai  d  in  the  case  of  Andrew  against 
AJurdiH-h,  the  lord  justice  clerk,  Hope  (now, 
181'.Mord  president)  said  •*  Our  Act  1701  is 
grvatly  more  favourable  to  the  liberty  of  the 
unhjec't  in  every  respect  than  the  IJalieas  Cor- 
|>us  .\clof  Euj^land." 

Of  a  law  thus  celebrateil,  the  provisions  will 
ataturaily  excite  in  the  mind  of  every  lover  of 
Lis  country  a  warmth  of  interested  curiosity. 

The  enactments  of  this  statute  are  numcrou*, 
•xteuNive,  and  minute.  The  statute  itself  is 
Ihen'fore  very  lonir.  I  recollect  not  any  ac- 
count of  it  in'Mr.  Lain&f's  History.  Mr.  Bur- 
uelt  exhibits  a  brit- f  history  of  its  origfin,  and 
analysis  of  its  provisions ;  which  I  will  sub- 
slit  nte  for  the  copiousness  and  particularity  of 
the  act  itself. 

**  The  ConTenlion  of  Estates  of  Scotland,  in 
the  >(*»<'  1()89,  declared,  anion^^  other  thint^s, 
that,*  *  exact iif^  exorbitant  bail,  and  imprisoning 

*  |M'rson>'  wiili'iut  ex])ressin^  the  reason  liieie* 
'  of,  uii<'  !elu3  in^  to  put  them  to  trial,  an*  cnn- 
■  trnry  to  ihe-kuown  laws,  statuten,  anti  freedom 
'  of  the  realm,'  and  the  redress  nf  this  ihry 
claimed  as  their  undoubted  rit^ht  aud  privilege; 
And  further,  *  that  no  declarations,  doiii^fs  ur 
'  proceed infifN,  to  the  prejudice  of  the  people, 
'  m  any  of  the  said  premises,  ought  m  any 

*  ways  to  be  decisive  licreafter  in  consequence 
<  or  example.'  These  grievances,  in  a  sub- 
■equentietter  to  the  king  (1689»  chap.  t7.)  the 


estates  prayed  his  majesty  to  redress  by  whole* 
some  laws  in  his  first  parliament. 

*-  f  n  the  first  parliament,  accordingly,  most 
of  these  grievances  were  re«lressed,  and  parti- 
cularly, the  exacting  of  exorbitant  bail,  impri' 
i  soniog  persons  without  expressing  the  cause, 
:  and  delaying  to  put  them  to  triai,'by  the  well 
known  sutute  1701,  cap.  6,  which  the  people 
[  in  this  part  of  the  united  kingdom  must  view  as 
I  one  of  the  greatest  benefits  conferre<l  on  them 
'  by  the  Revolution,  whether  it  be  held  as  a  law 
declaratory  only  of  their  fornMr  rights;  or  as 
introducing  provisions  in  f iivour  of  the  subject, 
which  had  not  previously  been  either  so  well 
define«l,  or  observed  in  practice. 

'*  The  objects  indeed  of  this  statute  are  of 
the  first  importance  to  the  security  and  happi- 
ness of  every  individual  of  the  community  ; 
inasmuch  as  the  injury  of  unjust  and  illegal 
confinement,  h  iiile  it  is' often  the  most  difficult 
to  guard  against,  is  in  its  nature  the  most  op- 
pressive and  the  most  like!}'  to  be  resorted  to 
by  an  arbitrary  government.  Some  have 
thought  that  unjust  attacks,  even  upon  life  or 
property,  at  the  arbitrary  will  of  the  magis- 
trate, are  less  dangerous  to  the  commonwcidthB 
than  such  as  are  made  upon  the  personal  lilierly 
of  the  subject.  Without  accusation  or  trial  to 
bereave  a  man  of  life,  or  by  violence  to  con* 
fiscate  his  estate,  would  be  so  gross  and  noto- 
rious an  act  of  despotism,  as  must  at  once  con- 
vey the  alarm  of  tyranny  throughout  the 
whole  kingdom.  But  coutinement  of  the  per- 
son by  secretly  hurrying  to  jail,  where  the 
sufferings  of  the  party  are  unknown  tir  for- 
gotten, is  a  less  public,  a  less  striking,  and 
therefore  a  more  dangerous  engine  of  arbi- 
trary government.  (Blackst.  Comm.  book  1, 
chsp.  1.) 

*^  The  statute  proceeds  accordingly  on  the 
preamble  of  the  previous  declaration  by  the 
Claim  of  Right,  and  the  interest  which  all  his 
majesty's  suhjf  cts  have,  *  that  ilic  liljcrly  of 
'  their  persons  be  duly  sernred  ;'  and  contains 
in  its  enactnititt  almost  every  proviMon,  i«hicb 
has  at  any  period,  or  almost  in  any  s\steni  of 
law,  been  deemed  most  conducMve  to  the  per- 
sonal liberty  of  the  subject ;  m  toe  hauie  time, 
it  inlro«luccs  regulations  mid  » xeeptions,  which, 
while  they  are  the  best  calcubted  to  ensure 
that  object,  render  it  nowise  inconsistent  with 
the  safety  of  the  public. 

'*  It  sets  out  by  providing  arainst  the  first 
steps  towards  an  illegal  confinement,  the  ap- 
prehending of  the  |>ersons  without  a  regular 
information  and  a  special  warrant,  and  guards 
against  any  continemcnt,  tbiU  is  not  necessary 
to  ensure  the  attendance  of  the  party  on  the 
day  of  trial.  In  the  next  place  it  declares 
what  crimes  shall  be  bailable,  and  directs  the 
sneediest  mode  of  finding  bail ;  and  to  preYent 
toe  possibility  of  any  vsgue  discretion  being 


81] 


The  Negro  Case. 


A.  D.  1771. 


[S9 


Chakf  Steuari  baTing^  occasion  to  traosact 

enuin  iffairs  and  business  of  bim  the  said 

Chiriei  Sleoart  in  this  kingdom,  be  tbe  said 

Chsrkf  Sieuart,  before  the  coming  of  the  said 

writ  10  me,  to  wit,  on  tbe  first  day  of  October 

bikjearof  our  Lord  1769,  departed  from 

Awrica  aforesaid,  on  a  voyage  for  this  king- 

km,  for  the  purpose  of  transacting  bis  afore- 

■d  affairs  and  business,  and  with  an  intention 

aretarn  to  America,  as  soon  as  the  said  af- 

6in  and  business  of  bim    the  said  Cbarlea 

Snart  in  this  kingdom  should  be  transacted ; 


in  6zing  its  amount,  which  might 
Mat  the  whole  provisions  of  the  law,  it  as- 
eotaios  the  mojclmum  of  bail  in  each  case,  ac- 
cording to  tbe  rank  of  tbe  person  in  custody 
|br trial;  and  imposes  biffh  penalties  on  the 
ji^  who  shall  delay  modif^mg  the  amount, 
m  rerose  to  accept  of  sufficient  bail,  when  of- 
frrcd.  The  act,  however,  would  have  been 
pally  defective  bad  it  stopped  here,  for  of 
vbtt  use  would  have  been  the  precautions  al- 
Ridy  mentioned,  if  in  cases  either  where  bail 
eoulii  not  be  found  by  the  party  entitled  to  it, 
a*  wben  it  could  not  be  received,  owing  to  the 
Uare  of  the  crime,  the  person  imprisoned 
■i^  be  wrongously  detained,  in  consequence 
rf  a  delay  in  puttinflf  him  to  trial  by  a  certain 
dij;  tbe  act  therefore  directs,  that  in  such 
e»N,  the  party  shall  have  rij^lit  to  insist,  that 
vilhiD  a  certain  lime  a  diet  shall  be  fixed  for 
\k  Irial,  and  tbe  trial  carried  through  and  con- 
dsdcd  by  a  determinate  day,  other%vise  he  is  to 
WkI  at  liberty,  under  the  |>pnaity  of  wrongous 
iiayrisooment,  anil  is  not  to  be  again  incarcerate, 
aalm  nn  new  criminal  letters  raised  against 
W, before  the  lords  of  Justiciary  ;  in  which 
Iw  dftf,  bis  trial  must  be  concluded  in  ano- 
iIkt  dij,  iiarticularly  fixcil  by  the  enactment, 
<(fr«rvite  the  prisoner  is  to  be  set  at  liberty, 
lodto  be  tor  ever  free  from  all  question  or  pro- 
CCK  for  tliat  crime.  Certain  exceptions  are 
iben  ioiroduced  with  resfiect  to  treason,  and 
Mtae  Cither  oflTences  more  immediately  affecting 
t^  public  security  ;  and  a  provision  annexed, 
tlut  uii  person  shall  be  *■  transporte<l  furth  of 
'tlii<i  kingdom,' except  with  his  own  consent, 
fiven  before  a  judge  or  by  legal  sentence, 
Boder  the  certification,  that  any  judge  or  ma- 
{a^raie,  who  shall  give  order  for  such  trans • 
portaiion,  or  any  one,  who  shall  so  transport 
taotiier,  shall  nut  imly  Im*  liable  in  the  pecu- 
aiiry  paius  of  'wrongous  impriKonment,  as  de- 
dared  by  the  net,  but  sbaii  lose  their  oflices, 
!&•!  be  I'f^'hired  incanablu  of  all  public  trust. 
Tht-«e  arc  the  general  outlines  of  this  important 
uaiiite  ;  the  value  of  which  cannot  be  too 
fcu^nly  prized  by  the  people  of  Scotland,  nor 
^  rtUervance  too  strictly  maintained  by  the 
judjes  and  magistrates.'* 

B)  the  act  of  the  30ih  of  George  S,  per- 
KU  accused  of  sedition  are  excepted  from 
aruio  pn)vi*fion8  contained  in  the  act  against 
*^iD::*lUs  imiiiisoniiient.  As  to  this,  see  the 
Cm  of  the  liiuters  against  tbe  Militia  Law, 


and  afterwards,  to  wit,  on  the  lOtb  day  of  No- 
vember in  the  same  year,  arrived  in  this  king- 
dom, to  wit,  in  London,  that  is  to  say,  in  the 
parish  of  St.  Mary-1e-Bow    in  the  ward  of 
Cheap;   and  that  the   said  Charles  Steuart 
brought  the  said  James  Sommersett,  his  negro 
slave  and  property,  aK>ng  with  him  in  tbe  said 
voyage,  from  America  aforesaid  to  this  king- 
dom, as  the  negro  slave  and  property  of  bim 
tbe  said  Charles  Steuart,  to  attend  and  serve 
him,  during  bis  stay  and  abiding  in  this  king- 
dom, on  tbe  occasion  aforesaid,  and  with  an 
intent  to  tarry  the  said  James  Sommersett 
back  again  into  America,  with  him  the  said 
Charles  Steuart,  wben  the  said  affairs  and  husi* 
ness  of  the  said  Char1e<)'  Steuart  should  be 
transacted ;  which  said  affairs  and  business  of 
the  said  Charles  Steuart  are  not  yet  transacted^ 
and  the  intention  of  the  said  Charles  Steuart 
to  return  to  America  as  aforesaid  hitherto  hath, 
continued,  and  still  continues.    And  I  do  fur- 
ther certify  to  our  said  lord  the  king,  that  tha 
said  James  Sommersett  did  accordingly  attend 
and  serve  the  said  Charles  Steuart  in  this  king* 
dom,  from  the  time  of  his  said  arrival,  until  tha 
said  James  Sommersett*8  departing  and  absent- 
ing himself  from  the  service  of  the  said  Cbarlea 
Steuart  herein  after- mentioned,  to  wit,  at  Lon- 
don aforesaid  in  the  parish  and  ward  aforesaid  ; 
and  that  before  the  coming  of  this  writ  to  me, 
to  wit,  on  the  first  day  of  October  in  the  year 
of  our  Lord  1771,  at  London  aforesaid,  to  wit, 
in  the  parish  and  ward  aforesaid,  the  said  Jamea 
Sommersett,  without  the  consent,  and  a^inst 
the  will  of  the  said  Charles  Steuart,  and  withoul 
any  laivful  authority  whatsoever,  departed  and 
absented  himself  from  the  service  of  the  said 
Charles  Steuart,  and  absolutely  refnsed  to  re- 
turn into  the  service  of  the  said  Charles  Steuart, 
and  serve  the  said  Charles  Steuart,  during  hia 
stay  and  abiding  in  this  kingdom,  on  the  occa* 
sion  aforesaid :    whereupon  the  said  Charles 
Steuart  afterwards  and  before  the  coming  of 
i  this  writ  to  me,  to  wit  on  the  261  h  day  of  No- 
vember in  the  year  of  our  l^ird  1771,  on  board 
I  the  said  vessel  called  the  Ann  and  Mary,  then 
and  still  lying  in  the  river  Thames,  to  wit  at 
London  aforesaid,  in  the  parish  and  ward  afore- 
said, and  then  and  still  bound  upon  a  voyage 
for    Jamaica  aforesaid,  did  deliver  the  said 
James  Sommersett  unto  me,  who  then  was, 
and  yet  am  master  and  commander  of  the  said 
vessel,  to  be  by  me  safely  and  securely  kept 
and  carried  and  conveyed,  in  the  said  vessel,  m 
the  said  voyage  to  Jamaica  aforesaid,  to  be 
there  sold  as  the  slave  and  property  of  the  said 
Charles  Steuart ;    and   that  I  did  thereupon 
then  and  there,  to  wit  at  liondon  aforesaid  iu 
the  parish  and  ward  aforesaid,  rccciTeand  take, 
and  have  ever  since  kept  and  detaioe<l  the  said 
James  Sommersett  in  my  care  and  custod}',  to 
be  carried  by  me  in  the  said  voyage  to  Jamaica 
aforesaid,  tor  the  purposi?  aforesaid.     And  this 
is  the  cause  of  my  taking  and  detaining  the 
said  James  Sommersett,   whose  body  i  hare 
now  ready  as  by  the  said  writ  I  atn  com- 
manded."   . 


fS] 


12  GEORGE  IIL 


The  Negro  Cue. 


P* 


After  the  readinn^  of  the  return,  Mr.  Ser- 
jeant Dary,  one  of  the  counsel  for  Som* 
mersett  the  negro,  desired  time  to  prepare 
his  argunnent  against  the  return ;  and  on 
account  of  the  importance  of  the  case,  the 
Court  postponed  hearing  the  objections  against 
the  return,  till  the  7th  of  February,  and  the 
recognisance  for  the  negro's  appearance  was 
ouutinued  accordingly.  On  that  day  Mr.  Seij. 
I>avy  and  Mr.  Serj.  Glynn  argued  against  the 
return,  and  the  farther  argument  was  post- 
poned till  Easter  term,  when  Mr.  Mansfield, 
Mr.  Alleyne,  and  Mr.  HargraTC,  were  also 
beard  on  the  same  side.  Afterwards  Mr. 
Wallace  and  Mr.  Dunning  argued  in  support 
of  the  return,  and  Mr.  Serjeant  Dary  was 
beard  in  reply  to  tbero.  The  determination  of 
the  Court  was  suspended  till  the  following  Tri- 
nity term ;  and  then  the  Court  was  nnanimous- 
Iv  of  opinion  against  the  return,  and  ordered 
that  Sommersett  should  be  discharged. 

Argument  of  Ma.  Harobave  for  the  Negro.* 

Though  the  learning  and  abilities  of  the 
gentlemen,  with  whom  I  am  joined  on  this 
•ccasiouy  bsTe  greatly  anticipated  the  argu- 
■lente  prepared  liy  me ;  vet  I  trust,  that  the 
importance  of  the  case  will  excuse  mci  for  dis- 
closing my  ideas  of  it,  according  to  the  phm 
and  order,  which  I  origindly  found  it  con?e- 
nient  to  adopt 

The  case  before  the  Court,  when 
^a!tc£!^^  expressed  in  few  words,  is  this. 
Mr.  Stenart  purchases  a  negro 
alare  in  Virginia,  where  by  the  lav  of  tlie  place 
negroes  are  slaves,  and  saleable  as  other  pro- 
perty. He  comes  into  England,  and  bnngs 
the  negro  with  him.  Here  the  negro  leaves 
Mr.  fittenart's  senriee  without  his  consent; 
and  aiUrwards  persons  employed  by  him  seize 
the  negro,  and  forcibly  carry  him  on  board  a 
•hip  bound  to  Jamaica,  tor  the  avowed. pnr- 
pcse  of  transporting  him  to  that  island,  and 
tliere  selling  nim  as  a  slave.  On  an  applica- 
tion by  the  negro's  friends,  a  writ  of  Habeas 
Corpus  is  granted ;  and  in  obedience  to  the 
writ  he  is  i^odnced  before  this  court,  and  here 
anea  for  tiM  restitution  of  his  liberty. 

The  questions,  arising  on  this 

«?&?cm£  ^""^  ^^  '^  merely  conceni  the 
unfortunate  person,  who  is  the 
anlject  of  it,  and  such  as  are  or  may  be  under 
like  unhappy  circumstances.  They  are  highly 
interesting  to  the  whole  community,  and  cannot 
be  decided,  withoat  having  the  naost  general 

*  The  following  Argument,  on  the  behalf 
of  the  negro,  is  not  to  m  considered  as  a  speech 
actually  delivered :  for  though  the  author  of 
h,  who  was  one  of  the  counsel  for  the  negro, 
did  deliver  one  part  of  his  Argument  in  couct 
without  tlie  assistance  of  notes ;  yet  his  Aiga- 
meat,  as  here  publishpd,  is  entirely  a  written 
^omplfiiition.  This  drcumstanee  is  mentioned, 
Icat  the  author  shouhl  be  thought  to  daim  a 
Merit  lo  which  be  has  not  tbelaaat  title    Her- 


and  important  consequences;  vritbont  extensive 
influence  on  private  happiness  and  public  to- 
curity.  The  right  claimed  by  Mr.  Sleuart  to 
the  detention  of  the  negro,  is  founded  on  the 
condition  of  slavery,  in  which  he  was  before 
his  master  brought  him  into  England  ;  and  if 
that  right  is  here  recognised,  domestic  slaverv* 
with  its  horrid  train  of  evils,  may  be  lawfully 
imported  into  this  country,  at  the  discretion  oif 
every  individual  foreign  and  native.  It  will 
come  not  only  from  our  own  colonies,  and 
those  of  other  European  nations ;  but  from 
Poland,  Russia,  Spain,  and  Turkey,  from  the 
coast  of  Barbery,  from  the  western  and  eastern 
coasts  of  Africa,  from  every  part  of  the  world, 
where  it  still  continues  to  torment  and  dishonour 
the  human  species.  It  will  be  transmitted  to 
us  in  all  its  various  forms,  in  all  the  fi^radationa 
of  inventive  cruelty  :  and  by  an  universal  re- 
ception of  slavery,  this  country,  softmous  for 
public  liberty,  will  become  the  chief  seat  of  pri* 
vate  tyranny. 

In  speaking  on  this  case,  I  shall  ^^^^^  ^^i^^ 
arrange  my  observations  under  two  •'^  ^  ^^ 
heads.  First,  I  shall  consider  the  *^*^ 
right,  which  Mr.  Stenart  daims  in  the  persoB 
of  the  negro.  Secondly,  I  shall  examine  Mr* 
Steuart's  authority  to  enforce  that  right,  if  he 
has  any,  by  imprisonment  of  the  negro  and 
transporting  him  out  of  tiiis  kingdom.  The 
Court's  opinion  in  fovonr  of  the  negro,  on  either 
of  these  points,  will  entitle  him  to  a  dischaigt 
from  the  custody  of  Mr.  Stenart. 

(Irt.)  The  first  point,  concerning  ^^  ^^^^  ^ 
Mr.  Stenart's  right  in  the  person  of  J!^^'^' 
the  ne^,  is  the  great  one,  and  SieacirA 
that  which,  depending  on  a  variety  f"'^ 
of  considerations,  requires  the  peculiar  attention 
of  the  Court.  Whatever  Mr.  Steuart's  right 
may  be,  it  s|nings  out  of  the  condition  of 
slavery,  in  vihich  the  negro  was  before  his  ar- 
rival in  England,  and  wholly  depends  on  the 
continuance  of  that  relation;  the  power  of  im- 
prisoning at  pleasure  here,  and  of  transporting 
mto  a  foreign  country  for  sale  as  a  slave,  cer* 
Uinly  nnt  being  exerdseaUe  over  ,^  ^^ 
an  ordinary  servant.  Accordingly  <buiid«tioD  of 
the  return  foirly  admits  slavery  ^  ^^^^  «• 
to  be  the  sole  loundation  of  Mr. 
Stenart's  daim ;  and  this  brings  the  question^ 
as  to  the  present  lawfulness  of  slavery  in  Eng- 
land,  directly  before  the  Court.  It  would  have 
been  more  artful  to  have  asserted  Mr.  Steuart'g 
daim  m  terms  less  explicit,  and  to  have  stated 
the  stovery  of  the  negro  before  his  coming  into 
England,  roereljr  as  aground  for  claiming  him 
beie,  in  therdation  of  a  servant  bound  tofollow 
wherever  his  maater  should  require  his  service. 
The  case  represented  in  this  disguised  way, 
though  in  substance  the  same,  would  have  been 
less  darmiuff  in  iU  first  appearance,  and 
night  have  afforded  a  better  chance  of  evading 
the  true  question  between  the  partiea.  But 
this  artifice,  howeverconvenient  Mr.  Steuart'i 
conned  may  find  it  in  amment,  has  not  been 
adopted  in  the  return;  the  caae  being  there 
■tatid  M  it  really  is,  wiUiinit  iny  auppriwion 


The  Negro  Cau. 

.    .  i  «aitoe»1  ttic  ([rest  extent  of  Mr. 

■  cfaim,   or  any  calouhnK  ot'IanfCiiaei^ 
s  reiiures  of  slsT«ry  iu  the 
f  ttti  nrdiunry  aemnl. 
^^_  Bejiire  I    tniep    upon    Ihe  en- 

iHMi  m  lairy  into  llic  preienl  iBwfulnfss  of 
J^  alaTcry  in  Enclnnil,  I  lliink  Jlnf- 

t^esMry  la  make  soDie  general  ob- 
MTUiavi  «ii  (Ufery.  1  mein  liowefer  al- 
nnu  kfipp  in  licw  ilavery,  Dot  as  it  ia  in  tlie 
friibanaC*  luhjeotloan  M«otule  prince,  but 
mIj  m  U  ia  in  llie  relation  of  Ihe  lowed  speciei 
rfMrraM  <o  lit*  maaler,  in  any  aiate,  nhetber 
firtvr  Mberwiae  in  in  rorm  of  governmenl. 
QbI  coMfamoa  lias  ensunl  from  diaennrBing' 
«A«ery,  without  due  altenlion  (o  tlie  ili^ 
fcanee  Mween  the  Jesnoiiitm  of  a  sovereign 
a*«ra  vliolt  people  and  tlial  of  oue  subject 
nm  ■■■Iber.  The  former  la  foreipi  li>  the 
fnMVl  ea>« ;  and  therefore  when  1  am  de- 
•oiliiayrfBvery.or  obsFrfing  upon  il,  I  desire 
••  be  nadcrtfood  aa  ciiiifintng  mvEdf  tu  the 
lalln-t  Ikoogh  from  the  conneclion  belwecii 
keiiraaubrMU,  anmeof  myobservaliona  may 
farhapa  be  applicable  to  butli. 
TT  ,    ^  Slavery    hai    been   attended    in 

Maatiu.  dilfereiil  cnunlries  witli  circnm- 
*'■  Mancea  so   larious,  aa  to  render  it 

Mcnit  t9  EtTC  u  ^^neral  description  of  il. 
TWRmbkii  lawyer  (a)  calls  slavery,  a  couati- 
tmtm  of  the  taw  ul'  nalinns,  by  nlilch  one  is 
■air  aiabfMl  to  anollitr  contrary  to  nature. 
Ibo  tlw^  as  has  heco  often  observed  by  the 
maraiuiatiMi,  is  mistabing  ihe  law,  by  which 
ibtfj  ta  conitituied,  for  alavery  ilaelf,  the 
WM  fat  tha  effect ;  Ihough  il  mast  he  con- 
fBal,Uiat  the  latter  part  of  the  definition  nb- 
■Hrfj  hiol*  at  Ihe  nature  of  alavery.  OrDtlua 
W  fcalrihiaalavery  to  be,  an  obligatinn  to  lerre 
•BsAv  for  life,  in  conaideraiion  of  being  aup- 
fW  iMi  Ihe  bars  neeeisariet  of  lile.  Di'. 
KaikrfinI  (<-)  r 


«Am  dcininit  detuotisni  to  be  an  alienable 
ncte  ha  direct  alt  the  actions  of  another,  frnin 
rtaac(  cMMludea,  ihal  perfect  slavery  is  an 
rM<pli>w  10  be  so  directed.  Thia  last  detini- 
tMa  any  aMte  in  convey  a  general  idea  of 
<lit«fj}  but  like  that  by  Grolius,  and  many 
■tbar  dafiaUoni  which  I  have  seen,  if  uoder- 
•nud  Mricdj,  will  scarce  suit  any  species  of 
slavery,  W  which  it  is  applied.  Besides,  il 
avM  ottcafalavcry'*  severest  and  most  usual 
tadilients  t  ibcqnaliu,  by  which  it  involves  all 
Ika  ta«e  m  the  iDisfurlune  of  (he  pareut.  In 
Iralk,  M  I  have  already  hinted,  the  variety  of 
fciiwa.  in  wliieta  ilavery  ap|>ean,  tnakei  it  al- 
Mat  iiBpoaalfale  to  convey  a  Jiisl  notion  of  it  In 
■lie  KBT  of  drltnilioa.  There  are  however 
-  i|>'rii*a,   which    have    accomjiauied 


-  111).  1,  111.  S,  I.  ♦,  a.  1,  '  Serv'riua 
I  iiirujunagvntiuni,  ^nft  quia  duini- 
u  evnira  ualoram  auhjicitur.* 

MJ  Jar.  B»ll.  Kb.  'J.  o.  i.  ..  j(T. 

^3  iMt-Nal.  L.  b.  l,e.tn,f.  474. 


A.  D.  1771. 
ilavery  in  mosl  placet ;  and  by  altendiD|r  ia 
these,  we  may  always  distinguish  i I,  front  lh» 
mild  speciea  of  domeatic  service  so  common 
and  well  known  in  our  own  country.  I  shall 
shortly  enumeralethe  most  remarkable  of  ihosa 
properlies;  |iHrticularly,  such  as  cliaracterize 
ihe  specie  of  slavery  adopted  in  our  American 
colooies,  being  that  now  under  the  considera- 
tion of  this  conrt.  This  I  do,  in  order  thai  a 
just  conception  may  be  formed,  of  the  propriely 
with  which  I  shall  impute  to  slavery  the  most 
pernicious  effecls.  Without  such  a  previous 
explsnation,  the  most  solid  objectiona  to  (be 
permission  of  slavery  will  have  ibe  appearance 
of  nnmeening,  though  s|ie('ious,  declainalion. 

Slavery  always  imports  an  obli-  tmixnia 
gation  of  perpetual  service;  an  unKjirm- 
ohligation,  which  only  the  conaent  u^!)^.'' 
of  the  mailer  can  dissolve.— It  ge- 
nerally  gives  to  the  mailer,  an  arbitrary  power 
of  ad miaielering  every  anrt  of  correction,  liow< 
ever  inhuman,  not  immediately  afltcliug  tbe 
life  or  limb  of  Ihe  slave :  sDmelimes  even  these 
are  leQ  exposed  to  the  arbitrary  will  of  tha 
master ;  or  they  are  protected  liy  fines,  and 
other  slight  poniabmeuta,  too  iocooaiderable  to 
reatraio  the  master's  inhnmanity. — It  creates 
an  incapacity  of  aeqniriag,  except  lor  the 
roaster's  benefit.— Il  allows  the  mailer  to  alie- 
nate Ihe  pei«on  of  the  slave,  in  the  aaiue  man* 
ntr  as  other  propeHy.— Lastly,  it  descenda 
from  parent  to  child,  with  Jail  its  setere  ap- 
penilages.^ — On  the  most  accurate  comparison, 
there  will  be  found  nothing  exaggerated  in  this 
repreaentBtion  of  slavery.  The  description 
agrees  with  almost  every  kind  of  slavt'ry,  for- 
merly or  now  existing;  except  only  that  rem- 
nant of  the  ancient  slavery,  which  sllll  lingers 
in  some  parts  of  Europe,  but  qualified  and 
moderate/ in  favour  of  the  slave  by  the  hu< 
raane  grovisinn  of  modern  times. 

From  this  view  of  the  condition 
of  slavery,  il  will  bo  easy  to  deriie  "Ji,*^^." 
ils  destructive  consequences. — It 
corrupts  the  morals  ol  the  master,  by  freeing 
him  from  those  restraints  with  respect  to  his 
slave,  so  necessary  for  controul  of  the  human 
passions,  so  beneficial  in  promoting  the  prac- 
tice and  confirming  Ihe  habit  of  virtue. — It  is 
dangerous  to  the  master ;  because  his  oppres- 
sion excites  implacsble  resentment  and  hatred 
in  Ihe  slave,  and  tha  extreme  minery  of  his 
condition  continually  {prompts  him  to  risk  tha 
gratification  of  them,  and  his  situation  daily 
fumishea  the  opporluniiy — To  the  slave  it 
communiuates  all  the  afiliclionw  of  life,  wilhout 
leaving  for  him  scarce  any  of  its  nieasurea ; 
and  it  depressea  the  excellence  of  his  nature, 
by  denying  the  ordinarv  means  and  motives  of 
improvement.  Il  is  dangerous  to  the  state, 
by  its  corruption  of  those  citizens  on  whom  ila 
prDsperily  depends  ;  and  by  adnnlling  within 
II  a  multitude  of  peraotis,  wlm  being  excluded 
from  tbe  common  beneliiB  of  the  conatitution, 
are  inlerealed  in  scheming  its  destruction. — 
Hence  it  ia,  that  slavery,  in  whatever  tighl  wa 
view  it,  may  b«  deemed  ■  most  pernicious  ia- 


27] 


12  GEORGE  III. 


The  Negro  Case. 


[28 


stitution:  immediately  so,  to  the  unhappy 
person  who  suffers  under  it ;  finally  so,  to  the 
master  who  triumphs  in  it,  and  to  the  state 
which  allows  it. 

opioiooof  However,  I  m«st  confess,  that 

aome  modem  notwithstanding  the  force  of  the 
£^"0°  the  reasons  against  the  allowance  of 
miuiy  of  »ui-    domestic  slavery,  there  are  civiUans 

TCTf,  but  un-         _  ••/        ■        •      •  ^ 

derntnyrc-  of  great  Credit,  who  insist  upon 
•iricuoiu.         1^  u^-jjiy  .    founding   themselves 

chiefly,  on  the  supposed  increase  of  rohhers 
and  b^gars  in  consequence  of  its  disuse.  This 
opinion  is  favoured  by  Puffendorf  (d)  ai|d 
Ulricus  Huberus  (e).  In  the  dissertation  on 
slavery  prefixed  to  Potgiesserus  on  the  German 
law  *  de  statu  servorum,'  the  opinion  is  exa- 
mined minutely  and  defended.  To  this  opi- 
nion I  oppose  those  ill  consequences,  which  I 
have  already  represented  as  almost  neces- 
sarily flowing  from  the  permission  of  domestic 
slavery  ;  the  numerous  testimonies  Sjpainst  it, 
which  are  to  be  found  in  ancient  ana  modem 
history ;  and  the  example  of  those  European 
nations,  which  have  suppressed  the  use  of  it, 
after  the  experience  of  many  centuries  and  in 
the  more  improved  stale  of  society.  In  jus- 
tice also  to  the  writers  just  mentioned  1  must 
add,  *that  though  they  contend  for  the  advan- 
tages of  domestic  slavery,  they  do  not  seem  to 
apnrove  of  it,  in  the  form  and  extent  in  which 
it  has  generally  been  received,  but  under  limi- 
tations, which  would  certainly  render  it  far 
more  tolerable.  Huberus  in  his  Eunomia 
Romana  {/)  has  a  remarkable  passage,  in 
which,  after  recommending  a  mild  slavery,  he 
cautiously  distinguishes  it  from  that  cruel  spe- 
cies, the  subject  of  commerce  between  Africa 
and  America.  His  words  are,  *  loqoor  de  ser- 
vitute,  qualis  apud  civiliores  populos  in  usu 
fuit;  nee  enim  exempla  barbarorum,  vel  qua 
nunc  ab  Africft  in  Americam  fiunt  hominum 
commercia,  velim  mihi  quisqiiam  objiciat.' 
•ritiaortu.  The  great  ongin  of  slavery  is 
very*  f?**^'^  captivity  in  war,  though  sometimes 
iuiMrn  coui-  it  lias  Commenced  by  contract.  It 
^^'  has  been  a  question  much  agitated, 

whether  either  of  these  foundations  of  slavery 
is  consistent  with  natural  justice.  It  would  be 
engaging  in  too  large  a  field  of  enquiry,  to  at- 
tempt reasoning  on  the  general  lawfulness  of 
slavery.  I  trust  too,  that  the  liberty,  tor  which 
I  am  contending,  doth  not  require  such  a  dis- 
quisition ;  and  am  impatient  to  reach  that  part 
of  my  argument,  in  which  I  hope  to  prove 
slavery  reprobated  by  the  law  of  England  as 
an  inconvenient  thing.  Here  therefore  I  shall 
only  refer  to  some  of  the  most  eminent  writers, 
who  have  examined,  how  far  slavery  founded 
on  captivity  or  contract  is  conformable  to  the 
law  of  nature,  and  shall  just  hint  at  the  reasons, 
which  influence  their  several  opinions.  The 
antient  writers  suppose  the  right  of  killing  an 

(d)  Law  of  Nature  and  NaUoDS,  b.  6,  0. 3, 
1. 10. 
(t)  Prelect.  Jur.  Cir.  p.  16. 
(/)  See  page  48. 


enemy  vanquished  in  a  just  war ;  and  thence 
infer  the  right  of  enslaving  him.  In  this  opi- 
nion, founded,  as  I  presume,  on  the  idea  of  pu- 
nishing the  enemj  for  his  injustice,  they  are 
followed  by  Albericus  Gentilis  (g),  Grotius  (A)^ 
Puffendorf  (i),  Bynkershoek  Q),  and  many 
others.  But  in  <  The  Spirit  of  Laws'  (k)ihe 
right  of  killing  is  denied,  except  in  case  of  ab- 
solute necessity  and  for  self-preservation. 
However,  where  a  country  is  conquered,  the 
author  seems  to  admit  the  conqueror's  right  of 
enslaving  for  a  short  time,  that  is,  till  the  con- 
quest is  effectually  secured.  Dr.  Rutherforth, 
(/)  not  satisfied  with  the  right  of  killing  a  van- 
quished enemy,  infers  the  right  of  enslaving 
him,  from  the  conqueror's  right  to  a  reparatioa 
in  damages  for  the  expences  of  the  war.  I  do 
not  know,  that  this  doctrine  has  been  exa- 
mined ;  but  I  must  observe,  that  it  seems  only 
to  warrant  a  temporary  slavery,  till  reparatioa 
is  obtained  from  the  property  or  personal  la- 
bour of  the  people  conquered.  The  lawfulness 
of  slavery  bV  contract  is  assented  to  by  Grotius 
and  Puffendorf  (in),  who  found  themselves  on 
the  maintenance  of  the  slave,  which  is  the  con- 
sideration moving  from  the  master.  But  a 
very  great  writer  of  our  own  country,  who  is 
now  living,  controverts  (n)  the  sufficiency  of 

(g)  De  Jur.  Gent.  cap.  de  servitute. 

(h)  De  Jur.  Bell.  1.  3,  c.  7,  s.  5. 

(i)  Law  of  Nature  and  Nations,  b.  6,  c.  3, 

8.6. 

(j)  Qufest.  Jur.  Publ.  I.  1,  t.  3. 

(k)  B.  15,  c.  2. 

(I)  See  his  Inst.  Nat.  Law,  vol.  2,  p.  573, 
and  vol.  1,  p.  481. 

(m)  See  Grot.  Jur.  Bell.  1.  3»  c.  5,  s.  1,  2, 
and  Puff.  Law  of  Nature  and  Nations,  b.  6» 
c.  3,  s.  4. 

(n)  See  Blackst.  Comment  1st  ed.  vol.  1, 
p.  412. 

The  authority  of  Mr.  Justice  Blackstone 
having  been  cited  both  for  and  against  the 
rights  of  persons  claiming  to  be  the  owners  of 
slaves  in  Great  Britain,  1  have  thought  it  worth 
while  to  insert  together  all  that  I  find  relating 
to  the  subject  in  his  Commentaries: 

*'  The  spirit  of  liberty  is  so  deeply  implanted 
in  our  constitution,  androoted  even  in  our  very 
soil,  that  a  slave  or  a  negro,  the  moment  he  lands 
in  England,  falls  under  the  protection  of  the 
laws,  and  so  far  becomes  a  freeman ;  though 
the  master's  nght  to  his  service  may  possibly 
still  continue."    Vol.  l,  p.  127. 

**  I  have  formerly  observed  that  pure  and 
proper  slavery  does  not,  nay  cannot,  subsist  in 
England  ;  such  1  mean,  whereby  an  absolute 
and  unlimited  power  is  given  to  the  master  over 
the  life  and  fortune  of  the  slave.  And  indeed 
it  is  repugnant  to  reason,  and  the  principles  of 
natural  law,  that  such  a  state  should  subsist 
any  where.  The  three  origins  of  the  nf(i\i  of 
slavery,  assigned  by  Justinian,  are  all  ot  them 
built  upon  false  foundations.  As,  first,  slavery 
is  held  to  arise  '  jure  gentium,'  from  a  state  of 
captivity  in  war;  whence  sltTei  are  called 


B]  The  Negro  Case. 

inch  i  oontiderakion.    Mr.  Locke  has  framed 
aaoUicr   kind   of  argument    against  slarery 

« nasftpia,  ^aasi  mann  capti.'  The  conqueror, 
njike  civilians,  had  a  right  to  the  life  of  his 
o^;  and,  having  spared  that,  has  a  right 
bdctl  with  him  as  be  pleases.  But  it  is  an 
Btroe  nontion,  when  taken  generally,  that, 
if^  the  law  of  nature  or  nations,  a  man  may 
kill  bis  enemy :  he  has  only  a  right  to  kill  him, 
IB  particular  cases ;  in  cases  of  absolute  ne- 
ccHity,  for  8elf-«1efeDce;  and  it  is  plain  this 
ibnlute  necessity  did  not  subsist,  since  the 
Ticlor  did  not  actually  kill  him,  but  made  him 
prisoner.  War  is  itself  justifiable  only  on  prin- 
ciples of  teif-preser? ation ;  and  therefore  it 
gires  no  other  right  over  prisoners  but  merely 
to  disable  them  from  doing  harm  to  us,  by  con- 
fiaiog  their  persons :  much  less  can  it  give  a 
right  to  kiU|  torture,  abuse,  plunder,  or  even  to 
cnUve,  an  enemy,  when  the  war  is  o?er. 
Saoe  tlierefore  the  righ(  of  making  slaves  by 
ctptivity  depends  on  a  supposed  right  of 
daaghter,  that  foundation  failing,  theconse- 
^ocnee  drawn  from  it  must  fail  likewise.  But, 
SKOiidly,  it  is  said  that  slavery  may  begni  *  jure 
'  dvili ;'  when  one  man  sells  hiipself  to  ano- 
ther. This,  if  only  meant  of  contracts  to  serve 
«r  work  for  another,  is  very  just :  but  when 
applied  to  strict  slavery,  in  the  sense  of  the 
laws  of  old  Rome  or  modem  Barbary,  is  also 
iaipossible.  Every  sale  implies  a  urice,  a 
'  ^oid  pro  quo,'  an  equivalent  given  to  tne  seller 
is  lien  of  what  he  transfers  to  the  buyer :  but 
what  equivalent  can  be  given  for  life,  and 
Acrty,  both  of  which  (in  absolute  slavery)  are 
hcUio  be  in  the  master's  disposal?  His  pro- 
foij  slso,  the  very  price  he  seems  to  receive, 

devvtrcs  ipsojacto  to  bis  master,  the  instant  he 
hKomts  his  slave.  In  this  case  therefore  the 
frojff  gives  nothing,  and  the  seller  receives  no- 
ibro);:  of  what  validity  then  can  a  sale  be, 
vkich  destroys  the  very  principles  upon  which 
111  sales  are  founded?  Lastly,  we  are  told, 
that  besides  these  two  ways  by  which  slaves 
'  6ant,'  or  are  acquired,  they  may  also  lie  here- 
diury  :  *  servi  nascuntur ;'  the  children  of  ac- 
quirecl  slaves  are,  *  jure  nature'  by  a  negative 
kiul  of  birthright,  slaves  also.  But  this,  being 
built  on  the  two  former  rights,  must  fall  together 
with  them.  If  neither  captivity,  nor  the  sale 
of  one's  self,  can  by  the  law  of  nature  and 
reason  reduce  the  parent  to  slavery,  mpch  less 
cau  they  reduce  the  oflfsiprint;. 

*'  Upon  thr«e  principles  the  law  of  England 
abhors,  and  will  not  endure  the  existence  of, 
•Uver}'  within  this  nation  :  so  that  when  an  at- 
trcopt  was  made  to  introduce  it,  by  statute 
1  £dw.  6,  c.  3,  which  ordained,  that  all  idle 
vi^bonds  should  be  made  slaves,  and  fed  upon 
brrad,  water,  or  small  drink,  and  refuse  meat ; 
should  wear  a  ring  of  iron  round  their  necks, 
armig  or  legs;  and  should  be  compelled  by 
beating,  chaining,  or  otherwise,  to  perform  the 
work  assigned  them,  were  it  never  so  vile ;  the 
sphitoftlie  nation  could  not  brook  thiscondi- 
tiOB,  even  in  tho  most  abandoned  rogues;  and 


A.  D.  1771. 


[30 


I 


by  contract  (o) ;  and  the  substance  of  it  is, 
that  a  right  of  preserving  life  is  unalienable  ; 
that  freedom  from  arbitrary  power  is  essential 
"to  the  exercise  of  that  right;  and  therefore, 
that  no  man  can  by  compact  enslave  himself. 
Dr.  Rutherforth  (p)  endeavours  to  answer  Mr. 
Locke's  objection,  oy  insisting  on  various  limi- 
tations to  the  despotism  of  the  master ;  parti* 
cularlyi  that  he  has  no  right  to  dispose  of  the 
slave's  life  at  pleasure.  But  the  misfortune  of 
this  reasoning  is,  that  though  the  contract  can- 
not justly  convey  an  arbitrary  power  over  the 
slave's  life,  yet  it  generally  leaves  him  without 
a  security  against  the  exercise  of  that  or  any 
other  power.  I  shall  say  nothing  of  slavery 
by  birth ;  except  that  the  slavery  of  the  child 
must  be  unlawful,  if  that  of  the  parent  cannot 
be  justified ;  and  that  when  slavery  is  extended 
to  the  issue,  as  it  usually  is,  it  may  be  unlawful 
as  to  them,  even  though  it  is  not  so  as  to  their 
parents.  In  respect  to  -slavery  used  for  tho 
punishment  of  crimes  against  civil  society,  it  is 
founded  on  the  same  necessity,  as  the  right  of 
inflicting  other  punishments ;  never  extends  to 
the  offender's  issue ;  and  seldom  is  permitted 
to  be  domestic,  the  objects  of  it  being  g^ene- 
rally  employed  in  public  works,  as  the  galley- 

therefore  this  statute  was  repealed  in  two  years 
afterwards.  And  now  it  is  laid  down,  that  a 
slave  or  negro,  the  instant  he  lands  in  Engkiod, 
becomes  a  freeman ;  that  is,  the  law  will  pro« 
tect  him  in  the  enjoyment  of  his  person,  and 
his  property.  Yet,  with  regard  to  any  right 
which  the  master  may  have  lawfully  acquired 
to  the  perpetual  service  of  John  or  Thomas, 
this  will  remain  exactly  in  the  same  state  as 
before ;  for  this  is  no  more  than  the  same  stato 
of  subjection  for  life,  which  every  apprentice 
submits  to  for  the  space  of  seven  years,  or 
sometimes  for  a  longer  term.  Hence  too  it 
follows,  that  the  infamous  and  unchristian  prac- 
tice of  withholding  baptism  from  negro  ser- 
vants^  lest  they  should  thereby  gain  their  li- 
berty, is  totally  without  foundation,  as  well  as 
without  excuse.  The  law  of  England  acts 
upon  general  and  extensive  principles :  it  gives 
liberty,  rightly  understood,  that  is,  protection, 
to  a  Jew,  a  Turk,  or  a  Heathen,  as  well  as  to 
those  who  profess  the  true  religion  of  Christ ; 
and  it  will  not  dissolve  a  civil  obligation  be- 
tween master  and  servant,  on  account  of  the 
alteration  of  faith  in  either  of  the  parties: 
but  the  slave  is  entitled  to  the  same  |>rotec- 
tion  in  England  before,  as  aAer,  baptism ; 
and,  wliatevf  r  service  the  heathen  negro  owed 
of  right  to  his  American  master,  by  general 
not  hy  lociil  law,  the  same  (whatever  it  be)  is 
he  bound  to  render  when  bruoght  to  England 
and  made  a  Christian."    Vol.  1,  p.  423. 

In  these  passages,  there  appears  to  be  some- 
what of  very  subtle  distinction,  if  not  rather  of 
contradictiuii. 

(o)  See  Locke  on  Governm.  8vo  edit.  b.  9, 
c.  4,  p.  213. 
(p)  See  his  Inst  Nat.  Law,  vol.  1,  p.  480. 


31] 


12  6E0BGB  III. 


The  Nqpro  Case. 


[32 


sltFes  are  in  France.  Gonaeqaently  ihia  kind 
of  slavery  is  not  Kable  to  the  principal  objeo- 
lions,  which  occur  affainstsbiTefy  in  giDen\{q), 
Upon  the  whole  of  this  controFersy  concerning 

(g)  Some  writers  there  are,  who  deduce  the 
lawfulness  of  domestic  slavery  from  the  prac* 
tiee  of  it  amongst  the  Jews,  ind  from  some 
passages  in  the  Old  Testament  which  are 
thought  to  conntenanoe  it.  See  Vinn.  in  Instit 
Heineoc.  ed.  1. 1,  t  3,  p.  31.  There  are  others 
who  attempt  to  justify  slavery  by  the  New 
Testament,  because  it  contains  no  direct  pre- 
cepts against  it  See  Tkyl.  Elem.  Cir.  L.  434. 
I— I  shul  not  attempt  to  examine  either  of  these 
opinions.— JBargrove. 

In  the  discussions  respecting  the  African 
■lave  trade,  which  were  maintained  during  se- 
reral  years  preceding  the  abolition  of  that 
traffic  (by  stat.  46  Geo.  3,  c.  58,  see  also 
c.  119,  and  51  0.3,  c.  93),  the  authority  of  the 
scriptures  was  appealed  to  by  the  oppugners 
and  defenders  of  the  trade.  On  June  24, 1806, 
the  learned  and  eloquent  Dr.  Horsley,  bishop 
of  St  Asaph,  ddiveced  in  the  House  of  Lords 
upon  the  subject,  every  powerful  speech,  from 
which  I  have  extracted  the  following  passages. 

*'  My  rev.  brother"  (the  bishop  of  London) 
*'  told  your  lordships,  that  perpetual  slavery 
was  not  permitted  by  the  Jewuh  law.  That  a 
native  Jew  could  be  held  in  slavery  for  seven 
years  only,  at  the  longest.  For  he  Lad  a  right 
to  his  freedom  upon  toe  first  return  of  the  sab- 
batical year.  And  that  a  ibrei^  slave  pur- 
chased in  the  market,  or  captivated  in  war, 
eould  be  held  in  slaveiy  for  fifty  years  onljr,  at 
the  longest.  For  the  foreign  slave  had  a  right 
to  bis  freedom  upon  the  first  return  of  the  year 
of  Jubilee.  And  from  these  premises,  my  rev. 
tirother  concluded,  that  perpetual  slavery  was 
unknown  among  the  Jews. 

'*  I  confess,  I  was  carried  away  by  the  fair 
appearance  of  my  rev.  brother's  aiguments, 
tib,  to  my  great  surprise  and  his  utter  confu* 
•M>n,  the  noble  earl  (of  Westmoreland)  rose, 
with  his  Bible  in  his  hand,  and  quoted  chapter 
and  Terse  against  him ! 

**  My  lords,  with  respect  to  the  luUive 
Hebrew  slave,  we  have  this  law,  which  was 
qaoted  by  my  rev.  brother :  *  If  thy  brother, 

*  an  Hebrew  man,  or  an  Hebrew  woman,  be 

<  soM  unto  thee,  and  serve  thee  six  years,  then 

*  in  the  seventh  thou  shalt  let  him  go  free  from 

<  thc».    And  when  thou  sendest  nim  out  free  I 

*  from  thee,  thou  shalt  not  let  him  go  away 

*  empty.    Thou  shalt  furnish   him   liberally 
'  ont  of  thy  flock,  and  out  of  thy  flour,  and  out 

*  of  thy  wine-press.    Of  that  wherewith  the 
«  Lord  thy  God  hath  blessed  thee,  thoa  shalt 

*  give  unto  him.'    Dent  xv.  19 — 14. 

*<  And  with  respect  to  the  foreign  slave,  we 
have  this  law,  quoted  likewise  by  my  rev.  bro- 
ther :   *  Thou  shalt  number  unto  thee  seven 

*  sabbaths  of  years,  forty  and  nine  years.    Then 
■ahaltthon  cause  the  trampet  of  the  jubilee  to 

*  sound  throughout  all  the  land.    And  ye  shall 
'  hallow  the  fiftieth  year,  and  proolaim  liberty 


skverr,  T  think  mvsdf  warranled  in  saying, 
that  the  justice  andlawfuhiess  of  every  species 
of  it,  as  it  is  generally  constituted,  except  the 
limited  one   rounded  on  the  commission  of 

*  throughout  all  the  huid,  to  all  the  inhabitanti 

*  thereof.'    Lev.  xxv.  8—10. 

«  The  manumission  of  the  Hebrew  slave  on 
the  seventh  year,  was  provided  for  by  the  other 
law.  Under  the  expression,  therefore,  of  all  the 
inhabitants,  foreign  slaves  must  be  eompro* 
bended ;  for  none  but  foreign  slaves  could  re* 
main  to  be  manumitted  in  the  fiftieth  year. 

**  My  brds,  there  is  a  circumstance  not 
touched  upon  by  my  rev.  brother ;  but  there  is 
a  passage  in  tlie  law,  which  1  have  always 
considered,  as  a  strong  argument  of  the  lenity, 
with  which  slaves  vrere  treated  among  the 
Jews,  and  of  the  efficacy  of  the  provisions  the 
law  had  made,  to  obviate  the  wrongs  and  iniu* 
ries  to  which  the  condition  is  obnoxious. — ^My 
lords,  I  am  afraid  I  cannot,  by  memory,  refer 
exactlj^  to  the  place.  But  the  noble  earl  there, 
with  his  BiUe,  I  am  sure  will  have  the  good- 
ness to  help  me  out  and  turn  up  the  passage 
for  me.  Mj^  lords,  it  is  a  passage,  in  which 
the  law  provides  for  the  casA.  of  a  slave,  who 
should  be  so  attached  to  his  master,  that  when 
the  term  of  manumission,  fixed  by  the  law 
shouM  arrive,  the  slave  slionid  be  disinclined 
to  take  advantage  of  it,  and  wish  to  remain 
with  his  master.  And  the  law  prescribes  the 
form,  in  such  case  to  be  used,  by  which  the 
master  and  the  slave  should  reciprocally  bind 
themselves,  the  slave  to  remain  with  bis  master 
for  life,  and  the  master  to  maintain  him.  This 
I  have  always  considered  as  a  strong  inUicatioo 
of  the  kindness,  with  which  slaves  were  treated 
among  the  Jews ;  else  whence  should  arise  that 
attachment,  which  this  law  supposes  ?"  [Query 
if  the  bishop  had  in  his  mind  the  begioDing  of 
the  21st  chapter  of  Exodus,  if  so,  the  words 
are  '  he  shall  serve  him  for  ever.'] 

**  But  we  are  all  in  the  wrong,  it  seems — my 
rev.  brother  and  I*-we  reason  from  specious 
premises,  but  to  false  conclusions.  The  noble 
eari  has  produced  to  your  lordships  a  pasMge 
in  the  Leviticai  law,  which  enacts  that  the 
foreign  slave  should  be  the  property  of  bis 
master  for  ever.  Whence  the  noble  earl  con- 
cludes that  the  perpetual  servitude  of  foreign 
slaves  was  actually  sanctioned  by  the  law. 
But,  my  lords,  I  must  tell  the  noble  earl,  and  I 
must  Ml  your  lordsliips,  that  the  noble  earl  hao 
understanding  at  all  of  the  technical  terms  of 
the  Jewish  law.  In  all  the  laws  relating  to  the 
transfer  of  property,  the  words  '  for  ever,* 
signify  only  *  to  the  next  jubilee.'  That  is 
the  longest  *  for  ever'  which  the  Jewish  law 
knows  with  respect  to  property.  And  this  law, 
which  makes  the  foreign  slave  the  property  of 
his  master  for  ever,  makes  him  no  louger  tho 
master's  property  than  to  the  next  jubilee. 
And,  with  the  great  attention  the  noble  earl  hao 
given  to  the  laws  and  hiatory  of  the  Jews,  ho 
moat  know,  that  when  tboy  were  carried  into 
eaptiviiy,  they  were  loldby  thwr  prophets,  that 


The  Negro  Cate. 

citil  Mriely,  ii  ai  Icasl  doublfot ; 
kwfiil,  audi  circumttancei 
tke  it  311,  an  selJoD)  coucur, 
^^ .  B  jiirt  cominencenieDt  of 

it  M|  pooiblr  ;  sod  ihat  Ibe  oppressive 
■•MI  ia  whkb  it  bu  geiwrnti)'  commeDcei), 
•rcTvd  inf«iii  ncc^Naty  lo  enforce  ils  con- 
■■MM,  aod  the  tnischier*  eusuiiit;'  fmiD  llie 
fOTMNlrMt  of  il,  funub  Tery  tirnug  presump- 
■MJHwuM  ill  Justtcc.  tnil  al  all  erenlBeiiuce 
i*  hMDanily  aud  policy  ol'  those  stales,  in 
itith  Iha  MM  of  il  19  III)  longer  tolerated. 
J     „f  I,  But  howecer  reasonable  il  may 

•  ■^i^w  be  lo  Joobt  the  justice  of  domestic 
^5  te  ila*ery,  linwcTer  conrinced  we 
^"■^  may  be  of  ils  ill  effecis,  it  miiEt  be 

tmtmmi,  thai  ibe  practice  is  aulieni,  and  has 
Ida  ahniMl  nniienal.  Its  begiooing  tnay  be 
Imd  6vm  Ili«  retnoleit  |ieriad,  in  which  there 
wc  »my  ItBCM  of  the  history  of  mankind.  It 
— im  n  I  it  in  ihe  harbaroiis  slat«  of  society, 
■ri  wM  ntalsed,  efeu  wlieii  men  were  Tar  ad- 
wriit  in  diilizalitin.  The  nnlinns  of  anti- 
faiy  OMMt  fiiiDiiUB  for  cuunleiiincing  the 
MrBof  doMTilioalavery  were  Ibe  Jews,  the 
OwA*.  till!  Romans,  atxl  the  antieot  Ger- 
MM^r) ;  «E)King«i  all  of  whom  it  preTailed, 
!•■■  Tarioua<le^ee>  nrEeTerity.  By  thean- 
linlG«TniftB*  il  was  conlinued  la  the  connlriM 
tmf  «*cr-nRi  i  and  so  was  trauamitled  to  the 
j_  rariuua     kinird<"ns     aud     italn, 

Mnaa  which  arose  in  Europe  out  nf  the 

■^•^  ruin*  of  Ihe  lliiman  em|iire.     At 

tm^lli  b(M*«*«r  it  fell  into  decline  in  mott 
MS  of  Knrope  ;    and  amongst  Ihe  Tarious 


•Mof  ibe  Crimea  which  drew  down  Ihatjudg- 
MM^Mt  tbeni,  was  their  gross  neglect  and 
mJMm  of  these  merciful  laws  respecting 
^■■MoaiMi.  And  that,  in  contempt  and  de- 
teeraf  ibe  latr,  il  had  been  ihtir  practice  to 
hMlbcir  ForeigD  slaves  >n  lervilude  beycnd 
teyMr  of  jubilee." 

-  ■  ■  -My  lords,  allhottgh  ivehare  noex- 
(fail  prabilHtiun  of  tho  slave  trade  in  the  New 
nMMnral,  we  have  a  moat  express  lejirobati on 
If  iha  Irsd*  tn  alnves,  even  in  that  milder  form, 
«  •hidh  it  auhftisled  in  ancient  times.  Such 
a  nyfrAatiaa  of  it  as  leaves  no  believer  al 
Bnty  tv  a*j.  ihat  llir  shve  trade  is  not  coo- 
iSMBgJ  by  lli«  goapel.  The  rKverend  prelate 
a^  Mc'lia*  citrd  the  (Msaags  [t  Tim.  i, 
f— to)  ■*>  which  St.  1*8111  nienlions  '  men- 
Milan*  Bmnaig  tht  f[realrst  miscreanlt.  *  Men- 
iailiis'  ao  «•  read  in  our  En^li«h  Bilite. 
Rol  lh«  iBMil  ill  the  original  is  Attfu-niieatt. 
ttlmrihcir  '*  Kuraliy  a  '  date  trader,'  and 
ki  Mbrr  tinnl  in  the  Eniflish  lauguatie,  bul 
daw  iraihrr,  fireriaely  readers  it.  Il  waa  I'n- 
^■i4  Mv  irchnlMl  name  for  a  lUv e  trader  in 
•■  ttrie  h-." 

(r)  It  apiwara  by  CKMr  and  Taciloa,  that 
haaacirai  Gmaan*  had  ■  hind  at  slates  be. 
%n  th^y  rmsitralf^  front  tlirir  own  courilry. 
WC«a.ilc  Ball.  Gall.  lib.  6,  cap.  13,  el  Tac. 
it  Mm.  (ierman.  cap.  114,  M  Si.  et  Fulgieaa. 
4«aL  avrvttr.  af.  Cmui.  bb.  1,  C8[>.  I. 

KjroL.  XX. 


A.  D.  1771. 

caaan,  which  contributed  to  this  alteration, 
none  were  probably  more  effectual,  than  ex- 
perience of  the  diaadvanlages  of  slaiery  ;  iha 
difficulty  of  coQijnuing  il ;  and  a  persuasion 
that  llie  cruelly  and  oppression  almost  neces- 
sarily incident  lo  il  were  irreconcilable  with  the 
pure  morality  of  the  Christian  dispensation. 
The  history  of  iu  declioo  in  Europe  has  lieea 
traced  by  many  eminent  writers,  parliculsrly 
BodiD(!),  Albericus  Gentilifi  (f),  Potgiesserus  (u). 
Dr.  Itoberlson  {b'),  and  Mr.  Millar  (.r).  It  i» 
sufiicienl  here  to  say,  thai  Ihis  great  change 
began  in  Spain,  according  lo  Bodin,  about  tha 
end  of  the  eighth  century,  and  vras  becoma 
general  before  Ibe  middle  of  the  fourteenth 
century.  Bartolus,  Ihe  most  famed  commen- 
tator CD  Ihe  civil  taw  in  that  period,  represents 
slavery  as  io  disuse ;  and  the  succeeding  com- 
mentators hold  much  the  sane  language. 
However,  they  must  be  understood  with  many 
resLriciboi  and  exceptions ;  and  uot  to  mean, 
that  slavery  was  completely  and  universally 
nboli.ched  in  Europe.  Some  modern  civilians, 
nol  sufficiently  atiendiog  to  Ihis  circum!lance, 
rather  too  hastily  reprehend  their  predecessors 
for  representing  slavery  as  disused  ju  Europe. 
The  truth  is,  that  the  ancient  species  of  slavery 
bj|  frequent  emancipalions  became  greatly  di- 
minished in  extent ;  the  remnant  of  il  was  con- 
siderably abated  io  severity  ;  the  disuse  of  the 
practice  of  enilatiog  captives  taken  in  the 
wars  between  Christian  powers  assisted  in  pre- 
venting the  future  increase  of  ilom est ic  slavery  ; 
and  in  some  countries  of  Europe,  particularly 
England,  a  still  more  effectual  method,  which 
I  shall  explain  herealler,  was  thought  of  toper- 
feet  llie  BUppressina  of  il.  Such  waa  the  ex- 
piring Blale  of  domestic  slavery  in  „„;,j,  ^,j^ 
Europe  at  Ibe  commencement  of  chiiIciIi.rt 
the  sixteeolh  century,  when  the  '°  '■'"'""■ 
discovery  of  Ameiica  and  of  the  western  and 
eastern  coasls  of  Africa  gave  occasion  lo  tb« 
inlroduclion  of  a  new  species  of  slavery.  It 
took  its  rise  from  the  Portuguese,  who,  in  order 
In  supply  the  Spaniards  wilb  persons  able  lo 
■uslaio  the  fatignc  of  cultivating  their  new 
poEseabiuns  in  America,  particularly  Ihe  islands, 
opened  a  trade  between  Africa  and  America 
for  the  sale  nf  negro  slaves.  This  ditgraceful 
commerce  in  Ihe  human  apecies  is  said  lo  have 
beguu  in  the  yeiir  1506,  when  Ihe  fifoi  impor- 
tation of  negro  slaves  waa  mnde  into  Hitpaiiiola 
from  the  Purtagiiese  settlements  on  Ihe  western 
ooaslB  of  Africa  (y>.  In  1540  llie  emperor 
Chariea  the  tilth  endeavoured  lo  slop  the  pro- 
gress of  the  negro  slavn-y,  by  orders  that  all 


(i)   See  his  book  De  KepublicA,  cap.  5,  da 

(t)  Jur.  Gent,  csp.de  sertilule. 

(u)  Jur.  Germ,  de  statu  acrvorum. 

(t/)  Life  of  ibe  emperor  Charles  Ihe  Hb, 

TOl.  1. 

(x)  Observations  on  ihe  ilistinrliDn  ofrankt 
in  civil  sociely.  See  alio  Tayl.  Ekm.  Civ.  U 
•34  to  4S9. 

(y)  Ander.  Hist.  Comm.  T.  1,  p>  330. 


S5]  12  GEORGE  III. 

ulavef  in  the  American  itlee  should  be  made 
free;  and  ihey  were acconiinfriy  nannmitted 
by  La^fasca  the  (j^OTeroor  of  the  country,  on 
condition  of  contiouinfif  to  labour  for  their  nas- 
tert.  But  this  attempt  prored  umueceesful, 
and  on.  Lagasca'a  return  to  Spain  domestic 
8la?ery  re? i?ed  anti  flourished  aa  before  (2). 
The  eipedient  of  havin§f  slaves  for  labour  in 
America  was  not  longf  peculiar  to  the  Spaniards ; 
being  afterwards  adopted  by  the  other  Euro* 
peansy  as  they  acc^uired  possessions  there.  In 
consequence  of  this  general  practice,  negroes 
are  become  a  very  considerable  article  in  the 
commerce  between  Africa  and  America ;  and 
domestic  slavery  haa  taken  so  deep  a  root  in 
most  of  our  own  American  colonies,  as.  well  as 
in  those  of  other  nations,  that  there  is  little 
probability  of  ever  teeing  it  generally  sup- 
pressed. 

hm  attempt  Here  I  conclude  my  observa- 

to^imuxtuGc^^  tions  on  domestic  slavery  in  ge- 
wttnnSto  neral.  1  hare  exhibited  a  view 
ImiD^". "'  o^  >(•  nature,  of  iu  bad  tendency, 
of  its  origin,  of  the  arguments  tor 
and  against  its  jusiice,of  its  decline  in  Europe, 
and  the  introduction  of  a  new  slavery  by  the 
European  nations  into  their  American  colonies. 
1  shall  now  examine  the  attempt  to  obtrude 
this  new  slavery  into  England.  And  here  it 
will  be  materialto  observe,  that  if  on  the  de- 
clension of  slavery  in  this  and  other  countries 
of  £uro|ie,  where  it  is  discountenanced,  no 
means  had  been  devised  to  obstruct  the  ad- 
mission of  a  new  slavery,  it  would  have  been 
vain  and  fruitless  to  have  attempted  superseding 
the  ancient  species.  But  I  hope  to  prove, 
Arfomeoti  to  ^^^^  ^^r  anccstors  at  least  were 
prate,^tbit  Dot  aoshort-sighted  ;  and  that  long 
EniiaV*in  <^  uninterrupted  usage  has  esta- 
blished rules,  as  effectual  to  prevent 
the  revival  of  slavery,  as  their  hu- 
manitv  was  successful  in  once  suppressing  it. 
I  shall  endeavour  to  abew,  that  the  law  of 
England  never  recognized  aoi^  species  of  do* 
mestic  slavery,  except  the  ancient  one  of  vil- 
leoage  now  expired,  and  has  sufficiently  pro- 
vided against  tne  introduction  of  a  new  slavery 
under  the  name  of  villenage  (a)  or  any  other 
denomination  whatever.  This  proposition  I 
hope  lo  demonstrate  from  the  followmg  consi- 
derations. 

1.  ArnBCBt  ^*  ^  apprehend,  that  this  will  ap- 
rioi  the         pear  to  be  the  law  of  England  from 

Mktau  title  the  manner  of  making  title  to  a 
•f  •  flllelD.       ^iii^n. 

The  only  shvery  our  law-books  take  the 
least  notice  of  is  that  of  a -villein  ;  bv  whom 
was  meant,  not  the  mere  tenant  by  villein  ser« 
vices,  who  might  be  free  in  his  person,  but  the 
villein  in  blood  and  tenure;  and  as  the  English 

(4)  See  Bodin  de  Republic,  lib.  1,  c  5. 

(a)  Villenage  is  used  to  express  sometimes 
Iha  tenure  of  lauds  hehl  by  villeiii-servicM.  and 
■onetimes  th*  ptnonal  bandage  of  tha  viUein  ( 
km  Uwocfhont  thia  aigiuBHt  it  ii  appliid  ta 


The  Negro  Cote* 


[36 


not  idrait  a 

■cv  lUrcnr. 


\  I  ■ 


1 .1 . 


li 


law  has  no  provisioaa  to  regulate  any  othex 
slavery,  therefore  no  slavery  can  be  lawful  in 
England,  except  such  as  will  consistently  fail 
under  the  denomination  of  villenage. 

The  condition  of  a  villein  hiul 
most  of  the  incidenU  which  1  have  ^  ^^ 
before  described  in  giving  the  idea 
of  slavery  in  general.  His  service  was  uncer- 
tain and  indeterminate,  such  as  his  lord  thought 
tit  to  require;  or,  as  some  of  our  aocieni 
writers  {b)  express  it,  he  knew  not  in  tlie  evening 
what  he  was  to  do  in  the  morning,  be  was 
bound  to  do  whatever  he  was  commanded.  He 
was  liable  to  beating,  imprisonment,  and  every' 
other  chastisement  his  lord  miffht  prescribe,  efr 
cept  killing  and  maiming  (c).  He  was  incapable 
of  acquiring  property  for  his  own  benefit,  the 
rule  being  *  quicquid  acquiritur  servo,  acquiritur 
domino*  (d).  He  was  himself  the  subject  o£ 
property ;  as  such  saleable  and  transmissible. 
If  he  was  a  villein  regardant,  be  passed  with 
the  manor  or  land  to  which  he  was  annexed, 
but  might  be  severed  at  the  pleasure  of  hia 
lord  U)  If  he  was  a  villein  in  gross,  he  was  an 
hereditament  or  a  chattel  real  according  to  his 

(h)  See  the  extracts  from  them  in  Co.  Litt 
116,  b. 

(e)  See Terroes  de  la  Ley,  edit,  of  1567» 
voc  Villenage — Old  Tenures,  can.  Villenage— 
Fitzh.  Abr.  Coron.  17.— 2  Ro.  Abr.  1.— S  Jnat 
45.— and  Co.  Lilt.  136, 197. 

(d)  Co.  Litt  117,  a.— The  words,  in  pleads 
ing  seizin  of  villein-service,  are  very  exprcs* 
sive  of  the  lord's  power  over  the  villein's  pro* 
perty.  In  1  £.  2,  4,  it  is  pleaded,  that  the 
lord  was  seized  of  the  villein  and  his  ancestors 

*  come  affaire  rechat  de  char  et  de  ssnk  et  de 

*  fille  msrier  et  de  eux  tailler  haut  et  has,  5cc.* 
The  form  in  5  E.  8,  ]57i  is,  *  come  de  nos  vi« 

*  leynes  en  fesant  de  luy  notre  provost  ea 
'  p*nant  de  luy  rechat  de  char  et  de  saunk  et 

*  redemption  pur  fille  et  fits  marier  de  luy  el 

*  de  ces  aunc  et  a  tailler  haut  et  haa  a  notre 

*  volente.'  In  the  first  of  the  above  fomoe 
there  is  evidently  a  misprint ;  and  the  reading 
ahould  be  *  a  faire  rechat*  instead  of  *  affaire 

*  rechat.'  As  to  the  word  *  provost'  in  the 
second  form,  it  seems  to  signify  *  plunder,'  and 
perhapa  the  print  should  be  *  proie'  or  '  proye* 
instead  of  *  provost.'  I  was  led  to  this  con- 
jecture by  the  following  proverb  iu  Cotgrave's 
French  Dictionary,  *  qui  a  le  vilain  u  a  as 

*  proye.'  See  Cotgr.  edit,  of  1673,  voc.  proye. 
However,  in  the  Latin  Entriea  the  woni  •  pro* 

*  vest'  is  translated  '  propositum,'  which  in  a 
barbarous  sense  of  the  word  may  be  construed 
to  signify  *  will'  or  *  pleasure,'  and  will  make 
the  passage  intelligible.    In  aome  Entries  *  prcH 

*  vest'  is  transUted  *  propositus ;'  but  this  word 
cannot  be  understood  in  any  sense  that  will 
make  this  use  of  it  intelligible. 

The  forms  of  pleading  aeisin  of  villein -aer« 
vieaa  in  the  Latin  Entries  are  very  aimilar  to 
those  1  ksve  sstrsetsd  from  the  ycsr^books. 
8ss  RssL  Entr.  401.  a. 

(%)  UttssoLlSa. 


sn 


The  N^ro  Case* 


M^s  inteml ;  bein^  detcendible  to  the  heir 

vhcretbe  lord  wms  ibeolote  owner,  and  trans- 

BiMMt  to  the  eieeutor  where  the  lord  had 

eoly  ■  term  of  yean  in  hiro  (/).    Lastly,  the 

way  esteDded  to  the  iasne,  if  both  parents 

wet  filletBs,  or  if  the  father  only  was  a  rillein  ; 

m  kw  dcriviosr  the  condition  of  the  child  from 

ia  if  the  father,  contrary  to  the  Roman  law,  in 

fMeh  tho  rolo  wnptuius  $equitur  ventrem  (g^. 

The  origin  of  villenage  is  princi- 

3^  ^    pally  (k)  to  bederired  from  the  wars 

between  our  British,  Saxon,  Danish 

M  Nemaii  ancestors,  whilst  they  were  oon- 

tadiar  fi»r  the  possession  of  this  country. 

isdfeFitsherbert,  in  his  reading  on  the  4th  of 

Uw.  1,  stmt.  1.  entitled  Extenta  mttnerUf  sup- 

psas  fiBeiiage  to  ha?e  commenced  at  the  Con- 

sseit,  by  the  distribution  then  made  of  the 

■rfdtod  lands  and  of  the  vanquished  inha- 

lilsnls  icsident  upon  them  (j) .    But  there  were 

boDdmeo  in  England  before  the  Conquest, 

are  by  the  Anglo  Saxon  laws  regulating 

y  and  therefore  it  would  be  nearer  the 

Inth  to  attribate  the  origin  of  villeins,  as  well 

litbe  preeediog  wars  and  revolutions  in  this 

i  to  the  efiects  of  the  Conquest  (k). 

After  the  Conquest  many  things 

•^         happily  concurred,  first  to  check 

the  progress  of  domestic  slavery  in 

Earlaad,  and  finally  to  suppress  it.    The  cruel 

CBStoa  c€  enslaving  captives  in  war  being  abo- 

iiibedv  from  that  time  the  accession  of  a  new 

nee  ef  villeios  was  prevented,  and  the  huma- 

liiy,  policy,  and  necessity  of  the  times  were 

— hnallj    wearing  out   the   ancient    race. 

''nses,  DO  doubt,  manumissions  were  freely 

;  bat  they  probably  were  much  oftener 


(f)  Bro.  Abr.  Villenage,  60.^^o.  Litt.  117. 

ff)  Co.  Litt.  123.  Artieatly  our  law  seems 
It  ^ave  been  very  uncertain  in  this  respect. 
8k  Gknv.  lib.  5,  c.  C.  Nirr.  c.  2,  s.  38.  Britt. 
c  3L  Bot  the  writers  in  the  reign  of  Henry 
ibe  «tb  agree,  that  our  law  wss  as  here  repre- 
■sted  (  and  from  the  plea  of  bastardy,  which 
*M  held  to  bo  a  peremptory  answer  to  the  al- 

Sm  of  villenage  so  early  as  the  reign  of 
ard  the  3d,  1  conjecture,  that  the  law 
vsi  settled  in  the  time  of  his  father.  See 
Fwteac.  Land.  Leg.  Angl.  c.  4^.  Lilt.  sect.  187. 
—43  E.  3, 4,  and  Bro.  Abr.  Villenage,  7. 

(kj  I  do  not  say  wholly,  because  probably 
tbcre  were  some  »>laves  in  England  before  the 
fins  arrival  of  the  Saxons ;  and  also  they  and 
the  Danes  might  bring  some  few  from  their 
ova  country. 

(i)  See  the  extract  from  Fitzherbert's  read- 
■g  io  Barringt.  Observations  on  Ant.  Sut.  2d 
«<a.  p.  «37.* 

(k)  See  Spelra.  GUms.  voc.  Lszzi  et  Servus. 
IwHi.  OQ  Gavelk.  65,  and  the  index  to  Wiik. 
Uf.  Saxoo.  tit.  Servos. 

*  Cooeeniiog  the  antiquity  of  villenage,  see 
— '^'  -m  "A  Discourse  of  Tenures,"  said 


to  be  wntieo  by  sir  Walur  Raleiffb,  published 
•  GMli*i  CoUoetaiiea  Cmu^  ^ ol.  l,  p.  60. 


A.  D.  1771.  p8 

extorted  during  the  rage  of  the  civil  wars,  so 
frequent  before  the  reign  of  Henry  the  7th, 
about  the  forms  of  the  constitution  of  the  sue* 
cession  to  the  crown.  Another  cause,  which 
greatly  contributed  to  the  extinction  of  villen- 
age, was  the  disconrsfjement  of  it  by  the  courts 
of  justice.  Tbejr  always  presumed  in  favour 
of  liberty,  throwing  the  '  onus  probandi'  upon 
the  lord,  as  well  in  the  writ  of  Homine  Reple« 
giando,  where  the  villein  was  plaintiff,  as  in 
the  Native  Habendo,  where  he  was  defen- 
dant (/).     Nonsuit  of  the  lord  after  appearanco 

(I)  See  Lib.  Intrat.  176,  a.  177,  b.  6c  Bro. 
Abr.  Villenage,  66,  It  seems  however,  that  if 
after  a  Native  Habendo  brought  by  the  lord, 
the  villein,  instead  of  waiting  for  the  lord's 
proceeding  upon  it,  sued  out  a  Libertate  Pro- 
banda  to  remove  the  question  of  villenage  for 
trial  before  the  justices  in  eyre,  on  the  return 
of  it  he  was  to  produce  some  proof  of  his  free 
condition ;  and  tbi^t  if  be  failed,  he  and  his 
pledges  were  amerced.  But  this  failure  did 
uot  entitle  the  lord  to  any  lienefit  from  bis  Na- 
tive Habendo,  and  therefore,  if  be  proceeded 
in  it,  and  could  not  prove  the  villenage,  the 
judgment  was  for  the  villein ;  or  if  the  lord  did 
not  proceed,  a  nonsuit,  which  was  equally  fatal 
to  tna  lord's  claim,  wa^  the  necessary  canso> 
qnence.  Sea  47  H.  3.  It.  Dev.  Frtz.  Abr. 
Villensge,  3^  In  truth,  the  rfqirisition  of 
proof  from  the  viliein  on  the  Libertate  Pro- 
banda, and  the  amercement  for  want  of  it, 
seem  to  have  been  mere  form ;  for,  as  Fits* 
herbert  vays,  in  explaining  the  effect  of  the 
Libertate  Probanda,  **  the  record  shall  be  sent 
before  the  justices  in  eyre,  and  the  lord  shall 
declare  thereupon,  and  the  villein  shall  mabo 
his  defence  and  plead  thereunto,  and  the  viUvin 
shall  not  declare  upon  the  writ  de  Libercato 
Probanda,  nor  shall  any  thing  be  done  there- 
upon ;  for  that  writ  is  but  a  Supersedeas  to 
surcease  for  the  time,  and  to  ailjourn  the  record 
and  the  writ  of  Nativo  Habendo,  beibre  the 
justices  in  eyre."  Fitz.  Nat.  Br.  77,  D.  Upon 
the  whole  therefore  it  may  I  think  be  safely 
asserted,  that  in  all  cases  of  filleoage  the 
*  onus  probandi'  wan  laid  upon  the  lirrd. 

The  several  remedies  sgainst  abd  for  one 
claimed  as  a  villein  are  now  so  little  under- 
stood, that  perhaps  a  short  account  of  them 
may  be  acceptable ;  more  particularly  as,  by 
a  right  conception  of  them,  it  will  be  more  easy 
to  determine  on  the  force  of  the  argument 
drawn  against  the  revival  of  slavery  from  the 
rules  conierninflf  irillenak^e. 

The  lord's  remedy  for  a  fugitire  villein  was, 
either  by  seizure,  or  by  suing  out  a  writ  of 
Nativo  Habendo,  or  Neitty,  as  it  is  some- 
times called. 

1.  If  the  lord  seized,  the  villein's  most  ef- 
.fectual  mode  of  recoveriui;  lilierly  was  liy  the 
writ  of  Homine  Keplegiaodu ;  m  Inch  had  i;reat 
advantage  over  the  writ  of  Habeas  Corpus. 
In  the  Habeas  Corpus  the  returu  ciuinot  be 
contested  by  pleading  agaiost  the  irutli  of  it, 
and  consequently  on  a  Hftbeaa   Corpus  the 


Si)]  12  GEORGE  IIL 

in  a  Nalivo  Hibendo,  which  was  the  writ  for 
asserting  the  title  of  sUfery,  was  a  bar  to  an- 
other Nativo  Habeodo,  and  a  perpetaal  eofran- 
chiaemeot ;  but  noosuit  of  the  fillein  after  ap- 
pearaoce  id  a  Libertate  Probanda,  which  was 
one  of  the  writs  for  asserting  the  chim  of  liberty 
against  the  lord,  was  no  bar  to  another  writ  of 
the  lilce  kind  (m).  If  two  plaintifis  joined  in  a 
Nati?o  Habendo,  nonsuit  of  one  was  a  nonsuit 
of  both ;  but  it  was  otherwise  in  a  Libertate 

question  of  libertv  cannot  go  to  a  JQiT  for  trial ; 
though  indeed  the  party  making  a  raise  return 
b  liable  to  an  action  for  damages,  and  punish- 
able by  the  Court  for  a  contempt;  and  the 
Court  will  hear  affida?  its  against  the  truth  of 
the  return,  and  if  not  satisfied  with  it  restore 
the  party  to  his  liberty.  Therefore,  if  to  a 
Habeas  Corpus  villenage  was  returned  as  the 
cause  of  detainer,  the  person  for  whom  the  writ 
was  sued  at  the  utmost  could  only  hare  ob- 
tained his  libertv  for  the  time,  and  could  not 
bare  had  a  regulsr  and  final  trial  of  the  ques- 
tion. But  in  the  Homioe  Replegiando  it  was 
otherwise ;  for  if  villenage  was  returned,  an 
Alias  issued  directing  the  sheriff  to  replevy  the 
party  on  his  giving  security  to  answer  the 
claim  of  villenage  afWrwards,  and  the  plaintiff 
might  declare  for  false  imprisonment  and  lay 
damages,  and  on  the  defendant's  pleading  the 
villenage  had  the  same  opportunitv  of  contest- 
ing it,  as  when  impleaded  by  the  lord  in  a 
Natif o  Habendo.  See  Fitzh.  N.  Br.  66.  F. 
et  Lib.  Intrat.  176,  a.  177,  b. 

8.  If  the  lord  sued  out  a  Nativo  Habendo, 
and  the  villenage  was  denied,  in  which  case 
Ihe  sheriff  could  not  seize  the  villein,  the  lord 
vms  then  to  enter  his  plaint  in  the  county 
court ;  and  as  the  sheriff  was  not  allowed  to 
try  the  question  of  villenage  in  his  court,  the 
lord  could  not  have  any  b^efit  from  the  writ, 
without  removing  the  cause  bv  the  writ  of 
Pone  itito  the  King's- bench  or  Commou  Picas. 
[For  the  count,  pleading  and  judgment  in  the 
Nativo  Habendo  afler  the  remo? al,  see  Rast. 
£ntr.  436, 437.]  It  is  to  be  observed,  that  the 
lord's  right  of  seizure  continued  notwithstand- 
ing his  having  sued  out  a  Natifo  Habendo, 
unless  the  Villein  brought  a  Libertate  Probanda. 
This  writ,  which  did  not  lie  except  upon  a 
Natif  o  Habendo  previously  sued  out,  was  for 
remofal  of  the  loitl's  plaint  in  the  Nativo  Ha- 
bendo for  trial  before  the  justices  in  eyre  or 
those  of  the  King's -bench,  and  also  for  pro- 
tecting the  villein  from  seizure  in  the  mean 
time.  This  latter  effect  seems  to  have  been 
the  chief  reaaon  for  suing  out  the  Libertate 
Prolmnda;  and  therefore  afler  the  85th  of 
Edw.  3,  Stat.  5,  c.  18,  which  altered  the  com- 
mon law,  and  gires  a  power  of  seizure  to  the 
lord,  nntwithstaading  the  pendency  of  a  Liber- 
tate 'Probanda,  that  writ  probably  fell  much 
into  disuse,  though  subsequent  cases,  in  which 
it  was  bntught,  aie  to  be  found  in  the  year- 
books. ISee  Fitzh.  Nat.  77|  to  79»  and  1 1  Ben. 
4, 49. 

(m)  Co.  U»L  131. 


Z%e  Negro  Case. 

Probanda  (n).  The  lord  could  not  proeecoli 
more  than  two  villeins  in  one  Nati? o  Haben 
but  any  number  of  ? illeins  of  the  same  b 
might  join  in  one  libertate  Probanda  (o).  ] 
numissipns  were  inferred  from  the  sli^fc 
circumstances  of  mistake  or  negligence  m 
lord,  from  every  act  or  omission  which  h 
refinement  could  strain  into  an  acknowk 
ment  of  the  villein's  liberty.  If  the  lord  ve 
the  ownership  of  lands  in  the  villein,  rece 
homage  from  him,  or  gave  a  bond  to  him, 
was  enfranchised,  goffering  the  villein  tc 
on  a  jury,  to  enter  into  religion  and  be  | 
fessed,  or  to  stay  a  year  and  a  day  in  anc 
demesne  without  claim,  were  enfranchisemc 
Bringing  ordinary  actions  against  him,  joii 
with  him  in  actions,  answering  to  his  act 
withoot  protestation  of  villenage,  iuiparlinf 
them  or  assenting  to  his  imparlance,  or  snl 
ing  him  to  be  vouched  without  counter-pleai 
the  voucher,  were  also  enfranchisem 
by  implication  of  law  {p).  Most  of  the  i 
structive  manumissions  I  have  mentioned  i 
the  received  law,  even  in  the  reign  of  the 
Edward  (y).  I  have  been  the  more  partij 
in  enumerating  these  instances  of  eztraordii 
fa?  our  to  liberty ;  because  the  anxiety  of 
ancestors  to  emancipate  the  ancient  villeini 
well  accounts  for  the  establishment  of  any  r 
of  law  calculated  to  obstruct  the  introdoctio 
a  new  stock.  It  was  natural,  that  the  s 
opinions,  which  influenced  to  discountem 
the  former,  should  lead  to  the  preventioi 
the  latter. 

f  shall  not  attempt  to  follow  vil- 
lenage in  the  several  stages  of  its  J^^p 
declme ;  it  being  suflBcient  here  to 
mention  the  time  of  its  extinction,  wbicfc 
all  agree,  happened  about  the  latter  en< 
Elizaoeth's  reign  or  soon  afler  the  accessio 
James  (r).  One  of  the  last  instances,  in  wl 
villenage  was  insisted  upon,  was  Crouch's  < 
reportMl  in  Dyer  and  other  books  (s).  An 
try  having  been  made  by  one  Butler  on  si 
lands  purchased  by  Crouch,  the  question  i 
whether  he  was  Butler's  villein  regardi 
and  on  two  special  verdicts,  the  one  in  ej 
ment  Mich.  9th  and  lOtb  Eliz.  and  the  o 
in  assize  Easter  11th  Eliz.  the  claim  of 
lenage  was  disallowed,  one  of  the  reasons  g 
for  the  judgment  in  both  being  the  wsn 
seizing  of  the  villein's  person  within  60 
years,  which  is  the  time  limited  by  the  32 
Hen.  8,  chap.  8,  in  all  cases  of  hereditam 

(n)  Co.  Litt.  139. 

(o)  Fiizh.  Nat.  Br.  78,  C.  D. 

(p)  See  Litt.  sect  803  to  209,  and  3 
Abr.  735, 736,  and  737. 

(q)  See  Britt  cap.  31,  and  Mirr.  ca|i 
sect.  38. 

(r)  See  sir  Thomas  Smith's  Commonwe: 
b.  2,  c.  10,  and  Barringt.  Obsery.  on  Ant.  2 
Sd  ed.  p.  333. 

(t)  See  By.  366,  pi.  11,  and  383,  pi.  3^ 

(i)  Accord.  Bro.  Read,  on  Ibe  Stat 
limitit  3S  Hm.  8,  p8ge  ir. 


The  Nfgro  Case. 

__  ri  hfP'B'^P^o''  H-  Tbis  is  generally 
mik  H  k*T«  been  the  Imi  case  of  villenBge ; 
Ia  ttera  arc  fnar  nibnetiiient  casea  in  jirint 
Ohsm  in  UiUry  18th  of  Elizabeth  (bi); 
^Mfcr  WM«  a  jutlgment  in  Easter  Ist  ol 
iMMfi) :  Ihc  thini,  which  was  nerer  deter- 
■M^  h»pp«n«d  ia  Trinity  8tli  ol'  James  (y)  \ 
■<**  iiiunhHMsn  late  as  Hilary  IMti  of 
Jmm  (a).  From  the  lath  nf  James  (he  Ist, 
lMf«i»n>  Ibaa  150  years  a^,  the  claim  of 
dwafv  hft*  not  bren  beard  of  in  our  courts 
•fJMlier  ;  wiil  nntliiog  can  be  mure  notorlnua, 
tm  Hmt  Ibe  Tsce  of  |nnjuHB,  trim  were  onue 
ia  rii)eets  ol'  it,  was  about  lliat  time  coni- 
Ij  v*m  out  by  the  continual  and  united 
thm  af  dealbi  and  manumissions. 
■  Iboo^  villenafe  itieir  is  abielete,  yet 
bWuiifcity  Umm  rules,  by  which  the  claim  of 
Iwani^lated,  are  iiot  yet  buried  in  obliviuo. 
IhtNtllc  iBtfastry  of  our  anceatora  baa  tranS' 
MUri;  nor  Im  us  their  posterily  despise  tbe 
Mcnnd  leii[Bcy.  By  a  strange  progress  of 
!■■•■  kAin,  the  roemory  uf  slavery  expired 
tarn  fiiraUtcs  ooe  of  the  chief  obstacles  to  the 
(■udMJtien  afittvery  attempted  lo  he  revived  ; 
mi  At  renffwMK  reliijuea  of  llic  learning  re- 
Ittt  lo  vUtma^,  so  Inn);  consigoed  lo  gratify 
ia  ia*Mtig«ting'  curiosity  of  tbe  anliquary,  ur 
■ari  ■■  a  vpleodid  appendage  to  lbs  orna- 
■oM  «f  tfa*  ochnlar,  tnusi  oovr  be  drawn  forth 
-•■a  Ibartr  fsitliful  repositories  tor  a  more  noble 
r|«a«;  to  inform  and  gnide  (he  sober  judg- 
HI  af  tbio  Court,  aod  as  1  trust  10  preserve 
■  armultty  from  the  miseries  ol'  domeslic  sla- 
wy. 

^^  Littleton  (a)  aaya,  etery  lillein 

«M>  m  either  ■  villein  by  title  of  pre- 
aJS^  acriptioa,  to  wit  that  he  and  his  an> 
oMIora  hj*e  been  f  illeius  time  oul 
^  Faa'ij ,  or  he  ia  a  lillein  by  his  own  con- 
■^^  m  •  court  of  record.  And  in  another 
fhta  ti),  bis  description  of  a  villein  res^rjanl 
Md  «l  a  sUkin  in  grosa  shews,  that  title  can- 
■■!■  nod*  in  eilhef  without  prescription  or 
csafa^MS.  Time  whereof  no  memory  runs 
liteaootrary,  is  on  iotepurable  incident  to 
(•try  f«*aon|rttoa  (c) ;  and  therefore,  according 
ts  LwMod'*  account  of  villenai^,  tbe  loi^ 
B*M  pravc  tlie  slavery  ancient  and  immemo- 
nl ;  0(  ibc  'tlleio  must  solemnly  confess  it  lo 
I*  an  io  s  court  of  justice.  A  alill  earlier 
"ler  Uy»  down   Ibe    rule  in  terms  equally 

:>  )  Before  this  statute  of  Hen.  the  8lh,  the 
-iir  nf  KniiBlioa  seems  to  have  lieen  the  coro- 
i^awuf  Hen,  3,  asappeara  hy  the  form  of  the 
Xmv«  H*b«iMlo ;  though  ia  oilier  nrits  of  rii;ht 
baHniutimi  by  31  E.  1,  e.  39.  was  from  the 
«Ma»ae«mrut  nf  the  rrtgu  of  Uich.  tbe  1st. 
(m)  8m  Co.  Uotr.400,  b. 
O)  Yrf».  «. 

tl}    This  case  is    only    tu    be    fnand    ia 
"~  '    '•  AbHilgment,  til.  Villenage,  pi.  S3. 


A.  D.  I77I.  [;« 

strong.  No  one,)ay«  Brition  (d),  can  be  a  villein 
except  of  ancient  naliviiy,  or  by  acknovrledg- 
menl.  All  the  proceedings  to  cases  of  tiltena|re, 
when  contested,  conform  lo  this  idea  of  remote 
antiquity  in  the  slavery,  and  are  quite  irrecoQ- 
cileable  with  one  of  modero  coinmenL'emeut. 

1.  The  villein  in  alt  such  suits  (r)  between 
him  and  his  lord  was  stileil  tialwus  ax  well  os 
villanits;  our  Bncienl(,/")  writers  describe  a 
female  slave  by  no  otber  name  than  that  of 
neif;  and  the  technical  name  of  the  only  writ 
in  the  law  for  ihe  recovery  of  a  villein  is  equal- 
ly remarkable,  being  always  called  tbe  Nativo 
Habcndo,  or  writ  of  neitiy.  This  peculiarity 
of  denominalion,  wbiuh  implies  that  villenage 
ia  a  slavery  by  birth,  mi)[bt  perbapa  of  itself  Be 
deemed  too  slight  a,  founilBlioii  tor  any  solii 
argument ;  but  when  combined  with  uiher  cir- 
cumstances more  decisive,  surely  it  is  nni 
without  very  considerable  force. 

3.  In  pleading  villenage  where  il  had  not 
been  confessed  on  some  former  occasion,  Ihe 
lord  always  founded  bis  title  on  prescrtplion. 
Uur  year  books,  and  books  of  entries,  are  full 
of  the  forms  used  in  pleading  a  tide  lo  villeins 
regardant.  In  the  Homine  Replegiando,  and 
other  actions  where  (he  plea  of  villenage  waa 
tor  the  pur|iose  of  shewing  the  pluinlilTs  dia- 
abiliiy  lo  sue,. if  ihe  villein  was  r^iinlant,  the 
delendani  alledq[ed,  that  he  was  seized  of  such 
a  manor,  and  that  Ihe  plainiifFaiid  his  ancestors 
liad  been  villeins  belonging  to  the  manor  lime 
oul  of  mind,  and  that  Ibe  defendanl  and  hio 
ancestors  and  all  those  whose  estate  he  had  in 
the  manor,  had  been  seized  uf  the  plaiotilTaod 
all  his  ancestors  as  of  villeins  belongiug  to  ii  (g). 
In  the  Nativo  Habendo  the  form  of  makiog 
tide  to  a  villein  regardanl  was  in  substance  the 
aame(A}.  In  fact,  regardancy  necessarily  im- 
plies prescription,  being  where  one  and  his  an- 
cestors have  lieen  anneited  lo  a  manor  time  oul 
ofihememory  of  man  (i).  As  to  rilleinsin  gross, 
tbe  cases  relative  lo  thera  are  very  few  ;  and  I 
am  inclined  to  think,  that  there  uever  was  any 
great  number  of  them  in  England.  Tbe  au- 
thor of  tbe  Mirroir  {k),  who  wrote  in  Ihe  reign 
of  Edward  the  3d,  only  mentiotis  villeins  regard- 
ant :  and  air  Thomas  Smith,  who  was  secre- 
tary of  stale  Id  tbe  reign  of  Edward  the  eih, 
says,  that  in  his  time  be  never  knew  a  villein 
in  grass  thrnugboul  the  realm  (/),     However, 


(d)  '  Nul  ne  poit  estre  villeyn  fortque  d« 
■  auncienne  nalivile  ou  par  recognisance.* 
Britl.  Wing.  ed.  cap.  31,  p.  78. 

(e)  tSee  the  form  ol  ihe  wrils  of  Nalivo  Ha- 
bendo and  Liberiote  Probanda,  and  also  of  the 
Alias  Homine  Keplegiando,  where  on  the  Aral 
writ  the  shentf  reiurus  the  claim  of  villenage. 

(f)  Brit.  cap.  31  ic  Lilt.  sect.  1B6. 

(g)  Het  Itaat.  Entr.  til.  Homine  Reple- 
giando,  373,  Ac  Lib.  Inint.  56. 

(A)  See  tbe  farm  in  Ub,  Intnii.  97,  3c  Rast 
Entr.  401. 

CO  This  ia  agreeable  lo  what  Liltleton  sayfl 
in  sect.  IQ'J,  (k)  Mirr.  c.  3,  g  38. 

(I)  Smiib's  Common  weal  lb,  b.  3,  c.  10< 


IS  GEORGE  UL 

after  %  loof  March,  I  do  fiod  placet  ia  tlie  year- 
books, where  the  form  ofalledgini^  villenage  io 
groM  is  expressed,  not  io  full  terms,  but  in  a 
general  ws^ ;  and  io  all  the  cases  I  bare  yet 
aeen,  the  villcosge  is  alledged  in  the  ancestors 
of  the  person  against  whom  it  was  pleaded  (m), 
and  in  one  of  them  the  words  *  time  beyond 
memory'  (n)  sre  added,  lint  if  precedents  bad 
been  wsnting,  the  authority  of^  Littleton,  ac- 
cording to  whom  the  title  to  fiJIenage  of  each 
kind,  unleM  it  has  been  confessed  must  be  by 
prescription,  would  not  hs?e  left  the  least  room 
tor  supposing  the  pleading  of  a  prescription 
less  necessary  on  the  claim  of  ? illeins  in  gross 
than  of  thoie  regardant 

3.  The  kind  of  eridence,  which  the  law  re- 
quired to  prove  villeoage,  and  allowed  in  dis- 
£roof  of  it,  is  only  spplicable  to  a  slavery  in 
kiod  and  family,  one  uninterruptedly  trans- 
mitted through  a  long  line  of  ancofttors  to  the 
persfm  against  whom  it  was  alleged.  On  the 
lord's  part,  it  was  necessar;^  that  he  shoulil 
prove  the  slavery  against  his  villein  by  other 
villnnv  of  the  same  blood  (o),  such  as  were 
descmded  from  the  same  common  male  stock, 
and  would  acknowledge  themselves  t illeins  to 
the  lord  ( p ),  or  those  from  whom  he  derived 

(m)  See  1  E.  2,  4.-5  E.  S,  15.— 7  £.  8, 
S49,  &  11  E.  8,  344.  In  13  E.  4, 8,  b.  pi.  4,  & 
3  b.  pi.  1 1,  there  is  a  case  in  which  villenage  in 
groiis  is  pleaded,  where  one  became  a  villein  in 
gross  by  severai^ce  from  the  manor  to  which  he 
had  been  regardant.  This  being  the  only  case 
of  the  kind  I  ha  ye  met  with,  I  will  state  mo 
much  of  it  from  the  year  book  as  is  necessary 
to  shew  the  manner  of  pleading.  In  trespau 
the  defendant  pleads,  that  a  manor,  to  which 
the  ptaintifT's  father  was  a  villein  regardant, 
was  given  to  an  ancestor  of  the  defendant  in 
tail;  and  that  the  manor  descended  to  Cecil 
snd  Catharine ;  and  that  on  partition  between 
them,  the  villein  with  some  lands  was  allotted 
to  Cecil,  and  the  manor  to  Catharine  ;  and  then 
the  defendant  conveyed  the  villein  from  Cecil 
to  himself  as  heir. 

(n)  UK.  8,344. 

(o)  See  Hro.  Abr.  Villenage,  66  Reg.  Br. 
117,  a.  Old  Nat.  Br.  43,  b.  Fitz.  Abr.  Ville- 
nage, 38,  39.  A  bastard  was  not  receivsble  to 
prove  villenage,  13  £.  1.  It.  North.  Fitzh. 
Abr.  36, 6c  Britt.  Wing.  edit.  88,  a. 

(p)  in  Fitzlierbert's  Natura  Brevium,  79. 
B.  It  is  said,  that  the  witnesses  must  acknow- 
1ed|k:e  themselves  villeins  to  the  plaintiff  in  the 
Nativo  Habendo ;  and  there  are  many  autho- 
rities which  favour  the  opinion.  See  Glanv. 
rd>.  .'i,  c.  4.  Britt  Wing.  ed.  81,  a.  19  Hen.  6, 
3'i,  b.  Old  Tenures,  chap.  Villenage;  and 
the  form  in  which  the  confession  of  villensge 
bv  the  pisintiff's  witnesses  is  recorded,  in  Rast. 
iSntr.  tit.  Nativo  Habendo,  401,  a.  However, 
it  mini  be  eoofetscdi  that  io  Fitsberbert  the 
opinion  tsdeUfertd  with  a  qu^n;  aod  it  is  ao 
iiwpaocilaMo wllk Um kiA Mhtof  graotioc 
vUWMh*   "^  iso.;«Dtl»l, 


The 


Case, 


[*4 


his  title ;  and  at  least  two  witncnes  (f)  of  this 
description   were   requisite  for   the   purpose. 

(q)  Fitzh.  Nat.  Br.  78,  H.  &  Fitzb.  Abr. 
Villenage,  b6  5t  37. — Also  Briiton  says,  *  no 

*  masle  sauna  plosurs  nest  mie  receivable.' 
Britt.  Wingate's  ed.  p.  88.  It  is  remarkable 
that  femalo,  whether  sole  or  married,  were  not 
receivable  to  prove  villenage  against  men. 
'  Sannk  de  un  home  ne  puit  ne  doit  estre  trie 
'  par  femmes.'  Britt.  Wing.  ed.  p.  88.  The 
reason  ssttigned  b  more  antient  than  polite.  It 
is  said  to  be  '  pur  lour  fira^lte,*  and  also  be> 
cause  a  man  *  est  pluis  digoe  person  que  una 
M'eroe*  13  £.  1.  Fitzh.  Abr.  Villenage,  37.* 

*  "  Antiently  in  Scotland  the  testimony  of 
women  was  not  admiited  in  sny  case.    *  Ano 

*  woman  may  not  pass  upon  assize  or  be  wimess, 

*  nather  in  ony  instrument  or  contract,  nor  zit 

*  for  preiving  of  ane  persoun's  sge.    Neverthe- 

*  less  gif  tliair  be  ony  contraverser  tuiching  the 

*  age  of  ony  persoun,  the  mother  or  the  nurice 
(  may  be  ressavit  as  witnessis  for  preiving  thair- 

*  of.' "    Balfour's  Practicks,  p.  378. 

«  By  our  constant  usage,  women  are  not 
admitted  as  iostrumentary  witnesses,  and  as 
universal  custom  is  law,  so  1  doubt  not  but  it 
will  be  a  nullity  in  any  writing  that  is  attested 
by  witnesses,  who  are  both  or  even  one  of  thena 
women.  And  though  the  act  1681,  mentions  a 
subscribing  witness  with  the  masculine  particio 
(he),  yet  that  without  the  aubsequent  usage  ia 
not  exclusive  of  women/'  Bankton's  Inst.  b. 
1,  tit.  1,  sect.  7. 

**  Of  old,  women  were  rejected  in  most  cases, 
but  they  are  for  most  part  admitted,  unlets 
where  the  parties  ought  to  have  called  wit- 
nesses, for  then  they  have  themselves  to  blame 
that  did  not  make  use  of  others  ;  and  therdToro . 
women  are  altogether  incompetent  witnesses  to 
deeds  of  parties,  testaments,  or  instruments  of 
notaries.'*     Bankton,  biNik  4,  tit.  33,  a.  80. 

So  Stair  (book  4,  tit.  43,  s.  9,)  says,  tba(  in 
civil  cases  women  are  not  to  be  admitted  aa 
witnesses,  except  necessary. 

Sir  George  Mackenzie  (Probation  by  Wit- 
nesses) says,  **  Women  regular  iter  are  not  wit* 
nesses,  neither  in  civil  or  criminal  cases  with  as, 
nor  should  they  make  as  much  faith  with  ua,  •*• 
criminalibut.  The  reason  why  women  are  ex- 
cluded from  witnessing,  roust  be  either  that 
they  are  subject  to  too  much  compassion,  and 
so  ought  not  to  be  more  received  in  criminal 
cases,  than  in  any  civil  cases ;  or  else  the  law 
was  unwilling  to  trouble  them,  snd  thought 
it  might  learn  them  too  much  confidence,  and 
make  them  suliject  to  too  much  familiarity 
with  men,  and  strangers,  if  they  were  necessi* 
tated  to  vsgue  up  and  down  at  all  courts,  upoo 
all  occasions."  See  his  Criminals,  title  86,  s.  4. 

Erskine  (book  4,  tit.  8,  sect.  88,)  instructs 
OS,  that  women  were  rather  exempted  than  de- 
barred from  gif  iog  testimony. 

Of  the  progress  of  the  relaxation  of  this  rule 
I  kaov  nol  or  any  dreumstantial  history. 

Mr*  Hont  (Gomiii.  chap.  13,)  and  ibr.  Bur^ 


«] 


Tke  Negro  Can* 


A.  D.  1771. 


\l» 


Ntj,  ID  strict  wu  the  Itw  in  thii  respect,  diat 
ii  the  Natiro  Habendo  the  defeo(|aiit  was  not 
obtigcd  to  plead  to  the  claim  of  villenage,  un- 
loi  the  lunl  at  Ihe  time  of  declaring  on  his 
tide  bfogbt  his  witnesses  with  him  into  court, 
mk  iktf  acknowledged  themselres  fillebs, 
istfiwore  to  their  coosangninitv  with  the  de- 
(Wnt  (r)  ;  and  if  the  plaintiff  failed  in  ad- 
Mag  such  prefioos  evidence^  the  judgment 
if  ibe  eoart  was,  that  the  defendant  should  be 
ftef  for  ever,  and  the  plaintiff  was  amerced  for 
Ui&Jse  daim  (i).  In  other  actions  the  pro- 
Awtioa  of  soit  or  witnesses  by  the  plaintiff, 
pffvioosly  to  ihe  defendant's  pleading,  fell  into 
dsose  some  time  in  the  reign  of  Edward  the 
Ibrd;  and  ever  since,  the  entry  of  snch  pro- 
taioa  on  the  rolls  of  the  court  has  been  mere 
fan,  being  always  with  an  &c.  and  without 
MouDgthe  witnesses.  But  in  the  Natiro  Ha- 
hado  the  actual  production  of  the  suit,  and 
ilntbe  examination  of  them,  unless  the  defen- 
hal  released  {t)  it  in  court,  continued  to  be  in- 
ifcasalvie  CTcn  down  to  the  time  when  vil* 
rage  (a)  expired.— Such  was  Ihe  sort  of  tea- 
linoay,  by  which  only  Ihe  lord  could  support 
ike  liue  of  slavery  ;  nor  were  the  means  ot  de- 
faee  on  the  part  of  the  rillein  less  remarkable. 
If  he  eouM  prove  that  the  slavery  was  not  in 
kiiUsed  and  family,  heintitled  himself  to  li- 
boty.  The  atithor  of  the  Mirroir  (w)  ex- 
|RHly  saySi  that  proof  of  a  free  stock  was  an 
(fccnal  iwlence  against  the  claim  of  villenage ; 
Hd  even  in  the  time  of  Henry  the  sec<»nd  the 
ha  of  Engfland  was  in  this  respect  the  same, 
by  the  words  of  Glan? ille.  In  his 
of  ihe  trial  (x)  of  liberty,  he  says,  that 


(f >  Fttz.  Nat.  Br.  78,  H.  Fitzh.  Abr.  Ville- 
■STtSt  LJb.  Intrat.  97.  llast.  Entr.  401. 
Aqr.fr.  87. 

(i)  In  Fitzh.  Abr.  Villenage,  38,  there  is  an 
inUDce  of  such  a  judgment,  merely  for  the 
pliialiff*8  failure  in  the  production  of  bis  wit- 
BC8CS  at  the  time  of  declaring  on  his  title. 

(t)  8ee  19  H.  6,  39  b.  a  case  in  which  the 
4f(ni«lAot  releases  the  examination  of  the  suit. 

(u)  The  last  entry  in  print  of  the  proceed- 
is|s  in  a  Native  H abendo  contains  ibe  names 
•f  cfae  secta  or  suit  produced,  and  their  acknow- 
kigairat  of  villeiiajB^e  on  oath.  See  the  case 
•f  Jemey  aflrainst  Fmcb,  Hill.  18  Eliz.  C.  B. 
U.  Efiir.  406,  b.  (w)  jVlirr.  c.  2,  §  28. 

(g)  Glaov.  lib.  5,  c.  4. 

Mt  (Treatise  on  tar.  branch,  of  the  Crim.  Law 

if  likasiand,  chap.  17,)  hare  cited  several  cases, 

isd  quoted  other  authorities,  from  which   it 

ly^cars  that  the  rule  was  recognized  to  so  late 

t  ffnod  as  the  beginoiiig  of  the  18th  century. 

hnaow  abrogaled  (how  or  when  I  have  not 

•wa  distinctly  staled)  »» except*'  says  Mr.  Bur- 

••«,  •*  in  ihe  case  of  instruineotary  witnesses, 

yWe  wofoen  are  in  practice  still  excluded. 

I  kaow  of  iio  case,  bowerer.  where  this  point 

wii  e»ev  mrgoed,  or  receifed  a  decision :  and  it 

•JnjAtful  whether  such  an  objecUon  wouM 


the  iierson  cluming  it  shall  produce  *  plnres  de 
prozimis  et  consanguineis  de  eodem  stipite 
unde  ipse  ezierat  exeuntes ;  per  quorum  liber- 
tates,  si  fuerint  in  curift  recognitae  et  probatoe, 
liberabitur  it  jogo  servitutis  qui  ad  libertatem 
prochimatur.'  But  the  special  defences  which 
the  law  permitted  against  villenage  are  still 
more  observable ;  and  prove  it  beyond  a  con* 
tradiction  to  be  what  the  author  of  the  Mirroir 
emphatically  stiles  it  (y),  a  slavery  of  so  great 
an  antiquity  that  no  free  stock  can  be  found  by 
human  remembrance.  Whenever  the  lord 
sued  to  recover  a  villein  by  a  Native  Habendo, 
or  alledged  villenage  in  other  actions  as  a  dis* 
ability  to  sue,  the  person  claimed  as  a  villein 
might  either  plead  generally  that  be  was  of 
free  condition,  and  on  the  trial  of  this  general 
issue  avail  bjmself  of  every  kind  of  defence 
which  the  law  permits  against  villenage ;  or 
he  might  plead  specially  any  single  fact  or 
thing,  which  if  true  was  of  itself  a  legal  bar  to 
the  claim  of  villenage,  and  in  that  case  the 
lord  was  \:ompellable  to  answer  the  special 
matter.  Of  this  special  kind  were  the  pleas  of 
Irastardy  and  adventif.  The  former  was  an  al- 
legation by  the  supposed  villein  that  either  him- 
self or  his  father,  grand-father  or  other  male 
ancestor,  was  bom  out  of  matrimony ;  and  this 
plea,  however  remote  the  ancestor  in  whom 
the  bastardy  was  alleged,  was  peremptory  to 
the  lord ;  that  is,  if  true  it  destroyed  the  claim 
of  villenage,  and  therefore  the  lord  could  only 
support  his  title  by  denying  the  fact  of  bastardy. 
This  appears  to  have  been  the  law  from  a  great 
variety  of  the  most  ancient  authorities.  The 
first  of  them  is  a  determined  case  so  early  as 
the  Idth  of  Edward  the  second  (x),  and  in  all 
the  subsequent  cases  (dS  the  doctrine  is  received 
for  law  without  once  being  drawn  into  ques- 
tion. In  one  of  them  (6)  the  reason  whv  bas- 
tardy is  a  good  plea  in  a  bar  against  villenage 
is  expressed  in  a  very  peculiar  manner ;  for 
the  words  of  the  book  are,  "  when  one  claims 
any  man  as  his  villein,  it  shall  be  intended  al- 
ways that  he  is  his  villein  by  reason  of  stock, 
and  this  is  the  reason  that  there  shall  be  an  an- 
swer to  the  special  matter  where  he  alleges 
bastardy ;  because  if  his  ancestor  'was  a  Imis-» 
tard,  he  can  never  be  a  villein,  unless  by  sub- 

(y)  <  Est  subjection  issuant  de  cy  grand  an-^ 

*  tiquite,  que  nul  franke  ceppe  purra  estre  trove 

*  per  humaue    remembrance.'      Mirr.    c.   2, 
§28. 

(x)  13  E.  2,408. 

(a)  Hill.  19  E.  2.  Fitzh.  Abr.  Villenage, 
32.— 39  E.  3,  36.-43  E.  3,  4—19  Hen.  6, 
11  &  12.— 19  Hen.  6,  17.— Old  Tenures, 
chap.  Villenage.- Co.  Litt.  123,  a.  In  the 
case  19  H.  6,  17,  there  is  something  on  the 
trial  of  bastardy  in  cases  of  villenage,  explain- 
ing when  it  shall  be  tried  by  the  bishop's  certi- 
ficate and  when  by  a  jury.  See  on  the  same 
subject  Fitzh.  Abr.  Villenage,  32,  &  Lib.  Intrat. 
S5,  a.  which  latter  book  coatains  the  record  of 
a  case  where  the  trial  was  by  the  bishop. 

(b)  43  £.  3, 4. 


47]  12  GEORGE  III. 

■equent  tcknowledgrment  io  a  court  of  record." 
The  force  of  this  reason  will  sppear  fully  on 
recollection,  that  the  law  of  England  always 
derives  the  condition  of  the  issue  from  that  of 
the  father,  and  that  the  father  of  a  bastard 
bein^  in  law  uncertain  (c),  it  was  therefore  im- 

Cible  to  prore  a  bastard  a  slave  by  descent, 
espect  to  the  plea  of  adventif,  there  isaome 
little  confusion  in  the  explanation,  our  year- 
books pre  us,  of  the  persons  to  whom  the  de* 
scrintion  of  adventif  is  applicable ;  but  the  form 
•f  toe  plea  will  best  shew  the  precise  meaning 
of  it.    It  alledged  (cQ,  that,  either  the  person 
himself  who  was  claimed  as  a  villein  regardant 
to  a  manor,  or  one  of  his  ancestors,  was  born  in 
a  county  different  from  that  in  which  the 
manor  was,  and  so  was  free,  which  was  held 
to  be  a  necessary  conclusion  to  the  plea.   This 
in  general  was  the  form  of  the  plea,  hut  some- 
times it  was  more  particular,  as  in  the  follow- 
ing case  (e).     In  trespass,  the  defendant  pleads 
that  the  plaintiff  is  his  villein  regardant  to  his 
manor  of  Dale ;  the  plaintiff  replies,  that  his 
great-grandfather  was  bom  in  C,  in  the  county 
of  N,  and  from  thence  went  into  the  county  of 
8,  and  took  lands  held  in  bondage  within  the 
manor  to  which  the  plaintiff  is  supposed  to  be 
a  villein  regardant,  and  mo  after  time  of  me- 
mory his  great-grandfather  was  adventif.    It  is 
plain  from  this  case,  that  the  plea  of  adventif 
was  calculated  to  destroy  the  claim  to  villenage 
regardant,  by  shewing  that  the  connection  of 
the  supposed  villein  and  his  ancestors  with  the 
manor  to  which  they  were  supposed  to  be  re- 
gardant, had  begun  within  time  of  memory ; 
and  as  holding  lands  by  villein-services  was 
anciently  deemed  a  mark  (y),  though  not  a 
certain  one,  of  personal  bondage,  I  conjecture 
that  this  special  matter  was  never  pleaded,  ex- 
cept to  distinguish  the  mere  tenant  by  villein 
services  from  the  villein  in  blood  as  well  as 
tenure.    But  whatever  might   be  the  cases 
pro|ier  for  the  plea  of  adventif,  it  is  one  other 
incontrovertible  proof,  in  addition  to  the  proofs 
alrcaily  mentioned,    that    no  slavery   having 
had  commencement  within  time  of  memory 
was  lawful  in  England ;  and  that  if  one  an- 
cestor could  be  found  whose  blood  was  nn- 
tarnirhed  with  the  stain  of  slavery,  the  title 
of  villenage  was  no  longer  capable  of  being 
sustained. 

.   (e)  Co.  Lilt.  123,  a. 

(d)  13  E.  1.  It.  North.  Fitz.  Abr.  Ville- 
oage  36.  19  E.  2.  Fitz.  Abr.  Villenaire  32.  33 
E.  3.  Fiiz.  Abr.  Visne  2.— 39  £.  3,  36. — 
41  E.  3.  Fitz.  Abr.  Villenage  7.-43  K.  3,  31. 
—50  E.  3.  Fitz.  Abr.  Villenage,  24.— 19  H.  6, 
11.— 19  H  6, 17. 

(e)  31  E.  3.  Fiiz.  Abr.  Visne  1. 

(f)  Fiizlierbert  says,  "  if^  a  man  dwells  on 
lands  which  have  been  held  in  villenage  time 
out  of  niiud,  he  shall  be  a  villein,  and  it  is  a 
good  pre«cripiif»n ;  and  against  this  prescription 
tt  is  a  good  plea  to  aay  that  hia  father  or  grand- 
fiuher  WM  mimttiffi  •  Ibs.  Fill.  ifcr.  Till*. 

MgVfli. 


The  Negro  Case. 


[48 


Such  were  the  striking  peculia-    hqv  it  ii  uut 
rities  in  the  manner  of  making  title    |^  ntn  or 
to  a  Tillein,  and .  of  contesting  the    tS^hSSe 
question  of  liberty ;  and  it  is  scarce    Suot!*"^ 
possible  to  attend  to  the  enumera- 
tion of  them,  without  anticipating  me  in  the 
inferences  1  have  to  make. — ^The  law  of  Eng- 
land onl^  knows  slavery  by  birth  ;  it  requires 
prescription  in  making  title  to  a  slave ;  It  re- 
ceives on  the  lord's  part  do  testimony  except 
such  as  proves  the  slavery  to  have  been  always 
in  the  blood  and  family,  on  the  villetn'a  part 
every  testimony  which  proves  the  slavery  to 
have  been  once  out  of  his  blood  and  family  ; 
it  allows  nothing  to  sustain  the  slavery  except 
what  shewa  its  commencement  beyond  the  time 
of  memory,  every  thing  to  defeat  thealaverj 
which  evinces  its  commencement  within  the 
time  of  memory.    But  in  our  American  colo- 
nies and  other  countries  slavery  may  be  by 
captivity  or  contract  as  well  as  by  birth ;  no 
prescription  is  requisite;    nor  is  it  necessary 
that  slavery  should  be  in  the  blood  and  family, 
and  immemorial.    Therefore  the  law  of  Eng- 
land is  not  applicable  to  the  slavery  of  our 
American  colonies,  or  of  other  countries. — If 
the  law  of  England  would  permit  the  intro- 
duction of  a  slavery  commencing  out  of  Eng- 
land, the  rules  it  prescribes  for  trying  the  tiUe 
to  a  slave  would  be  applicable  to  such  a  slavery  ; 
but  they  are  not  so ;  and  from  thence  it  is  evi- 
dent that  the  introduction  of  such  a  slavery  h 
not  permitted  by  the  law  of  England. — ^The 
law  of  England  then  excludes  every  slaTery 
not  commencmg  in  England,  every  slavery 
though  commencing  there  not  being  antient 
and  immemorial,    l^llenage  is  the  only  slavery 
which  can  possibly  answer  to  such  a   de- 
scription, and  that  has  long  expired  by  the 
deaths  and  emancipathns  of  all  those  who 
were  once  the  objects  of  it.     Consequently 
there  is  now  no  slavery  which  can  be  lawful  in 
England,  until  the  legislature  shall  interpose 
its  authority  to  make  it  so. 

This  is  plain,  unadorned,  and  direct  reason- 
ing ;  it  wants  no  aid  from  the  colours  of  art,  or 
the  embellishments  of  language;  it  is  com- 
posed of  necessary  inferences  from  facts  and 
rules  of  law,  which  do  not  admit  of  contradic- 
tion ;  and  I  think,  that  it  must  be  vain  to  at- 
tempt shaking  a  superstructure  raised  on  sucb 
solid  foundations. 

As  to  I  he  other  arguments  I  have  to  adduce 
against  the  revival  uf  domestic  slavery,  I  do  con- 
fess that  they  are  less  powerful,  being  merely 
presumptive.  But  then  I  must  add,  that  they 
are  strong  and  violent  presumptions ;  such  at 
furnish  morecertiTin  grounds  of  judicialdecisioop 
than  are  to  be  had  io  many  of  the  cases  which 
l>ccome  the  subjects  of  legal  controversy.    For 

2dly.    1  infer  that  the  law  of    ad.  Ariumcrt 
England   will  not   permit  a  new    JSlSJnlfroS* 
slavery,  from   the   fact  of  I  here    iiiri«itor 
never  yet  having  been  anv  slavery    h'!^f"bS 
but  viAenage,  and  from  the  actual    ?"?*>';^nr 
eztinetion  of  that  antient  slavery.    •■4  fvom  im 
IfaaewsUrcry  coaM  have  law-    tSu'SSHt!^ 


49] 


The  Negro  Case. 


A.  D.  1771. 


[50 


fnllj  eomineiiced  here,  or  lawfully  hare  been 
intndaced  from  a  foreign  country,  is  there  the 
mH  remote  prohabilily,  that  in  the  course  of 
ao  Btay  centuries  a  new  slavery  should  oe?er 
har<  arisen  ?    If  a  new  race  of  slaves  could 
kie  been  iotroduced  under  the  denomination 
•f  riHeiosi,  if  a  new  slavery  could  have  been 
hm  time  to   time  engrafted  on  the  antient 
Mck,  would  the  latvs  of  villenage  have  once 
kcame  obsolete  for  want  of  ohjcctii,  or  would 
Mt  i  successive  supply  of  slaves  .have  conti- 
■aed  their  operation  to  the  present  times  ?  But 
Mtvithstanding  the  vast  extent  of  our  com- 
■ercial    connections,   the  fact  is  confessedly 
•iberwise.      The  autient  slavery  has  once  ex- 
pired ;  neither  natives  nor  foreif^ners  have  yet 
Mceeeded  in  the  introduction  of  a  new  slavery ; 
nd  from    thence  the  strongest  presumption 
arifts,  that  the  law  of  England  doth  not  permit 
nch  an  introduction. 

u  Arriami  Sdly.  1  losist,  that  the  unlaw- 
tmai  'fran  fulncss  of  introduciii^'  a  new  sla- 
ifernin  uT  very  into  Eugknd,  from  our  Ame- 
Uffn^T  rican  colonies  or  any  other  coun- 
eaiirjrt.  i^y^  jg  de<lucil)le-froiii  the  rules  of 

the  Eo$;1ish  law  concerning  contracts  of  ser- 
vice. Tlie  law  of  England  will  not  permit  any 
Ban  to  enslave  himsetf  by  contract.  The  ut-* 
■mst,  which  our  law  allows,  is  a  contract  to 
Krve  for  life  ;  and  some  perhajis  may  eyen 
doubt  the  ralidity  of  such  a  contract,  there 
keiit^  nu  iletermined  cases  directly  atfirming  its 
hwfuliKss.  I n  the  rei(;n  of  Henry  the  4th  (^), 
there  is  a  case  of  debt,  brou;^ht  by  a  servant 
S'^aiokt  the  master*:;  executors,  on  a  retainer  to 
Krve  for  term  of  life  in  peace  and  war  for  100 
^AiTf  a- year ;  but  it  was  held,  that  Uebt  did 
noiUdr  want  of  a  speciulity ;  wliicli,  as  was 
a«i^'J,  woulil  not  have  been  necessary  in  the 
cut  ut' a  common  labourer's  salary,  because, 
»» tiie  case  in  explained  by  Brooke  in  abridging 
ii.  (he  Utter  is  bound  to  serve  by  statute  (A). 
Tii;4  case  is  the  only  one  f  can  find,  in  ivhich 
a  contract  to  ferve  for  life  is  mentioned  ;  and 
ev«n  in  this  case,  there  is  no  judicial  decision 
M  the  force  of  it.  Nor  did  the  nature  of  the 
civk  require  any  opinion  upon  such  a  contract ; 
tbc  action  not  being  to  establissli  the  contract 
a^in»t  the  servant,  but  to  enforce  payment 
i^Tsinst  the  master's  executors  for  arrears  of 
salary  in  respect  of  service  actually  per- 
fcnned ;  and  therefore  this  case  will  scarce 
War  any  inference  iu  favour  of  a  contract  to 
Mrve  for  life.  Certain  also  it  is,  that  a  service 
for  life  in  Ent;land  is  not  usual,  except  in  the 
€a»fnf  a  militar}'  person ;  whose  service,  though 
ia  effect  for  life,  is  rather  so  by  the  o|)cration 
«Cibe  yearly  acts  for  regulating  the  army,  and 
ef  tb4*  pf-rpetaal  act  for  governing  the  navy, 
tiiin  iu  cnn<iequenceof  any  express  agreement. 
Hiiwrver,  1  do  not  mean  absolutely  to  ileny 
Ike  lawfulness  of  agreeing  to  servo  for  life; 
■•r  Will  the  inferences  1  shall  draw  from  the 
nicsof  law  concerning  servitude  by  contract, 
be  in  the  least    affected  by  admitting   such 


(i)  «  H.  4.  14. 


(h)  Bro.  Abr.  Dett.  63. 


agreements  to  be  lawful.  The  law  of  England 
may  perhaps  give  effect  to  a  contract  of  ser- 
vice for  life;  but  that  is  the  ne  plus  ultra  of 
servitude  by  contract  in  England.  It  will  not 
allow  the  servant  to  invest  the  master  with  an 
arbitrary  power  of  correcting,  imprisoning,  (i) 
or  alienating  him;  it  will  not  permit  him  to 
renounce  the  capacity  of  acquiring  and  enjoy- 
ing property,  or  to  transmit  a  contract  of  ser« 
vice  to  his  issue  {k).  Iu  other  word*'',  it  will  not 
permit  the  servant  to  incorporate  into  his  con- 
tract the  ingredients  of  slavery. ;  Aud  why  ia 
it  that  the  law  of  England  rejects  a  contract  of 
slavery?  The  only  reason  to  be  assigned  is, 
that  the  law  of  England,  acknowledging  only 
the  autient  slavery  which  is  now  expired,  will 
not  allow  the  introduction  of  a  new  species, 
even  though  founded  on  consent  of  the  party. 
The  same  reason  operates  with  double  force 
against  a  new  slavery  founded  on  captivity  in 
war,  and  introduced  from  another  country. 
Will  the  law  of  England  condemn  a  new  sla- 
very commencing  by  consent  of  the  party,  and  at 
the  same  time  approve  of  one  founded  on  force, 
and  most  probably  on  oppression  also?  Will  the 
law  of  England  invalidate  a  new  slavery  com- 
mencing in  this  country,  when  the  title  to  the 
slavery  may  be  fairly  examined ;  and  at  the 
same  time  give  efiect  to  a  new  slavery  intro- 
duced from  another  country,  when  disproof  of 
the  slavery  must  generally  be  impossible? 
This  would  be  rejecting  and  receiving  a  nevf 
slavery  at  the  same  moment ;  rejecting  slavery 
the  least  odious,  receiving  slavery  the  most 
odious :  and  by  such  an  inconsistency,  the 
wisdom  and  justice  vT  the  English  law  would 
be  completely  dir'ionoured.  Nor  will  this  rea- 
soning be  w^ukened  by  observing  that  our  law 
permittc::!  vilienage,  which  was  a  slavery  con- 
fessed to  originate  from  force  ^nd  capttuty  in 
war;  because  that  was  a  slavery  coeval  with 
the  first  formation  of  the  English  constitution^ 
and  conspqunnlly  had  a  commencement  here 
prior  to  the  establishment  of  those  rules  which 
the  common  law  furnishes  against  slavery  by 
contract. 

Having  thus  explained  the  three    ExaminaCom 
great  arguments  which  I  oppose  to    J[,  [{|*  "J^J^^ 
the  introduction  of  domestic  sla-     oi-uwj 
very  from  our  American  colonies,    bciotc  tin.- 

(i)  Lord  Ilobart  says,  **  the  body  of  a  free- 
man cannot  he  made  subject  to  distress  or  im- 
prisonment by  contract,  but  only  by  judg- 
ment." Hob.  61.  I  shall  have  occaMon  to 
make  use  of  this  authority  agaiu  in  a  subse- 
quent part  uf  this  argument. 

(k)  Mr.  IVIolloy  thinks,  that  servants  may 
contract  to  serve  for  life ;  but  then  he  adds, 
"  but  at  this  day  there  is  no  contract  of  the 
ancestor  can  oblige  his  posterity  to  an  here- 
ditary service ;  nor  can  such  as  accept  those 
servants  exercise  the  ancient  right  or  dominion 
over  them,  no  not  so  much  as  to  use  an  extra- 
ordinary rigour,  without  subjecting  themselves 
to  tbc  law."  Moll,  de  Jur.  Marit.  l^t  ed.  b.  3» 
c.  1,  s.  7,  p.  U98. 

E 


51]  12  GEORGE  IIL 

StilSJjr  •'  er  any  foreign  country,  it  is  now 
proper  to  enquire,  how  far  the  sub- 
ject \s  affected  by  the  casei  and  judicial  deei- 
■ioni  since  or  just  before  the  extinction  of  ?il- 
lenaf^e. 

The  first  case  on  the  subject  is  one  mentioned 
in  Mr.  Rush  worth's  Historical  Collections  (/); 
and  it  is  ihere  said.  That  in  the  11th  of  Eliza- 
beth, one  Cartwrifjrht  brought  a  slave  from 
Bussia,  and  would  scour^^e  him ;  for  which  he 
fras  questioned  ;  and  it  was  resolved,  that  En(f- 
land  was  too  pure  an  air  for  a  slave  to  breathe 
in.  Ill  order  to  judge  what  degree  of  credit  is 
due  to  the  representation  of  this  case,  it  will  be 
proper  to  state  from  whom  Mr.  Rusbworth  re- 
ports it.  In  1637,  there  was  a  proceeding  by 
information  in  the  Star-Chamber  against  the 
famous  John  Lilbume,  for  printing  and  pub- 
lishing a  libel ;  and  for  bis  contempt  in  refusing 
to  answer  interrogatories,  he  was  by  order  of 
the  Court  imprisoned  till  he  should  answer,  and 
also  whipped,  pilloried,  and  fined.  Uis  iropri- 
aonment  continued  till  1640,  when  the  Lioog 
Parliament  befiran.  He  was  then  relessed,  and 
the  House  of  Commons  impeached  the  judges 
of  the  Star -Chamber  for  their  proceedings 
•gainst  Lilburne.  In  speaking  to  this  impeach- 
ment, the  managers  of^the  Commons  cited  the 
case  of  the  Russian  slave.  Therefore  the  truth 
of  the  case  doth  not  depend  upon  John  Lil- 
burne's  assertion,  as  the  learned  observer  on  the 
antient  statutes  (m)  seems  to  apprehend ;  but 
reals  upon  the  credit  due  to  the  managers  of 
the  Commons.  When  this  is  considerni,  and 
that  the  vear  of  theL>reign  in  which  the  case 
happened  is  mentioned,  with  the  name  of  the 
person  who  brought  the  slave  into  England ; 
that  not  above  73  or  73  years  had  intervened 
between  the  fact  and  the  relation  of  it ;  and  also 
that  the  case  could  not  be  supposed  to  have 
any  influence  on  the  fate  of  the  impeachment 
•gainst  the  judges ;  1  see  no  great  objection  to 
a  belief  of  the  case.  If  the  account  of  it  is 
true,  the  plain  inference  from  it  is,  that  the 
•lave  was  become  free  by  bis  arrival  in  Eng- 
land. An^  other  construction  renders  the  case 
unintelligible,  because  scourging,  or  even  cor- 
rection of  a  severer  kind,  was  allowed  by  the 
law  of  England  to  the  lord  in  the  punishment 
of  his  villem ;  and  conseouentiv,  if  our  law  had 
recognized  the  Russisn  slave,  bis  master  would 
Jiave  been  justified  in  scourging  him. 

The  first  case  in  our  printed  Reports  is  that 
of  Butts  against  Penny  (n),  which  is  said  to 
have  been  adjudged  by  the  Court  of  King's- 
bench  in  Trinity  term,  S9th  of  Chsries  the  3d. 
It  was  an  action  of  trover  for  ten  (o)  negroes ; 
•nd  there  was  a  special  verdict,  finding,  that 

(I)  Rushw.  ▼.  3,  p.  468. 

(m)  Barr.  Observ.  on  Ant,  Stat.  Sd  edit, 
p.  241. 

Ca;  2  Lev.  301,  and  3  Keb.  785.  See  Hill, 
f  9  Char.  2,  B.  U.  Rot.  1116. 

(o)  According  to  Levins^  the  action  was  for 
too  negroes ;  but  it  it  •  oifttke,  the  record 
msatioDiiig  10. 


The  Negro  Case. 


[M 


the  negroes  were  infidels,  subjects  to  an  infidel 
prince,  and  usually  bought  and  sold  in  India 
as  merchandize  by  the  custom  amongst  mer« 
chants,  and  that  the  plaintiff  had  bought  them, 
and  waa  in  possession  of  them  ;  and  that  the 
defendant  took  tliem  out  of  his  possession.  The  ^ 
Court  held,  that  negroes  being  usually  bought 
and  sold  amongst  merchants  in  India,  and  be* 
ing  infidels  Qi),  there  might  lie  a  properly  ia 
them  sufficient  to  aiaintain  the  action ;  and  it 
is  said  that  judgment  Nisi  was  given  for  the 
plaintiff,  but  that  on  the  prayer  of  the  counsel 
for  the  defendant  to  be  further  heiird  in  the 
case,  time  was  given  till  the  next  term.  lu 
this  way  our  reporters  state  the  case ;  and  if 
nothing  further  appeared,  it  might  be  cited  ai 
an  authority,  though  a  very  feeble  one,, to  sheir 
that  the  master's  propert^r  in  his  negro  slaves 
eoDtinues  after  their  arrival  in  England,  an4 
conseonentljir  that  the  negroes  are  not  emanci- 
pated by  being  brought  here.  But  having  • 
suspicion  of  some  defect  in  the  state  of  the 
case,  1  deaired  an  examination  of  the  Roll  (9) ; 
and  according  to  the  account  of  it  given  to  me, 
though  the  declaration  ia  for  negroes  generally 
in  I^ndon,  without  any  mention  of  foreign 
parts,  yet  from  the  special  verdict  it  appears, 
tliat  the  action  was  really  brought  to  recover 
the  value  of  negroes,  6f  which  the  plaintiff  had 
been  possessed,  not  in  England,  but  in  India* 
Tiierefore  this  case  would  prove  nothing  in  fa- 
vour of  slavery  in  England,  even  if  it  bad  re- 
ceived the  Court's  ju^ment,  which  however 
it  never  did  receive,  there  being  only  an  *  olte- 
*  rius  consilium'  on  the  Roll. 

The  next  case  of  trover  was  between  Oell 
and  Cleve  in  the  Common-Pleas,  and  was 


7. 


(p)  According  to  this  reasoning,  it  is  lawful 
to  have  an  infidel  alave,  but  not  a  Christian 
one.  This  distinction,  between  persons  of  op- 
posite persuaaions  in  religion,  is  very  ancieut. 
Amongst  the  Jews,  the  condition  of  toe  Hebrew 
slave  had  many  advantages  over  that  of  •  slave 
of  foreign  extraction.  [See  sect.  37,  of  the  Dis- 
sertation on  Slavery  prefixed  to  Potgiesser.  Jua 
Germ,  de  Stat.  Serv.  J  Formerly  too  the  Ma- 
homedans  pretended,  that  their  religion  did  not 
allow  them  to  enslave  such  as  should  embrace 
it ;  but,  as  Bodin  says,  the  opinion  was  little  at- 
tended to  in  practice.  (See  Bodin,  de  Republica, 
lib.  1,  cap.  5,  de  imperio  servili.)  A  like  distinc- 
tion was  made  in  very  early  times  amongst 
Christisns ;  and  the  author  of  the  Mirroir  in  one 

Klace  expresses  himself,  as  if  the  distinction 
ad  been  adopted  by  the  law  of  England.  (See 
the  Mirr.  c.  3,  s.  38.)  But  our  other  ancient 
writers  do  not  take  the  least  notice  of  such  • 
distinction,  nor  do  I  find  it  once  mentioneil  in 
the  year-books ;  which  are  therefore  strong  pre- 
aumptive  evidence  against  the  reception  of  it 
in  our  courts  of  justice  as  law,  however  the 
opinion  may  have  prevailed  amongst  divines 
and  others  m  speculation.  See  Barr.  Obaerv. 
Ant.  Stat  3  edit.  p.  239. 

(q)  The  Bell  wm  eyamiori  for  me  bj  • 
friend. 


Tfie  Negro  Case. 

.  ._ _ _.      m  SlhorWilliam  SDtl 

la  lb«  report  or Ibiicue(r),  tlieCdun 
sbhI  l«  bave  held,  that  Iroter  will  lie  far  a 
■*tnWy,  brcause  n^i^ro^i  are  liealhens ;  Bud 
tfwrfuc  m  man  may  hare  proi^erl^  In  them, 
Mddw  Court  without  avermvot  will  lake  no- 
«BFlh*l  Ihev  are  b^lhens.  On  eiaminalion  of 
Ac  IMI  (•).*!  llDil  tlial  the  action  was  brought 
trrariona article* of  merchaiidize  aa  welt  at 
AewfTo;  anil  I  iiupeci,  tliat  ia  lliis  cB«e,  as 
•cll  a*  the  Tonner  one  of  Dutu  aui]  I'puny,  the 
actim  wa«  fur  ■  neTro  in  America ;  but  ibe  de- 
cbntton  belna:  laij  ^nerally ,  and  there  btiiig 
•■■prciftl  verdict,  it  n  now  loo  late  to  nacertaia 
tW  fiteL  I  will  therefore  luppose  tbe  action 
bfaB*e  been  for  a  negro  in  biiglaiid,  and  ad- 
ait  that  it  tends  la  shew  the  lawlulnen  of  har- 
»f  negn  alave*  io  England.  But  then  if  the 
MM  ia  la  be  anderslood  in  Ibii  <eiiEe,  I  eay 
ttat  it  appears  to  have  been  ailjiulgeJ  without 
Mlnnn  «r|^n>enl ;  that  there  I9  no  rrewniag 
fadMKport  of  tbJKcaselo  impeach  tbe  )>Hn- 
■flaaaftaiT,  on  which  I  have  urgued  a^Hiast 
tM  r«*i*al  of  lUiery  in  Encjland ;  ibil  unless 
tbiac  principlea  cm  be  cniilroverled  with  suc- 
•n.  It  will  tw  impossible  Io  sunain  the  auiho- 
ntjafaurb  a  case;  and  further,  tbatilalandi 
-  ■■  -d  by  a  subsequent  case;  in  which 
•a  al'slufery  came  direcily  before  the 

Tbe  anty  other  reported  case  of  trover  ia 
tM  aT  Kmtlh  agaiiiit  fiuulil,  which  was  ad- 
>d|nl,  UkIi.  4  Ann,  in  ibe  KingVbench.  Io 
barer  (()  for  screral  things,  anil  among  tbe 
mt  far  a  oegro,  not  guilty  waspleaded,  and 
4(ra  waa  a  verdict  tor  the  plainlilf  with  several 
^■Hia,  30/.  being  gi*en  for  Ibe  negro  ;  and 
•huiflianient  on  a  molian  in  arrest  of  juilg- 
■-la,  lb«  Courl  held,  that  trover  did  not 
I*  Ir  a  oegrn.  If  in  Ibis  case  the  action 
■M  br  a  negro  in  Erijflanil,  tbe  judgment 
B  It  ii  >  direct  contradiction  to  the  caee 
•TGdly  and  Cleve.  But  1  atn  inclined  to 
Ihak,  that  In 'this,  as  well  as  in  the  former 
tma  vf  trover,  the  negroea  for  which  the 
uaoM  wvrc  brought,  were  not  in  England  ; 
ia<  tbat  IB  ail  of  Ibeiii  the  question  was 
at  aa  itie  lawfulness  of  having  negro  slaves 
i«  Ensland,  bol  merely  whether  troier  wag 
0*  pniptr  kind  of  artion  fur  recovering  the 
falucal  a  oi-gn)  unlawfully  detained  from  the 
•raw  ia  America  and  Inilia.  The  things,  for 
■hiA  intvrr  to  griifral  lies,  are  those  in  which 
e  property,  without 


>  tb*  u 


f  llien 


I  tht 


■sauv'a  power  over  Itie  stave  dulh  nut  extend 
tahaa  TiTr,  and  couteijuently  the  master's  pro- 
ffflT  in  iltaalateia  in  Mime  degree  qualified 
u'liiBiled.  Buppoaing  tberefore  the  cases  uf 
Mirr  ID  bare  b«wa  delermiaed  on  ttiis  dis- 
■nioo,  I  will  not  insisl  upon  any  present 
-  -^t  frum  ibem  in  argument ;  ih'iiigh 
Imi  iif  llirni,  if  it  will  benr  any   tnateriul 


1>1   I  L.  Baym.  1*7. 

fij  (life  TriiL  A  W.A:M.  C.  O.  IL.I1.  NMOT 

(ij  3Wk.  0M.— Sotldao,  1 L.  Rayin.  UT. 


[54 


the  King's  bench  in  Hilary  Sth  si 
lisni  the  3d,  Trespass  vi  ti  artnis  whs  bn)ii|<bt 
by  Chamberlain  (u)  against  Harvey,  fur  lakiii(f 
a  negro  vf  the  value  uf  100/.  and  by  tlie  special 
verdict  it  appears,  that  tbe  negro,  for  Hhich 
the  pluinlilT  sued,  bad  been  brouglit  from  Bar- 
badoes  into  Eneland,  and  was  here  bsjilized 
without  the  plaintiff's  consent,  and  at  ibe  tima 
when  the  treiipass  was  alleged,  was  in  the  de- 
fendant's service,  and  had  67.  a-year  lor  wages. 
In  the  argUDieniof  tliis  case,  three  qiiesiions 
were  made.  One  was,  wliether  tbe  fads  in 
the  verdict  snlEcienily  shewed  that  the  plaintiff 
had  ever  had  a  vested  property  in  tlie  n^ro  (m)  t 
anoltier  was,  whether  that  prO|ierty  was  not 
devested  by  bringing  Ibe  negro  into  England  : 
and  the  third  wss,  whether  trespass  lor  laking 
a  man  of  the  value  of  iOOl,  was  the  proper  ac- 
tion. After  several  argumenls,  Ibe  Court  gava 
Judgment  against  (be  plaintiff.  Bull  do  cuo- 
tess,  tbat  in  the  reports  we  have  of  Ihe  case,  no 
opinion  on  the  great  question  of  slavery  is 
mentioned  ;  it  Incoming  unnecesssry  to  de- 
clare one,  as  llie  Court  held,  thai  Ibe  ac- 
tion should  have  been  an  action  to  recoret 
damages  for  the  loss  of  Ibe  service,  and  not  to 
recover  the  value  of  the  slave.  Of  this  case, 
therefore,  1  shall  not  attempt  to  avail  my»elf. 

But  the  next  case,  wbicli  was  an  action  of 
Indebitatus  Assumpsit  in  the  King's-bench  by 
Smith  against  Browne  nod  Cowper  (f),  la 
more  to  the  purpose.  The  plaintiff  declared 
for  SO/,  for  a  negro  aold  by  him  to  tbe  deten- 
danis  io  London  ;  and  on  motion  in  arrest  of 
judgment,  tbe  Court  held,  that  ihe  plaintiff 
should  have  averred  in  Ibe  declaration,  tbat  the 
negro  at  ibe  lime  of  tlie  sate  was  in  Virginia, 
and  tbat  negroes  by  tbe  laws  and  slalutes  of 
Virginia  are  saleahli'  Q/].  In  Ibe^e  words  ibere 
is  a  direct  opinion  aguinst  the  slavery  of  ne< 
groes  in  England:  fur  if  it  was  laHful,  the 
negro  would  hare  been  saleable  and  transfer* 
able  here,  a«  well  as  in  Virginia  j  and  staling, 
that  tbe  negro  at  the  time  of  Ibe  sale  wa>  ia 
Virginia,  could  not  have  been  ejiseiiiisl  lu  Itta 


(u)  1  L.  Raym.  146.  Carlli,  396,  and  5 
Moil.  mi). 

(ai)  The  fuels  which  occasioned  this  ques- 
tion, 1  have  umiiteit  in  the  stale  of  (be  case ; 
because  ihev  are  nut  material  to  tlie  questiou  of 
slavery  in  Entilnnd. 

(i)  a  iiiulk.  C66.  Tbe  case  is  not  reported  . 
iu  any  other  bunk  ;  and  in  Salkehl  the  lime 
when  (he  c*<ie  was  delermuieil  is  iiinitled.  But 
it  appears  to  have  been  iu  the  Klng'shench, 
by  Ibe  inentiun  of  lord  chief  juiiice  Holt  and 


Mr.  J.  I 


(y)  Tbe  reporter  adds,  that  Ibe  C'Hirt  di- 
rected, thai  the  plaintiff  should  amend  his  ile- 
clamlion.  But  after  venliui  it  caooot  surely 
be  tbe  practice  to  permit  so  essential  an  amend- 
ineiil ;  and  iherefuir  tbe  reporter  muit  bate 
mitundcrstovd  the  Courl'a  Jircclion. 


fiS] 


IS  GEORGE  III. 


The  Negro  Case. 


[56 


BuflicieDcy  of  the  declaration.  But  tke  in- 
fluence of  this  case,  on  the  question  of  slavery, 
is  not  by  mere  inference  frona  ibe  Court's  opi- 
nion on  the  plaintiff's  mode  of  declaring  in  his 
action.  The  lanij^uage  of  the  judges,  in  giving 
that  opinion,  is  remarkably  strong  against  the  | 
slavery  of  negroes,  and  every  other  new  sla- 
very attempted  to  be  introduced  into  England. 
Mr.  Justice  Powell  says,  **  In  a  villein  the 
owner  has  a  property ;  the  villein  is  an  inhe- 
ritance ;  but  I  be  law  takes  no  notice  of  a  ne- 
gro." l/ord  Chief  Justice  Holtis'still  mnreex- 
plicit ;  for  he  says,  that "  one  may  be  a  villein  in 
England ;"  but  that  **  as  soon  as  a  negro  comes 
into  England,  he  becomes  free."  The  words  of 
these  two  great  judges  contain  the  whole  of  the 
proposition,  fur  which  I  am  contending.  They 
admit  property  in  the  villein ;  they  deny  pro- 
perty in  the  nesro.  They  assent  to  the  old 
slavery  of  the  villein:  they  disallow  the  new 
slavery  of  the  negro. 

I  beg  leave  to  mention  one  other  case,  chiefly 
for  the  sake  of  introducing  a  strong  expression 
of  the  late  lord  chancellor  Northington.  It  is 
the  case  of  Shanley  and  Hervey,  which  was  de- 
termined in  Chancery  some  time  in  March 
1762.  The  question  was  between  a  negro  and 
his  former  master,  who  claimed  the  benefit  of 
a  *  donatio  mortis  caus^'  made  to  the  negro  by 
a  lady,  on  whom  he  had  attended  as  servant  for 
several  years  by  the  permission  of  his  master.' 
Lord  Northington,  as  1  am  informed  by  a 
friend  who  was  present  at  the  hearing  of  the 
cause,  disallowed  the  master's  claim  with  great 
vrarmth,  and  gave  costs  to  the  negro.  He 
particularly  said,  **  As  soon  as  a  man  puts  toot 
00  English  ground,  he  is  free :  a  negro  may 
maintain  an  action  against  his  master  for  ill 
iisag^e,  and  may  have  a  Habeas  Corpus,  if  re- 
strained of  his  liberty"  (x). 
Objection*  Havitig  obscrvcd  upon  all  the 

m:*de  lo  life  csses,  10  wliicli  thcrc  18  any  thing 
"fn"ih?**.  *^  ^^  found  relative  to  the  present 
sentUHrul'  '  lawfulness  of  slavery  in  England; 
"nTnlindr'  It  is  time  to  consider  the  force  of 
c(atcd«iMiui-    iiie  several  objections,  which  are 

(z)  In  the  above  enumeration  of  cases,  I 
have  omitted  one,  which  nus  sir  Thomas  Gran- 
tham's case  in  the  Common-Pleas,  Hilary  (2  & 
3  Jam.  12.  Being  short,  I  shall  give  it  m  the 
words  of  the  I{e|K)rt.  **  He  bought  a  monster 
in  the  Indies,  which  was  a  man  of  that  coun- 
try, who  had  the  shape  of  a  child  growing  out 
of  his  breast  as  an  excrcKcrncy  all  but  his  head. 
This  man  he  brought  hither,  and  exposed  to 
the  sight  of  the  people  for  profit.  The  Indian 
turns  Christian  and  was  baptized,  and  was  de- 
tained from  his  master,  who  brought  a  Horoine 
Replegiaiido.  The  sheriff  returned,  that  he 
had  replevied  the  body ;  but  doth  not  say  the 
body  in  which  sir  Thomas  claimed  a  property  ; 
whereupon  he  was  ordered  to  amend  his  return, 
aitd  then  the  Court  of  Common-I'leas  bailed 
him."  3  Mod.  130.  It  doth  not  appear,  that 
the'feturn  was  ever  argued,  or  that  the  Court 
gave  any  opinion  oo  tbiacaae ;  and  therefora  AO- 
Uif  **'        *^  ioff  rred  from  it* 


likely  to  be  made,  as  well  to  the  inferencea  I 
have  drawn  from  the  determined  cases,  at  to 
the  general  doctrine  I  huvc  been  urging. 

1.  It  may  be  asked,  why  it  is  that  the  law 
should  permit  the  ancient  slavery  of  the  viHein, 
and  yet  disallow  a  slavery  of  modern  com- 
mencement? 

To  this  I  answer,  that  villenaofe  sprung  up 
ainongst  our  ancestors  in  the  early  and  barba- 
rous state  of  society  ;  that  afterwards  more 
humane  customs  and  wiser  opinions  prevailed, 
and  by  their  influence  rules  were  established 
for  checking  the  progress  of  slavery ;  and  that 
it  was  thought  most  prudent  to  eflect  this  great 
object,  not  instantaneously  by  declaring  every 
slavery  unlawful,  but  gradually  by  excluding 
a  new  race  of  slaves,  and  encouraging  the  vo- 
luntary emancipation  of  the  ajcieot  race.  It 
might  have  seemed  an  arbitrary  exertion  of 
power,  by  a  retrospective  law  to  have  annihi- 
lated pro|)erty,  which,  however  inconvenient, 
was  already  vested  under  the  sanction  of  ex* 
istiug  laws,  by  lawful  means  ;  but  it  was  policy 
without  injustice  to  restrain  future  acquisitions. 

3.  It  may  be  said,  that  as  there  is  nothing 
to  binder  persons  of  free  condition  from  be- 
coming slaves  by  acknowledging  themselves  to 
be  villeins,  theret'ore  a  new  slavery  is  not  con- 
trary to  law. 

1  he  force  of  this  objection  arises  from  a  sup- 
position, that  confession  or  acknowledgment  of 
villenage  is  a  lefpil  mode  of  creating  slavery ; 
but  on  examining  the  nature  of  the  acknow- 
ledgment, it  will  be  evident,  that  the  law  doth 
not  permit  villenage  to  be  acknowledged  for 
any  such  purpose.  The  term  itself  iinporta 
something  widely  different  from  creation  ;  the 
acknowledgment,  or  confession  of  a  thing,  im- 
plying that  the  thing  acknowledged  or  con- 
fessed has  a  previous  existence ;  an<l  in  all 
cases,  criminal  as  well  as  civil,  tht  law  intends, 
that  no  roan  will  confess  an  untruth  to  his  own 
disadvantage,  and  therefore  never  requires 
proof  of  that  which  is  admitted  to  be  true  by 
the  person  interested  to  deny  it.  Besides,  it 
is  not  allowable  to  institute  a  proceeding  for  the 
avowed  aud  direct  purpose  of  ackno\»  ledging 
villenage ;  for  the  law  will  not  allow  the  con- 
fession of  it  to  be  received,  except  where  vil- 
lenage is  alledged  in  an  adverse  way  ;  that  is, 
only  (a)  when  villenage  was  pleade<i  by  the 
lord  against  one  whom  he  claimed  as  his  vil- 
lein ;  or  by  the  villein  against  strangers,  in 
order  to  excuse  himself  from  defending  actions 
to  which  his  lord  only  was  the  pro|>er  party  ; 
or  when  one  villein  was  produced  to  orove  vik 
lenage  against  another  of  the  same  blood  who 
denied  the  slavery.  If  the  acknowledgmi^nt 
had  been  permitted  as  a  creation  of  slavery, 
would  the  law  have  requiretl,  that  the  confes- 
sion should  be  made  in  a  mode  so  indirect  ami 
circuitous  as  a  suit  professedly  commenced  for 
a  different  purpose?  If  confession  is  a  creation 
of  slavery,  it  certainly  oiust  be  deemed  a 
creation  by  consent ;  but  if  confession  had  been 
adopted  as  a  voluntary  creation  of  slavery, 

(a)  Co.  litt.  ISli  b. 


57} 


The  Negro  Cote. 


A.  D.  1771. 


[68 


woold  the  law  have  restrained  the  courts  of 

jostice  from  receiving  confession,  except  iu  an 

adverse  way  ?  If  confession  had  been  allowed 

as  a  mode  of  creating  slavery,  would  the  law 

have  received  the  confession  of  one  person  as 

|Md  evidence  of  slavery  in  another  of  the 

«ae  bkM>d,  merely  because  they  were  descend- 

§i  from  tlie  saiue  common  ancestor  ?  This  last 

orcamalance  is  of  itself  decisive ;  because  it 

iMcssarily  implied,  that  a  slavery  confessed 

vas  a  a&avery  oy  descent. 

On  a  ironsideration  of  these  circumstances 

sttendin^  the  acknowletlgment  of  villenage^  I 

ihaak  it  impossible  to  doubt  its  being  merely  a 

csBfemioD  of  that  antiquity  in  the   slavery, 

which  was  otherwise  necessary  to  be  proved. 

Bat  if  a  doubt  can  be  entertained,  the  opinions 

sf  the  gjreateat  lawyers  may  be  produced  to 

refliove  it,  and  to  shew,  that,  in  consideration 

sf  Uw,  the  person  confessing  was  a  villein  by 

dcseeot  and  m  blood.     In  the  year-book  of  43 

£.  3,  (6),  it  is  laid  down  as  a  general  rule, 

**  that  when  one  claims  any  mau  as  his  villein, 

it  riiall  be  intended  always  thai  he  is  his  vil- 

ku  by  reason  of  stock.*'    Lord  chief  justice 

Hobart  considers  villenage  by  confession   in 

this  way,  and  says  (c),  **  the  confession  iu  the 

court  of  record  is  not  so  much  a  creation,  as.it 

if  in  supposal  of  law  a  declaration  of  rightful 

liUenage    before,    as  a 'confession   in   other 

ictiuos."      Mr.    Serjeant    Rolle   too,    in   his 

skitigmeot,  when  he  is  writing  on  villenage 

bj  acknowledgment,  uses  very  stron*;  words  to 

the  same  effect.     He  says  in  one  idace  (d)^  **  it 

lemH  int«!nded  that  title  is  made  that  he  should 

be  a  villeio   by  descent,"  and  in  another  place 

(c),  **  it  seems  intended  that  title  is  made  hy 

inscription,  wherefore  the  issue  shoultl  also 

bii'iiifiiis."     The  only  instance  I  can  find,  of 

a  .N<iivo   Habenilo  founded  on  a  previous  ac- 

Jcsb'siedgmeot  of  viilenaffe,  is  a  stronj|r  atitho- 

\ii\  tfi  the  same  purpose.  In  the  19lh  of  Ed  ward 

2,  \J')  the  dean  and  chapter  of  London  brought 

iwrit  ofNetfty  to  recover  a  viilein,  and  con- 

d«ied  their  declaration    with  mentioning  his 

aekaowledgment  of  the  villenage  on  a  former 

Qccasioo,  instead   of  producing  their  suit,  or 

anaesses,  as  was  necessary  when  the  villenage 

bad  not  been  confessed  :  but  notwithstanding 

ibe  acknowledgment,  the  plaintiffs  ailedgeda 

seizin  of  the  villein  with  eaplees,  or  receipt  of 

profits  from  him,  in  the  usual  manner.    This 

case  is  another  proof,  that  a  sei/in  previous  to 

tiie  acknowledgment  was  the  real  foundation 

At  ibe  lurd*s  claim,  and  that  the  acknowledge 

neat  was  merely  used  to  estop  the  villein  from 

CAQtesting  a  fact  which  had  been  before  so- 

kmoly  confessed.     However,  1  do  admit,  that 

sader  the  form  of  acknowledgment  there  was 

a  possibility   of   coUusively  creating  slavery. 

but  tliis  was  not  practicable  without  the  con- 

csrrence  of  the  person  himself  who  was  to  be 


(t)  43  E.  3.  4- 


(c)  Hob.  99. 
Ro.  Abr.  73S.  pi.  6. 
(€j  lb.  pi.   8. 
;  Fits.  Abr.  Villeiiage,  34. 

9 


the  sufferer  by  the  fraud  ;  and  it  was  not  pro- 
bable, that  many  persons  should  be  found  so 
base  in  mind,  so  false  to  themselves,  as  to  sell 
themselves  and  their  p(niterily,  and  to  renounca 
the  common  protection  and  benefit  of  the  law 
for  a  bare  maintenance,  which,  by  .the  wise 
provision  of  the  law  in  this  country,  may  al- 
ways be  had  hy  the  most  needy  and  ilis»tressed» 
on  terms  infinitely  less  ign(d)le  and  s«*Yere.  It 
should  also  be  remembered,  that  such  a  collu- 
sion could  scarcely  be  wholly  prevented,  so 
long  as  any  of  the  real  and  unmanumilied  de- 
scendants from  the  antient  villeins  remained  ; 
because  there  would  have  been  the  same  possi- 
bility of  defrauding  the  law  on  the  actual  trial 
of  villenage,  as  by  a  previous  acknonledgmeot. 
Besides,  if  collustons  of  this  sort  had  ever  be* 
come  frequent,  the  lej^ialature  mi^ht  have  pre- 
vented their  effect  hy  an  extraordinary  reme- 
dy. It  seems,  that  antiently  such  frauds  were 
sometimes  practised  ;  and  that  free  persons,  in 
order  to  evade  the  trial  of  actions  brought 
against  them,  alleilged  that  they  were  villeins 
to  a  stranger  to  the  suit,  which,  on  ac<'ount  of 
the  great  improbability  that  a  confesvion  so  dis- 
advantageous should  be  void  of  tiuth,  was  a 
plea  the  common  law  did  not  suffer  the  plain- 
tiff to  deny.  BOt  a  remedy  was  soon  applied, 
and  the  statute  of  (g)  37  E.  3,  was  made,  gi%  ing 
to  the  plaintiff  a  liberty  of  contesting  such  ao 
allegation  of  villenage.  if  in  these  times  it 
should  be  eiideavoure<l  to  revive  domeslio 
slavery  in  Eugland,  by  a  like  fraudulent  con- 
fession of  «il!enat;e,  surely  so  unworthy  an  at- 
tempt, so  (rross  an  evnl^ion  of  the  law,  \tould 
excite  in  this  court  the  sti<ii!gest  diNapptobutioa 
and  resentment,  and  fiom  parliament  would  re- 
ceive an  immediate  and  t- ffectual  reutedy ;  I 
mean,  a  law  declaring  that  villenage,  as  is 
most  notoriously  the  fact,  has  been  long  expired 
for  want  of  real  ohjects,  and  therefore  making 
void  all  precedent  confessions  of  it,  and  prohi- 
biting the  courts  of  justice  from  recording  a 
confeK^ion  of  villenao^e  in  future. 

3.  It  may  be  objected,  that  though  it  is  not 
usual  in  the  wars  between  Christian  powers  to 
enslave  prisoners,  yet  that  souie  nations,  parti- 
cularly the  several  stales  on  the  coast  of  Bar- 
bary,  still  adhere  to  that  inhuman  practice  ; 
and  that  in  case  of  our  ^eing  at  war  with 
them,  the  law  of  nations  would  juMtify  our 
king  in  retaliating;  and  consequently,  that 
the  law  of  England  has  not  excluded  the  possi- 
bility of  iittroUucini^  a  new  slavery,  as  the  ar- 
guments against  it  sup|»08e. 

But  this  objecti<in  may  be  easily  answered  ; 
for  if  the  arguments  auainst  a  new  slavery  in 
En(>land  are  well  ftumded,  (hey  reach  the 
kin^r  as  well  as  his  subjects.  If  it  has  been  at 
all  times  the  policy  of  the  law  of  Enj^laod  not 
to  recognize  any  slavery  hut  the  antir nt  one  of 
the  viilein,  which  is  now  expired ;  we  cannot 
consistently  attribute  to  the  executive  power  a 
prerotrative  of  rendering  that  policy  ineffec- 
tual.    It  in  true,  that  the  law  of  nations  may 


ttf 


(g)  37  E.  3|  C.  1§. 


09]  18  GEORGE  HL 

give  a  right  of  retnliating  on  an  eoeroy,  who 
cnskres  his  captirea  in  war;  but  then  the 
exercise  of  this  riicrht  niay  be  prereoted  or  li- 
mited by  the  law  of  any  particniar  country.  A 
writer  of  eminence  (A)  on  the  law  of  nations, 
has  a  passage  very  applicable  to  this  subject. 
His  words  are,  "If  the  ciftl  law  of  anv  na- 
tion  does  not  allow  of  slavery,  prisoners  of  war 
who  are  taken  by  that  nation  cannot  be  nimde 
ffaves."  He  is  justified  in  his  obserration  not 
only  by  the  reason  of  the  thing,  but  by  the 
practice  of  some  nations,  where  slavery  is  as 
unlawful  as  it  is  in  England.  The  Dutch  (i) 
when  at  war  with  the  Algerines,  Tunisians,  or 
Tripolitans,  make  no  scruple  of  retaliating  on 
their  enemies ;  but  slavery  not  being  lawful  in 
their  European  dominions,  they  have  usually 
■old  their  prisoners  of  war  as  slaves  in  Spain, 
where  slavery  is  still  permitted.  To  this  ex- 
ample I  have  only  to  add,  that  I  do  not  know 
an  instance,  in  which  a  prerogative  of  having 
<saptive  slaves  in  England  has  ever  been  as- 
sumed by  the  crown;  and  it  being  also  the 
policy  of  our  law  not  to  admit  a  new  slavery, 
there  appears  neither  reason  nor  fact  to  sup- 
pose the  existence  of  a  royal  prerogative  to  in- 
troduce it. 

'  4.  Another  objection  will  be,  that  there  ai« 
Engli^  acts  of  parliament,  which  give  a  sanc- 
tion to  the  slavery  of  negroes ;  and  therefore 
that  it  is  now  lawful,  whatever  it  might  be  an* 
tece<lently  to  those  statutes. 

The  statutes  in  favour  of  this  objection  are 
the  5  Geo.  9,  c.  7,  (k)  which  makes  negroes  in 
America  liable  to  all  debts,  simple-contract  as 
well  as  speciality,  and  the  statutes  regelating 
the  African  trade,  particularly  the  SS  Geo.  9, 
c.  31,  which  io  the  preamble  recites,  that  the 
trade  to  Africa  is  advantageous  to  Great  Bri- 
tain, and  necessary  for  supplying  its  colonies 
with  negroes.  But  the  utmost  which  can  be 
said  of  these  statutes  is,  that  tliey  impliedly 
authorize  the  slavery  of  negroes  in  America ; 
and  it  would  be  a  strange  thing  to  say,  that 
permitting  slavery  there,  includes  a  permission 
of  slavery  here.  By  an  unhappy  concurrence 
•f  circumstances,  the  slavery  of  negroes  is 
thought  to  have  become  necessary  in  America ; 
and  therefore  in  America  our  legislature  has 
permitted  the  slavery  of  negroes.  But  the 
slavery  of  negroes  is  unnecessary  in  England, 

(h)  Rutherf.  Inst.  Nat.  L.  v.  8,  p.  576. 

(i)  *  Quia  ipsa  servitus  inter  Cbristianos 
'  fere  exolevit,  eft  quoque  non  utimur  in  hostes 
'  eaptos.    Possumus  tamen,  si  ita  placeat ;  imo 

*  ntimur  quandoque  adversus  eos,  qui  in  nos 

*  utuntur.    Qnare  et  Bel(jpae  quos  Algerienses, 

*  Tunitanos,  Tripolenses,  in  Oceano  aut  Mari 

*  Mediterraneo  capiunt,  solent  in  servitutem 
<  Hispanis  vendere,  nam  ipsi  Be\^te  servos  non 

*  liabent,  nisi  in  Asi&  Africft  et  Americft.  Quin 
■  anno  1661,  Ordines  Generales  Admiralio  suo 
'  naodlUvnt,  pirates  eaptos  in  servitntem  ven- 

*  dsrat  IdmoQue  ofaservatom  est  anno  1664.' 
Byaksrsbock  QosBst  Jnr.  PnbL  lib.  1|  c.  9. 


The  N^o  Case. 


[60 


and  therefore  the  legislature  has  not  extended 
the  permission  of  it  to  England ;  and  not  hav- 
ing done  so,  how  can  this  court  be  warranted 
to  make  such  an  extension  f 

&.  Ihie  slavery  of  negroes  being  admitted  to 
be  lawful  now  in  America,  however  questions-* 
hie  its  first  introduction  there  might  be,  it  msy 
be  urged,  that  the  lex  ioci  ought  to  prevail,  and 
that  the  master's  property  in  the  negro  as  a 
slave,  having  had  a  lawful  commencement  in 
America,  cannot  be  justly  vsri^  by  bringing 
him  into  England. 

1  shall  answer  this  objection  br  explaining 
the  limitatran,  under  which  the  lex  loci  ought 
always  to  be  received.  It  is  a  general  rule  {/), 
that  the  lex  loci  shall  not  prevail,  if  great  in- 
conveniences will  en&ne  from  giving  eflect  to 
it.  Now  I  apprehend,  that  no  instance  can  be 
mentioned,  in  which  an  application  of  the  lex 
loci  would  be  mora  inconvenient,  than  in  the 
case  of  slavery.  It  must  be  W^^d*  that 
where  the  lex  loci  cannot  have  effect  without 
introducing  the  thing  prohibited  in  a  degree 
either  as  great,  or  nearly  as  great,  as  if  there 
was  no  prohibition,  there  the  greatest  inconve- 
nience would  ensue  from  regarding  the  le$r 
loci^  and  consequently  it  ought  not  to  prevail. 
Indeed,  by  receiving  it  under  such  circum- 
stances, the  end  of  a  prohibition  would  be  fims- 
trated,  either  entirely  or  in  a  very  great  de- 
gree ;  and  so  the  prohibition  of  things  tha 
most  pernicious  in  their  tendency  would  he- 
come  vain  and  fruitless.  And  what  greater  in- 
conveniences can  we  imagine,  than  those, 
which  would  necessarily  result  from  such  an 
unlimited  sacrifice  of  the  municipal  law  to  the 
law  of  a  foreign  country  ?  1  will  now  apply 
thia  general  doctrine  to  the  particular  case  of 
our  own  law  oonceraing  slavery.  Our  Uw  pro- 
hibita  the  commencement  of  domestic  slavery 
in  England ;  because  it  disapproves  of  slavery, 
and  considers  its  operation  as  dangerous  and 
destructive  to  the  whole  commnntiy.  But 
would  not  this  prohibition  be  whollv  ineffec- 
tual, if  slavery  could  be  introduced  from  a  fo- 
reign country  ?  In  the  course  of  time,  thoucrh 
perhaps  in  a  progress  less  rapid,  would  not  do- 
mestic slavery  become  as  general,  and  be  as 
completely  revived  in  England  by  introduction 
from  our  colonies  and  from  foreign  countries, 
as  if  it  wss  permitted  to  revive  by  commence- 
ment here ;  and  would  not  the  same  inconve- 
niences follow  ?  To  prevent  the  revival  of  do- 
mestic slavery  effectually,  iu  iatroduction  must 
be  resisted  universally,  without  regard  to  the 
place  of  its  commencement ;  and  therefore  in 
the  instance  of  slavery,  the  lex  loci  must  \ield 
to  the  municipal  law.  From  the  fact  of  there 
never  yet  having  been  any  slavery  in  this 
country  except  the  old  and  now  expired  one 
of  viilenage,  it  is  evident,  that  hitherto  our  law 
has  uniformly  control leil  the  lex  loci  in  this  re- 
spect ;  and  so.  long  as  the  same  policy  of  ex- 

(l)  See  the  chapter  *  de  conflictu  legum  di- 
*  versarum  in  divenis  inperiisi*  ia  Huber.  Vn^ 
lect,  p.  §38* 


The  Negro  Caie. 


e  case  of 
liberty  lo 


din^  ibe  lex  loci  in  ll 
■M,  iigiiea  imtneilialesnd  ciilJri 
■i,  ■iien  itiey  are  tirougbt  here 
orcuiDtrv.  Atoat  of  (lie  iither  European 
an.  io  which  slarcrj  ii  discauDleoaiiced, 
Maiopwd  a  lihe  policy. 
Ii  SoMland  domMlic  ilavery  is  (m)  un- 
to^o.  eierpl  CA  far  as  regards  the  (n)  coal- 
k*ni  aoi]  sall-maken,  wbose  condUian,  il 
B*  be  coorrMed,  bears  some  resemMance  lo 
*|07  :  because  atl  wliu  bave  unce  acted  in 
MRof  ibifse  capaciiies  are  compellable  to 
mt,  and  fixed  to  ilieir  respective  places  of 
mbimcDl  durioe  lite.  Bui  wilb  this  single 
onyiiaa,  there  is  not  llie  least  vestige  ut 
Aktj  i  aod  «o  jealous  is  the  Scotch  law  of 
Bin  t^ta(  li:Dding  to  slavery,  that  it  bu  been 
U  to  disalUnr  coulracts  of  seriice  for  life,  or 
*rt  ttrj  lon^  term  ;  as,  for  Bimy  years  (o). 
Boner,  nn  parlicular  case  bas  yet  happened, 
■  ■hicb  it  bfta  beeu  necessary  to  decide,  wbe- 
M  a  *l(«e  of  another  country  acquires  free- 
aaaabis  arriral  in  Scolland.  In  1757  Ibis 
fHH«  wms  depending  in  tbe  Court  of  SessioD 
itciBse  of  a  oei^ro ;  but  tbe  negro  happen- 
•%  la  die  during  ibe  pendency  of  the  cause, 
*■  fiMiou  was  not  (*)  delemiined.  But 
•M  a  >■  conaidered,  that  in  the  time  nf  sir 
ttaBBiCtaig,  who  nroleat  least  ISO  years 
if^diter*  was  eten  then  a  thing  unheard  of 
•  toMlaBd,  and  thai  there  sre  no  laws  (p  )t( 
^mt  ilavery,  one  can  scarce  doubt  nbai 
^an  tbe  lords  uf  aession  would  have  prO' 
•^■4,  if  Ibe  negro's  death  bad  not  pre- 
mt  a  d^ision. 
ake  Cnited  ProviDcesslaTerybaTiag fallen 


['■J  Sec  Crag.  Jus  Feud.  lib.  ; 
tJL    Suit'*  Instil,  b.  1,  I.  e,  E. 

(n)  Puib.  Insl.  jurl  1,  b.  2,  t. : 
haa-ial.  I,  p.  66, 

(t)  Uaedooal.  Instit.  toI.  1,1 
■M  ita  1 1 1  r .  that  in  tbe  case  reli 
IhBiwial.  the  lerm  of  service  wa 
i  eireumstince.     Tbe  con 


,  dieges.  1 1 , 

.  Mucdoual. 

68.      But  I 
by  Mr. 


11  the 


bo*  ikc  uasters  and  the  crews  of  some  iish 
'  hani  Uie  latter  biadjag  themselves  for  a 
ynriy  »Upw*Dce  lo  serre  in  their  respeclite 
MM  dariflf!  Ibree  limes  nineteen  yean,  so  Ibal 
HIaov  af  dtem,  duriug  all  that  time,  could  re- 
aaae  traoi  a  particular  tillage,  or  ao  much  aa 
ft««  MC  boat  to  arnaber.  See  Diet.  Decii, 
tL  Pactum  illicitum. 

CJ  Wall.  Instil.  Law  of  Scotl.  chap,  on 
WK^r  aari  aerTant 

(f)  ikr  Tbamaa  Craig,  toantinning  the  Eng- 
U  (rikaafe,  aaj s,  ■  N'lillua  eiil  apud  uos  eju 
'tmm,rt  inaadiium  nomen,  nisi  quod  iionnull 
'■bbru  HrgiE  UajesUlii  de  nnlitisetad  li 
'hnuem  ^nwlamanlibut  prop  una  iitu  r  ;  qut 
'aib  A«c'""""  iu'>ribiia«iint  recepla,  et  nun 
'w^  M  uauin  nostrum  deducta.'  Crag.  Ju 
r    Jl^l 


A.  D.  1771.  [B2 

into  diiuie  (j),  all  their  wrilen  agree,  that 
s  from  another  country  become  Iree  ib» 
lent  they  euler  into  the  Duti;h  terriioriea 
(r).  The  same  custom  prevails  in  some  of  Iha 
neighbouring  countries,  particularly  Brabant, 
Had  olher  parts  of  tbe  Aualrian  Netherlands; 
and  Gudelinu),  an  eminent  civilian,  who  was 
formerly  proreiwor  of  law  at  Lourain  in  Bra- 
bant, relatea  from  tbe  annals  uf  the  supreme 
council  at  Mechlin,  IhnI,  in  tbe  year  1531,  an 
applicatiou  for  apprehending  and  surrendering 
a  tngitive  slave  from  Spain  was  on  tbia  account 
rejected  (j). 

Jn  France  tbe  law  is  parlicularly  explicit 
against  regarding  ihe  Itx  foci  in  tbe  case  of  do- 
mestic slavery  :  and  though,  in  some  of  tba 
provinces,  a  reronanl  of  tbe  antient  slavery  U 
still  to  be  seen  in  Ihe  persons  of  the  '  serfs'  or 
'  gens  de  mnio-inorte,'  who  are  attached  lo 
panicular  lanJi  ((),  as  villeins  reLfardaut  for- 
merly were  ia  England  ;  yet  all  the  writers  on 
Ibe  law  of  France  agree,  that  tbe  moment  a 
slave  arrives  ibere  from  analber  country  h« 
acquires  liberty,  not  in  consequence  of  any 
wrilteo  law,  tiul  merely  by  long  usage  having 
the  ti}rce  of  law.  There  are  many  remarkable 
inatances  in  which  Ibis  rule  against  the  aitmis- 
sion  of  slaves  from  foreign  couniries  has  bad 
effect  in  France.  Two  are  mentioned  by  (n) 
Bodin;  one  being  Ibe  case  of  a  foreign  mer- 
chant who  had  purcliaaed  a  slave  in  Spain,  and 
alierwards  carried  him  into  France  ;  tbe  olher 
being  tbe  case  of  a  Spanish  ambassador,  whose 
slave  was  declared  tree,  notwitbstanding  the 
high  and  independent  character  of  the  sTave's 
owner.  This  latter  case  has  been  objected  lo 
by  Borne  writers  (w)  on  Ibe  law  of  nationg,  who 
do  not  disapjirove  of  the  general  principle  nn 


Cf  )  ■  BelgiG  servos  non  babeol,  nisi  in  Asit, 
'  Africft,  et  AmericL'  Byokersh.  QokbI.  Jur, 
Pub,  bb.  I,  c.  3.  Another  great  Dutch  lawyer 
adds,   ■  Nee  cuiquam  mortalium  nunc  liceel 

■  use  venundare,  aut  ali&  ratiune  servilDlis  jure 

■  semel  alleri  addicere.'     Voet  Commentar.  ad 
Pandect,  lib.  1,  lil.  5,  s.  3. 

(r)  '  Servilua  naulatim  ab  usu  recesiil,  ejua- 
'  que  Domeo  bodie  apud  nos  exolevit;  adco 
'  quidem  ut  scrvi,  qui  aliunde  hue  adducunlur, 
'  simul  ac  imperii  noslri  fines  intrftrunt,  invilia 
'  ipsorum  dominia  ad  hberlatcm  proclamars 
'  pussini ;  id  qnod  et  aliaruTD  ChriEiiBn&ruia 
'  gentium  moribusreceplum  esl.'  Grieuewcgeu 
de  Leg.  Abrogat.  in  Hollandili,  &c.  p,  S,  John 
Voel,  in  the  place  cited  in  ihe  preceding  note, 
expresses  himself  to  the  same  effect. 

(t)  Gudelin.  de  Jur.  Noviss.  lib.  1,  c.  5,  et 
ViDn.iiilnslit.lib.  1,  til.  3,  p.39,edit.  Heinecc. 

(I)  See  Inst,  au  droit  Franc.  parM.  Argou, 
ed.  1763,  liv,  l,  chap.  1,  p.  4. 

(u)  Bodin.  de  llepubhc.  lib.  1,  cap.  S,  d« 
iniperio  herili.  Se«  several  other  inslancea 
(Tienliuned  in  the  Nfgru  cause  in  Ihe  13tb  vo- 
lume of  the  Causes  Celehres. 

(a)  K.irchner,  de  Lt^al.  lib,  3,  c.  1,  nom. 
333;  and  afier  him  Bynkprshoek  Juge  Com- 
pel, dvs  Ambatnd.  Cil.  ^ut  Qatbejt.c.  l&,t.V 


63J  12  GEORGE  IIL 

which  liberty  is  giren  to  stares  brought  from 
foreig^D  countries,  but  only  coroplaio  of  lis  ap- 
plication to  the  particular  case  of  an  ambassa- 
dor. But,  00  the  other  hand,  Wicquefort  (x) 
blames  the  states  of  Holland  for  not  followindf 
the  example  of  the  French,  in  a  case  which 
he  mentions.  AHer  the  establishment  of  the 
Frenci)  colonies  in  South  America,  the  kinfips 
of  France  thought  fit  to  deviate  from  the  strict^ 
ness  of  the  antient  French  law,  in  respect  to 
■larery,  and  in  them  to  permit  and  regulate  the 
possessiou  of  negro  slaves.  The  first  edict  for 
this  purpose  is  said  to  have  been  one  in  April 
1615,  and  another  was  made  in  May  1685  (^), 
which  is  not  confined  to  negroes,  hut  regulates 
the  general  police  of  the  French  islands  in 
America,  and  is  known  by  the  name  of  the 
Code  Noir.  But  notwithstanding  these  edicts, 
if  DPgro  slaves  were  carried  from  the  French 
American  islands  into  France,  they  were  inti- 
tled  to  the  benefit  of  the  ancient  French  law, 
and  became  free  on  their  arrival  in  France  (x). 
To  prevent  this  consequence,  a  third  etiict  was 
ma(le  in  October  1716,  which  permits  the 
bringing  of  negro  slaves  into  France  from  their 
Americau  islands.  The  permission  is  granted 
under  various  restrictions ;  all  tending  to  pre- 
Tent  the  long  continuance  of  negroes  in  France, 
to  restrain  their  owners  from  treatin^^  theni  as 
property  whilst  they  continue  in  their  mother 
country,  and  to  prevent  the  importation  of  fu- 
gitive negroes ;  and  with  a  like  view,  a  royal 
declaration  was  made  in  December  1738  (a), 
containing  an  exposition  of  the  edict  of  1716, 
and  some  additional  provisions.  But  th«  an- 
tient law  of  France  in  favour  of  slaves  from 
another  country,  still  has  efl'ect,  if  the  terms  of 
the  edict  of  1716,  and  of  the  declaration  of 
1738  are  not  strictly  complied  with  ;  or  if  the 
negro  is  brought  from  a  place,  to  which  they 
do  not  extend.  This  appears  from  two  cases 
adjudged  since  the  edict  of  1716.  In  one  (A) 
of  them,  which  happened  in  1738,  a  negro  had 
been  brought  from  the  island  of  St.  Dumio^o 
without  oliserving  the  terms  of  the  edict  of 
1716  ;  and  in  the  other  (r),  which  was  decided 
to  late  as  in  the  year  1758,  a  slave  had  been 
brought  from  the  Kast  Indies,  to  which  the 

(x)  Wicq.  Embassador,  Engl.  ed.  p.  268. 

(y)  Decisions  Nouvelles,  par  M.  Denisart,  j 
tit.  Ne^res. — Denisart  mentions,  that  the  edict 
of  1685  is  registered  with  the  sovereign  council 
at  Domingo,  but  has  never  been  registered  in 
any  of  the  French  parliaments. 
^  O)  Nouvelles  Decisions  par  M.  Denisart, 
tit.  Negres,  s.  yr. 

(a)  M.  Denisart  oWrves,  that  (he  edict  of 
1716,  and  the  declaration  of  1738,  do  uot  ap- 
pear to  hare  been  ever  registered  by  the  parlia- 
**'J«nt  of  Paris,  beciiuse  they  are  considered  as 
^^^^ryto  the  common  law  of  the  kingdom.^ 
hw  Nouvelles  Decisions,  Ut.  Ncgrtss.    And 

>  <  ^  ^'•usca  Celebres,  vol.  13,  p.  492. 
\^  Nouvellei  Decisioot  par  M.  DemMrt, 
It.  Neffrca^  a,  147. 


The  Negro  Case.  ([64 

edict  doth  not  extend  :  and  tn  both  tljeie  cases 
the  slaves  were  declared  to  be  free. 

Such  are  the  examples  tlrawii  from  the  laws 
and  usages  of  other  Eur(»|»ean  countries ;  and 
they  fully  evince,  that  wherever  it  is  the  policy 
to  discountenance  slavery,  a  disregard  of  the 
lex  loci,  in  the  case  of  slavery,  is  as  well  justi- 
fied by  general  practice,  as  it  is  really  founded 
on  necessity.  Nor  is  the  justice  of  such  pro- 
ceeding less  evident ;  for  how  can  it  be  unjust 
to  devest  the  master's  property  in  his  slave, 
when  he  is  carried  into  a  country,  in  which^ 
for  the  wisest  and  moat  humane  reasons,  such 
property  is  known  to  be  prohibited,  and  conse- 
quently cannot  be  lawfully  introduced  P 

6.  It  may  be  contended,  that  though  the  law 
of  England  will  not  receive  the  negro  as  a 
slave,  yet  it  may  suspend  the  severe  qualities  of 
the  slavery  whilst  the  negro  is  in  £o(^land,  and 

f»reserve  the  master's  right  over  him  m  the  re- 
ation  of  a  servant,  either  by  presuming  a  con- 
tract for  that  purpose,  or,  without  the  aid  of 
such  a  refinement,  by  compulsion  of  law 
grounded  on  the  condition  of  slavery  in  which 
the  negro  was  .previous  tn  his  arrival  here. 

But  in8U|)erable  difficulties  occur  against 
modifying  and  qualifying  ihc  slavery  by  this 
artificial  refinement.  In  titc  pr^-sent  case,  at 
all  events,  such  a  mo<lific:itiuu  cannot  be  allow- 
able ;  because,  in  the  return,  the  master  claims 
the  benefit  of  the  rel.ition  between  him  and  the 
negro  in  the  full  extenf  of  the  original  slavery. 
But  for  the  sake  of  shewing  the  futility  of 
the  argument  of  modification,  and  in  order 
to  prevent  a  future  attempt  by  the  masters  of 
negroes  to  avail  themselves  of  it,  1  i^ill  try  its 
force. 

As  to  the  presuming  a  contract  of  service 
against  the  negro,  i  ask  at  what  time  is  its 
commencement  to  be  supposeil?  Jf  the  time 
was  before  the  negro's  arrival  in  Ktij^land,  it 
was  made  when  he  was  in  a  staie  of  slavery, 
and  consequently  without  the  po\ier  of  con- 
tracting. If  the  time  presumed  was  subse- 
quent, the  presumption  must  begin  tiie  moment 
of  the  negro's  arrival  here,  and  consHpiently 
be  founded  on  the  mere  fart  of  that  arrival,  and 
the  consequential  enfrnnchisement  by  opera- 
tion of  law.  But  is  uot  a  slavery,  determined 
against  the  consent  of  the  master,  a  strange 
foundation  for  presuming  a  contract  l»etween 
him  and  the  slave  ?  For  a  momeut,  however,  I 
will  allow  the  reasonableness  of  pref:uming 
such  a  contraH,  or  I  will  suppose  it  to  l>e  re- 
duced into  writing ;  but  then  I  ask,  what  are 
the  terms  of  this  contrartP  To  answer  the 
master's  pur|iose,  it  must  be  a  contract  to  serve 
the  master  here;  and  when  he  leaves  this 
country  to  return  with  him  into  America, 
where  the  slavery  will  again  attach  oiion  the 
negro.  In  plain  terms,  it' is  a  contract  to  go 
into  slavery  whenever  the  master's  occasions 
shall  require.  Will  the  law  of  £n<;land  dis- 
allow  the  introduction  of  slavery,  and  therefore 
emancipate  the  negro  from  it ;  and  yet  give 
effect  to  a  contract  founded  solely  upon  sla- 
Tcry ,  ID  slavery  endiog  ?  Is  it  possible,  that  the 


«J 


The  Negro  Case. 


I :  h.«  aa 
»  t-r»ir.n 

ri'-Jtt  6.? 
•Vlatte 


hw  of  BagUiid  can  be  «o  iiwulting  to  the 
Mfpro,  te  iDOOiitisteiit  wil  h  ittel  F  P     • 

The  ■rgoineot  of  modification,  iodependeot- 
Ij  vf  euotraet,  is  eqatlly  delusive. — Tliere  is 
Bsbown  rale  by  which  the  Court  can  g^uide 
'  "  ID  a  partial  reception  of  sla?ery.  Be* 
if  the  law  of  Eogfland  would  receive  the 
of  the  negro  io  any  way,  there  can  be 
wby  it  should  not  be  admitted  in  the 
MM  degree  as  the  slavery  of  the  villein ;  but 
fkt  aifgiinieiit  of  modification  necessarily  stip- 
fH«  the  ooDtrafy  ;  Iteeause,  if  the  slavery  of 
ike  aegfo  was  received  in  the  same  extent, 
Iba  it  would  not  be  necessary  to  have  recourse 
Ha  ^oalification.  There  is  also  one  other  ma- 
am  still  more  repugnant  to  the  idea  of  modify- 
isf  the  staverv.  If  the  law  of  England  would 
■Miry  the  slavery,  it  would  certainly  take 
•way  its  most  exceptionable  qualities,  and  leave 
these  which  are  least  oppressive.  But  the  mo- 
dUkption  required  will  be  insufficient  for  the 
'a  parpose,  unless  the  law  leaves  behind 
the  most  exceptionable,  odious  and 
SMffcnive;  an  arbitrary  power  of  revivinu: 
the  slaverj  in  its  full  extent,  by  renraval  of 
*e  oegro  to  a  place,  in  which  the  slavery 
•in  again  attach  upon  him  with  all  its  original 
K*my(iA. 

FroiB  this  examination  of  the  several  ob- 

JKtisiis  in  favour  of  slavery  in  England,  I 

lUak  myself  well  warranted  to  observe,  that 

iwcad   of   being  weakened,   the  arguments 

apiast  slavery  in  England  have  derive  an  ad* 

4tMaal  force.      The  result  is,  not  merely  that 

Mirers  become  free  on  being  brought  into  this 

caoBtry,  Imt  that  the  law  of  England  confprs 

^  %A  of  liberty  entire  and  unincumbered ; 

Mttt  lame  only,  but  really  and  substantislly ; 

■W  cMMqoentfy  that  Mr.  Stenart  cannot  have 

tW  Irvi  rii^ht  over  Sommersett  the  ue<rro, 

^fhtf  io  the  open  character  of  a  slave,  or  in 

l^dngvised  one  of  an  ordinary  servant. 

(9.)    In  the  outset  of  the  argu 
ment   I    made  a  second   question  '] 
on  Mr.  Htetiart's  authority  to  en - 
f«iree  his  right,  if  he  has  any,  by 
transporting  the  negro  out  of  Eng-  j 
land.  Few  words  will  be  necetfsary 
on  this  point,  which  my  duty  as 

(d)  This  answer  to  the  argument  of  modi- 
lestioa,  inchides  an  answer  to  the  supposition, 
4tf  an  action  of  trespass  *  per  quod  servitium 
*  misit,*  will  lie  for  loss  of  a  negro's  service. 
I  IB  petvonded,  that  the  case,  in  which  that 
rtiMdy  was  loosely  suggested,  was  one  in 
vbiefa'  the  question  was  about  a  negro  being 
•ui  of  Enifland.  I  mean  tlie  case  of  Smith  and 
Gbald,  S  Halk.  667.  Another  writ,  hinted  at 
h  ibc  tame  case,  is  the  writ  of  trespass,  <  qiiarc 
'apiivum  snum  cepit;'  which  is  not  in  the 
bsrt  applicaHe  to  the  negro,  or  any  other  slave. 
hiappoaes  the  plaintiff  to  have  had  one  of  the 
kii^'fceneiAies  m  his  custody  as  a  prisoner  of 
«ir,  and  to  have  had  a  right  of  detaining  him 
fl  ^yment  of  a  ransom.  Sea  Reg.  Br.  103, 
k.  sad  f  Mk  007. 

VUU  IX.  I 


A,  D.  1771.  [B« 

counsel  for  the  negro  requires  me  to  make,  in 
order  to  g^ve  him  every  possible  chance  of  a 
discharge  from  his  confinement,  and  not  from 
any  doubt  of  success  on  the  question  of  slavery. 

If  in  England  the  negro  continues  a  slave  to 
Mr.  Steuart,  he  must  be  content  to  have  the 
negro  subject  to  those  limitations  which  the 
laws  of  villenage  im|Y06ed  on  the  lord  in  the 
enjoyment  of  his  property  in  the  villein ;  there 
being  no  other  laws  to  regulate  slavery  in  this 
country.  But  even  those  laws  did  not  permit 
that  high  act  of  dominion  which  Mr.  oteuart 
has  exercised;  for  they  restrained  the  lord 
from  forcing  the  villein  out  of  England.  The 
law,  by  which  the  lord's  power  over  his  villein 
was  thus  limited,  has  reached  the  present 
times.  It  is  a  law  (e)  made  in  the  time  of  the 
first  William,  and  the  words  of  it  are,  *  prohi- 
*  bemus  ut  nullus  vendat  hominem  extra  pn- 
<  triam'  (/). 

If  Mr.  Stenart  had  claimed  the  negro  aa  n 
servant  by  contract,  and  in  his  return  to  the 
Habeas  Corpus  had  stated  a  written  agreement 
to  leave  England  as  Mr.  Steuart  should  re^- 
quire,  signed  by  the  negro,  and  made  after  hia 
arrival  in  England,  when  he  had  a  capacity  of 
contracting,  it  miglit  then  have  been  a  ques- 
tion, whether  such  a  contract  in  writing  would 
have  warranted  Mr.  Steuart  in  compelling  the 
performance  of  it,  by  forcibly  transporting  the 
negro  out  of  this  country  P  1  am  myself  satis* 
fied,  that  no  contract,  however  solemnly  enter- 
ed into,  would  have  justified  such  violence. 
It  is  contrary  to  the  genius  of  the  English 
law,  to  allow  any  enforcement  of  agreementli 
or  contracts,  by  any  other  compulsion,  than 
that  from  our  courts  of  justice.  The  exercise 
of  such  a  power  s  not  lawful  in  cases  of 
agreemeirts  for  property ;  much  less  ought  it  to 
be  so  for  enforcing  atj^reements  against  the 
person.  Besiiles,  is  it  reasonable  to  suppose, 
that  the  law  of  England  would  permit  that 
against  the  servant  by  contract,  which  is  de* 
nied  against  the  slave?  Nor  are  great  autho- 
rities wanting  to  acqtiit  the  law  of  England  of 
such  an  inconsistency,  and  to  shew,  that  a 
contract  will  not  warrant  a  compulsion  by  im- 
prisonment, and  consequently  much  less  by 
transporting  the  party  out  of  this  kingdom. 
Lord  Hobart,  whose  extraordinary  learning, 
judgment,  and  abilities,  have  always  ranked  bis 
opinion  amongst  the  highest  authorities  of  law, 
expressly  says  (g),  that  the  body  of  a  freeman 
cannot  he  made  subject  to  distress  or  imprison- 
ment by  contract,  but  only  by  judgment. 
There  is,  however,  one  rase,  in  which  it  is 
said  that  the  performance  of  a  service  to  be 
done  abroad,  may  be  compelled  without  the 

(e)  Wilk.  Leg.  8axon.  p.  «29,  etcap.  65, 
Leg.  Gulielm.  1. 

^)  This  law  furnishes  one  more  arg^ument 
against  slavery  imported  from  a  foreign  coun- 
try. If  the  law  ik  England  did  not  disallow 
the  admission  of  ftuth  a  slavery,  would  it  re- 
strain the  master  from  taking  his  slave  out  of 
the  kingdom  ?  (^)  Hob.  61. 

F 


The  Ntgro  Case. 
h  MaCliMi  in  wliicli  ncf^roei  ha>e  Ihe  mis- 
iMuap  la  be  coaiiiterMl,  elfectUHlly  prevails 
ll«r  uDimrtalion  in  any  uoiMiilrnible  x\e%ten. 
Oi|te  wc  not,  on  nur  |<arl,  tu  q;iiaril  atiil  pre- 
MtH*>i  librrtv  by  wliicli  w«  are  ilialingoiNlidl 
!»  »>  Uw  earih  !  in  be  jf Biiiu»  of  n hareVFr 
^■vc  tijui  a  IfDilpm-y  lu  iliiiiuii*h  tlic  vrn?- 
MM  doe  m  ibe  first  of  UoHtdirsf  The  tinrriil 
«mthn,  iKwrc^  cmlible  in  rcciUl,  wrpetrated 
■  <—ric«,  mtglil,  liy  (Itc  alluwonFt'  ul'sla>» 
WM^  tn,  h«  iutmliirpil  here.  Could  your 
JMMip,  coaltt  noy  lilierii<  and  infcenunua  le<n- 
paiOMlun,  In  ifaefii'ldaborilrringnu  Ihia  city, 
Mms  •  wrMcli  bouDd  li)r  aonip  trivial  nSrnce 
I*  a  ucr,  lara  and  a^iiiiixio^  benettli  the 
HMtfc  f  thieh  objf ctH  mi|{bl  by  time  bpcome 
twill  I r,  b««ucDe  unhmleil  by  (bii>  nation  ; 
■MiiNid,  ■■  (bey  arv  nnw,  to  I'ar  different  sen- 
ton^.  tri>y  (l«ne  ifnlimenla  uevcr  be  eA 
liacil  ibe  l<«4iD){s  uf  hiimaiiily  I  the  ^eneraua 
■Sm  of  Tree  minds!  A]ay  tuch  principle* 
ttfttbe  CBrTti|ited  hy  the  mixture  i)f'  slHTiKh 
aMonal  Not  cau  I  beliere,  we  shall  autfer 
H*  iadt*til(«»l  liiinjf  here  tn  want  that  lihrrlv, 
*Mae  eflVcW  arc  clory  and  bappiness  to  the 
faKeaml  ncry  iodiviilual. 

Br.  Wallace. — Theqiie<tioD  hn«  been  slated, 
•Mb«r  Ibv  n^hl  can  be  auiiporleil  bere;  or, 
iTiloMi,  wlte<ber  a  coui-ae  nt'  proceeding's  at 
Uv  he  not  n«ceaaary  to  give  effect  lo  the  ri|;lit7 
b  la  liwail  in  tlim  i|uarlera  of  the  globe,  and 
B  ftn  af  ib«  f'nurlh.  In  Asia  the  wbnie  |iea- 
)1(;  ia  Afnea  and  America  far  (be  i^eater 
pull  <■>  Kiiropv  great  numliert  or  the  Itiia- 
'n  and  puUndeni.  Aa  tn  captivity  in  war, 
■■  CkruOian  prince*  liave  bteu  nvA  to  i^ive 
!■  IB  ibe  priauaera ;  and  it  look  rise  probably 
iiMCetiaailra,  when  they  gnte  llirn)  hie.  Bad 
<^i«aM  r-ufraiicbjtied  ibem,  tu  inlisl  under 

MMMki  Th«  ri|{hl  of  a  conijueror  wui  abso- 
kw«  Eiiivpe,  and  i*  in  Africa.  I'be  natirea 
M  bnoybl  from  Africa  tntlie  West  ludiei; 
MNlai*  ia  tnaile  ibere,  aal  became  nf  poaiti*e 
wm,  l«  tWt*  bein|{  im  law  auaintt  ii.  Il  can* 
■■  ba  ia  MMnlemlinu  by  ibis  or  any  olber 
■M,  laaae,  wliptbcr  ihe  West  India  r«Ku1a- 
fe^an  lIlebM)  poaiible;  iuch  ■■  tbey  are, 
•Ua  tmf  cMtlifiur  in  liirce  aa  lawa,  tbey  muat 
liirikHailla.  Aa  to  Eni^land  nnl  prrmiliin); 
i^twy,  llan«  U  no  law  a^inil  it;  nor  ilo  1 
Uaay  anainpt  liaa  been  made  tu  pnire  the 
aaUM*  afaae.  Villeoaga  itself  has  all  but 
htaaa*.  Ttiaagb  Ibe  ilia<ohiliiiii  ufm'inas- 
Ma,  aaBBHC**  ulber  material  allerations,  did 
aMaaad  lb*  decay  of  that  tenure,  aUves  could 
halba  n  EnirlaDii  :  for  villeins  were  m  Ihi* 
ttmttj,  aarf  trere  mere  alavea,  in  Elizabeth. 


[Urd  M 

'■  1  aaai  aa  aaaeriiua.  bill  duea  not  recollect  ibe 
L  Mr,  tfaal  Ivo  »uly  were  in  England  in  the 
-••f  ClHrlealh«3•l,altbetimeoftheahnli- 
T:  4  iBsna.J  In  (be  caiiet  oilMl,  the  two 
-HfiiaeUy  alfcnn  an  aCii"!) of  ir.ner,  ao  action 
'•^^ftmfUdto  merB  Gomiiian  chadeN.  Lord 
■-" —  1  a  meia  dMlum,  a  deci&ioo 


A.D.  1771.  [70 

unsupporled  by  preceilenl.     And  if  it  be  nh- 

{ecteil,  that  a  pmper  action  rflubl  not  ha 
ironelii.  il  is  a  known  and  allowed  priictire  in 
mercantile  IrnnsaciinnK.  ii'  the  cnuie  ariiei 
■liroad.  In  lay  il  wilhin  Ibe  liinijdom :  therefore 
the  rnnirai't  in  Viricini*  inight  lie  laid  to  be  in 
London,  and  wunlil  not  be  irareriiable.  With 
re  peel  to  llie  wher  c«s<^,  ihe  pariicidar  mode 
of  action  was  ainne  nbjrcieil  in ;  had  ii  been  an 
Aclinii  '  per  qniMl  servitimii  amiail,'  for  Iob-i  of 
seiiice,  ihp  Court  wiiuld  have  allowed  it.  The 
Cuiii'l  called  ibe  pemon.  for  the  recovery  of 
uhoiii  It    wag   broiiitbi,  a  slavish  servant,  in 

I  Cbaiiiberlayne's  cnse.  Lord  llanlwicke.  and 
ilii'  atterwanit  lord  chief  juaiice  I'albol,  then 
alinrney  and  aolicitor-genenl.  prnn'iuiMed  a 
aiave  not  free  by  coinine  into  England,  It  is 
neccaidry  the  iiiaHlers  shonld  briny  them  over; 
for  lliey  cannnl  trutt  the  h  bites,  either  wilh 

I  the  atorea  or  the  navigatini;  the  vessel  Tliere- 
fore.  the  Iwnefit  taken  on  the  Habeaa  Curpui 
AciooKiit  tube  allowed. 

I  LorrI  Manijield  obaervea,  Tbe  ease  alluded 
lo  was  u Jinn  a 'petition  in  Lioroln's  Inn  Hall, 
after  dinner ;  probably,  thtreliire,  mi);bl  not, 
OS  he  believes  ibe  contrary  is  nnl  unnaaal  al  that 
hour,  be  taken  with  much  accuracy.  Tbe 
principal  maiter  was  ihen,  on  the  earnest  toli- 
dtalion  of  many  mercbanls,  lo  know,  whether 
a  slave  was  freed  by  being  made  a  Christian? 
And  il  was  resolved,  not.  It  Is  remarkable, 
though  tile  Engl ixb  look  infinite  pains  beliire 
to  |irevenl  ibeir  slaves  being  made  Christiana, 
that  ihey  might  not  be  freed,  the  French  sug^ 
gested  ihey  mutt  bring  Iheir'a  into  France, 
(wlieD  the  edict  of  1706  was  |ietilioned  for.J  lo 
make  them  Christinns.  He  aaid,  the  disliuc- 
tion  was  difficult  as  loslavrry,  which  could  not 
be  resumed  after  emanuipaliDn,  and  yet  ihecon- 
ditirmoftlaiery.in  ilsfuli  eStent,cauldnolhetD- 
leraiedhere.  lUucbcunsiderationwai necessary, 
lo  define  bow  far  (lie  point  should  be  cstried. 

The  Conrt  must  uunnder  Ibe  great  de- 
triment lo  proprietor*,  there  being  so  great 
a  number  in  tbe  ports  of  ibis  kingdom,  that 
many  thousands  of  pounda  would  be  lost  to  (be 
uwncri.  by  seKing  Ibem  free.  (A  gentlemaa 
observed,  no  greai  dauger;  for  in  a  whole 
Heel,  tianally,  there  would  not  be  aix  alates.) 
A*  to  Prunce,  ibe  case  stated  decides  no 
farther  than  that  kingdom;  aud  (bere  freedo(n 
»as  cUiinrd,  because  the  slave  had  not  been 
registered  in  ibe  port  where  be  eiiiered,  con- 
I'ormably  to  the  edict  of  170<i.  Mighi  noi  a 
«lave  na  well  be  freed  by  going  oui  "f  Virginia 
lo  Ibe  adJBient  couolrv,  where  Ibere  are  no 
alavea,  if  change  lo  a  place  of  contrary  custom 
was  sufficient  ?  A  statute  by  the  legislaliire,  to 
auhjei-l  ihe  Weal  ladia  properly  to  payment  of 
debu,  I  bD|ie,  will  be  thought  some  proof;  an> 
other  act  devests  tbe  Africaa  company  of  their 
•laves,  and  vests  them  io  the  West  India  Coiii' 

Kany  :  I  say,  I  hope  tliese  are  proofa  Ihe  law 
■■  interfered  for  the  inainlenance  of  tbe  trade 
in  klaven,  and  Ibe  iraimferriiig  of  slavery,  Aa 
for  want  of  apphcutiiin  properly  to  a  court  at' 
juatice  i   B  common  nervani  may  be  coirtciaA 


71]  12  GEORGE  III. 

here  by  his  maAter's  prif ate  aiitbority.  Habeas 
Corpus  acknuuieU^es  a  ri<jht  to  seize  pt:rsoiiB 
by  i'urve  employed  to  ai*rve  abroad.  A  riiebt  ol' 
coiiipiilsiun  (here  must  be,  or  ilie  master  trill 
be  uutterthe  ridicuU»us  iiei'esbtty  of'nCirlectUiip 
bis  proper  buaiuesSf  by  stayin<^  here  to  have 
their  service,  or  must  he  <|uiie  deprived  of  those 
slaves  lie  has  beeu  obliunl  to  briog  over.  The 
case,  as  to  service  tor  life,  was  uot  allowed, 
merely  tor  waut  of  a  deed  to  pasd  it. 

The  Court  approve^l  Mr.  Alley ne's  opinion  of 
the  distinction,  how  tar  niuuicipal  laws  were  to 
be  refj^rded  :  instaitced  the  right  of  marriag^e ; 
which,  properly  stdeamiased,  ivaa  in  all  piacess 
the  same,  but  the  resfulatiojis  of  power  over 
childreu  from  it,  and  other  circumstances,  very 
various;  and  advised,  if  the  merchants  thought 
it  so  uecessary,  to  apply  to  parliament,  who 
could  make  laws. 

Adjourned  till  tliat  day  se'nnight. 

Mr.  Dunning. — It  is  incumbent  on  me  tojas^ 
4ify  captain  Roowles's  detainer  of  the  nei;ro ; 
this  will  be  efiecteil,  by  proving  a  right  in  Mr. 
Steuart;  even  a  supposed  one:  for  till  that 
matter  was  deteruiiued,  it  were  somewhat  un- 
accountable tliat  a  negro  should  depart  his 
service,  and  pat  the  raeanv  om  of  his  power  of 
triyog  that  tight  to  cfleci,  by  a  6ight  out  of  the 
Icingdom.  i  will  ('xplaio  what  appears  to  me 
the  tbundaiion  of  Mr.  Steuart's  claim.  Before 
the  writ  of  Habt-as  Corpus  issued  in  the  present 
case,  there  was,  and  tlif  re  still  is,  a  great  num- 
ber of  slaves  in  Africa,  (from  whence  the  Ame- 
rican plantations  are  supplied)  who  are  saleable, 
and  in  IJMrt  sold.  L-uder  all  these  descriptions 
is  James  8ommersett.  Mr.  Steuart  brought  him 
over  to  England ;  purp;)s:ng  to  return  to  Ja- 
maica, the  negro  chose  to  depart  the  service, 
and  was  stopt  and  detained  by  ciptain  Knowles, 
until  bis  master  should  set  sail  and  take  htm 
away  to  be  sold  in  Jamaica  The  gen;leoien 
on  the  other  side,  to  whom  1  impute  no  blair.e, 
but  on  the  other  hand  mucb  ctniuit-ndation, 
baTe  advanced  osany  iiii^euious  propositions  ; 
•part  of  which  are  undeuiaWly  true,  and  part  (as 
w  usual  io  compositions  of  int^enuity)  very  dis- 
putable. It  is  my  mi>f  triune  to  addr^  an 
audience,  the  grt^ier  part  of  which,  I  fear, 
are  prejudiced  the  other  way.  But  wishes.  I 
am  well  convinced,  mill  ne«er  enter  into  \our 
lordships*  minds,  to  influence  the  determination 
4lf  the  poiut:  this  cause  must  be  what  in  fact 
•ml  law  it  is ;  its  late,  I  trust,  therefore,  de- 
aaa4s  on  fi\t  invariable  rules,  resulting  by  law 
iom  the  nature  of  the  case.  For  myselt'.  1 
aaanld  not  be  understood  to  intimate  a  wish  in 
Afuur  of  aUvery,  by  any  means;  nor  on  the 
Alher  side  to  be  supposed'  the  mamuiner  of  an 
apiaioD  contrary  to  my  own  judgment.  I  am 
Mwnd  by  duty  to  oiaintaiu  those  argot nenis 
•yj"^."g  must  nactfiil  to  captain  Knowles,  as 
nras is eoBsittmt  with  truth ;  ami  if  hi« coo- 
a^  ????**"  ■fRcable  lothelaws  throughout, 
'UK  aMcr  a  laitbcr  indtspeasable  duty  to  tup- 
^  mk  mm  albcr  aiisatiaa  tbaa  may 

aftbc 


The  Negro  Case. 


[78 


4|uesiioo :  less  than  this  I  have  do  reason  lo 
ex|iect ;  more,  I  neiiher  demand  n«»r  wish  to 
havealloweil.  Many  alarming  apiirrheusions 
have  l»ecn  eniertaineil  of  tiie  consequence  of*  the 
dtH^ision,  eiiher  way.  About  14,<»00  slaves, 
from  the  most  exact  intelligence  I  am  able  to 
procure,  are  at  present  here ;  atod  some  little 
lime  past,  166,914  in  Jamaica ;  there  are, 
hesitles,  a  number  of  wild  negroes  in  the  woods. 
Tike  computed  value  of  a  negro  in  those  parts 
SO/,  a  head.  In  the  other  islands  I  cauDOt 
state  with  Uie  same  accuracy,  but  on  the  whole 
they  are  about  as  many.  The  meaos  of  coa« 
veyance,  I  am  lold,  are  maniiold  ,  every  familv 
almost  brings  over  a  great  number;  and  will, 
be  the  decision  on  which  side  it  may.  Moal 
negroes  who  have  money  (and  tliat  descriptioa 
1  Iwlicve  uill  include  nearly  all)  make  ioteresk 
with  the  com  moo  sailors  to  be  carried  hither. 
There  are  nei^roes  not  falling  under  the  proper 
denominatitin  of  any  yet  niensioned,  descen- 
dants of  the  original  slaves,  ihe  aborigines,  if  i 
may  call  them  so ;  these  luve  gradually  ac- 
quired a  natural  attachment  to  their  country 
and  situation;  in  all  insurrections  they  side 
with  their  masters:  otiierwise  the  vasi  dispco- 
portion  of  the  negroes  to  the  whites,  (not  less 
probably  than  that  of  100  to  one)  wuiild  have 
been  fatal  in  its  consequences.  There  are  rery 
strong  and  particular  grounds  of  apprefaeo- 
sion,  if  the  relation  in  which  they  stand  to 
their  masters  is  utterly  to  be  dissolved  on  the 
instant  of  their  doming'  into  England.  Slavery, 
say  the  gentlemen,  is  an  odious  thing ;  the 
name  is :  and  the  reality  ;  if  it  were  as  one  has 
defined,  and  the  rest  supposed  ii.  If  it  were 
accessary  to  the  idea  and  the  ezislence  of 
James  8ommerwtt,  that  his  master,  even  here, 
mi<;btkill,  nay,  might  e.ii  him,  might  sell  living 
or  dead,  might  make  him  and  his  descendants 
pro)>erty  alienable,  and  thus  trananaissible  to 
posterity  ;  this,  how  high  soever  my  ideas  may 
be  of  the  duty  of  my  profession,  is  what  i 
should  decline  pretty' much  to  defend  or  aa- 
sert,  fer  any  pnr|i08e,  seriously ;  I  should  only 
speak  of  it  to  testify  my  contempt  and  ab- 
hnirence.  But  thift'i<  w'bat  at  present  I  ass 
not  nt  all  concerned  in ;  unless  captain  Knowles, 
or  Mr.  Steuart,  have  killed  or  eat  bins. 
Freedom  has  been  asserted  as  a  natural  right, 
and  therefore  unaUenable  and  unresirainithle  ; 
there  is  (lerhaps  do  branch  of  this  right,  but  in 
some  at  all  times,  and  in  all  places  at  diffn^ent 
times,  has  lieen  restrained  :  nor  couM  society 
otherwise  be  conceived  to  exist.  For  the  KTcal 
benefit  of  the  public  and  individuals,  natuial 
Hheriy.wliieli  cnnsisU  in  doing  what  one  hkes, 
is  altered  to  the  doing  what  one  ought.  Tba 
centlemen  who  have  spoke  with  so  iiinch  seal, 
have  supposed  different  ways  by  which  slavery 
commences;  but  ha«e  omiiicd  one,  ami  rightly  { 
lor  it  would  have  given  a  ai* ire  favourable  idea 
of  the  nature  of  that  power  agaiost  which  ibay 
combat.  We  are  apt  .and  great  authoritiaa 
support  this  wsy  of  S|ieaking)  to  call  tbose  na* 
Hobs  nniTcrsaUy,  whose  laMsl  police  wa  wa 
•TybaibariaH;  (tbut tbe Gmba,  pw. 


<,  Mhose  cuilomi, 
r  JuitiAuble 

^..    ,.  L-Rllin^  ilifMi  tMiliariikni,  wp  lire 

ttfiMAuiL  Ijtnii  so,  ami  draw  cunclutinns  ac- 
w^ty-  TImm*  are  alavcs  in  Al'fica  by  cap- 
iMf  n  wkr,  but  ilii-  iiU[iibfr  lir  tnim  ^tesl ; 
AcoMMtry  u  dinidetl  iuln  tnauy  iinall,  some 
^M  loTUutm,  u  till  ila,  ill  tii^ir  wan  wilb  ciiie 
aMbrr,  umc  lliiii  mttuui.  There  are  ol'  Ibt^c 
^flc,  mm  tthu  Iwvu  a  ifiiM-  uf  the  H(r|>l  and 
uAv  «f  inrduiii  ;  bul  wliu  iinneiae  llial  oC- 
l^mat{aiiM  ludaly  are  piiiiiBliable  junily  by 
kt**(«<>bwul'*ertiliMl«,  I'DrarimeB  against 
pofcny, «  MHuulcraUK  ailiiiliun  ia  made  lo  tbe 
OMhtr  at'  Uatcn.  Tlify  bare  ■  process  by 
■tut  ibe  qmniily  ol  tliv  di-bt  in  auMrlained ; 

adK'aUtlMfirup'rly   i>l'  Ibe  drbliir  in   KUoda 

daapMnI  ail  be  bas  bcMilM,  i»  deemed  pro- 
pnr  boMFll';  llie  proiwt  otlJoer  (ilieriH'  we 
■•T  call  bin)  •film  ilie  iii>>ultMir,  and  dia- 
pan  ol'  bioi  ta  ■  nlavr.  We  don'i  cnutcad 
M4tr  itliicfa  uf  thHc  tlii^  unf'ortunale  man  in 
^■uliaii  la ;  bul  liiv  cunditiun  was  ibat  of  cer' 
Made  in  Ab«-'i  ibe  law  nC  the  land  o(  (bat 
walijf  di^imsed  of  him  b<  pra|i«riy,  niili  all 

Iw  I  Ibe  taaluleti  uf  Ihe  Biilish  legislature 
^^rm  ihn  cmidiliiiii ;  and  iliua  lie  nas  a  slave 
lalb  HI  1«»  and  fact.  I  do  nol  aim  al  proting 
knB  fMHMi;  out  (lecauM  ibey  want  evidrnce, 
b*  bteaww  Ihr}  baie  nol  Wen  ronlrorerlcd,  lo 
■J  nntlkirtian,  and  arc,  1  Ihinh,  inCHjialile  of 
t»al.  Hr.Struart,  nilh 4tiis right,  crotwdihe 
luaale,  and  was  not  tn  Itave  lb«  Mtiatuctinn  of 
te«nHBi{,  till  after  Itl*  an-rtal  in  tliia  country, 
tM  all  ratalioa  belweeo  liim  ami  ibe  nejfro,  aa 
^■■■aiul  aervaut,  was  to  be  inoittr  of  con- 
Nikij,  mad  ofiong  legal  disquiBtlinn.  A  lew 
••lb  RMv  l>*  )impei,  cooeeriiine  the  Russian 
!  {irar«e>linga  nf  the  Huute  of 
(bat  rate.  It  is  not  abaiird  in 
iM  aitsa,  ■•  ^oiii«d,  nor  iinjiiubable  asinaiter 
<*ha;  iti«  eiprnMion  haa  a  kind  of  abautdiiy. 
I  iksb,  wiibout  any  prrjiulive  lo  Mr.  KteuaM, 
«  Hw  men^B  uf  lh>s  cauar,  I  may  adoiil  th# 
NaMt  fuaaiM*  lu  lie  deaired,  an  fur  as  Ihe 
Baa  af Mat  *U**  goea.  The  maMfr  and  slave 
■na  boili.  (uraliuuld  bate  been  at  leaii)  on 
Ibqr  «MiBnN{  li^e,  new  creatures.  Kutisian  ala- 
Mr^.  aodrtKithi.'  (iilronlioaiiun  aniaui{st  ihem- 
■rim.  lo  llie  iIe^i'  t-  ibcy  use  il,  ii  ant  here  ta 
^llryne  jually  olHiernis,  the 
>nH  111'  one  imuoiry  are  nol 
bill  docR  I  lie  rtlalnui  cnae 
LTculiuK  It,  Ibe  dejcrcf^  in 
ry  y  I  bate  nut  ht«r<l,  nor. 
my  inicniiun  in  affirm,  Ihe 
•  of  trntnt  and  afr*  aoi  cea»ea  here  f  I 
a  municipal  relaliuni  diH'er  iii  dil 


lanaa   e>4inwa,   acvoriliui;  i 


■iiiiy,  and 


■•■a.     A  diatiovlion  was  eudravoured  lo 

■bail  inrtwee.i  naliiral  and  rauDJoipal 

bat  the   iiHiiiral   relatiuns   are   nol 

vbicb  ailcnd  lUaperaoonf  Ibe  man, 

M  ura  i  w>lb  wbidi  the  munioipal 


A.  D.  I77I.  [74 

re  moat  closely  connecleil  i  municipal  lawa, 
rictly,  are  liiuse  cnnAncd  to  a  parti cularfilace; 
'""""'    -  - -'    — -     wbicb  lltt  muniei|>al  lawa 


Tbei 


tinD  nf  hoaliBiid  and  nile,  1  think  niyaelf  war- 
ranleil  in  (^umlonitig,  as  a  natural  relation  ; 
does  il  Kub!.isi  tor  lif« ;  or  lo  answer  the  nalui-al 
purposfB  wblcb  way  reasonably  lie  eiipi>used 
etieu  lo  lermiiuite  sooner  t  Yet  this  ia  iiiie  of 
those  rtlaiions  nbich  follow  a  man  atery 
where.  Ifonly  nahiral  relalioos  had  tbal  pro- 
ptrt) ,  the  elTeet  vtoubl  Ue  very  Kmlled  indeed. 
In  fact,  Ibe  municipal  laws  are  princ>|inlly  eoi- 
ployeil  in  delenniiHng  the  maniirr  by  wliicb 
relaiinnHareoreated;  and  which  mannrr  variet 
in  Tarious  countries,  and  in  Ibe  same  cnuatnr 
at  different  periods  t  tbe  polillcat  relation  itsefr 
eonlinuing  usually  unchanged  by  the  cbanM 
of  plare.  Tliere  is  but  one  Ibriii  al  present 
with  ua,  by  which  the  TElaiion  of  busband  and 
H  ife  cnn  be  constiiiilrd ;  Uiere  was  a  time  when 
olherwise:  1  need  ixd  say  other  nalions  bare 
ilirir  own  modes,  fur  ibat  ami  oiber  ends  of 
socjely.  Contract  is  not  llw  only  means,  on 
(be  oilier  haiiil,  of  producing  Ihe  relation  of 
mattrr  and  serranl ;  Ihe  magiEiralea  are  em- 
powered lo  uLlitje  peraoos  under  certain  cir- 
cuuialnnces  lo  serve.  Let  me  take  notice,  nei- 
Ibei'  ibe  nir  of  Entjland  is  too  pure  lor  a  glare 
to  brealbe  in,  nor  have  ihe  tawa  of  England 
rejected  sertilude.  Villenage  in  this  country 
is  said  tu  be  worn  oui ;  (be  proptieiy  of  the 
ejipresaion  strikn  me  a  little.  Are  the  lawa 
not  ex.stinijT  by  which  it  was  created  F  A  mai- 
ler of  more  curiosity  than  use,  i(  is,  to  enquire 
H  ben  tbal  set  of  people  ceased.  The  slatuie  of 
tenures  ilid  not  however  aboliab  villeuage  in 
gross;  it  left  persoDs  of  that  condition  in  Ihe 
sanie  state  as  hetbre  ;  if  their  desceniloDts  are 
■II  deiid,  llie  gentlemen  are  rigbl  lo  say  the 
subject  of  ibose  law  s  is  gone,  bul  not  tbe  law ; 
if  the  sulijeol  revivea,  the  law  will  lead  the 
subjecl.  If  tbe  blaliite  of  Charles  Ihe  9d,  ever 
be  rejiealed,  tbe  law  uf  villenaee  revivea  in  it* 
full  force.  If  my  Irarned  broilier  tbe  Serjeant, 
or  ihe  other  gentlemen  who  argued  on  Ibe 
suppuaed  subject  uf  freedom,  wilf  go  through 
an  'operatiuD  my  reading  assures  me  wdl  be 
sufficient  fur  thai  purpose,  1  shall  claim  them 
as  properly.  I  won't,  1  assure  ibem,  make  a 
rigorous  use  of  my  |iower ;  I  will  neither  seH 
them,  eat  them,  nor  part  wiib  ibem.  Il  wou1(l 
be  a  great  surprize,  and  some  inconvenience, 
if  a  lureinnur  bringing  over  a  servant,  as  soon 
as  he  got  hither,  must  take  care  of  bis  carriage, 
his  hurse,  and  bimsell  in  whatever  meibudlie 
might  have  tbe  luck  (o  iuveol.  He  muat 
lind  his  way  lo  l^ndoo  do  foot.  Re  tells  bia 
servant.  Do  ibia ;  the  servant  replirs,  Before  I 
d«  it,  I  ibiuk  lit  Id  inform  you,  Bir,  the  Drat 
Btep  on  this  happy  laod  sets  all  men  on  a  |>er> 
feci  level ;  ynu  are  just  aa  much  obliged  lo 
obey  my  mmmands.  Thus,  neither  superior, 
or  infenur,  both  go  without  their  dinner.  We 
should  tind  singular  comfort,  on  entering  tbe 
liiiiils  of  a  foreign  country,  tu  be  thus  pt  once 
daresUil  of  ail  altendance  asd  all  accominodi- 


75] 


12  GEORGE  III. 


The  Negro  Case. 


[76 


tioo.  The  ffentleroen  hafe  oolleded  more 
reading  Iban  I  ba?e  leisure  to  collect,  or  in- 
dustry (I  must  own)  if  I  had  leisure :  very 
laudable  pains  have  beeu  taken,  and  rery  inge- 
nious, in  collecting  the  sentiments  of  other 
countries,  which  1  shall  not  much  regard,  as 
aflectiog  the  point  or  jurisdiction  of  this  court. 
In  Holland,  so  far  from  perfect  freedom,  (1 
speak  from  knowledge)  there  are,  who  without 
being  conscious  of  contract,  hare  for  offences 
perjMtual  labour  imposed,  and  death  the  con- 
dition annexed  to  non- performance.  Either 
all  the  different  ranks  must  be  allowed  natural, 
which  is  not  readily  conceived,  or  there  are 
political  ones,  which  cease  not  on  change  of 
soil.  But  in  what  manner  is  the  negro  to 
be  treated  ?  How  far  lawful  to  detain  him  F 
My  footman,  according  to  my  agreement,  is 
obliged  to  attend  me  from  this  city,  or  he  is  not ; 
if  no  condition,  that  be  shall  not  be  obliged, 
from  hence  be  is  obliged,  and  no  injury  done. 

A  servant  of  a  sheriff,  by  the  command  of 
his  master,  laid  hand  gently  on  another  ser- 
vant of  bin  master,  and  brouebt  him  before  his 
toaster,  who  himself  compelled  the  servant  to 
hit  duty;  an  action  of  assault  and  battery, 
and  false  imprisonment,  was  brought ;  and  the 
principal  quesiinn  was,  on  demurrer,  whether 
the  master  could  command  the  servant,  though 
he  might  have  justified  his  taking  of  the  ser- 
¥ant  by  his  own  hands  ?  The  convenience  of 
the  public  is  far  better  provided  for,  by  this 
private  authority  of  the  master,  than  if  the 
lawfulness  of  the  command  were  liable  to  be 
litigated  every  time  a  servant  thought  fit  to  be 
neffligent  or  troublesome. 

Js  there  a  doubt,  but  a  negro  might  interpose 
jn  the  defence  of  a  master,  or  a  master  in  de- 
fence of  a  negro  ?  If  to  all  purposes  of  ad- 
vantage, mutuality  requires  the  rule  to  extend 
to  those  of  disadvantage.  It  is  said,  as  not 
formed  by  contract,  no  restraint  can  be  placed 
by  contract.  Whichever  way  it  was  formed, 
the  consequences,  good  or  ill,  follow  from  the 
relation,  not  the  manner  of  producing  it.  1 
may  observe,  there  is  an  establishment,  by 
which  magistrates  compel  idle  or  dissolute  per- 
-  sons,  of  various  ranks  and  denominations,  to 
serve.  In  the  case  of  apprentices  bound  out 
bv  the  parish,  neither  the  trade  is  left  to  the 
choice  of  those  who  are  to  serve,  nor  the  con- 
tent of  parties  necessary ;  no  contract  there- 
fore is  made  in  the  former  instance,  none  in 
the  latter ;  the  dnty  remains  the  same.  The 
case  of  contract  for  life  quoted  from  tbe  year- 
books, was  recognized  as  valid ;  the  solemnity 
only  of  an  iostrument  judged  requisite.  Your 
lordships,  (this  variety  of  service,  with  divers 
other  sorts,  exibtinj^  by  law  here,)  have  tbe 
option  of  classing  him  amongst  those  servants 
which  be  most  resembles  in  condition :  there- 
lora,  (it  seenu  to  me)  are  by  law  authorised  to 
Mlbroe  a  servioe  for  life  in  the  slave,  that  be- 

ftLi  ^*^L-^C  *•■•  •i^o^^ion  before  his  coming 
ltttt«r;  wbiehy  as  Qot  incompatible,  but agree- 
SHj  •^^WtjinayjiitUytiibBisthefB:  I 
m/mh  A  nvhl.  my,  moat  Deootarily  iubnit; 


as  a  consequence  of  a  previoDS  right  in  Mr, 
Stausrt,  which  our  institutions,  not  dissolving, 
confirm.     I  don't  insist  on  all  the  consequences 
of  villenage;    enough  is  established  for  our 
cause,  by  supporting  the  continuance  of  the 
service.       Much    has    been  endeavoured,    to 
raise  a  distinction,  as  to  the  lawfulness  of  the 
negroes  commencing  slave,  from  the  difficulty 
or  impossibility  of  discovery  by  what  means, 
under  what  authority,  he  became  such.    This, 
1  apprehend,  if  a  curious  search  were  made, 
not  utterly  inexplicable ;  nor  the  legality  of  bit 
original  servitude  difficult  to  be  proved.    But 
to  what  end  ?   Our  legislature,  where  it  finds 
a  relation  existing,  supports  it  in  all  suita- 
ble consequences,  without  using  to  enquire 
how  it  commenced.    A  man  enlists  for  no  spo- 
cified  time;   t|ie  contract  in  construction  of 
law,  b  for  a  year :   the  legialature,  when  onoe 
the  man  is  enlisted,  interposes  annually  to 
continue  him  in  the  service,  as  long  as  the 
public  has  need  of  him.     In  times  of  public 
danger  he  is  forced  into  tbe  service;   the  lawa 
from  thence  forward  find  him  a  soldier,  mako 
him  liable  to  all  the  bdrden,  confer  all  the 
rights  (if  any  rights  there  are  of  that  state) 
and  enforce  all  p«ialties  olf  neglect  of  any  duty 
in  that  profession,  as  much  and  as  absolutely, 
as  if  by  contract  he  had  so  disposed  of  him- 
self.   If  the  Court  see  a  necessity  of  entering 
into  the  large  field  of  argument,  as  to  right  w 
the  unfortunate  roan,  and  service  appears  to 
them  deducible  from  a  discussion  of  that  na- 
ture to  him,  I  neither  doubt  they  will,  nor  wish 
they  should  not.     As  to  the  purpose  of  Mr*  , 
Steuart  and  captain  Knowles,  my  argument 
does  not  require  trover  should  lie,  as  tor  re- 
covering of  property,  nor  trespass :   a  form  of 
action  there  is,  the  writ  Per  Quod  Servitium 
Amisit,  for  loss  of  service,  which  the  Court 
would  have  recognized  ;   if  they  allowed  the 
means  of  suing  a  right,  they  allowed  the  right. 
The  opinion  cited,  to  prove  the  negroes  free  on 
coming  hither,  only  declares  them  not  sale- 
able ;  does  not  take  away  their  service.  1  would 
say,  before  I  conclude,  not  for  the  sake  of  the 
court,  of  the  audience ;     the  matter  now  ia 
question,  interests  the  zeal  for  freedom  of  no 
person,  if  truly  considered  ;    it  being  only, 
whether  I  must  apply  to  a  court  of  justice,  no 
a  case,  where  if  the  servant  was  an  Englisli- 
man  I  might  ose  my  private  auUiority  to  en- 
force the  performauce  of  the  aervice,  accdrd- 
ing  to  its  nature,)  or  may,  without  force  or  out- 
rage, take  mv  servant  myself,  or  by  another. 
1  hope,  therefore,  I  shall  not  suffer  in  the  opi- 
nion of  those  whose  honest  passions  are  fired 
at  the  name  of  alavery.      1  hope  I  have  not 
transgressed  my  duty  to  humanity  ;  nor  doubt 
I  your  lordship's  discharge  of  yours  to  justice. 

Davy,  Serj. — My  learned  friend  has  thought 
proper  to  consider  the  question  in  the  begin* 
aing  of  his  speech,  as  of  great  importance : 
it  is  indeed  so ;  hot  not  for  uose  reasons  prin- 
cipally assigned  by  him.  1  apprehend,  my 
lonl,  the  honour  of  Sqglaiid,  toe  honoor  of 


The  Stgro  Cote. 
4t  li»»  w90rmw<f  Envlithniin,  here  or  nbroail, 
itwn  voBCVfnctl.  He  olwerreH.  the  nuuilier 
k  14,<W0  ur  15.0001  if  sn,  bi|;li  lime  lu  |iut 
Msilta  lite  pftciice;  m(irecii|>eci>Uj,iiiicc 
Ibn  nnst  be  seal  back  »»  slltrs,  ihou^li  ver- 
•■iiherF.  Tbe  ini-reusv  ol'  iucli  inliabilanls, 
ml  launvivii  in  llie  prmpvriijr  ol'  ■  euuolry, 
Untj  iiMnicious  ;  in  au  ibliui),  nhkh  cud,  hi 
■A.  uAt  exlcnil  its  limib^  nor  conse[|ueiilly 
■■•tuii  uMve  tbaa  a  ctrtHiD  number  ol'  inbu' 
lAMi,  ilaafterndB  in  excess.  Moue^  from  tii- 
n^  nde  (or  any  ntlier  nieaiit)  is  ont  Ibe 
•allh  af  •  Daliun ;  nnt  coailiices  any  thing  to 
mfmm  tt,  >*y  farther  ihsu  the  )iruduc^ol  the 
■nk  will  MHWCf  the  ilemanil  of  DcceEMrins. 
la  that  owe  :nnney  enriches  the  iuhabilanli, 
m  kriag  Uic  coiuroon  represenlalive  of  lliose 

^BipMry  and  mrUsB,  If  the  encrease  of  ^a- 
)lt  esc>«(blfae  aunual  alock  of  |>ruiiEitons  rc' 
fibiw  lor  tikeif  aubfelHlence.  Tbus,  foreig-n 
MtaiiMBiu  inbabitanli  aitfjmpntinit  perpelii- 
mj,  are  ill  lo  be  allowed  ;  a  nation  of  enemies 
■  Um  iMrt  «r  a  slale.  Mill  uoree.  Mr.  Don- 
aN|  Blailcil  ItimMlf  of  a  Hruug  inlerpretalion 
rf  ika  «onl  ■  Datural :'  it  n'M  na  uacil  in  the 
•«w  IB  «rki^  be  tboutrht  (it  to  understand 
bat  cjipnrvatOD  i  it  was  useil  oh  moral,  which 
*■  hm  can  supersede.  All  coniracis,  I  do 
mt  nature  la  auen,  are  of  a  moral  nature ; 
lu  I  know  ool  any  law  lo  confirni  an  iminnrsi 
cattnei,  and  execute  it.  The  conlracl  of 
mntift  l»  a  taaral  contract,  nlnliliahed   lor 

cnnl  poTpotea,  eoforoint;  moral  uhligaliong ; 

■-■  ngh*  nl  lakin);  property  hj  descent,  the 
j'^ncy  af   children;  (who  in  France  are 

-  -ima  Ir^llimnle,  though  horn  belbre  the 
-•-ra^  in   EDglanJ  doI]  :  these,  anil  many 

iikw  nose^uencM,    How  I'roni  the  fnirrlage 

"TiAfj  •Awiiinixi'd ;  are  cnveroed  by  the  >nu- 

-    ol  law*   of  thai    partjcniiir  sttle,    under 

-•4a  iaalilalioni  tbe  contra  cling  and  ditposiQ){ 

^i^i^lcta  aa  aubjecla  ;  anil  by   whose  csLa- 

tiiakad  fama  they  Hibmil  tbe  relation  In  be  re- 

fidMii,  w  Gu  ai  ilB  couariiuenceE,  not  von- 

^ttmf  the  noml  <ibli|>atioii,  are  iolereiled. 

li  iL*  cue  of  Thorn  mid  Wbikin*-,  in  wbleb 

I  ;ii|>  waa  counsel,  dctermlneil  before 

■.  „k.^A    mm    died   in    England, 

.   iiiScMlanJ;  ha*in|r  a  brother  of 

i\i  ■  filter  of  the  half  blood  ;  the 

"  laws  of  Scntlanil,  coutd  not  take. 

:  .i|r)diea  tor  BdcniniBtralion  to  take 

.    mie,  real  and  peraonal,  inlo  hit 

,  1-r  bii  own  me;  the  aiiter  tiles  a 

>,  i-,.,t.«-ty.     The  tben'Mr.  Attoniey-Ge- 

il  ^u  in  auncr  for  the  defendant ;  and  af- 

'  -a,  ibe  ertair,  as  beina  in  tkutland,  and  de- 

>     diMT   fnati  a  liicolcniiian,  ahoutd  be  go- 

■aad  \j  that  law.     Lord  Hardwicke  over- 

•J  tha  wljeetiun  a;r*<nil  tlie  siiler'a  taking; 

'  Ivari   llarre   was  uu   pretence  for  it ;   and 

'    ir    t»  iIms  elfrct,  land  neatly  in  tbe  fol- 

-  at  worrit—"  Supptne  ■  foreiffner  has  ef- 
■r  atacki,  auil  diet  abroad ;  tbry  mint 
Bled  acxiordiriK  lo  the  laws,  not  of 

lyltacwlwrabts  affri:ti  were,  but  ef  that  to 


A.D.  1771. 
which  u  a  lubjeci  he  belongeil  at  Ihe  lima 
of  bia  death."  All  relalionaKorrrned  by  mu- 
nicipal laws,  must  be  so  Uu  dependant  nil 
ihera,  ilial  if  the  parlies  change  iheir  country 
Ihe  municipal  laws  give  way,  if  contradiclury 
lo  the  poiiilcal  regulalionauf  thai  oiher  country, 
rSeellie  cases  died  in  Fabrigaxn.  Moslyn.io/] 
In  the  case  of  master  and  slare,  beinif  no 
moral  obligation,  but  founded  on  principles, 
and  aupporled  by  practice,  ullerly  l'oreii(n  la 
the  laws  and  ciislomii  nf  this  country,  the  law 
cannot  recog-nixe  such  relation.  The  urgii- 
menia  founded  on  municipal  regulations,  con- 
sidered in  their  proper  nature,  haTebeen  treated 
an  fully,  so  learnedly,  nod  ably,  as  scarce  lo 
leare  any  room  for  observalioun  on  that  suh- 
jed:  any  thing  I  could  offer  to  enforce,  wotilj 
rather  appear  to  weaken  ibe  Droposiiiup,  com- 
pared wiib  ihe  strength  and  propriety  with 
which  that  subject  tias  already  beeu  explained 
and  urged.  I  am  not  concerned  to  dispute, 
Ihe  negro  may  contract  lo  serve ;  nor  deny 
llie  relation  between  ihem,  while  he  continoea 
under  bia  original  proprlelor's  roof  and  pro. 
tectlon.  It  is  remarkable,  in  all  Dyer,  (lur  I 
have  caused  a  search  lu  be  made  as  far  as  ihe 
4lh  of  Henry  the  8th,)  there  is  not  one  instance 
uf  a  man's  being  held  a  villein  who  denied 
himaelf  to  be  one ;  nor  can  l]lind  a  cnnfesiion  of 
rlllenage  In  those  times.  ^Lord  Manifield ; — 
The  last  confession  of  rilleuage  extant,  is  in  the 
Idth  of  Henry  ibe  Gtb.]  Iflbe  Court  would 
acknowledge  the  relalion  nf  master  and  aer- 
Tsnt,  it  ceriainly  would  not  allow  the  most  ex- 
ceplionable  jiart  of  slavery ;  that  of  being 
obliged  lo  remove,  at  ihe  will  of  the  master, 
from  tbe  protection  of  tliis  land  of  llberly,  lo  a 
country  where  ihere  are  no  laws;  or  hard  laws 
lo  insult  bitD.  It  will  not  permit  slavery  sus- 
pended for  a  while,  suspended  during  ihe  p]ea< 
sure  of  ihe  master.  The  instance  of  mnslei- 
andservanl  commencing  without  contract ;  and 
that  of  apprentices  against  the  will  of  ibe  par- 
ties, (ihe  latter  fouud  In  lis  cnnaequvnces  ex- 
ceedingly pernicious;)  both  these  are  prortded 
by  special  slaiulea  of  our  own  municipal  law. 
If  made  in  France,  or  any  where  but  here, 
they  would  not  have  been  binding  here.  To 
punish  not  even  a  criminal  for  offences  aninat 
ibe  lawa  of  another  counlry  ;  lo  set  tree'  a 
galley-slave,  who  is  a  slave  by  his  crime;  and 
make  a  slave  of  a  n^ro,  who  is  one,  by  hi* 
complexion  ;  is  a  cruelly  and  absurdlly  thai  I 
trust  will  never  lake  place  here :  sucn  aa,  if 
promulgrd,  would  make  England  a  disgrace  lo 
all  the  nations  under  heaven  :  for  Ihe  reducing 


most  abject  slate.  M  r.  Dunning  lias  mentioned, 
what  he  is  pleased  to  term  philosophical  and 
moral  grounils,  I  think,  or.  something  to  that 
effect,  nf  slavery  ;  and  would  not  by  any  ineana 
have  ua  ihiok  irisrespeclfully  of  those  nalions, 
whom  we  miatakrnly  call  oarbaiiins,  merely 
Ibi'  carrying  on  tlmi  trade  ;  fur  iny  part,  we 
may  be  warranied,  1  heheve,  in  affirming  the 
iBoralily  or  propriety  of  the  pracliee  duel  nvt 


79] 


IQ  iSEOROE  III. 


The  Negro  Case* 


[80 


enter  their  head*;  they  make  slaTes  of  whom 
they  think  (It.  For  the  air  of  Englaud ;  I 
think,  however,  it  has  beeo  gradually  purifyinflf 
crer  since  the  reif^n  of  Elisabeth.  Mr.  Dun- 
ninif  seems  to  hate  discovered  so  roach,  as  he 
finds  it  chancres  a  slave  into  a  serrant ;  though 
unhappily  be  does  not  think  it  of  efficacy 
eiHiugh  to  prerent  that  pestilent  disease  re- 
Tivini;,  the  instant  the  poor  man  is  obliged  to 
quit  (voluntarily  quits,  and  legally  it  seems  we 
ought  to  say,)  this  happy  country.  However, 
it  has  been  asserted,  and  is  now  repeated  by 
me,  this  air  is  too  pure  for  a  slave  to  breathe  in  : 
I  trust,  I  shall  not  quit  this  court  without  cer- 
taiu  confiction  of  the  truth  of  that  assertion. 

Lord  Matufield, — The  question  is,  if  the 
owner  had  a  right  to  detain  the  slave,  for  the 
tending  of  him  over  to  lie  sold  in  Jamaica. 
In  fiveo'r  six  cases  of  this  nature,  1  have  known 
It  to  be  accommodated  by  agreement  between 
the  parties :    on  its  first  coming  before  me,  I 
■trongly  recommended  it  here.  But  if  the  parties 
will  hare  it  decided,  we  must  give  our  opinion. 
Compassion  will  not,  on  the  one  hand,  nor  in- 
con? enience  on  the  other,  be  to  decide ;  hut  the 
law:  in  which  the  difficulty  will  be.nnncipally 
firom  the  inconvenience  on  both  sides.    Con- 
tract for  sale  of  a  slave  is  good  here ;  the  sale 
is  a  matter  to  which  the  law  properly  and  rea- 
dily attaches,  and  will  maintain  the  price  ac- 
cording to  the  agreement.    But  here  the  per- 
son of  the  slave  himself  is  immediately  the 
object  of  enquiry ;   which  makes  a  very  ma- 
terial difierence.    The  now  question  is.  Whe- 
ther any  dominion,  authority  or  coercion  can 
be  exercised  in  this  country,  on  a  slave  accord- 
hig  to  the  American  laws  ?  The  difficulty  of 
adopting  the  relation,  without  adopting  it  iu 
all  Its  consequences,  is  indeed  extreme;  and 
yet,  many  of  those  consequences  are  absolutely 
contrary  to  the  municipal  law  of  England. 
We  have  no  authority  to  regulate  the  condi- 
tions in  which  law  shall  operate.      On  the 
other  hand,  should  we  think  the  coercive  power 
cannot  be  exercised  :    it  is  now  about  50  years 
since  the  opinion  given  by  two  of  the  greatest 
men  of  their  own  or  any  times,  (since  which  no 
contract  has  been  brousrbt  to  trial,  between  the 
masters  and  slaves;)  the  service  performed  by 
the  slaves  without  wages,  b  a  clear  indication 
they  did  not  think  themselves  free  by  coming 
hither.    The  setting  14,000  or  15,000  men  at 
once  loose  by  a  solemn  opinion,  is  very  dis- 
agreeable in  the  effects  it  threatens.    There 
is  a  case  in  Hobart,  (Coventry  and  Woodfall,) 
where  a  man  had  contracted  to  go  as  a  ma- 
riner: but  the  now  case  will  not  come  within 
that  d^sion.    Mr.  Steuart  advances  no  claims 
on  contHibt ;  he  rests  his  whole  demand  on  a 
light  to  the  negro  as  slave,  and  mentions  the 
purpose  of  dotainiire  to  be  the  sending  of  him 
over  to  be  sold  in  Jamaica.     If  the  parties  will 
have  judgment,  *  fiat  justitia,  ruatcoelnm  ;*  let 
justice  be  done  whatever  be  the  cooseqiieDce. 
SOi.  a- bead  may  not  be  a  hi^  price ;    tbeo 
A  low  followi  to  the  propfwUin  of  above 

1 


700,000/.  sterling.  How  would  the  law  stand 
with  respect  to  their  settlement ;  their  wages  ? 
How  many  actions  for  any  blight  coercion  by 
the  master  P  We  cannot  in  any  of  these  points 
direct  the  law;  the  law  must  rule  us.  In 
these  particulars,  it  may  lie  matter  of  weighty 
consideration,  what  prnvisiouM  are  made  or  set 
by  law.  Mr.  Steuart  may  end  the  questioOp 
by  discharging  or  giving  freeduni  to  the  negro. 
I  did  think  at  first  to  put  the  matter  to  a  more 
solemn  way  of  argument :  but  if  my  brothers 
agree,  there  seems  no  occasion.  I  do  not  ima- 
gine, after  the  point  has  been  discusfted  on  both 
sides  so  extremely  well,  any  new  light  could  be 
thrown  on  the  subject.  If  the  parties  chuse  to 
refer  it  to  the  Common  Pleas,  they  can  give 
themselves  that  satisfaction  whenever  they 
think  fit.  An  application  to  pnriiament,  if  the 
merchants  think  the  question  of  great  com- 
mercial concern,  is  the  best,  and  perhaps  the 
only  inethofl  of  settling  the  point  for  the  future. 
The  Court  is  greatly  obliged  to  the  gentlemen 
of  the  bar  who  have  spoke  on  the  subject ;  and 
by  whose  care  and  abilities  so  much  has  been 
effected,  that  the  rule  of  decision  will  be  re- 
duced to  a  very  easy  compass.  I  cannot 
omit  to  express  particular  happiness  in  seeing 
young  men,  just  called  to  the  bar,  have  been 
able  so  ninch  to  profit  by  their  reading.  I 
think  it  right  the  matter  should  stand  over ; 
and  if  we  are  called  on  for  a  decision,  proper 
notice  shall  be  given. 

Trinity  Term,  June  SS,  177S. 

Lord  Mansfield, — On  the  part  of  Sommersett, 
the  case  which  we  gave  notice  should  be  de- 
cided this  day,  the  Court  now  proceeds  to  give 
its  opiniou.  1  shall  recite  the  return  to  the 
writ  of  Habeas  Corpus,  as  the  ground  of  our 
determination  ;  omitting  only  wonis  of  form. 
The  captain  of  the  ship  on  board  of  which  the 
negro  was  taken,  makes  his  return  to  the  writ 
in  terms  signifying  that  there  have  been,  and 
still  are,  slaves  to  a  great  number  in  Africa ; 
and  that  the  trade  in  them  is  authorized  by  the 
laws  and  opinions  of  Virginia  and  Jamaica  ; 
that  they  are  goods  and  chattels ;  and,  as  such, 
saleable  and  sold.  That  James  Sommersett  is 
a  negro  of  Africa,  and  long  before  the  return  of 
the  king's  writ  was  brought  to  be  sold,  and  was 
sold  to  Charies  Steuart,  esq.  then  in  Jamaica, 
and  has  not  been  manumitted  since ;  that  Mr. 
Steuart,  having  occasion  to  transact  businesty 
came  over  hither,  with  an  intention  to  return  ; 
and  brought  Sommersett  to  attend  and  abide  with 
him,  and  to  carry  him  hack  as  soon  as  the  bust* 
ness  should  be  transacted.  That  such  inten* 
tion  has  been,  and  still  continues ;  and  that  the 
negro  did  remain  till  the  time  of  his  departure 
in  the  service  of  his  master  Mr.  Steuart,  and 
quitted  it  without  his  consent ;  and  thereuiion, 
before  the  return  of  the  king's  writ,  the  said 
Charies  Steuart  did  commit  the  slave  on  board 
the  Anne  and  Mary,  to  safe  custody,  to  be  kept 
till  he  should  set  sail,  and  then  to  be  taken 
with  him  to  Jamaica,  and  there  solil  as  m  shive. 
And  this  is  the  caose  why  be,  captain  &iw«ic^  , 


'.  Mosli/n. 

Mtfwatlhra  ud  nnw  is.  commuider  of  llie 
rivte  inarl,  ilien  Bod  now  l^lni;  ia  the  rirer 
rfTVanio,  rfnl  ilietaiil  iirgru,  cDmmiltcd  lo 
Ui  ohKhI;,  dtrlaJD  ;  »nii  on  whicb  lie  now 
Hjfcji  him  tu  Ibe  orden  uf  ibe  Coaii.     We 

Rtlldnv  atlrnlion  lo  llienpinion  nf  lir  Philip 
to,  had  lord  chsDcellnr  Talbot,  whereliy 
tn  piK-liTMllbEiDirWcs  lo  llH^  Brilisli  planlers, 
fit  «9  tlw  legal  CDDuqUf  nct»  of  bIdtcs  coming 
M«Tl«  thi«  fitiap-lnm  or  htiag  bajilized,  reeog- 
Mtcdh/  Wd  Hardtficke, lining  ni  cbincellor 
w ibc  19(b  atOtiohrr.  1749.  ibat  tMTer  would 
liti  iImI  ■  niii'OD  liuil  |ire*ni1e<l.  if  ■  negro 
^canie  a  Chnsliin,  be  wa* 
,  hul  no  grnund  in  law  :  Ibat  he 
Ml laril  Talbot,  wtipn  ailoinpy  ftii'l  snlitllor. 
Mnml,  wnr  nf  iipinion,  iliii  iin  such  claim  for 
liwiiwif  a^^alid;  ihal  though  the  tlitule  uf  le- 
■MwakadabotnlicdfillvintregirddnltiamaDor, 
irtfcediJ»niciMiceiTebulthata  roan  miufhtBlill 
Weamea  ntttin  it)  ^rou, by  conlvssinv  bim»cir 
Meh  ia  opm  court.  We  are  so  welT  agreed, 
Mw  tm  ihiak  there  If  no  (>ccn>:ion  nf  bating  it 
aipwd  (a«  I  iuliroaied  an  intention  at  ftnl,)  |  discharged. 


A.  D.  1775. 


[82 


before  all  the  judge*,  as  ii  umal.  for  obiioiis 
tenaons,  on  a  return  lo  a  Habeas  Corpus.  Tbn 
only  question  before  ua  is,  whelbei-  the  cause 
on  the  return  h  sufficient  ?  If  it  ii,  the  negro 
iDUsI  be  remanded  ;  if  it  is  not,  he  must  be 
ditcliarged.  Accordingly,  the  return  atatef, 
lliat  the  slave  departed  and  refused  lo  serve  ; 
whereupon  he  vrai  kept,  lo  be  wld  abroad.  So 
high  an  act  of  dominion  must  be  recogniied  bv 
the  law  of  ihe  country  where  it  is  used.  The 
power  of  a  master  o»er  bis  slave  has  been  ex- 
Iremety  different,  in  differeot  countries.  The 
state  of  slavery  ia  of  lucb  a  nature,  that  it  is 
iucapable  of  being  introduced  on  aoy  reasons, 
moral  or  political,  but  only  by  posilire  law,  wbick 
preserves  its  force  long  afkr  the  reasons,  occa- 
sion, and  time  itself  from  whenceit  wascrealed, 
ia  erased  from  meranrv.  Ills  so  odious,  thai 
nutbingcan  be  suffered  lo  support  rl,  hut  posi- 
li»e  law.  Whatever  inconTeniences,  tberelttre, 
may  follow  from  tbe  decision,  I  cannot  say  this 


549.  Proceedings  in  an  Action  by  Mr.  Anthony  Fabbigas,  against 
Lieutenant-General  Mostyn,  Governor  of  Minorca,  for  False 
Imprisonment  and  Banishment;  first  in  the  Common-Pleas, 
and  afterwards  in  the  King's-Bench ;  14  Georoe  III.  a.  d 
1773— 1774.* 


tAifallAving  Case  i*  taken  from  the  Trial, 
«W  was  printed  from  the  Notes  in  sbort- 
iMd  of  Mr.  Gumey,  soon  aner  (he  hearing. 
)'n«  lite  AddrvM  to  tbe  Bookseller,  which 
ffBwd«il  Ihe  Tfial,  il  is  plain,  that  Mr.  Gur- 
mj  waa  employed  lo  lake  notes  for  Ibe 
pbiMilf.  ami  Ibal  the  Tiial  was  published  by 
IW  idaiMir  sr  bis  friends  ^t     former  £^i- 

t»  the  CoDunOD  Pleta,  Guildhall. 


■iRRT     Fjibkiuu,    gent.    Plaintiff. 
MosTTN.   eeq.    I>efendant 


-  -'  'rr  the  Defttdaut.—'Hr.  Serjeant 
•^rjeanl  Burland,  Mr.  Seijewit 
KoUer. 

Illicksluntf,  939.     Cowp.  IQI. 

1  lie  iitle  nl'ibe  proceedinK*  first  published, 

-«  asly  llie  txial  nf  the  eaunc  U  Nini  I'riRs 

-r  Mr.  JiM.  G<iuM,  wbo  nut  for  tbe  chief 

IS  «f  the  Common   Pleas,  was  tbua  ex- 

Tke  ProMadiags  at  larre,  in   a  Cnuse  on 
^ttsMi  Wougbl  bj  AntliODj  Fabrigii,  g<aL 


1  fIB  Court  being  sal,  tbe  jury  were  called 
over,  and  the  following  were  sworn  la  try  Ihe 
issue  Joined  between  tbe  parties. 

Jury. 
Thomas  Zachary,  esq.    Mr.  Thomss  Bowlly, 
Thomas  Asbley,  esq.       Mr,  John  Newball, 
David  Pow<l,  esq.  Mr.  John  King,  > 

Waller  Enver.esq.  Mr.  James  ISraiLb, 

Mr.  William  Tomkyo,  William  Burley,  esq. 
Mr.  Glll>erl  Howard,      Mr.  James Selby. 

Mr.  Pcckham.  May  it  please  your  lord- 
shiji,  and  you  gentlemen  of  the  jury,  this  ia  aa 
action  for  an  BBsautt  and  false  iroprisoament, 
brought  by  Anthony  Fabrigas  against  John 
Mostyn,  esq.  The  plaintiff  states  in  his  ilecla- 
ration,  that  the  defenilant,  on  tlie  1st  of  Sep- 
tembor,  1771,  with  force  and  arms,  made  an 
assault  upon  him  at  Minorca  ami  Ibeo  and 
there  imprisoued  biro,  and  caused  bim  to  lia 


against  lieutenant-general  John  Moslyn,'  go- 
vernor (if  tbe  island  of  Minorca,  colonel  of  the 
first  regiment  of  drtf(oon  guards,  and  one  of  IbB 
gruoniB  of  his  majesty's  bed-cbamber;  lor 
raise  Imprisonment  and  Punishment  frmo  Mi- 
norca to  Cacthagena  in  Sjmin.  TrirJ  befnra 
Mr.  Juit.  Gould,  in  the  Courl  of  Common- 
Pleu,  in  Guildball,  Loodoa,  on  the  l)lh  of 


SSj 


U  G£OEG£  III. 


Action  for  FaUe  Imprisonment^^ 


[8i 


carrietl  from  Minorca  to  Ctnhtg^na  in  8|Mun. 
There  is  a  secviid  oouat  in  the  declaration,  for 
an  assault  and  false  iinpriitnDiii^nt,  in  which  the 
banishment  is  omilted.    These  injuries  he  lays 

July,  1773.  Coutaininijr  the  evidence  vfrAa/im 
a«  delirered  by  the  witnesses;  with  aJI  the 
speeches  and  arguments  of  the  counsel  and  of 
the  court." 

Before  the  Trial  there  was  the  following  Ad- 
dress toibe  Bookseller. 

**  I  am  Tery  glad  to  find  yon  are  going  to 
publish  the  trial  Mtween  Fahrigas  and  Blostyn, 
as  the  kuowleilge  of  the  particulars  of  this  in- 
teresting cause  must  be  worthy  the  attention 
of  the  public. 

'^  A«  1  have  passed  a  great  part  of  my  life 
in  Minorca,  and  have  some  knowiedge  of  the 
parties,  I  was  induced  from  cariosity  with  many 
others  to  attend  this  trial  at  Guildhall,  uhere  I 
was  greatly  surprised  to  hear  the  account  given 
by  governor  Moshrn's  witneKses,  Mess.  Wright 
and  Mackellar,  of  the  constitaiioo  and  furm  of 
gu vernment  of  that  island. 

"  1  did  indeed  expect  that  Mr.  Fabrigas's 
counsel  would  have  called  witnesses  to  coatra- 
dict  the  very  extraordinary  account  4bose  gen- 
tlemen bad  given,  which  they  might  easily 
have  done  by  any  persf>n  who  had  the  least 
knowledge  -  oif  thie  matter.  I  su]>pose  they 
did  not,  either  from  thinking  the  subject  im- 
material to  their  case,  or  iicrliaps  to  preserve 
to  Mr.  Serj.  Glynn  the  closure  of  the  trial  by 
that  most  eloquent  and  masterly  reply  with 
which  it  was  concluded. 

«*  Whatever  the  motives  of  Mr.  Fabrigas*s 
counsel  might  be  for  leaving  this  account  un- 
contradicted, I  think  it  very  material  that  the 
world  should  not  now  be  misled,  as  tbey  would 
be,  should  they  read  the  evidence  of  these  ^ea* 
tlemen,  and  not  he  informed  of  their  mistakes ; 
I  call  them  mistakes,  for  however  extraonlinary 
some  parts  of  their  depositions  nuiy  appear  to 
an  obMrvant  reader,  I  am  unwilling  to  charge 
them  with  any  other  crime  than  ignorance. 

**  I  am  therefore  induced  to  trouble  you  with 
this  letter,  that  ^if  not  too  late)  yon  may  pub- 
lish it  with  the  tnal ;  my  sola  object  is,  that  the 
public  may  be  apprized  of  the  misinformation 
given  by  these  geotlemm.  I  do  not  expect 
that  the  bare  oontnulkstioD  of  an  anonymous 
person  shonld  o? ensi  the  declarations  upon  oath 
of  two  gentlemen  s^veo  in  open  court.  All  I 
mean  is,  to  apprise  the  public  of  the  tnitb,  and 
to  leare  them  to  make  such  larUier  inqniry  as 
tbey  shall  think  fit.  ^     ^ 

*'  The  purport  of  that  part  of  the  evidence 

given  by  thosn  gentlemen,  wbioh  I  nwan  to 

dispnte,  was,  that  a  part  of  the  island  called 

the  arraval  of  St.  PhiiVs  is  not  under  the  juris- 

didaon  of  the  msgistrates,  nor  governed  by  the 

nm  lavs  which  prevail  in  the  rest  of  the 

****"»  ^  is  ooder  ibe  sole  autkority  of  the 

V^^in^^  and  has  no  lav  but  his  will  and 
pleasore, 

M  -!liiS^'^  *«■  ^^  ^  ^^  wrtraordiimry 
•cPMiiiiilai  as  nhisiflli iMpouMB  fi>r  a  oon- 


to  bis  damage  at  10,000/.  To  this  declaration 
the  defendant  has  pleaded.  Not  Guilty;  and 
for  further  plea,  has  admitted  the  charges  in 
the  declaration  mentioned,  but  justifies  what  he 

sideraUe  number  of  inhabitants,  in  a  country 
governed  by  law,  and  which  is  part  of  the  do- 
minions of  the  crown  of  Great  Britain,  shonld 
have  had  some  jery  urgent  and  apparent  cause 
to  make  necessary  that  slavery  which  English- 
men abhor,  and  it  it  exists,  must  have  been  es« 
tabUshed  by  some  particular  provision.  If  it 
had  been  said,  that  in  the  fort  of  St.  Phillip's, 
in  time  of  actual  siege,  an  absolute  military  go- 
vernment mnst  prevail,  the  objects  and  the  rea- 
sons could  easily  be  understood.  But  to  say 
that  in  time  of  profound  peace  not  only  the  in* 
habitanU  of  fort  Sl  Phillip's,  but  all  those  of 
the  arraval,  which  contains  a  large  tlistrict  of 
country,  with  many  hundred  inhabitants,  living 
out  of  all  reach  of  the  garrison,  should  be  sub- 
ject not  to  military  government,  for  that  has  its 
written  laws  and  forms  of  trial,  but  to  the  ab- 
solute will  of  the  governor,  without  any  law  or 
trial,  is  in  itselfso  absurd,  and  so  contradictory 
to  every  idea  of  reason,  justice,  and  the  spint 
with  which  this  country  governs  its  foreign  do- 
minions, that,  I  trust,  my  countrymen  will  not 
believe  such  a  monster  exists  in  any  part  of 
this  empire,  without  better  proof  than  the  in- 
formation of  these  gentlemen. 

**  I  would  not  have  the  reader  think  that  this 
strange  idea  originated  in  the  brain  of  Mess. 
Wright  and  Mackellar,  for  I  know  it  is  a  fa- 
vounte  point,  which  the  governor  of  Minorca 
has  endeavoured  to  establish  ;  not  so  much,  I 
believe,  for  the  pleasure  of  exercising  absolute 
authority,  as  on  account  of  some  good  pen|ni- 
sites,  which  he  enjoys,  and  which  can  be  de- 

I  fended  on  no  other  ground. 

'  «■  To  establish  this,  it  has  been  endeavoured 
to  alter  the  ancient  dislributioo  of  tbe  districts 
or  termioos  of  the  island  from  tbor  to  five. 

**  The  four  terminos  Cieutadella,  Alayor, 
Marcadal,  and  Mahon,  have  their  separate 
magistrates  and  jurisdictions,  and  comprehend 

{ the  whole  isUnd.    The  arraval  of  St.  PhilUp*o 


!  was  always  a  part  of  the  termino  of  Mahim ; 
!  in  order  therefore  to  establish  the  governor's 
'  claim,  it  became  necessary  to  set  up  the  arra- 
val of  St.  Phillip's  as  a  separate  and  distinct- 
termino.  If  this  could  he  done,  it  ceased  to  be 
within  the  jurisdiction  of  the  magistrates  of  the 
island,  who  have  power  only  in  (heir  fonr  ter- 
minos, and  accordingly  Mess.  Wright  ani 
Mackellar  advance,  that  there  are  five  terminos 
instead  of  four ;  but  those  who  are  acquainted 
with  the  island  will  know,  that  this  is  a  modem 
inventiott ;  that  in  the  records  of  the  country, 
there  is  not  the  least  fouiHlation  for  such  an 
idea ;  on  the  contrary,  that  every  proof  of  the 
reverse  exists.  The  inbabitanti  of  the  arraTnl 
are  sobject  to  the  particular  jurats  af  Mahon, 
tliey  diffvr  in  no  respect  fiiNn  the  other  mhehi- 
tanis  of  that  termino,  and  the  judges  posseei 
and  exercise  the  same  jwisdaetion  and  autho- 
rity ift  the  amral,  M  Iksj  4P  ia  the  elhsr  pacta 


t'ahrigat  e.  Moiign- 

Iv  ilmw  ^J  •II'^'OS  U'Bl  ibe  plaintiff  endea- 
— »■*  (■>  crcBW  k  iDuday  among  the  inhabi- 
\M  ot  MiiMrea,  whereupoii  ilie  Uerenilanl,  w 
r,  WM  obliged  to  leizs  tbe  phiiitifT,  In 
o^^  Mn  til  <]nji  in  prison,  and  ihen  to  Im- 
MfckiM  to  C*ntM)[ena,  ai  it  was  lawful  for 
i»  IS  do.  To  thii  plea  iLe  plaintiff  replies, 
■l»ja,UwltlMderenilaD(did  asMolt,  impri< 
■■jHd  iMilab  him  of  his  own  \rnmg,  and 
•JMBl  mn  fueli  cause  as  lie  has  aboTC  al- 
M|»<.  Mi4  tlincapon  imiui  is  Joined.  Thi«, 
Miaiauu,  h  the  nature  of  the  pleailincrs.  Mr. 
*JMt  Of  UD  will  open  to  you  the  hers  on 
"h"*  oar  4«i-larat>iiii  ia  fonnded,  and  if  we 
•opTwt  h  by  evidence,  we  shall  be  entitled  lo 
'    t,  with  aucli  ilaiuages  sa  tbe  injurj 


■ml  HI 


MiMyd 


i^Dilvnm  of  the  Jury, 
bi*  eauie  fur  the  nlaintilF.  Gentlcoien, 
t  BCtton  thnt  Mr.  ralirrgas,  ■  natice  and 
»f  the  iiland  of  Minorca,  has  brought 
tbe  defendant, Mr.  MiMtyn,  his  majesly 'a 
~  la  Ihal  islantl,  tor  nssauUing,  false  im- 
_,  Dad  baoishin^  liim  to  a  foreign  coiin- 
^mininoi  of  the  king  of  Spain.  Mr. 
bu,  in  (he  fini  place,  pl«aife<l  that  he  is 


■f  the  idand.  which  could  not  be  the  cute,  if 
tte  daia  Ml  up  bj'  (he  goternar  really  existed. 
"  Ma  nranf  wliateTer  hM  been  ui  can  he 
piJuuiidwtthis  ctaini  has  any  fnuo'iation; 
wmiminHU  Hen.  Wright  auil  MackeJIar  at- 
*Mf(  la  (rire  any  hot  tlieir  ovrn  assertions. 
7W  aal;  tltrng  thai  had  the  least  similitude  lo 
pw;  wma  Ibeir  uyiog,  that  in  one  instance 
te  dBeer  acting  as  coiouer  to  examine  a 
■tfBlhal  had  met  with  a  riolml death  in  the 
tBuii,  aaked  the  guttrnor'a  ItaTe  before  he 


'TbMfBCl  I  do  not  pretend  to  dispute;  il 
[■af  wadiing ;  and  waseridentlyonly  a  mark 
«f  iii|it*l.  which  It  is  no  wonder  n>agisirste« 
ii  Am  Maad  pay  l«  a  iforeroor  who  realty  hai 
•i«Mh  power.  Dm  to  have  made  lht«  amount 
•«  Mjt  (hinf;  like  proof,  it  should  hare  been 
*W««,  thai  tbe  like  aiiention  was  not  paid  to 
Ibt  fvrtTaor  at  Hahon,  and  io  other  part*  of 
ik(  MbiML  Tbe  imtb  is,  that  the  inhabitants 
an  ••  JepomlaDl  an  tbe  raililar^,  that  1  ba*e 
Imwm  tbe  tame  civility  shewn  m  another  part 
«f  A«  JelenJ  t«  the  oflii-er  who  happened  to 
eMMMiard  titcre,  but  certainly  without  any  in- 
-^— ''■'-- —  ttt  him  their  authority 


■«:"; 


as.    Wriglil  ami   Mackellar  also  said, 
1  tba  Mianrqniua  claimed   lu  be  ifoterned 

K*  tfpSMiah  laws,  as  auiicd  beat  for  the  mo- 
«m  ;  but  ■nunualed  that  the  Spanish  laws 
frsia4wl,  anil  that  by  them  the  governor  had 
a  1^1  ky  hta  aolp  auiboriiy  to  baniih. 

"  Tb«  fact  moit  undoubtedly  is,  thai  Mi- 
•■a,  a  CDmiurrrd  country,  preserves  its  an- 
IBBI  ftbe  ^fpMiiib)  laws,  mi  the  cuiiquemr 
'•■MMpT*  tbrm  uttisn;  and  iherefare  as 


A.  D.  1779.  [80 

not  guilty  of  those  injuries ;  in  the  next,  he  ha* 
offered  this  justification  for  himsi-lf*,  that  tiie 
plaintiff,  Mr,  Fabrigas,  was  guilty  of  practices 
tending  to  sedition,  anil  that  Mr.  MiKtyn,  liir 
iich   miahehavjonr,  by  bis  sole  aulborily  i 


cIvBiion,  complains  of  as  a  grievniire.  This 
Mr.  Mostyn  takes  npon  him  to  insist,  in  an 
Gaijlish  court  of  jusiine,  is  the  Jasllliable  ex- 
ercise of  an  authority  derived  from  the  crown 
of  Eaffland.  And  Ibe  facia  which  he  under- 
lakes  llius  10 Justify,  are,  in  the  first  place,  a 
length  of  severe  imprisooroent  npon  a  nativeaf 
the  island  of  Minorca,  a  Euhje[:t  of  Great  Bri- 
tain, liiing  under  the  protectinn  i>f  the  BngUsh 


id,  secondly,  by  las  sole  authority, 
vriiiioin  ine  Interteniion  of  any  Judicature,  the 
■ending  him  into  e>:ile  inip  the  dominions  of  a 
foreigD  prince.  Gentlemen,  some  observations 
must  strike  you  upon  the  very  slate  nf  ihis 
plea ;  they  muil  alarm  yon,  and  you  must  be 
anxious  to  kuotv  the  particulars  of'^tliat  cise,  li> 
irhich,  in  Ihe  sense  of  any  man  who  has  re- 
ceived faia  edncalioti  in  this  cuunlry,  or  ever 
cotiveraed  with  £uo^lisbmen,  il  can  be  applied 
BS  jiistificaiioQ ;  Iiiat  t»se,  Iherelbre,  I  will 
ahoi'llj  state  tn  yon  : — Mr.  Pabrigaa  is  a  gen- 
tleman of  the  island  of  Minorca,  of  as  ^ood  a 
noDiIiiioD  as  any  inhabitant  of  Ihal  islaan,  of  as 
fair  and  unblemished  a  character  too  as  that 
island  produces.     It  la  however  enough,  for  . 


England  has  not  given  Ihem  others,  it  ia  true 
the  Spaniub  law.t  do  prevail  in  Minorca,  both  in 
civil  and  criminal  mailers,  among  ihemietves  : 
but  it  is  eqaallr  trne  thai  Ihey  have  the  pro- 
tection of  llie  English  laws  agaioit  ihcir  go- 
vernor, who  cannot  be  amenable  to  Iheir  local 
lawn,  and  llial  however  despoiicully  a  Spanmh 
governor  may  formerly  haveacti'd,  it  can  not 
be  Ihe  law  of  Spain,  or  of  any  couiiiry  (lietanse 
t  is  contrary  to  natural  juotii-c)  thai  a  inaa 
iIkiuIiI  he  coiiilemneil  and  punished  without 
:lther  trial  or  hearing, 

■'  It  would  have  been  easy  for  governor 
Mnstyn,  if  Mr.  Fabrigas  bail  commitieil  » 
crime,  to  have  Inltoweolhe  mode  of  proceed- 
ing eslabtiahe'l  there  in  criminal  cases,  which 
is  for  llie  advocate  fiscal  to  prosecuie  in  the 
I  of  royal  gnternmenl,  where  ihe  chief 
Jurtice  criminal  ii  the  judge. 

•'  If  I  was  nut  nfroid  of  swelling  this  letter 
loo  great  a  length,  1  should  make  more  re- 
irksouwhat  passed  at  this  triiil,  and  point 
I  many  more  iustances  of  power  niijnaunolily 
luineil  by  Ihe  governun.     But  I  iuipe  llinl 
what  appears  from  this  publication  wdl  be  suf- 
Acienl  to  imlucc  administratioa  lo  consider  the 
sUte  itt  this  i-land,  and  give  the  mhtUntauls 
wime  better  security  for  the  stfeljy  of  their  per- 
sons, and  eiyoymenl  of  their  property  j  lor. 
rxclusiie  of  Ihe  meanness  ibere  is  in  ill  using 
Ihose  who  cannol  t«oiitt.  it  is  umloubiedty  Ihe 
best  piilicy,  for  Ihe  honour  aud  siiibihly  of  our 
empire,  I'u  tiinke  all  it)  depeniJeociea  bajipt ." 
ftrmrr  JErfilwn. 


87] 


U  GEORGE  III. 


Aatumjir  Fake  Imprisonment--' 


[88 


this  present  purpose,  to  say  that  Mr.  Fabrigas 
18  a  descendant  of  the  anlient  inhabitants  of 
Minorca :  that  he  li?ed  there  under  the  capitu- 
lated rights :  that,  as  such,  the  national  faith  was 
pledged  for  his  enjoyment  of  those  rights  that  his 
ancestors  capitulated  for;  but  what  is  of  niore 
consideration,  being  born  in  Minorca  since  its 
•ttbjection  to  the  crown  of  England,  he  was  a 
free-born  subject  of  Enp^land,  and  claimed,  as 
his  birth -right,  the  privileges  due  to  that  cha* 
racter,  and  the  protection  of  the  English  laws. 
There  was  a  particular  stipulation  upon  the 
surrender  of  the  island,  that  every  occupier  or 
possessor  of  land  should  be  intitled,  under  cer- 
tain regulations  and  restrictions,  to  the  produce 
of  his  lands,  and  to  such  profit  as  by  his  in- 
dustry he  could  make  of  them.  Upon  that 
p;round  a  dispute  arose,  to  which  alone  can  be 
imputed  the  displeasure  of  Mr.  Mostyn  to- 
wards the  plaintiff,  and  the  treatment  ne  re- 
ceived from  him,  in  the  progress  of  it.  Mr. 
Mostyn,  as  governor,  was  appealed  to,  and  bis 
good-nature  appeared  to  be  so  serviceable  to 
the  adversary  of  Mr.  Fabrigas,  that  early  in 
the  morning  Mr.  Fabrigas  was  suddenly  taken 
from  his  house  by  a  file  of  soldiers,  and  by 
them  conducted  to  a  dungeon,  unaccused,  un- 
tried, unconvicted.  Thus,  without  any  form 
of  judicial  proceedings,  this  gentleman,  who 
then  lived  in  esteem  in  the  island,  finds  him- 
self all  of  a  sudden  committed  to  a  dungeon,  a 
dungeon  that  was  made  use  of  only  for  the 
roost  dangerous  malefactors,  and  that  only 
when  they  were  ready  to  receive  the  last  of 
punishments.  In  this  gloomy,  damp,  dismal, 
and  horrid  dungeon,  was  this  man  detained 
without  anj^  previous  accusation,  without  any 
call  upon  him  to  make  his  defence,  or  being 
informed  there  was  any  crime  or  offence  that 
was  alledged  against  nim,  and  without  any 
notice  either  to  him  or  his  family.  When  he 
found  himself  in  prison,  there  was  humanity 
enough  in  the  breast  of  the  keeper  of  that  pri- 
son to  accommodate  him  with  a  bed ;  but  it 
seems  that  accommodation  was  bv  the  power 
of  that  island  thought  too  much  for  him,  and 
the  bed  was  taken  from  bim ;  a  check  was 
given  to  the  lenity  of  the  keeper.  No  notice 
having  been  given  to  his  family  that  they 
might  visit  or  administer  comfort  to  him  ;  he 
did,  by  humble  request,  desire  that  his  wife 
might  be  permitted  to  visit  bim :  that  consola- 
tion too  Has  denied  him.  In  this  manner  was 
Mr.  Fabrigas  deprived  of  bis  liberty  for  a  con- 
•iderable  time.  It  is  unnecessary  for  me  to 
state  particularly  the  precise  time  that  this 
imprisonment  continued ;  that  you  will  hear 
from  the  witnesses.  Nor  does  a  case  like  this 
depend  upon  minutes,  hours,  or  days,  but  this 
is  the  nature  and  kind  of  imprisonment  that 
Mr.  Fabrigas  endured :  so  closely  watched 
that  no  man  could  have  access  to  him,  deprived 
of  the  consolation  of  his  family,  severed  from 
all  communication  with  his  friends,  relations,  or 
acquaintance,  that  could  administer  the  least 
comfort  to  him.  For  several  days  did  this  man 
Aontinue  under  thii  impiiaoDiiiciity  oor  did  hit 


iufierings  determine  with  it ;  his  removal  from 
the  dungeon  was  only  a  substitute  of  one  spe- 
cies of  cruelty  in  the  place  off  another :  for  the 
instant  he  was  taken  from  prison,  he  was  car- 
ried by  the  same  arbitrary  and  despotic  power 
on  board  a  ship,  without  any  previous  notice, 
without  any  time  allowed  him  to  prepare  for 
his  departure,  without  the  ordinary  visit  or 
comfort  of  friends  and  acquaintance,  from 
whom  he  was  probabl v  to  lie  se|>arated  for  ever. 
Thus  was  this  man  taken  from  his  native  coun- 
try, and  the  insupportalde  hardships  of  a  dun- 
geon were  followed  by  an  entire  expulsion  from 
his  country,  and  every  thing  that  was  dear  to 
him :  he  was  sent  instantly  on  board  a  ship  by 
force,  and  carried  to  Carthagena,  a  foreign 
country,  under  the  dominion  of  the  crown  of 
Spain.  This  is  the  nature  of  Mr.  Fabrigas't 
case.  Now,  gentlemen,  for  a  moment,  let  me 
remind  you  of  the  pretence  under  which  this 
imprisonment  is  inflicted.  It  is  said  Mr.  Fa- 
brigas excited  sedition,  or  attempted  to  excite 
sedition  ;  that  he  acted  or  spoke  in  a  turbulenc 
and  mutinous  manner ;  and  therefore  that  the 
governor,  as  his  plea  states  he  was  well  autho- 
rized to  do,  committed  him  to  prison,  and 
banished  him  out  of  the  island ;  or  rather  com- 
mitted him  to  prison  for  the  purpose  of  baniah- 
ing  him  out  of  the  island,  for  I  believe  that  is 
the  true  state  of  his  plea.  Gentlemen,  you 
would  justly  accuse  me  of  a  great  and  wanton 
waste  of  your  time,  if  I  should  say  a  great  deal 
for  the  purpose  of  exculpating  Air.  Fabrigas 
from  the  charge  and  imputation  that  is  thrown 
upon  him  in  this  place,  because  I  am  persuaded 
that  you,  an  English  jury,  if  you  were  silting 
in  judicature  upon  the  case  of^  confessedly  the 
vilest  of  offenders,  you  would  not  suffer  the 
atrocity  of  the  offence  to  mitigate  that  censure 
and  animadversion  which  is  due  to  a  behaviour 
like  this  of  the  governor's.  In  private  justice 
to  the  character  of  Mr.  Fabrigas,  and  not  as  the 
least  relating  to  any  question  here  to  be  tried, 
gentlemen,  I  will  sUte  to  you  upon  what 
grounds  and  pretence  this  mutiny  is  alleged 
against  Mr.  Fabrigas.  Mr.  Fabrigas,  as  I  have 
told  you,  claimed,  among  all  the  other  inhabi- 
tants and  possessors  of  lands  in  the  island,  a 
right  of  seUiog  the  produce  of  his  lands,  under 
certain  restrictions.  The  proiluce  of  the  lands 
is  chiefly  wine :  Mr.  Fabngas  had  a  consider- 
able quantity.  His  msjesty,  by  his  proclama* 
tion,  bad  given  free  liberty  to  the  inhabitants 
of  that  part  of  the  island  where  Mr.  Fabrigas 
lived,  to  sell  their  wines,  the  price  being  first 
settled  by  the  authority  of  the  governor : — that 
price  is  called  the  aflloration  price.  Notwith- 
standing bis  majesty's  proclamation,  by  an  act 
and  order,  not  of  governor  Mostyn,  but  of  hit 
lieutenant-governor,  there  was  a  pruliibition 
that  no  wine  should  be  sold  without  the  imme- 
diate authority  of  the  mustastaph.  An  appli- 
cation therefore,  by  Mr.  Fabrigas,  was  made 
to  this  officer,  either  to  permit  him  to  sell  his 
wines  under  the  afforation  price,  which  would 
be  for  the  general  reUef  and  benefit  of  the 
islandeny  um  of  the  giniaoDy  or  that  he  him* 


Fabrigoi  v.  Mosli/n. 

)rlt«l  a  fixed  price.  Tliit  nfficer 
■^ly  with  eiiber:  Mr.  Fobri^B 
o  Ihe  necessity  iil"  inak- 
k^pplicAliun  lo  gureroor  Slostyn, 
u  llii*  tllernittiTe,  either  to  sell  Ills 
vjiimitrr  ■  oerUio  atlurxioD  and  ngulalfd 
pr-,  or  tiial  Ihe  KuteiiimeaL  Would  buy  his 
■«(  of  him  for  llieir  use,  or  the  ube  of  Ihe  car- 
i.nu  Ttiis  (>etilion  hds  thought  reasonable  al 
tit,  and  had  a  kind  ansttfr;  it  was  received, 
aM  4  a|i|ivir*  Id  hate  been  takeo  JDlo  ciinsi- 
Antnp,  but  Duibing-  vts  doae  in  canwqiience 
•fn.  JUr.  Fahngas  iherefore  repeals  his  a[i- 
^icaliua.  and  he  irceivei  kdcou  rare  men  t  lu 
iifvcltbal  tlie  reason  able  nesa  oi'  hia  petilion 
■voU  be  taken  inlo  consideralian,  aod  ibal  he 
■kaahl  be  at  hbvrlj  to  aell  Ibe  utoduce  of  his 
imA  But,  iftnliemeo,  at  last  LbU  auRner  was 
Ciien  lo  tit.  Fabrics:  ibat  il'  it  ajiiieartil  to 
k  lb*  Mine  of  a  ciinsideruble  nuDiber  of  ibe 
lababiUnla  ikf  itie  jjlaiid,  ibalil  was  fur  ihtHr 
kinffti  ihal  aiich  |iei  roinkioii  should  be  gitrn, 
hn  apfilMVUioo  iboiild  be  tumplied  wiih.  Mr. 
i-~iAn|ia<  Ibea  prepares  BOcli  a  (letilioa;  be  kfels 
il«i;*nl,  and  he  prt«eots  il  in  ^Ternor  Moiiyn. 
Naw,  gaDtlamen,  berc  it  is  impassible  lo  stale 
«tal  |uaac4  between  llie  parties.  It'  it  can  be 
|WHn4Bd  Uial  tlierewaa  any  Ibing  mutinous, 

|«M«eibat  petnion  will  be  proiluced  to  you, 
aad  il  ■ill  ajwak  Inr  ilaell';  but  some  iadigns- 
Ma  iraa  cniK«i'ed  liy  soternor  Moalyn  against 
tic  idainliir,  Mr.  rabrii;aa,  which  protluced 
llM  abMige,  unaccouDtable,  unwarrantable, 
•■lalamia^  euuduci,  which  we  now,  by  evi- 
Wcr,  impuie  lo  Mr,  Hnstyn.  For  );entle- 
■a,  iMtaatly  npoo  ibii,  Itlr.  Fabriifai  is  cun- 
'■oelia  iha  oianner  Iwlure-meuli'ined  lo  thai 


MWri  ta  5*1),  till  he  was  hurried  ou  board  « 

rtif,  svl  •>•■  conveyed  lo  Cartlia^^cnn  in  ^(jaiu. 

Bna^   hr  lb«  flrn  time,   he  rvcrirea  iuielli- 

fOM  iif  what  was  the  proiocaiion  that  he 

pta,  wbat  waa  the  ([round  ul'  auth  Ireatmeal 

■<  hi*a,  wbil  cliari;*  waa  imputed  in  bim,  by 

■hai  aallfotity  be  was  so  ilfiaiued   and  so 

Inxtrf:  tut  here  a|i[iean  ■  Itlier  under  the 

iaai  «r  (vtenwt  Bloslyn,  sviwing  Ibis  acl, 

aa4  Mtiaff  bim  ihil  be  tlionttbt  ii  neces«8rv 

ui  mif^taA,  fur  the  (lunishmeol  of  his  ut- 

'  -jrx,  b>  aend  bim  into  exile,  and  lo  direct  bim 

1*  oua*r_«ed  tu  Cnrtliatjeaa  in  Spain,     Here 

'■jiott  find  lliegiTeruoraToiriu^; Ihe  whole; 

.  1  jT  be  did  nni  alow  ilic  H  hole,  you  muld 

11  c  OB  ilouU  ander  what  antburity  these  tlilnits 

-e  4tMi*i  liMaiiae  you  will  hear  from  all, 

•I  tb«y  caiuiot  W  douc  but  under  thenulho- 

I  of  ifac  iforcrnor.     Then,  (•enilenien,  Ihe 

V'uMnmox,  and  ihe  aeoding  Ibis  man  inlo 

. i^.  arc  lh«  act*  ot  i;overoiir  Hostyn.    The 

i-DMHiinrwl  tinilrr  such  attanee  sg^iravaling 

•i-umtUtitvt  of  hurror  aiid  ignomiuy,  and  the 

■-•^■■•c  b«ia  witliuul  nnliee,  without  tliue  for 

p^nswan,  wiihii"!  K>*ii>K  1>'»>  )be  opporlu- 

h;  af  payiof  (lie  'eul  alleiiiion  to  the  oaii- 

'  '        ieuiiraiiiily,ioioezile;  Ibete, 


A.  D.  1775. 


[00 


gentlemeD.  we  now  presume  lo  treat  a«  the 
aeis  uf  Koiernnr  Hosiyn ;  and  llie  KOTernor 
sa^s,  he  is  justified  in  >u  doinjf,  as  ^nterupT  of 
Minorca.  I  should  be  glad  lo  know  upua  »hal 
idea  of  justice  llie  ^of  emur  i{rniiti(ls  thai  pre- 
Irnce.  1  conceive,  ihsl  in  this  ease,  there  cao- 
uol  he  the  least  colour  or  pretence  of  aay  judi- 
cial examinalion,  or  the  least  liirm  ot  judicial 
prDceeiling:s.  GoTeruor  Moslyn,  alter  liBTinff 
iieen  guilty  of  ibis  ouirnse  ID  Ibe  plaintiff, 
would  bare  acted  luuoh  belter,  if  be  had  not 
added  this  insult  to  the  laws  ot  his  couoiry,  by 
asaumiog  an  autbnrily  iuciinipatibli:  with  the 
least  possible  idea  of  justice  that  can  bevnler- 
tained  in  tliis  or  in  any  couDlry  wliauoeter. 
Genilemeo,  if  goveruiir  iVloslyii  complsini  that 
Justice  is  not  done  lu  bis  defence  by  his  |4ea. 
ibat  he  is  fettered  and  eniharrosaed  by  it,  and 
cnuld  now  justily  his  conduct  upon  belter 
grounda,  we  will  freely  giie  him  the  oppertu- 
iiity  of  doing  it ;  he  cball  rio  il  m  h  bat  clia- 
racler  be  ihiiiks  proper.  If  he  has  acted  uuder 
ibe  ci •lour  of  any  judicial  proceeilings  in  civil 
Judicslure,  Ut  those  proceediii|fs  be  pruducrd. 
let  liim  desert  and  abBDdonlheslisinelulpleailiBl 
he  has  presented ;  he  has  even  our  tibrrly  lo  do 
it.  If  the  goveruor  means  lo  be  ju»tilied  in  his 
inililarv  character,  I  need  not  itll  you.  genlle- 
iiien,  that  it  is  necessary  in  that  cboracler,  that 
there  shonld  be  judicial  proceedings  bkewiie 
of  a  military  court  of  justice.  I  will  be  bold 
to  aay,  that  the  idea  govenior  Moslyn  haa 
adopted,  that  the  liies,  fortunes,  and  being  of 
Ibe  iuhaliiiants  of  the  island  of  Minorca  are  at 
Ills  mercy,  and  that  by  bis  sole  autliotily  be 
CDD  inflict  bonds  and  imprisonment  on  any 
inhabilRDt  nf  that  island,  is  the  single  idea  of 
governor  Moslyn;  and  I  say  the  Kovernor 
dues  nut,  in  this  case,  latk  like  a  miliinry  man, 
fur  his  ideas  are  as  foreign  to  ihe  uotioi>i  uf  a 
snldier,  as  of  a  lawyer.  Gi'ntlemen.  this  is 
the  nature  of  the  case  that  we  shall  oiTiv  to 
ynu,  and  which  we  sliall  pruiluce  in  proof  lo 
you  against  gucerour  Moslyn;  an  imprison- 
ment, if  il  bad  been  attended  with  all  Ihe  cir- 
cumstances of  cumlort  lliut  cnatd  have  been 


idmin 


1  that  si 


pretence  of 
legal  authority,  sufScieut  to  entitle  this  gentle* 
man  lo  call  lor  considerable  damages  from  a 
verdict  of  a  jury  :  a  baiiishnieni  inlo  a  fureiga 
(Muntry  of  a  suuject  of  England,  inlllled  lolte 
protected,  to  whom  the  laws  caniiol  lie  denied 
without  breach  of  public  faith,  and  a  dan- 
gerous wound  to  the  general  system  of  our 
I'uoslitulinoal  lilierlies.  Thus,  by  Ibe  sole  au- 
lliority  of  governor  Moslyu,  williout  pretence 
of  judicial  Fxaininalinn,  was  Mr.  Fahrigas  sent 
inlo  bsaisboiKDi.  If  all  other  circumiiancei 
were  away,  llie  being  sent  out  uf  his  native 
coimtry  by  an  arbitiary  act  of  ihe  gnvenior  of 
that  island,  is  surely  grouud  enough  to  call  fur 
the  rooHi  considerable  daiiisges.  Hut,  gentle- 
men, you  are  lo  add  to  il  every  circuinstancfl 
of  discoiiiforl.  He  wai,  during  the  whole 
lime  of  his  imiirisomneni,  kept  in  a  gloomj 
dungvoo  i  uo  circumitaucB  of  ignoraipy  ibat 


14  GEORGE  III. 


91] 

cavAi  iffiedt  the  mind  of  m  ntfii  of  ftelin|f  was 
omitted :  be  wtm  put  into  a  place  set  apart  and 
deaif^ned  only  for  the  reception  of  tbo  wont  of 
maieiactora,  secluded  from  any  conversation  or 
oomannnication  with  his  frienda  or  acquaiDt- 
•nce,  his  neareat  relations,  his  wife  or  bis  fa- 
mily, deprived  of  the  comfort  of  a  bed,  and 
oblif(ed,  for  a  conaiderable  number  of  days,  to 
•uhsist  upon  bread  and  water.  This  is  a  caae 
of  the  must  unparalleled  cruelty ;  the  moat  in* 
geniona  circumstances  of  torture  beioff  added 
to  the  moat  unjustifiable  and  the  most  lawless 
eiertion  of  authority,  that  I  am  persuaded  has 
ever  appeared  before  any  court.  If  i^rernor 
•  Mofttyu  can  support  the  |>oweni  of  this  claim, 
•od   vindicate  himself,  aa  governor,  by  the 

Slenitude  of  his  powers,  and  that  the  sole  ju- 
icaiure  of  the  inland  residea  in  his  person  ; 
if  it  was  lor  a  moment  possible  for  you  to  en- 
tertain the  idea  of  the  lejilfality  of  such  a  power 
beinif  placed  in  anv  man,  in  consequence  of  an 
authority  derived  from  the  crown  of  Eoii^and  : 
1  aay,  it  it  was  possifaje  for  you  to  conceive  that 
Buch  a  power  could  exist ;  try  him  even  by  that 
rule,  try  him  by  that  rule,  and  he  ia  without 
ezcuric ;  for  the  most  des|iotic,  the  most  arbi- 
trary and  uncontroutabte  power  thai  is  ever  ex- 
ercised, profesaeth  at  least  to  act  by  caliin^if 
opoa  the  party  accused  to  make  his  defence, 
«nd   I  Mieve  in  no  part  of  the  globe  is  it 
looked  upon  as  just  to  condemn  a  man  un- 
heard.   Let  general  Most3'n  travel  into  Asia,  or 
visit  his  neighbours  on  the  continent  of  Bar- 
bery, he  will  not  And  examples  there  to  justify 
his  conduct,  in  any  of  the  powers  assumed,  or 
in  the  use  be  has  made  of  them :  for  if  their 
powers  are  not  circumscribed  or  restrained  by 
any  lawH;  if  they  act,  as  the  general  professes 
he  has  a  right  to,  by  their  aote  will  and  plea- 
sure ;  if  that  ia  the  rule  of  their  government, 
yet  atill  there  is  an  idea  of  a  principle  of  na- 
tural justice  that  should  govern  their  proceed- 
ings there ;  at  least  an  appearance  of  it  tliey 
•re  anxious  to  produce.     1  never  lieard  in  my 
life  that  it  waa  the  avowed  privilege  of  any 
country,  that  a  man  should  be  charged  with 
mn  offence,  that  he  received  the  punishment 
for  that  offence,  without  tbe  offence  being  ex- 
plained and  stated  to  him,  and  an  opportimity 
5iven  him  of  hearing  the  charge  and  the  evi- 
ence  by  which  it  was  produced ;  but  this  is 
the  case  of  a  transaction  in  the  dark,  a  secret 
indignation  conceived,  that  indignation  imme- 
diately folknved  by  the  most  horrid  exertiona  of 
power  upon  the  person  of  Mr.  Fabrigas— com- 
mitted to  a  dungeon,  and  unapprised  of  the 
charge  against  him  till  sent  onl  of  his  native 
country,  and  upon  the  voyage  to  the  destined 
place  of  his  banishment.    The  offer  made  to 
general  Nostvn  not  to  tie  him  down  merely  to 
the  justification  specified  in  his  plea,  but  to  give 
him  leave  to  offer  any  justifi<»tiou  that  may 
be  consistent  with  the  idea  of  civil  or  military 
justice,  may  be  called   iosidioiUf  because  I 
must  disbelieve  every  thing  suggested  on  aiiy 
trust,  if  I  think  the  offer  can  be  of  no  beseflt 
to  him  if  wanted  i  but  it  naj  he  added  to  il| 


Aeiknjbr  False  Imprisonment'^  ^  |]99 

*«  Governor,  take  yonr  ideas  of  law  frem  B«r- 
bary  or  Torkey,  prsduoe  yomr  precedent,  India 
or  negro  law,  yen  are  still  mable  to  justify 
yiiur  conduct.*'  Gentlemen,  these  are  the 
circunastaocea  we  are  to  lay  before  you  in  evi- 
dence. The  governor  may,  if  he  pleaaes,  eo* 
deavour  to  chaige  tbia  gentleman  with  motinj. 
If  be  does,  1  presume  he  will  adduce  his  proof 
of  it.  But  if  it  was  possilile  to  decide  that  Mr. 
Fabrigas  waa  a  mutinous  man,  though  tbe  re- 
verse of  that  character  is  but  justice  to  him  ; 
nay,  if  yon  conki  decide  that  he  was  tbe  worst 
and  roost  dangerous  of  offenders,  governor 
Mosty  n's  conduct  is  still  dt'stitute  of  any  colour 
of  justice  or  law.  His  conduct  is  totally  un- 
warrantable, and  the  phHeuco  he  baa  here  eet 
upi  that  he  ia  a  prince  with  a  power  unbounded 
and  unlimited  by  any  nile  or  law  whatsoever« 
that  he  is  authorized  to  act  by  his  own  will  and 
pleasure,  must  represent  this  case  in  so  alarm* 
ing  a  light  to  you,  that  1  am  persuaded  that 
you,  who  have  taken  your  ideaa  of  law  and 
justice  from  conversation  with  Englishmen, 
and  obseiTation  on  the  English  constitution, 
will  give  all  attention  to  the  particular  auffer- 
ings  of  the  roan,  aa  well  as  to  what  you  owe 
to  yourselves,  your  country  and  posterity ;  and 
we  trust,  even  in  the  very  best  conatructioo 
that  is  |)ossible  to  put  on  governor  Moatyo'a 
conduct,  that  you  will  think  the  danaagea  laid 
in  tbe  declaration  are  not  extravagant. 


Basil  Cunningham  sworn. 
Examined  by  Mr.  Lie. 

Mr.  Lee.  Yon  are  in  aonie  military  oi* 
parity  ?-^Cnnningham.  Yes. 

Wert  you  in  the  year  1771  in  the  island 
of  Minorca  ^— Yes. 

In  what  character  ? — Acting  aerjeant  majar 
for  the  royal  artillery. 

Do  you  remember  Mr.  Anthonui  Fabrigaa 
being  at  Minorca  ? — Yes. 

Were  you  serjeaot  major  at  the  time  he  waa 
aeized  and  taken  into  custody  f— 1  waa,  when 
I  saw  him  brought  into  prison. 

Do  yon  recollect  any  orders  at  that  time 
coming  in  any  body's  name  touching  his  oon* 
linement  f — ^There  waa  a  general  order  given 
us,  that  three  more  men  should  be  added  to 
the  artillery  guard. 

Couri.  Have  you  that  order?-— il.  Mo. 

Q.  Waa  it  not  your  office  aa  aerjeant  major 
to  trauaeribe  that  order  into  your  book  P — A,  I 
fifave  that  order  out  in  the  company's  enlair 
book. 

To  whom  does  the  custody  of  that  order 
book  belooir  ?— When  the  books  are  writtefi 
out,  they  give  them  to  the  captain  to  whom 
they  belong. 

They  put  three  additional  men  sentry  npoii 
that  occasion  ?^* Yes. 

Court.  Why?— il.  To  do  duly  upon  th# 
prisoner  Mr.  Abrivas.  ' 

How  long  had  Mr.  Fabrigas  been  in  cna- 
tody  at  that  time  when  this  order  was  gives 
ontP  Was  it  immediately  uDon  his  coming  into 
aaMdyy  or  after  ha  had  been  put  thereP— 


W] 


F^brigai.^  M^ifn. 


A.  D.  1775. 


(M 


T«  Um  Wil  •f  my  Tfcollection,  I  believe  about 
tmm/LyUmt  boura  after  .lie  bad  beeo  in  cat- 
ti45««r  the  evening  of  tbe  same  day ;  I  ean- 
BOlbteerUiQ  as  to  that. 

YfiaaB  teU  us  what  arMOo  it  was  tbat  Mr. 
Fikqpis  ivma  comsBitted  to? — A,  He  vraa  put 
iabpoaaq  No.  1. 

Ilbaiis  tWe  gcDenl  use  of  tbat  prison  P  to 
sM  ii  it  appl£d  P— All  tbe  prisoiiers  that  are 
fwkj  of  capital  offences,  or  for  desertioD,  we 
onMaly  pyi  io  Ibere. 

Davoa  recellect  any  circumstances  attend- 
■V  w.  Fabrigat's  imprisonnoent  P  mention 
asy  tbat  occur  to  you.  I>o  you  recollect  the 
awmer  in  whiob  be  was  brouff  bt  or  confined  P 
-«To  llie'  best  of  my  recollection  he  was 
hissfbt  by  a  party  of  soldiers,  whether  of 
tbe  &tb  regiment  or  the  6th,  I  can't  say  ;  he 
'it  in  haadoafied,  I  think,  but  am 


Bsw  \om%  was  be  confined  there  P — As  near 

as  1  can  racoUect,  shoot  five  or  six  days. 

la  tbat  prison  P — Yes. 

Dang  ys  confioesBent  there,  can  too  tell 

Ibecamt  or  jury  whether  he  was  permitted  to 

kt  visietf  bv  lua  wife  or  fsmHy  P_No :  the 

had  Ciders  that  bo  should  have  no 

witb  any  body  but  tbe  prevost 


I>s  yon  know  of  any  orders  that  he  should 
an  ba  sooB  byl  by  tbo  jirevost  marshal  P— The 
WBlry  informed  me  that  was  his  orders ;  be- 
■rifl^  it  w  fmk  into  tbe  general  orders  too. 

ioi.  Dmoy*  If  yon  mean  to  affect  the  defeo- 
dmt  witb  tbitf,  yon  abould  produce  the  order. 

Mr.  I^e.  Well  then,  we  shall  produce  it. 

(L  IniKSk,  4m  jim  know  whether  any  body 
w  nmitted  to  visit  him  hut  this  prevost  mar- 
^balr— i.  I  doo^knowof  aojy ;  if  they  did,  it 


■sisairary  t^ordera. 

Ai jan  know  if  any  body  applied  to  see 
biiaP— His  wife  applied  to  see  him,  but  was 


Jited,aal 


informed. 


What  is  this,  prevast  marshal  P — One  that 
hm  tba  chm^ipa  of.  all  prisoners  tbat  are  con- 
fasdlar  capital  crimes;   be  has  the  keys  of 


Islbiaaa  esneatioDer  too^  as  well  as  a  gaoler  P 


-Ne. 


Can  yoQ  lell  os  the  cause  for  which  this  geo- 
oooMMtlsd — tbe  occasion  of  it  P— I 


Do  yon  know  what  Mr.  Fabrigas  is  P — He 

aaa  mbabitant  of  the  island  of  Minorca. 

A  native? — Yes:  a  Minorquio. 

Do  you  know  whether  Mr.  Fabrigas  \b  a 

■an  of  any  property,  or  was  a  grower  of  any 

upon  that  island  P    I>o  you  know  in  what 

bo  lited  ?-*(le  lived  like  a  gentleman 


Were  you  acquainted  with  any  disputes 
^•sthing  bis  liberty  to  sell  his  wine  P — 1  know 
Mibiog  at  all  of  it. 

IH  you  know  any  thing  of  what  happened 
^  ban  aAer  bis  contkiemeot  in  this  prison  P 
*te  breame  of  bin  after  f— 'He  was  sent  out 
if  tbe  island. 

ft 


Do  yoa  know  of  your  own  knowledge  P^- - 
I  did  not  see  bim  taken  away. 

Do  yoli  know  of  any  orders  touching  his' 
being  sent  P — 1  did  not  see  any  orders. 

You  being  at  8t.  Phillip's  at  this  tine,  when 
be  was  in  prison,  you  can  tell  us  whether  he  wa» 
tried  for  any  ofi^ioe  previous  to  bis  commit- 
meat  there,  or  after  P — No :  be  was  not  tried. 

Crott-examioation  by  Serj.  JDavy. 

How  long  bad  you  known  this  Fabrigas  be* 
fore  the  time  of  bis  being  brought  to  ^lis  pri-' 
son  P — I  had  seen  him  different  times,  being  in 
the  island  for  between  eight  and  nine  years. 

I  wish  to  know  in  the  first  place  whether  ho, 
was  a  quiet  subject,  or  otherwise?— I  never 
heani  any  thing  to  the  contrary. 

What  P  but  that  be  was  a  quiet,  inoffensive 
subject  P — I  never  heard  to  the  contrary. 

Ho  was  looked  upon  as  a  very  good  friend 
to  the  garrison,  I  believe  P — I  really  can't  tell 
what  he  was;  he  was  an  inhabitant  of  the 
island.  I  don't  know  tbat  ever  I  spoke  to  bim 
in  my  life. 

What  part  of  the  island  did  ho  live  in  P — At ' 
St.  Phillip's. 

There  it  was  he  was  imprisoned,  I  presuoM  P 
— Yes :  he  was  brought  a  prisoner  to  8t.  Phil-  . 
lip's  castle. 

I  think  you  say  yon  have  been  in  the  island 
fire  years  P — Almost  nine  years. 

Then  you  were  there  before  Mr.  Mosty n  was 
appointed  governor  P — Yes. 

You  were  there  in  governor  Johnston's' time  P 
—Yes. 

Were  you  there  in  governor  Blakeney'a 
time  P— No. 

JofRfs  l^Deedie  sworn. 

Examined  by  Mr.  Grou, 

What  were  yon  in  the  year  1771  ?— A  cor- 
poral in  the  royal  artillery  in  the  island  of  Mi- 
norca. 

Did  you  see  the  plaintiff  hroujyrht  to  the 
casileP — No:  1  did  not  Ree  him  brought;  I 
was  a  Serjeant  of  the  guards  when  be  was  de- 
livered up  to  me,  from  the  61st  regiment. 

Court,  Can  you  recollect  tbe  time  P — A,  No ; 
it  was  some  time  about  the  middle  of  Septem- 
ber, to  the  best  of  my  knowledge,  in  the  year 
1771. 

In  what  way  was  he  delivered? — He  was 
delivered  to  me  in  the  prison  N®  1. 

What  were  the  particulars  of  that  delivery 
to  you?  in  what  way  was  he  delivered? — Hfo 
was  iu  but  a  very  mean  habit ;  for,  by  what  I 
could  learn,  his  clothes  and  everv  thing  tliat  be 
brought  in  witb  him  bad  beeo  taken  from  him. 

Counsel  for  the  Defendant,  That  will  not  do. 
What  condition  was  he  in  ? — A,  He  was  iii  the 
prison ;  he  had  been  in  the  prison  almost 
twenty-four  hours,  before  he  was  delivered  to 
tbe  artillery. 

What  orders  did  you  receive  concerning 
him  ? — ^That  I  was  to  suffer  no  person  to  ap- 
proach the  grate. 

What  gnUe  P— Tbe  prison  door.  - 


95] 


14  G£011G£  III. 


AcHonJbr  False  Imprisonment*'^ 


[96 


From  whom  did  yoi*  recem  tb^  orden  ?— 
From  the  adjutant  Iteuteoant  Frost;  he  was 
oor  acUofT  adjillant ;  be  read  the  orders. 

Not  to  let  any  one  come  to  that  ^rate  ? — Or 
oonverse,  or  have  auy  oommuniqition  with 
him,  upon  any  account. 

Whose  orders  does  the  adjutant  lieutenant 
gi?e  uiit  ? — I  imagined  it  was  a  general  order. 

What  do  you  mean  by  a  general  order  ?— - 
Coming  from  the  commander  in  chief. 

Do  you  mean  from  goTernor  Mostyn? — 
Yes :  he  was  commander  in  chief  then  of  the 
island. 

What  order  ? 

Seij.  Davy,  I  will  give  you  no  trouble  about 
these  things.    With  regard  to  orders,  you  have 

g'ven  us  notice  to  prmluce  the  orders.  The 
ct  is  as  you  contend.  We  mean  to  conceal 
no  circumstances. 

Court,  1  think  the  right  way  will  be,  as 
it  is  now  admitted,  that  this  was  done  by  the 
defendant's  order,  to  proceed  with  your  parole 
evidence,  and  read  that  at  tlie  conclusion. 

Counsel  J§r  the  Plaintiff.  If  your  lordship 
pleases,  we  will  read  the  order  of  imprison- 
ment, and  the  sentence  of  banishment. 

The  Associate.  The  title  is, 

**  Orders  given  out  to  tlie  troops  in  Minorca  by 
lieuienttut  general  Mostyn,  governor  of  the 
islaad,  who  arrived  the  21st  of  January, 
1771.  September  15:  In  order  to  relieve 
the  main  guard  at  St.  Phillip's,  which  now 
wants  a  sentry  extraordinary  upon  Antonio 
Fabrigas,  confined  in  prison  N**  1,  general 
Mostyn  orders,  that  three  men  be  added  to 
the  artillery  guard  in  the  castle  square,  as 
they  are  most  contiguous ;  and  that  duty 
taken  by  them,  the  sentry  must  be  posted 
night  and  day,  and  is  to  suffer  no  person 
whatever  to  approach  the  grate  in  the  door 
of  the  said  prison,  either  to  look  in,  or  have 
any  communication  with  the  prisoner,  the 
prevost  marshal  excepted,  who  is  constant- 
ly to  keep  the  key  in  his  possession." 

**  To  Anthony  Fabrigas  de  Roche. 

**  You  Anthony  Fabrigas,  inhabitant  of  the 
arraval  of  St.  Phillip's,  are  b^  me,  chief  gover- 
nor of  Minorca,  banished  this  island  for  twelve 
months  from  the  date  hereof,  not  to  return 
hither  until  that  time  is  expired  at  your  peril, 
for  your  seditious,  mutinous,  and  insolent  be- 
haTiour  to  me  the  governor,  and  for  having 
dared  most  dangerously  and  seditiously  to  raise 
doubts  and  suspicions  amongst  the  inhabitants 
of  the  arraval  of  St.  Phillip's,  and  to  excite 
them  to  dispute  my  authority,  and  disobey  my 
orders ;  and  for  having  further  presumed  most 
dangerously  to  insinuate,  that  his  majesty's 
troops  unJer  my  command,  without  any  au- 
thonty  from  them  for  such  false  and  scanda- 
lous insinuations,  were  imposed  upon. 

«» J.  Mostyn,  Governor." 

"  Mahon,  17th  day  of  September,  1771." 

Q.  Yon  say  you  received  this  order  to  per- 
mit BO  p«raoQ  to  approach  lh«  grate  of  the 


prison,  or  have  anv  communication  with  the 
plaintiff:  did  you  obey  this  order  P — A.   Yes. 

Did  ^on  obey  it  strictly  f — Yes,  as  strict  as 
it  was  m  my  power. 

Did  any  person  apply  to  see  the  plaintiff?— 
Yes,  his  wife  and  two  children. 

Were  they  permitted  to  see  him  ? — No. 

How  near  were  they  permitted  to  come  to 
the  prison?— As  nigh  as  I  cad  guess,  about 
thirty  yards. 

They  were  not  permitted  to  come  nearer  ?— 
They  were  not  permitted  to  come  nearer. 

ifo  you  know  in  what  way  the  plaintiff  laid  F 
— He  lay  upon  the  boards. 

Were  there  no  beds  ?— No  beds. 

Was  any  bedding  sent  to  him  ? — I  saw  hit 
wife  vrith  bedding,  which  was  not  permitted  to 
be  brought  to  him. 

In  short,  tell  the  jury  whether  the  guard 
would  suffer  any  thing  whatsoever  to  pa» 
them  ? — If  they  did,  they  were  sure  to  cone 
to  trouble,  to  punishment,  by  it;  and  I  am 
certain  they  never  did. 

Tell  us  what  his  subsistence  was?^Bread 
and  water. 

What  sort  of  subsistence  has  a  deserter  if  ho 
is  confined  in  this  place  ? — It  is  a  general  role 
in  Minorca,  that  deserters  and  prisoners,  eveo 
for  capital  crimes,  should  have  provisions  seot 
them. 

What  provisions? — Such  as  the  island  af- 
fords, bread  and  beef. 

Court.  Do  you  know  whether  any  provisions 
were  brought  nim  ? — A,  I  never  saw  any ;  there 
was  such  a  strict  order,  that  nobody  ever  at- 
tempted  it. 

1  believe  there  was  an  air-hole  at  the  top  of 
the  prison? — Yes. 

Was  any  body  placed  over  the  air-hole  f— 
No ;  but  there  was  a  sentry  upon  a  bastion 
near  to  it,  who  had  orders  given  him,  that  no- 
body should  approach  this  air-hole. 

Upon  what  account  ? — For  fear  any  thing 
should  be  dropped  down  to  him. 

Court.  Was  that  particularly  upon  this  oc- 
casion, or  generally  when  deserters  were  there  t 
^No;  I  never  heard  a  circumstance  of  the 
kind,  but  during  the  time  Mr.  Fabrigas  was  in 
prison. 

Did  you  know  the  plaintiff? — Yes,  I  have 
been  at  his  bouse  several  times ;  I  was  at  the 
island  almost  nine  years. 

What  family  had  he?— A  wife,  when  he 
was  in  prison,  and  Bwe  children,  to  the  best  of 
my  knowledge. 

Now,  during  the  time  you  have  known  him, 
have  you  never  heard  him  say  any  thing  dis- 
respectful of  the  governor  ? — No  ;  he  onlj 
complained  of  his  hardships,  of  his  own  bodilj 
sufferings. 

William  Johns  sworn. 
Examined  by  Mr.  Peckham. 

Q.  Was  you  at  Minorca  in  1771  ?— il.  Yes. 
In  what  situatioo  and  capacity  ?— I  was 
garrison  gunner. 


W] 


FaMgiu  H>.  MoHf/n* 


How  \tfag  were  700  in  the  island  ? — Almost 
UBeyetrs. 

Dii  you  know  Mr.  Fabrigas  P — ^Yes. 

DU  jou  know  Mr.  Fabrigas's  situation  in 
Ik  iriand  ?— He  li? ed  f  ery  genteel  in  St. 
PMfc's. 

Did  be  live  in  the  same  state  as  the  pHncipal 
ahsbitants  of  St.  Phillip's  ?— Yes,  as  much  so 
m  ay  man  in  St.  Phillip's. 

Vh  you  remember  any  thing  of  his  being 
jBMOoed  f — I  saw  him  urougnt  to  the  prison. 

In  what  manner  was  he  brought? — By  a  file 
sfmen. 

Were  his  hands  bound  P — I  cannot  say. 

8cr|.  Damf.  I  admit  that  he  was  with  his 
kuds  bound,  as  the  first  witness  said,  and  that 
ke  was  kept  in  prison  by  order  of  the  goremor. 

Mr*.  Peckkam,  Do  yon  admit  that  he  was 
kand-eufledP 

Seij.  Dvoy.  Yes,  that  he  was  hand-cnlSed, 
Md  kept  in  the  way  described  by  the  former 


Q.  Was  he  kept  hand- cuffed  in  prison  P — if. 
1  beliere  not. 

What  sort  of  a  place  is  this  prison  P— 'It  is 
itt  apart  for  capital  punishments,  for  prisoners 
iketare  under  sentence  of  death. 

Is  it  a  prison  dug  out  of  a  rock  P — It  is  a 
ssUaraneous  place  in  the  body  of  the  castle. 

is  it  under  ground  ? — No,  under  the  top  of 
Ae  castle. 

Is  it  a  ground  floor  P — A  ground  floor,  I 
Mete. 

This  beiog  the  prison,  and  von  standing  there 
Is  guard  him,  do  you  remember  any  of  liis  chil- 
4ca  coming  to  see  liimP — I  saw  Ihh  son  the 
fa«  day  be  was  confined  there,  a  boy  about 

lS.cime  to  see  him. 

What  did  he  come  for  ? — He  bad  some  pro* 
viMBS  in  a  basket. 

Did  he  apply  to  you,  that  those  prorisions 
■i^t  be  given  to  his  father  P — He  applied  to 
Ike  regiment  then  upon  duty  to  give  them  to 
kii  father,  iMit  was  denied. 

8erj.  Darvy,  I  admit  he  was  sent  hand-^ufled 
to  tbe  prisou,  as  described  by  the  former  wit- 
BCK :  I  meant  to  include  the  matters  of  belief 
as  well  as  matters  of  knowledge. 

Court.  For  my  part,  I  like  to  hear  the  eri- 
dcnce  in  any  case,  to  know  the  truth,  and  then 
«e  have  no  squabbles  afterwards. 

Johm  Craig  sworn. 
Examined  by  Mr.  Serjeant  Glynn, 

What  are  you  P— A  matross. 

Was  you  in  the  island  of  Minorca  in  1771  P 
—Yes. 

Do  you  know  Mr.  Fabrigas? — Yes. 

How  long  hare  you  been  in  Minorca  P — 
IVliy  niijli  nine  years. 

What  condition  was  Mr.  Fabriji^as  in? — In 
ftry  good  circumstances  there  ;  lie  is  reckoned 
SDv^'ot  tbe  best  in  circumstances  in  Ih^  island: 

Do  you  remember  the  time  when  he  was  in 
tbe  dungeon  there  ? — Very  well. 

You  did  not  do  any  duty  upon  him,  I  sup- 
FsmP— Ycs,Idid. 

VOL.  XX. 


A.  D.  177S.  [9S 

Do  yon  remember  whether  peopla  were  ad- 
mitted  to  see  him  P— I  am  sure  there  were  none 
admitted  to  see  him. 

Do  you  know  whether  any  nerson  came  to 
see  him  that  was  refused  P — I  Know  his  wife 
and  children  came,  and  they  were  refused. 

Do  you  know  of  his  being  taken  out  of  the 
prison  P — I  saw  him  put  on  board  a  ship  in  the 
harbour. 

How  many  days  after  his  first  imprkMm- 
ment  ? — 1  am  not  certain  of  the  days. 

About  what  number  of  days  was  he  in  con- 
finement P — Five  or  six  days,  to  the  best  of  my 
knowledge. 

In  what  manner  was  he  taken  out  of  prison, 
and  put  on  board  a  ship  P — I  happened  to  be 
down  at  the  quay,  and  saw  him  put  on  board  e 
boat,  to  be  taken  to  the  vessel. 

What  time  was  this' P^Early  in  the  morning, 
I  am  not  sure  to  the  time,  but  to  the  best  of  iby 
knowledge  I  think  between  three  and  ibur  in 
the  morning. 

Had  he  any  time  allowed  him  on  shoreP-^ 
No,  he  was  hurried  on  board ;  bis  wife  and 
family  were  coming  down  to  speak  to  him,  and 
the  soldiers  \cept  them  off,  and  would  not  let 
them.  I  wanted  to  speak  to  him  myself^  aid 
the  soldiers  would  hot  let  me. 

You  saw  his  wife  and  children  come  to  him, 
do  you  remember  whether  they  brought  anT 
thing  for  him  P — I  think  they  nad  some  bed- 
ding, to  see  if  they  could  i^et  it  on  board  the 
ship  he  was  g'Hng  to,  and  it  was  turned  back 
again,  they  would  not  allow  any  thing  to  come 
to  him  ;  he  was  put  on  board  a  boat  and  taken 
into  a  ship  whicli  was  laying  in  the  harbour 
there,  the  ship  was  under  saiL 

Serj.  Davy.  I  admit  he  was  banished  to  Car- 
tbagena. 

Coun.  for  the  Plaintiff,  You  admit  he  was 
banished  by  governor  Mostyn  for  a  year  P 

Serj.  Davy,  Yes,  1  do. 

Colonel  John  Biddulph  sworn. 
Eiamined  by  Mr.  Lee, 

Q.  Yon  are  an  officer  in  the  regiment  that 
was  at  Minorca  P— ul.  1  was  not  in  Minorca  at 
the  time  this  matter  passed. 

But  yon  have  beeu  at  Minorca  P — Yes. 

Did  you  know  Mr.  Fabri^as  ?— Yes ;  I  knew 
him  from  the  time  I  arrived  in  the  island  until 
I  left  it. 

VVhen  did  you  arrive  there  ? — I  think  in  the 
year  1763,  aliout  May  or  June,  and  stayed  about 
eight  years. 

When  vou  knew  Mr.  Fabrigas,  in  what  con- 
dition and  circumstances  was  heP — He  seemed 
to  me  to  be  of  the  second  sort  of  people  in  the 
island ;  he  had  some  viueyards  and  some 
houses,  and  some  property,  and  was  received 
not  as  of  tbe  first  r|uality,  but  as  a  gentleman  ; 
he  was  estcemcHi  a  man  of  property  :  1  should 
call  him  a  gentleman  farmer. 

While  you  knew  him  what  character  did  he 
bear  P  or  how  did  he  behave  himself,  as  far  as 
you  had  an  opportunity  of  observing  ?— As  tar 

H 


99J 


H  GEORGE  III. 


Aetionjbr  False  In^ritontiunt-^ 


[100 


ai  I  cotikl  obferre,  he  behaved  very  well,  and 
bad  a  very  good  character.  1  used  to  em- 
ploy liiin  in  getting  wine  for  aie,  and  other 
tbiogs  the  island  produced,  because  I  bad  a 
famUy ;  and  often  he  was  very  useful  to  me  in 

Iirocuring  things  at  a  reasonable  price.  When 
[  was  at  Citadella,  at  the  other  end  of  the 
island,  he  came  there,  and  was  with  some  of 
the  better  kind  of  people ;  be  was  always  with  a 
don  Vigo,  or  a  don  Sancbio,  who  were  reckoned 
the  pnnciual  people  of  the  place;  they  are 
nobles  in  that  island. 

While  you  knew  him,  1  ask  you  what  was 
bis  behafiour  P  Did  he  behave  like  a  peaceable 
subject,  or  like  an  unruly  and  factious  one  f — 
fie  always  behaved  with  very  great  decency 
and  decorum. 

Cross-examined  by  Seij.  Burland. 

Q,  Do  you  know  whether  he  was  a  man  of 
property  in  the  island  ?-^A,  As  far  as  I  under- 
stand he  was,  hot  it  is  impossible  for  me  to  say 
positively ;  he  was  reported  such. 

He  had  a  father  living? — I  believe  he  had, 
an  old  man. 

You  do  not  know  whether  it  fras  bis  own 
property  or  not  ? — It  seemed  to  be  his. 

He  conversed  with  the  two  noblemen  yon 
mentioned  ? — Yes ;  he  was  at  their  houses  as 
a  gentleman. 

Did  you  use  to  visit  at  his  house  ? — I  have 
been  there. 

Did  vou  ever  dine  or  sup  with  him  ?— >I  think 
1  dined  with  him  once. 

Court,  The  gentlemen  suggest,  but  you 
don't  mean  to  make  a  distinction  between  the 
classes  there  P— i4.  1  do  make  a  g^reat  distinction. 

Q,  What  promotion  has  general  Mostyn  in 
the  army  at  tliis  timep — A,  He  is  a  lieutenant 
ffeneral,*and  commander  in  chief  ot  the  island  of 
Minorca. 

Has  he  any  military  promotion  at  home? 
has  he  any  regiment  P — Yes. 

What  regiment  is  it  P — I  don't  recollect  the 
number  ;  it  is  a  regiment  of  dragoons. 

Do  you  know  of  any  office  that  the  general 
has  about  bis  majesty's  person,  any  place  at 
court? — 1  don't  recollect  it ;  1  believe  he  has. 

Serj.  Glynn.  My  lord,  we  have  dune  for  the 
plainUff. 

Serj.  Dory  for  the  defendant.  May  it  please 
your  lordship,  and  you,  gentlemen  of  the  jury, 
1  am  of  counsel  in  this  cause  fur  the  defendant, 

Enrral  Mostyn,  who  is  charged  with  a  misbe- 
viour  towards  the  plaintifl*,  in  the  defendant's 
capacity,  as  governor  of  this  island ;  the 
plaintiff,  Fabrigas,  being  a  subjtrct  of  the  crown 
of  England,  a  native  of  that  island,  a  Minor- 
giiin  by  birth,  and  living  in  the  town  of  St. 
Phillip's,  (there  is  a  reason  why  his  residence 
in  the  town  of  St.  Phillip's  is,  in  my  apprehen- 
SKMi,  material,  for  some  matters  which  I  shall 
trouble  you  with  before  I  sit  down.)  The  de- 
lendant  was  appointed  governor  of  the  island  of 
Minora  on  the  9nd  oTMarch,  1708.  His  pie- 
wu  gw  cmor  JtluMlM,  wh«n  prads- 


cessor  was  general  Blakeney.  So  far  I  am 
able  to  trace  back  the  governors  of  this  island, 
whom  the  questions  before  you  have  any  sort 
of  relation  to ;  and  any  further  is  unnecessary. 
I  don't  know  whether  it  may  be  new  to  any  of 
yon,  gentlemen,  to  inform  you,  most  probably 
not,  the  history  of  your  country  will  tell  you,  that 
this  island  of  Minorca,  whose  situation  is  in  the 
Mediterranean,  and  which  is  of  extreme  use  ia 
the  protection  of  the  Mediterranean  trade,  was 
taken  in  queen  Anne's  wars  from  the  crown  of 
Spain,  and  was  ceded  by  that  crown  to  Great 
Britain,  by  the  treaty  of  Utrecht  in  1713 :  that 
upon  the  ceding  of  that  island,  the  condition 
annexed  was  a  reouisition  on  the  part  of  Spain, 
which  was  acceded  to  on  the  part  of  Great 
Britain,  that  the  inhabitants  of  this  island  of 
Minorca  should  continue  in  the  free  exercise  of 
the  Roman  Catholic  religion,  which  couki  be 
no  farther  than  was  consonant  to  the  laws  of 
Great  Britain.  For  whereas  the  laws  of 
Great  Britain  will  not  allow  the  pope's  bulls, 
excommunication  from  the  court  of  Rome,  the 
inquisition,  and  some  other  matters  of  that 
sort ;  therefore  a  free  exercise  of  the  Roman 
Catholic  religion  was  not  with  the  exercise  of 
any  powers  in  the  bishop  of  Rome,  hut  what 
were  acknowledged  by  the  laws  of  Great  Bri« 
tain.  They  had  only  the  free  exercise  of  tbeic 
religion,  as  Roman  Catholics.  All  other  rights 
which  they  bad,  and  all  laws  by  which  thej 
were  to  be  governed,  were  to  be  given  to  tbeni 
by  tlie  king  of  England.  He  was  to  establbh 
what  code  of  laws  he  thought  proper  in  that 
country.  They  were  to  be  subject  either  to  d?  11 
jurisdiction  of'^  particular  sorts,  or  military,  or 
whatever  sort  the  king  of  England  pleawd. 
They  were  a  conquer^  people,  a  conqiier«4 
island,  and  no  terms  were  annexed  to  that  treat  j 
of  Utrecht,  but  only  the  exercise  of  the  Roman 
Roman  Catholic  religion.  The  king  was  to 
appoint  his  governor  of  the  island,  to  goyem 
them  by  such  laws  as  he  thought  proper  to 
direct ;  an  arbitrary  despotic  government,  or  n 
qualified  government,  or  whatever  government, 
under  whatever  sort  of  magistrate?,  or  what* 
ever  order  the  crown  of  England  should  think 
pro|>er.  There  is  a  manifest  and  very  wide 
distinction,  to  be  sure,  between  a  Minorquin  bj 
birth  (I  don't  speak  of  an  Englishman  that 
goes  over  there),  and  the  case  of  an  English* 
man:  1  just  mention  these  things,  vihicli  will 
be  very  projier  for  your  consideration  through- 
out the  i^irogress  of  the  several  facts  I  shall 
mention  m  ibis  cause.  They  are,  in  my  hum* 
ble  apprehension,  essentially  necessary  to  your 
consideration.  Some  time  aAer  these  people 
(1  don't  know  exactly  the  datr  of  it)  had  t>e« 
come  subject  to  the  crown  of  England;  after 
1713  they  petitioned  for  a  cootirmation  of  the 
usages  and  customs  of  Spain,  and  to  be  go- 
verned by  the  laws  of  Spain,  as  they  had  been 
used  to  be  before:  and  that  was  granted,  te  far 
as  the  wisdom  of  the  crown  thought  proper  to 
grant;  and  there  were  certain  regulations^ 
which  I  will  take  notice  of  by-and-by.  Many 
rqplatioos  w«rc  fluute  ftem  time  to  tima  occn* 


Fabrigat  v.  Mottyn. 
Mulljr,  fay  lb«  erowD  of  Great  Britain,  for 
llii  aUBnal  police  of  (he  i>tnDil.  Gentlemen, 
1  ihiidid  infurm  yaa  loo,  ihtl  llie  islanil  of  Mi- 
Mftt  oontisls  ol  five  sepirtte  ilitiiions  or  dia- 
bia.  In  fnur  ol'  thcH  ihey  bnfc  in«([iMraiei 
WMlIy  decieii.  In  (lie  filili,  which  ii  called 
lbun»l  of  Ki.  Phillip'ti,  which  is  the  I'nrl 
^iW  ialanit  and  itiieeunty,  there  the  parlicular ' 
lanawkkh  lajuat  tlie  Buburht,  which  takes  In 
itMtBol'Sl.  Pliillilt'a  mljoining  close  lolbefnot 
rfthe  citAikl,  Ihal  dialricl  is  under  the  imme- 
itOa  pwgrntpent  of  the  governor  ol'ibe  island 
maiuuil  hy  the  crown.  Tliere  are  no  jiirals, 
•kiek  ibe  commoD  name  of  the  niaeiiUatei 
iitb*  Mhcr  ditiiions,  whn  are  elected  h^  llie 
papla  i  b«l  llic  (iroper  officer  I'ur  the  |iolice  of 
■k«  Hra**l  is  apiioiDteil  by  the  gniernnr  hrtii' 
Rir,  and  I  tliink  hia  title  is  mustaslaph:  heia 
tW  ofiecf  apiMiolril  by  ibe  ^vernor  of  the 
■knl.  TbaK  i*  an  extreme  necesaity,  that 
Mve  particvlar  care  abauld  be  taken  in  the  re- 
(dalMO  «f  Ibe  jHtlire  ol'  that  part  of  the  islaod 
Mhieb  ■■  itBOtcitutrly  contiguous  to  the  fort  of 
Sl  Philfip'a,  and  where  there  la  a  perpetual 
(tmauB,  for  \\m  take  of  preserving  mililary 
teipIlM^  A  Ian  ortliiaiiland,  apiongatolhErB 
>kc!b  i*  neeeuary  tn  nieniioii  tu  yau,  because 
Iba  hiMor^  of  ttie  traniaclion  ha*  iuniediate 
l^ua  U  It,  i*.  that  the  Jurats  in  the  sereral 
yK\t  nt  ibe  lalaDil  in  Uie  luur  ul  her  districts  uF  the 
■had,  aii<i  the  muslaslaph  in  the  arraiul  ol'  St. 
Ptafcjt'a,  whfcb  a  the  Dhh  dependent  district 
min  Ibe  itnm«iliate  dcpeadcoce  and  |^*ern- 
•m  of  th«  ijMTeciior  bimielf,  set  a  price,  and 
iJt',  anJ  inramire,  ujiun  the  Reveral  comnio- 
'  IS.  I  ditn't  know  whether  it  includes  all 
iMiitlica.  hut  wine,  and  corn,  and  other 
!"■((, «bi«hibey  call  the  alTciralion, that  iathe 
VB^ar  price  to  be  jmid,  upuo  caiumoililies  to 
tt^L  Gcnlleinen.  in  the  year  1733,  (the 
AHtnc  M  malerial,)  there  was  a  reflation 
d  bjr.  tlie  ciowu,  made  by  the  kin^  m 
I  cstract  that  part  of  it  that  refjarris 


A.  D.  1775. 


fetMcMM 


;  that  it,  that  the 


diairiclK  and  uni' 

rnK)    <  that    tbi 

he  left  at  full 


A  you  Me  ihete  are 
MMwaitUa,  but  these  tour 
■  rniUa  are  aytwiiyinoui 
r^tt»  of  all  the  uuivemi 
'■'^^ny.  wiilioui  ibe  inlerveniion  of  the  com- 
sjoiMi,  or  any  otJier  of  the  royal  officers, 
'  M  Bake  the  ■fTuiatioa*,  and  setiie  the  assize 
•aa<  prima  of  all  mariner  of  com,  and  all  man- 
*  ■■  cf  pr<»  isioni,  the  produce  ol'  the  island  ; 
'  tii  alau  tlic  price*  of  com  imported  into  the 
'ato4,  aail  buii|;ht  by  the  uDitersiliES  for  the 
'  ftmX  of  Ibe  jiuiilic  ;  and  that  the  natives  anil 
'aaiababilatits  heat  all  titnes  perniilled  tn  sell 
'A*  iBia*  al  nr  iindar  the  atluratiun,  without 
'  Mf  JBWrf  tntioD  ur  the  ([""^lor  or  sccre- 
ina,  nr  any  vihrr  (Krson  or  prrauns  acUiii; 
•da  iiii  aulhnriiy.'  You  see,  genllenaen, 
M  ibia  onirr  uf  rouncil  imports,  that  these 
''il'*  Br«  ttulirr  the  *>Molula  deipoliirn.  if  I 
^11  wtay,  uif  tlitr  L-rawn  of  Greul  Uiiiain.  be- 
u!m  tbw  «  IS  a  language  that  wc  m  this  cnnn- 
' .'  m  M  ac^titiutco  witb.  \V  beibvr  to  icU  or 


[103 
n  Eoglish 


buy  our  goods,  or  not,  does  not  auil 
genins,  the  genius  uf  the  Eughsh  law.  i  nis  is  an 
order  made  by  Ibe  king  in  council,  in  the  year 
ITSa.  That  urdtr  of  council,  and  some  niber 
proTtsioDS  that  were  made  by  that  order,  oci-a- 

therefure  another  order  ol  council  was  n>aile 
the  folloiving  year,  the  lOlli  of  August,  JT53, 
which  you  will  in  Ibe  course  of  tliE  evidence 
hate  read  to  you.  There  are  sonte  iiiatiers  \a 
it  I  will  trouble  yon  with.  It  was  made  ii|H)n 
the  conaideration  of  several  papers  irDiisniilied 
from  MioorcB  by  general  Blakeuey,  whu  was 
governor  at  thai  time.  Several  ihiugs  wer« 
advised  by  the  privy  council.  Among  the 
rest,  I  shall  judt  extract  a  few  thinirs.  With 
reaped  uf  the  firal  ailicle  in  the  civil  branch, 
relating  lu  the  making  the  afforaiioua,  about 
which  great  cnmplaiiiU  have  been  exbihiieO, 
thai  the  governor  be  instructed  to  require  the 
jurats  of  the  several  terminus  in  the  ithiod,  at 
all  proper  times  and  aeai>onG,  to  innke  Iha 
tame  nflorations:  and  in  case  tbe  taid  ju- 
rats should  refuse  or  neglect  l<>  comply 
with  his  command  (herein,  that  then  tbe  snid 
governor  be  authorised  to  make  the  said  alTora- 
lions  himself:  but  due  care  is  to  he  taken,  that 
tbe  said  alforatioiis  be  made  equal  and  (general, 
as  ID  all  the  things  and  persona  lubJM'i  to  the 
said  afToratioBS,  as  well  as  at  all  prDjwr  aeaiiiins. 
This  word  *  aeasoDs'  will  have  some  uieaning 
by-aod-by.  Then  they  go  on  wiih  a  great 
many  regulations.  AmongM  the  res)  is,  adtia- 
ing  the  king  for  tbe  future,  hy  bis  Irllers  patent 
under  the  seal  of  Great  Dritam,  tuanthorise  the 
governor,  or  in  bis  absence  the  lieutenant- no - 
rernor,  ur  comraaniler  in  chief  for  the  lime 
being,  to  exercise  the  power  uf  civil  ;{Overn' 
ment,  as  well  as  those  of  the  military,  lakiog 
cs^to  preserve  the  one  separate  and  distinct 
from  the  other:  and  that  tliev  should  recrive 
all  this  power,  but  that  they  should  be  tiihject 
nevertheless  lo  such  iustruclious  as  should  be 
giveu  by  bis  msjetly.  He  is  lu  govern  ac- 
cording to  these  direcliona  containe<l  in  the  let- 
ters patent,  aa  also  to  such  inalruclions  a*  shall 
be  given  to  him  by  the  king.  Then,  among 
other  things,  here  is  a  direcliun,  aud  this  it  very 
material :  you  see,  it  meiitiona  some  confu- 
sioDs  thai  hare  ariseji  in  respect  to  the  ri-gula- 
tioua  made  befort:  in  175f :  that  it  may  be 
proper  ibr  the  goveruor  to  emleavnur  to  make 
the  iuhabilanis  aensible  of  the  great  happiness 
they  eujoy  uuder  the  king's  proieciioti  and  go- 
vernment, and  to  shew  them  ihnt  they  have  not 
only  at  all  litnea  been  tieatrd  wiih  justice  and 
equity,  but  with  lenity:  that  ihe  increase  uf 
richea  amon^nt  them  is  iiwing,  aniongsi  uiher 
ihiugn,  to  Ihe  great  sums  of  money  cuuatantly 
circulated  from  the  pay  of  the  king's  furcet, 
and  Iroiii  the  nuoalier  of  foreigner*  now  ael* 
tied  amoDg  lliem  on  account  of  their  trade: 
and  nka  the  tmaoaiUD  uf  thrir  trade,  ibej 
Iwing  permilled  10  carry  on  coiumerte  in  lika 
mauner  with  Ihe  real  of  bis  inajeiiij'B  Biiiisli 
aubjects :  unil  that  it  is  therefore  rxprcted.  iluit 
they  slivuU,  in  reluru  for  m  many  ([real  and 


103]  H  GEOltGE  III.  Actionfar  False  Jmpritonment^ 


[104 


rm)  lH*nf  flta,  most  hetrtily  tnd  effcctnally  con- 
cur nitli  hill  miyMty'g  gofernor  in  any  thinff 
litf  nIiuII  |in)|ioiie  for  his  m«j(*iity'f  Mff loe,  anu 
tho  hihmI  of  ih«  inland,  and  demean  themseWea 
a»  iHH^mii*  |(«i(mI  mihjecla,  &o.  and  it  may  not 
bf  improper  fur  Iho  aaid  gofemor  Uierefore  to 
int'urm  them  of  all  their  prifileftei.  Gentle- 
men, iihserve  three  arc  founded  upon  the  llih 
artirio  of  the  treaty  conuludoil  at  Utieebt,  on 
Uie  lath  of  July  1718;  and  that  they  cannot 
lie  euiiiled  to  any  olher  privilecei  than  those 
Bi|;nilied  therein.  And  for  the  uetter  infomia- 
li«in  theiyofi  tlmt  they  do  faiy  the  said  articles 
before  them,  n  coiiy  whereof  was  annexed 
thereunto ;  by  whitAi  it  appears,  that  they  are 
allow ihI  to  enjoy  their  Imuours  and  estates,  and 
havo  the  iVev  use  of  the  Ktmiaii  catholic  reli- 
||i«m,  aiHl  that  means  shall  be  used  to  secure  it 
lo  theiu  so  tVir  as  is  sfp-eeable  to  the  laws  of 
iSrest  Urttain,  whieh  they  still  ciuitinue  to  en- 
Joy  without  the  hMi»t  internipiion«  end  without 
any  fear  w  dread  of  the  court  of  inquisition ; 
and  that  at  the  senie  time  muv  inform  them, 
that,  hv  the  ancient  laws  of  tlhis  country,  the 
|Ni|»e*s  bulb,  vSee.  ere  not  |K'nnittetl  to  he  exe- 
cuted in  his  maji*«t\*s  doiuiui«*uft,  nor  any 
|ieoallv  levied  or  puinshmeut  iul)icte«l  under 
•ttch  Jecrersu  without  permi«iion  ot*  the  crown 
of  Great  Hriiaiu :  and  then  it  goes  on  nnd  giTes 
farther  directionv  with  ivgani  to  the  goTeruor^s 
Mitbority,  and  ibe  necessity  of*  thc«e  persons 
ibMneaninir  tbeuiseWes  cbeertully  to  the  onler 
Mf  the  c^veraor  ;  wbieb  is  the  gof  eramcnt  and 
coii^tkiuiion  of  ibai  country.    Now,  gmtletnen, 

C»u  wr  th«t  in  irjk3  soiue  cansidenble  rrfru- 
tiMis  wefv  made,  to  explain,  and  in  some  re- 
■yect*  lo  alter,  the  reflations  wbieb  bad  been 
lade  m  the  \«ar  irj^i.  And  awHber  thing  is 
cieariv  ot^wr^ed  ;  thai  the  tenor  of  all  tbe  in- 
atruuietti*  1  bare  ni«d  some  parts  of  to  you, 
lb«wenrtsuUtions  neither  in  trCO.nMicb  leisby 
the  e\plAiMl^H1  «4'ibem  in  ibesubM^ueni  vear, 
If^;^,  with  rt^nl  to  ibe  ailorstioo,  eouhl  not 

IhmmMv  ev.row  loihearravalot'Sl.  I^illip*s.fbr  [  goTerameoi  oC'  the  blAad.  be  found  cbts  re* 
Ibe  jurats  we^^  ihi^  pierMNw  who  wec«  to  make 
Ibe  Adkw«iK«a  IB  ibetr  several  muveffsiMk  or 
4Mrt\*ts«  OC  leffwiisivk  a«  thev  anf  caHe^.  Naw, 
M  lae  arrival  ^'  Sc  k\itlttp**.  ibenr  were  a« 
jiirai»  ai  ait :  <w«a^>(ueoilr,  tbat  wa.<«  n^  W 
Made  b\  tbe  ^v-^Hwr  vrikvi   ap^MMsar^  by  ibe 

rere^K  bi  wr^V.  ua'V^^T,  the  muscsftipb. 
owv  cf  lS«  "li  'jre  iff  t3«  jun»  nuking  ibe 
mF. TaCM«  ibe  (onrrmpr  wxi  »?  nukv  ii  hias- 
Stftf .  bai  \»i  lae*  a.Mrwt  mere  jre  ua  Taraai. 
TWrv  V  i:MKJ<r  \*}:  2^  9.*  W  Qoixvd  ;  and  ibai 
isw  li><&i  '. '  ytfrtvuix-*  inre  was  9iK  sake*  as  m 
%^  .%A:i  t  .Oil  a  •!  iiMOder  Of  >e«*iiicc  ^ia<  a  tfi« 
WTwrt;  ^.'f  Si.  l^i::;i>k  tbai  ».  wjenr  la^  firv 
tWMi  fr  .  u  c^^  ctwr  w-tf  avK  caaen  >si  laat.  :t 
^i(-)<  anM  ^.»  liw  i^HujQcici^w  <#t  :a«  «e«uxer«  er 
tb«  ^ifMiu^  a*l  euMpic  >e  jiannM  w«o  voaK 
poiuoi/tfK  cie«i|iisn«ee.  Fjt  tin 
MMr«i  Fuftk«Qir«.  when  be  w^r* 


tion  with  regmrd  to  wine,  particnlarly  in  tbb 
amtal  of  8t.  Phillip's.  That  was  aoon  after 
tbe  order  of  council  in  175S;  1  belieee  k 
was  in  1753  or  most  likely  was  the  begin* 
nbg  of  the  year  1754,  that  general  Blakeoey 
made  the  regulation  I  am  now  going  to  men- 
tion to  you.  The  mustastaph  was  an  oflieer 
there  that  did  tbe  office  of  jurat  in  the  other 
districts :  be  was  appointed  immediately  by  tbe 
governor.  The  jurats  in  the  other  districta 
were  chosen  annually  by  the  people,  in  order 
to  avoid  any  partiahty,  and  to  take  care  tbal 
the  mustastaph  shall  do  h»  duty  regularly^ 
that  the  inhabitants  that  have  wine  to  aell  aball 
aeil  their  wine  by  turns ;  tbat  all  the  people 
within  tbe  arraval  of  St.  Phillip'a  aball  aeU 
their  winea  by  turns ;  for  if  they  were  at  K« 
berty  all  to  sell  their  wine  as  fast  as  they  could 
sell  it,  that  would,  as  I  mentioned  just  now, 
tend  to  the  inioxicatinn  of  tbe  soldiers,  and  In 
the  ruin  of  the  island.  And  the  way  tbat  was 
aiipointed  bv  general  Blakeney  in  tbe  year 
1754  was,  t'bat  they  alioold  ballot,  or  cast  Iota, 
for  turns ;  and  then  the  several  people  tbat  bad 
the  lots  to  wll,  should  sell  at  an  aflforatioo  act- 
tied  by  tbe  mustastaph,  at  such  a  given  time. 
Tlien'the  others  shall  come  to  their  turn,  aa 
hit  I  lotted  ifur ;  so  tbat  every  one,  in  tbe  conne 
of  his  turn,  taking  tbe  chance  of  tbe  bellel, 
will  sell  his  wine  at  or  under,  if  be  picaaed,  tbe 
afforation  price,  during  the  time  apecifled. 
This  was  a  regulation  governor  Bhkeaey 
made  upon  the  order  of  council.  Tbe  peopw 
of  that  district  were  all  very  well  pleased,  and 
things  went  no  in  very  good  order.  Tbe  pe^ 
pie  were  glad  to  be  so  regulated.  Tbis  bon^ 
approved  of',  aad  consequently  being  foond  hf 
expefience  to  be  a  wery  good  regulaiMi, 
and  to  answer  all  tbe  good  ends  of  geveia- 
sent,  it  was  coaiinu^  during  all  ibe  re- 
mainder of  tbe  time  tbat  general  BUbeaey 
was  governor  of  tbe  isUnd  of  M.i 
Wben   irsveviior  Jobosion  snccecded 


ifvUiwo,  and  tbe  i:dand  in  very  gooil  order  ami 
iraB«iui!!ity.  He  found  tbe  regulaiien  bad  aa- 
swened  ali  the  good  ends  propped  by  it. 
continued  ibe  rvgiLaiioa  donng  alt  tbe 
tbat  be  wfts  governor  oc  tbe  Htand.  In 
wiwation  tbe'  Hfaad  w«»  t^^nad  by 
Mestvn,  ibe  ervsenc  deMdani.  when  be 
ceede'd  Mr  J  Weston  to  tbe  gwermmcnc  em  iIk 
iad  of  Mifvu^  176ci«  now  five  yt%n  ; 
preveni  go««TTMr  liwad  ^t  jWH  as  r>*erwie  J< 
bae  hmad  i  before,  and  woaen 
cescmony  m  ir,-*  wvaKmb  of  ^^etMrai  Bmk»- 
sev.  u  weiL  A^  -SE  tjie  cv«er«o9«a;  rrvn  wk«ii 
be  -^-mvvi  a  9  :ri«rk~  Ic  tMc  ■)«««  SfCN^ved 
?f  -a  Eaic*4csa.  invl  w«  aooriveii  «ii''  »v  tk<  m* 
llOiKaa^  clipnr.  inis  Mjitfr^iunk  I;  answered 
la  CM  fMd  eoiis  prooueiri  »y  it.  1:  ir  idied 
^eoof.  «WDM<i«iaty.  jou  boruoav  in  tii«  ulnnd^ 
wajnii  hod  seen  mun  ^  sedicimii  ami  *ha^mmm 
•rder  ta  iTj^  csiiiia. 


Fabrigai  v.  Mo-^i/n. 
b  Biy  tnroi  »  ptriicular.  There 
are  nor  less,  a»  yoii  will  h«  by- 
I  bistmilinintpnn  of  i lie  order  of 
sit.  which  had  been  presoribed,  yon 
_J*1TJ4,  bikI  cnntinoeil  tU  tlie  lime  duwo, 
MttrrollinK  spirit  of  the  plHinlilT  ihouglit 
^r  td  Irrrak  lfarout;h  bM  onlvr,  G«ntle- 
»,  <  «ilJ  be  lime  oow  Tor  me  tu  lake  nullce, 
tl  M>e  to  far  gone  inlo  ibe  general  Uisl'Ty, 
i<B«b«r  (ircmaMance,  nhich  is  nniorioiis  lo 
M^smllemcn  nho  have  been  «eUlt»l  in  lliat 
ri«L  M  wcl)  ][OTt>ru<>T«  i«  llie  n\\rt  mJIItBry 
■AwLu  lh>l  liBve  been  Ihere,  llisE  the  native 
iMaiimiifriinrr-i  are  hut  ill  afl'ected  lo  Ihe 
li(Ui,  aai  to  >be  EiigUsli  ga*emiaeDt.  It 
irM  Mch  ta  be  wondereil  at.  Tbey  are  the 
hiimiiiilii  iimiirr'-|  '-  TItey  cuoBiiler Spain 
>|W  cBunlry  to  which  tbey  iiught  nalurally 

■  tMtf;  and  it  is  not  at  all  In  be  wondered 

■  ikMMse  people  are  not  well  itlaimsed  lo  Ihe 
Eaftah,  wha  Ihcy  consider  as  Iheir  coiiqnerors. 
Itfnw  inattDce  of  that  happened  at  Ihe  lime 
rfkTiBnHttn  of  Minorca  liy  the  French, 
lAn  Ifcc  French  took  it,  which  I  helierewaa 
a  tm  yf«r  1T36,  the  beginniog  of  last  war : 
■1  >1  b  t«ry  nn^nlar  ihst  hai-iMy  a  Miiinrquin 
MA  ima  in  rfelpnee  of  the  ialand  against  ibe 
hachi  th«H*roDij^t  prouf  in  the  world  thai 
taj  were  »cry  well  pivased  at  Ihe  eouiilrj  l>e- 
^  wmled  trom  the  liunda  ot  (lie  English. 
tW  Frnieh  did  take  it,  as  we  all  very  well 
'»■>;  bill,  iliank  God,  we  have  Jl  again.  ,Or 
d^  jtlinorqiiias  in  that  islnail,  perhaps  Ihe 
^■■if  Rands  BinfruUrly  end  mo«t  eminenlly 
Mr  BHi  wriilions,  liirhultnl,  and  diisalisHeil 
i%il  t«  <t>e  crunn  ofGreai  Itrilain,  that  is 
*kibaad  ta  lUe  hi  land  of  Minorca.  Gentle- 
te.W  B,  nr  clmse)!  to  be,  called  for  Ibis  |iur- 
^••a  patriot  of  Minorca.  Now  patriotism 
'iikry  pretty  thing  among  oureelres,  and 
waviuuch  t»  it;  we  owe  our  liberties  lo  it: 

livohuiald  have  bm  little  tu  value,  and  per- 
^  •«  sbciuld  have  but  little  of  ihe  liheny  we 
Waiftfy  were  it  ncil  fur  our  trade.  And  for 
k«kc  of  oar  trade  it  is  not  {it  we  should  en- 
MtgT  pBtriiitiaai  iii  Minorca;  for  it  is  there 
iWMiiewf'Hir  trade,  and  lliere  is  an  end  to 
WMde  in  ttw  Mediterranean  if  it  goes  lliere. 
tHbn«  il  li  very  well ;  for  the  body  of  ihe 
Mleof  ibU  country  they  will  have  tt:  Ibe^- 
L>r  ^nnandeil  ilt  and  id  conseqiir-nce  of  their 
atmii  they  baveenjoyed  liberty,  which  tliey 
•d)  TOotmiw  to  pMlerily ;  and  it  i*  not  in  Ihe 
T  of  i1ii«  tjiivertiment  to  deprive  them  of 
B4it  Ihev  will  lake  care  of  all  our  con- 
fast*  afaroad.  U'lhiit  spirit  prevailed  in  Mi- 
■■na,  the  ciinaM|neiice  ofit  vtauld  he  the  loss 
rfihsf  CKMinirv,  and  of  course  our  Medilerra- 
Ma  itmIe.  We  should  be  lorry  lo  tet  alt  our 
ihrai  free  in  our  plantations.  Gcnilemen, 
kvii^  nonr  ironbled  you  so  far  in  general  con- 
eoweihcUw,  tbuailUBlinn,  and  govern  men  I, 
sfMia  talaMi,  and  giten  vou  a  hint  loo  of  Ibe 
tpK  of  Ibe  ptaiatiir,  which  I  don't  wish  lo 
MhE  the  leaM  impression  upon  you,  unless 
e  d1'  facU,  which  we  shall  produce, 
'  p  ujion  j'ou ;  pre  me  leare  to 


A.  D.  177S.  [106 

end  to  (he  particular  circumitaDces  which 
f,-,^  rise  lo  the  mailer  now  eomplnined  of. 
The  plain  I  iff,  Pabrigas,  whs  aDHtivenf  ihelnnn 
of  St.  Phillip's,  and  within  ihe  arraval  of  St. 
Phillip's,  and  conseiiuenily  under  the  imnie> 
diale  eye  of  Ihe  governor  himself,  as  he  was 
within  that  district  which  is  regulated  by  ihe 
muslaslaph.  In  July  ITTl  he  thought  proper 
to  present  a  petition  to  §;ovemor  Mosiyn,  the 
del'endaul,  in  this  form :  "  fjhewelh,  Ihai  your 
petitioner  has  now  by  him  twelve  casks  of  wine 
of  tlie  produce  of  his  own  vineyards,  without 
having  purchased  so  laucb  as  a  gtape  of  any 
other  person,  of  which  he  has  not  sold  a  drop, 
when  several  niher  inhabitants  of  Ihe  town  have 
>ld  all  (heirs,  as  well  from  the  produce  of  their 
wn  vineyards,  as  what  they  houi^ht  lo  make 
profilby;  and  this  with  Mr.  Allimnndo  th« 
luslaslaph's  permit.  That  the  petitioner,  on 
the  asih  instanl(July}  applied  to  Mr.  Alliraundo 
for  measures  to  sell  wine  by,  of  the  rale  of  Iwd 
duublers  per  quarter  less  ihan  the  afforalion 
price,  which  would  have  raised  aprofil  to  Ihe 
troops  and  the  poor  inhabitants  of  St.  Phillip's: 
hut  nntwithslandioff  his  demand  was  very  rea- 
sonable, anil  conformable  to  the  expre^  dispo- 
siiion  (direction  I  suppose  he  meant)  of  iha  6rst 
article  of  his  mnJEsly's  regulations  of  1763,  re- 
gulating ihis  island,  where  it  iseipressly  men- 
tioned that  the  iuhabilanis  shall  always  be  per- 
iniilcd  to  sell  at  Ibe  price  of  the  aRbration,  or 
noderit;  Mr.  Allimnndo  refused  his  petiliOD, 
telling  htm  that  he  would  not  buy  his  wine  : 
and  that  this  is  not  only  against  ihe  reason  and 
justice  of  the  public,  and  the  garrison  of  8L 
Phillip's,  but  also  contrary  to  his  majesty's  or. 
ders  in  the  said  refrnlalioD :"  aud  he  menlions 
that  the  mustastaph  had  made  (ifiy  casks  of 
wine,  and  sold  ihem.  Now,  gentlemen,  two 
or  three  nbservalions  occur,  before  we  go  any 
further.  In  the  firsl  place.  Ibis  gentleman,  if 
I  may  call  him  so.  Ibis  Pabrigas,  goes  upon  Ihe 
idpa  of  the  regulation  of  1752  bring  disan- 
nulled. In  the  second  place,  lie  goes  upon 
Ihf  idea,  that  Ihe  nnler  thai  was  made  of  17S3, 
was  uiiiversnt  over  all  the  island,  without  dia- 
tinclion  of  this  district  in  Ihe  arravalof  !4I.  Phil- 
lip's, in  bath  which  you  see  he  was  mistaken. 
Annther  thing,  which  dou't  slrlke  so  imme- 
diately from  what  I  have  read,  and  yet  here 
give  roe  leave  lo  lake  notice  of  it — il  is  art- 
fully ihmwninlo  this  petition,  as  if  the  good 
of  ihr  garrison  was  very  much  concern^  io 
his  having  his  petition  granted.  And,  gen- 
tlemeo,  I  do  assert,  and  shnll  be  juslitied  in 
Ihe  asseriiiin,  I  dure  say,  by  your  opinion, 
before  1  have  dnne,  or  at  least  before  Ihe  evi- 
dence is  gone  through ,  that  his  design,  from  ilia 
beginning  lo  the  end  of  it,  was  la  stir  up  sedi- 
dilinn  and  mutiny ;  and  amongst  Ihe  resl,  par- 
licnlarly  to  pniot  10  Ihe  passions  and  inclhiations 
of  the  soldiers  of  the  garrison  lo  lake  his  part 
QgainsI  the  governor.  This  petition  being  pre* 
seiiled  to  Ihe  governor,  the  governor  called 
upon  Mr.  Allimundo  to  give  an  answer  to  tbia 
man:  for  you  see  be  complained,  ihsl  he, 
fabrigas,  had  not  ibe  permuaioik  to  sell  bw 


107J 


14  6E0K0E  III. 


Aaionjbr  False  Imprisonment'^ 


[108 


own  wiae,  Allimaiido  havinif  refosed  him  the 
measure  by  which  be  should  sell  it ;  and  in  the 
next  place,  that  Allimundo  himself  had  sold  bis 
wine.  Allimundo  did  gi?e  an  answer  to  this ; 
for  the  Koremor,  willing  to  serre  ever^  body. 
And  to  act  with  the  most  impartial  justice,  and 
being  uneasy  himself,  that  any  Minormiin 
should  be  uneasy ;  for  the  uneasiness  of  a  Mi- 
Dor(|uin  perhaps  diffuses  itself  further  than  a 
particular  man,  and  is  a  fit  matter  to  be  at- 
tended to  by  government ;  he  called  upon  Alli- 
mundo to  explain  this  matter.  Allimundo 
ga?e  a  full  and  clear  answer  to  the  matter ; 
and  stated  in  tliat  answer,  that  Fabrigas's  com- 
plaint was,  because  his  turn  for  selling  wine 
liad  not  come,  according  to  the  lots  f  men- 
tioned just  now,  and  that  was  the  only  reason 
why  be  had  not  j^et  sold  a  drop ;  for  no  man 
ODuld  oell  a  drop,  till  by  balloting  his  time  was 
€ome :  so  that  rabri^  bad  nothing  to  com- 
plain of.  But  he  insists^  that  no  man  ought 
to  be  bound  bv  the  lots,  but  that  every  man 
bad  a  right,  by  the  regulation  of  1752,  not 
taking  notice  of  the  regulation  since  that,  but 
that  any  man  might  sell  under  the  afforation 
price:  therefore  be,  offering  to  sell  under  the 
afforation  price,  ought  to  be  permitted  to  sell 
his  wine  without  waiting  for  ballotting.  He 
was  mistaken  here:  first,  because  that  order  of 
1759,  had  been  rescinded,  and  was  not  the 
iHnding  order :  second,  that  be  lived  in  a  dis- 
trict, where  it  was  not  to  be  regulated  by 
jorlt8«  but  by  order  of  the  governor :  thirdly, 
that  the  regniation  which  had  been  obtained  in 
the  former  governor's  time  had  been  the  way 
1  have  represented  to  yon  :  in  all  which  parti- 
cular heads  he  was  grosly  mistaken ;  and 
therefore  he  had  no  cause  or  complaint  that  he 
bad  not  sold  any  of  his  wine,  his  time  for  sale 
being  not  yet  arrived,  according  to  the  regula- 
tion of  the  lots.  With  regard  to  the  other  part 
of  the  complaint,  that  Allimuudo  sold  his  wine ; 
Allimundo  freely  insisted,  that  he  had  a  right 
to  do  so.  He  claimed  a  right  which  had  been 
enjoyed  by  all  his  predecessors,  and  which  he 
could  not,  without  an  order  from  the  governor, 
depart  from,  not  only  for  his  own  sake,  but  for 
the  rake  of  his  successors ;  that  he  had  a  right 
to  sell  his  own  wine  without  resorting  to  the 
lots,  and  that  he  had  not  bought  any  wine,  but 
■old  his  own  wine.  This  answer  Being  given 
by  Allimundo  to  the  governor,  the  governor 
upon  that  sent  word  to  the  plaintiff,  that  he  had 
eoquired  (for  he  had  not  taken  Allimundo's 
word  for  it,  but  had  enquired)  into  the  matter, 
and  found  what  Allimundo  had  done  was  right, 
and  aflbrded  no  cause  of  complaint.  This  was 
aome  time  in  July.  Upon  tbe  11th  of  August, 
ibis  Fabrigas  thought  proper  to  prefer  another 
petition  in  these  words,  *<  1  had  the  honour  to 
present  a  memorial  to  your  excellency,  sbew- 
mg,  the  transgressing  and  not  observing  in 
the  said  town  two  regulations  given  upon  the 
S8th  of  May  1758,  by  bis  Britennia  ma- 
jeaty  [still  adhering  to  the  order  of  1759,  as 
<f  tbm  had  been  no  sabaequent  order]  that 
te  iababilaiit  ahould  ha  pemittad  to  tall  bit 


fruit  at  the  fixed  price,  the  afforation,  or  under  i 
secondly,  that  no  commander,  judge,  or  of« 
ficer,  be  allowed  to  have  any  traffic,  bargain, 
or  so  forth  :  [It  cites  a  great  deal  of  this  order, 
and  then  he  takes  notice]  that  Allimundo,  who 
does  tbe  functions  of  mustastaph,  bought 
grapes  and  made  wine.  And  then  he  offers  to 
sell  to  the  inhabitants  in  the  garrison  of  Hi. 
Phillip's,  twelve  casks  of  wioe  that  he  has  got 
by  htm  of  his  own  vineyard's  produce,  at  two 
doublers  less  than  the  ordinary  afforation  and 
fixed  price.  The  petitioner  has  applied  several 
times  to  your  secretary's  office  for  your  excel- 
lency's decree  [that  is,  for  his  answer].  Your 
secretary  told  your  petitioner  verbally,  that 
your  excellency  was  ratisfied  with  the  answer 
given  by  Allimundo ;  at  ^hicli  he  is  surprised, 
as  he  is  ready  to  prove,  in  a  judicial  way,  the 
truth  thereof."  [Then  he  prays  the  governor 
to  give  his  decree  at  the  foot  of  the  ntemorial, 
and  to  have  tbe  satisfaction  to  justify  himself, 
and  to  prove  his  charges  against  Allimundo.] 

Gentlemen,  this  second  petition  being  pre* 
sented  to  tbe  governor  upon  the  16th  of  Au- 
gust, which  was  A^e  days  after  the  date  of  it, 
governor  Mosty  n  took  the  only  possible  step  for 
a  man  in  bis  situation  to  take,  consistent  with 
wisdom  and  justice ;  and  that  is,  to  refer  both 
tbe  petitions,  or  memorials,  as  well  the  former 
as  tbe  second,  to  the  proper  officers  of  justice, 
for  their  determination.  Accordingly  he  did 
refer  not  only  the  two  petitions,  but  also  tbe 
answer  or  justification  of  Allimundo.  He  re- 
ferred all  these  papers  to  the  only  proper  oflioer 
there  to  i;efer  this  matter  to,  namely,  the  soli- 
citor general  of  tbe  island,  and  Dr.  Markadai, 
the  first  law  officer,  in  order  that  they  miglit 
enquire  into  the  matter  of  complaint,  and  im- 
part their  opinions.  They  made  their  report 
upon  the  31st  of  August  to  the  governor. 
Now  you  will  see  what  were  the  opinions  of 
the  lawyers  of  the  island  at  that  very  time,  that 
the  orders  of  his  majesty  in  council,  of  tha 
year  1752,  relative  to  the  sale  of  winf,  had  never 
been  executed  in  the  suburbs  of  tbe  castle  of 
St.  Phillip's.  You  see  it  is  just  what  1  told 
you  at  first ;  that  is,  the  arraval  of  8t.  Phillip's, 
that  order  of  1759,  was  never  understood  to 
extend  to  that  particular  district,  which  is  under 
the  immediate  government  of  the  governor 
himself,  that  is  the  place  where  this  man  dwelt. 
Then  they  ny,  secondly,  that  the  custom  ob- 
served in  the  suburbs,  upon  the  sale  of  the 
wines  of  the  inhabitants,  has  been,  that  the 
mustastaph  had  the  direction  of  distributinsf 
tbe  measures  among  those  inhabitants,  whicn 
was  continued  till  some  years  past;  when  lieu- 
tenant general  James  Johnston,  lieutenant  go- 
vernor of  the  island,  in  order  to  avoid  com- 
plaints, formed  a  regulation,  dividing  the  raid 
suburbs  iuto  four  quarters,  and  onlered  that 
the  wine  should  be  sold  by  such  of  the  inha- 
bitants unto  whom  it  should  fall  (1  see  I  am 
mistaken ;  it  was  introduced,  I  see,  by  fo^ 
vemor  Johnston),  which  cegukition  at  thiatune 
exists.  Tbe  third  is,  that  Antonio  AUimimda 
waa  daded  miistaatifb.    Foiirtbly»  tbat  AlU* 


Tahrigat  w.  Molfyn. 
1,  JiMqih  Nelo.  U«lph  Preter,  and  Jo- 
fcLnlie,  who  aie  tlie  iirnniiB ihai  have  exe~ 
n  (be  office  nt  niusUiiiapli  iif  llie  uid 
lAi  i<ir  soieral  yenn  |i»l,  b«ve  beeo  oc- 
oa^N^MparchMetpvpc*  furmak'mg  w'met 
-4a  w  the  iltfcace  of  Allimunilo.    Tben 

tnuliff 

t  office 
.  .JHke  wine  from  grapes  bnui^hl 
tj  Itannaeltes.  And  Ihen  lastly,  dial  lite 
MkiNf  «f  Mine  from  grapes  boujjtit  bail  nnt 
tna  rvckoiMil  an  illicit  iraflic,  nor  iDcoin- 
pMt  •riih  ihe  ollice  of  baillfl',  jurat,  musta- 
«ifb.  »mA  wo  foiili.  Now  Bee  <*liai  lueilioj 
IMM  •fficen  look  to  be  InronDed  of  this  matter, 
»  •»*«■  W  give  the  answer  to  the  go»tinor. 
"  TbM,  Mt,  n  wbat  in  abedieace  lo  your  excel- 
Inn'*  ontor,  we  can  inform  yoo  of,  ■cconJing 
M  aut  a|ipeani  u  result  from  the  ileclaralions 
wbieb  we  have  received  upon  uatli  from  tbe 
pnfcraat  pvnoru,  wbose  original  depositious 
raanin  atMOK  ibc  arcliivpi  of  tbe  royal  go- 
Nnnunl."  These  two  observations  naturally 
•eenr.  In  the  Bret  place,  that  tl>e  governor 
ImIi  tke  «Dty  method  he  could,  uuon  the 
••■litoiiit  of  this  mia,  to  refer  it  to  the  only 
tntwrnScrr  of  tbe  island,  upou  whose  report 
MmfbCikpeiHl,  with  Ibe  power  of  cjcamina- 
(an  its  till*  officer,  of  all  praper  persons  upon 
a<fc,  tot  Ibcir  iDformatiou.  That  upon  the  re- 
Mdt  if  Ott  repnri  of  tbia  oiGcer,  it  appears  that 
IkemapUinl  uj'  Pabrij^aa  was  groundless.  It 
9m  gi«UDj|e«s  both  wilb  ri^pecl  to  bis  claim 
ti  (iif  ht  to  wll  out  of  the  order,  by  ca^lin^  of 
hm:  ii  trai  ^rouodlea*,  likewise,  wllb  regard 
ti  lia  (MBiilaint  a|;ain8l  Allimundo,  for  having 
■Uvw  lumoelf.  Fur  ihey  aay  that  the  re- 
pMas  maile  in  1753,  had  never  applied  to 
•W  tmxtx  «f  8t,  Phillip'*,  that  is,  the  arrstal 
ti  Ik.  t'liilli|>'s.  Tliey  tay,  secondly,  that 
Mk(B  tlMi  iliatrici  lliey  bud  alwuyg  aolil  their 
>ae  by  IvU.  And  ihry  nay,  thirdly,  that  ibe 
^■Uataph,  and  llie  other  officers  that  do  fix 
thaaAvml'iun,  liatealwavi!  lold  wine  the  way 
tat  AUliniioihi  lis*.  This  was  the  answer 
Ihal  was  given,  and  this  the  re|<ort  that  was 
Itade  !■  tbe  {(ovcruor,  io  consequence  of  his 
Inin^  rerrvred  lo  tbem  the  two  petitions  of 
PsirifM.  M  well  a*  the  aiiswrr  of  Allimuada 
•*  (far  pHit»D.  Of-ntlemrn,  they  alWrwards 
aa^  a«atber  rejMri ;  for  this,  I  lohl  you,  wu 
»  IIM  31*4  of  August.  They  inaile  amilber 
>rf»ri  luur  ilayi  slier  Upon  the  4th  of  Seplem' 
fcn  Ibi-y  (five  an  account,  for  the  governor 
>i*  tery  'tniniui  lo  know  in  what  manner 
^nt  teatltnwn  bail  proceeded.  (You  see 
to«*  i*  a  ycneral  alliitjoii  al  the  fool  of  the 
npavl,  to  ibfir  haviut;  examined  proper  per- 
>«•  aoAD  oaih.)  The  gniernor  was  exceeil- 
■;lj  Jraimua  to  know  in  wbol  order  these 
-iWiBFD  b*d  prorerdeil,  to  lee  wbelher  all 
■■I*  care  had  been  taken  to  avoid  ouuiplaiol, 
A  frum  *n  rarnett  dmre  he  bud,  that  all 
-i.-i*r%  ut  oumiilainl  mij'ht  subside,  that  there 
M  b«  one  ■luuerul  riilo  of  good  goveru- 
■  prvaarvrd  aiitun^  Ibe  Alinoriiuiusi  and 
_*lBMe^i*mtiit  ba  answerable  to  lb*  crown 


A.  D.  177S. 

of  Great  Britain  for  any  improper  coniluct. 
"  We,upon  tbesBOJeday.thc  I6lh,  that  is  iba 
day  of  relerence,  we  wrote  lo  the  said  Allimun- 
do and  Fabrigaa,  citing  them  by  our  coniinis* 
sion,  and  orderini;  lliem  to  appear  upon  lb* 
aOlb  ;  and  in  ohMlieoce  to  which  tbey  having 
appeared,  we  again  ordered  them  to  appear  on 
the  33d  following  with  Ibeir  proofs  and  docu- 
menls.  At  their  appearing  on  the  23d,  we  de- 
manded of  Ibem  Ibeir  proofs  and  justification ; 
when  Fabrigas  answered,  lie  did  uot  intend 
to  enter  into  the  same,  till  he  had  obtained  the 
decree  nf  the  3d  memorial,  that  is,  the  answer 
of  the  gorerour  in  writing.  On  the  26th,  Fa- 
brigas was  convoked  in  your  excellency's  of- 
fice, where  it  was  asked,  what  action  it  was  ha 
inteuded  by  these  memorials  against  Allimundo, 
whether  civ d  or  criminal  P  And  having  time 
given  him  to  answer,  he  replied,  a  civil  one; 
all  which  appears  hy  the  acts  to  which  we  re- 
fer. As  the  ssid  Fabrigas  hath  not  this  day 
represented  before  us  any  proof  by  way  of  jut - 
lificBtion  of  his  ssid  two  memorials,  wu  there- 
fore, for  (his  reesuu,  have  the  honour  to  submit 
the  same  to  the  conaideration  of  yuur  excel- 
lency's wisdom,  ibai  you  may  not  impute  to 
us  the  least  omission  of  Ibe  liTely  desire  we 
have  toexecule  the  orders  of  your  excellency." 
This  is  dated  the  41b  of  Septemlier.  Upon 
this  order,  this  report  that  was  tben  made 
upon  the  41b  nf  September,  which  gave  a 
clear  satisfaction  that  every  thing  bad  been 
done  with  proper  care  and  caution  to  pre- 
vent any  complaint,  Ibis  Fabrigas  presented  a 
third  petition  or  memorial.  I  call  Ibem  peti- 
tions, remonstrances — I  don't  know  what  nam* 
lo  call  them  hy,  but  still  they  have  Ibe  title  of 
a  petition — he  called  it  Ibe  humble  pelilion — 
and  in  this  Ihird,  as  in  the  second,  be  had  com- 
plained of  Allimundo.  Now  here  is  a  reraon- 
Btrance  against  the  judges  : 

That  "  whereas   tbe  judges  delegated   bjr 

yunr  excellency" 

-  Court.  Of  what  dlU  is  this? 

^eri-Davi).  I  haveooprecisedatetolt.  "Tba 
judges  have  denied  bim  a  communication  oflba 
answer  t;iveo  by  Allimundo,  who  does  the  func- 
tions of  mustaslaph  of  St.  Phillip's:  prays  you 
will  be  pleased  to  order  tbe  judges  to  receive  tba 
witnesses  which  are  produced  lo  juslily  tba 
ai  tides."  And  then  follows  upon  this,  no 
less  than  twelve  articles  of  impeachment,  a*  ' 
it  were  ;  arliclcB  upon  which  the  witnesses 
were  produced  to  prove  some  facts  committed 
by  Allimundo  against  his  majesty's  orders, 
and  to  prove  some  injustice  done  by  Alli< 
rnuodo  against  the  Minorquins  inhabiling  ibe 
town  of  St.  Phillip's,  and  against  bia  majesty's 
■ronps  of  that  garrison.  Then  followit  a  siring 
of  twelve  articles,  which  1  don't  mean  to  read 
to  you  now :  you  will  have  them  by-and-by 
in  due  order.  Then  he  siieaks  of  the  prices  of 
meat,  fish  and  several  olher  things,  all  which 
he  complained  are  not  well  dune  ;  and  there  i% 
a  general  complaint  throughout  the  govem- 
ment  of  all  tbe  otficers,  that  all  the  ftlinorquina 
are  ill-uwd  by  the  misconduct,  mitruk  and 


Ill] 


li  GEORGE  III. 


Action  fir  Fake  Imprisonment" 


[lis 


mnmaDBgnement,  by  the  under  offioen  of  the 
garrtsoo.  Noir,  gentlemeD,  you  would  have 
•apposed,  if  governor  Mostyii  bad  been,  what 
the  world  knows  be  is  not,  a  rash  man,  be 
might,  perhaps,  have  very  well  justified  some 
ceosure  at  Itast,  of  what  sort  is  another  ques- 
tion, upon  the  coodnct  of  Mr.  Fabrigas,  whose 
oonduct  points  very  strongly  to  sedition.  For 
consider  where  we  are  speaking  of.  We  are 
not  talking  of  the  city  of  London ;  we  are 
not  talking  of  a  town  in  Etiflfland;  but  are 
talking  of  the  town  of  St.  Phillip's,  just  at  the 
Ibot  OT  the  glacis  of  the  citadel :  and  this  stir- 
ring up  sedition  amon^  the  Minorquins,  who 
were  already  too  ill  disposed  to  government. 
But  governor  Mostyn  did  act  in  this  business 
with  that  candour  and  hamanity,  that  delibera- 
tion and  wisdom,  for  which  his  character  is  so 
eminent.  And  therefore,  after  this  third  me- 
morial and  articles,  the  next  step  he  took  was 
lo  take  farther  advice  of  all  the  superior  law 
officers  and  magistrates  of  the  island,  that  is, 
on  the  5th  of  September,  1771.  And,  gentle- 
men, he  ordered  his  secretary  to  write  a  letter 
to  doctor  Markadal,  (I  shajl  not  pronounce 
their  names  well)  the  solicitor  general  and 
the  other  persons ;  and,  upon  that,  they  gave 
this  answer.  He  sent  the  5th  for  their  opi- 
nion ;    on  the  10th  they  gave  their  answer. 

•*We  received  your  excellency's  letter  of 
the  5th  instant,  with  twelve  articles  exhibited 
by  Anthonia  Fabriflras  annexed.  In  answer 
to  the  contents  of  the  said  letter,  it  appears  to 
as,  that  in  sundry  of  the  said  articles  he  men- 
tions and  represents  injuries  or  iin|>oBition8 
upon  the  troops  quartered  in  St.  Phillip's, 
which,  if  divulged  among  them,  might  occa- 
sion tumults  and  disonlers,  and  also  raise  mur- 
murings  against  their  proper  superiors,  of 
whom  they  are  suspicious,  and  hove  not  a  due 
regard  to  their  own  advantage :  from  which  it 
appears  to  us,  pernicious  consequences  may 
arise  in  military  discipline.  This  our  opinion 
we  submit  to  your  excellency." 

Upon  the  receipt  of  this  letter,  still  the  go- 
vernor was  determined  there  should  be  no 
person  unasked ;  therefore  he,  upon  the  receipt 
of  this  letter,  sent  it  with  Fabrigas^s  answer  to 
the  assesseur  criminal,  who  sits  as  the  assist- 
ant to  the  governor  in  trying  ofcivilor  criminal 
causes,  the  great  judge  of  the  island  under  the 
governor:  he  sent  to  him  for  the  sanction  of 
nif  opinion  upon  it.  The  answer  is  wrote  to 
the  secretary  of  the  governor,  and,  '  having 
examined  all  the  said  papers,  it  appears  to  me, 
that  the  opinion  of  the  siid  gentlemen  is  very 
learned  and  just.'  So  that  you  see  he  concurs 
entirely  in  opinion  with  those  other  gentlemen 
that  had  made  the  report  that  1  read  to  you  just 
now.  Gentle<nen,  when  this  was  done,  then 
and  not  till  then,  the  governor,  the  defendant, 

feneral  Mostyn,  sent  an  answer  in  form  to 
abrigas;  and  I  flatter  myself  that  you  and 
every  one  who  hears  this,  must  be  of  opinion, 
that  the  governor  acted  with  all  possible  cau- 
tion in  this  business.  He  writes,  therefore, 
Ihis  answer  \  for  you  set  the  other  had  pressed 


for  an  answer  in  writing,  and  would  have  it  in 
a  great  hurry  ;  bat,  however,  the  ^vemor 
would  not  give  an  answer  till  he  had  informed 
his  understanding  upon  the  subject,  by  all  that 
could  give  him  information  and  advice.  **  Un- 
derstanding that  Antonio  Alexander  Alhmundo 
bath  acted  in  olie^lience  to  the  directions  of  his 
superiors,  as  in  the  manner  practised  by  hit 
predecessors  in  the  said  suburbs,  by  those  that 
held  the  office  before  him,  as  it  appears  to  us 
(mentioning  their  names)  upon  a  charge  set 
forth  in  the  representations  made  by  Fabrigas, 
and  upon  the  other  part  by  the  said  petition  of 
the  people  there  to  attend  to  the  regulation  made 
by  governor  Johnston  [I  should  have  tokl  yon, 
that  all  the  Minorquins  there  prayed  it  miffht 
be  continued]  for  which  cause  it  is  not  regular 
to  receive  witnesses  to  justify  the  difierent  ar* 
tides  exhibited  by  Fabrigas,  some  of  which 
teem'  to  tend  to  disturb  the  public  tranquillity, 
in  prejudice  of  his  majesty's  service :  [now, 
^ntlemen,  remark  this]  notwithstanding  which 
if  Antonio  Fabrigas  is  sufficiently  entitled  to 
pretend,  that  Antonio  Allimundo  hath  commit- 
ted any  crime  or  misdemeanor,  he  is  to  apply  to 
the  royal  governor's  court,  aud  there  make  hit 
complaint  in  the  usual  form ;  where  he  wiU 
have  justice  done  him  according  to  law,  that 
is,  **  according  to  the  law  of  the  island."  Now, 
any  mortal  would  suppose  that  Fabrigas,  if  he 
was  not  possessed  of  a  most  malignant  and  tui^ 
bulent  spirit,  woold  hare  acquiesced  in  thit» 
and  taken  such  measures  as,  accfirding  to  the 
law  and  constitution  of  the  island,  were  open 
to  him,  and  not  have  plagued  and  teazed  the 
governor  with  reiterated  remonstrances  and 
complaints  in  matters  which  were  out  of  hit 
own  principal  power  to  relieve,  if  there  wat 
any  cause  of  complaint ;  though,  by  the  way, 
the  governor  had  the  strongest  reason  to  sup- 
l»ose  he  had  no  cause  ofcomplaint.  But  it  wat 
the  determination  of  this  man  to  drive  home 
every  thing  possible  to  the  governor,  and  to  tel 
up  an  opposition  of  the  Minorquins  subject  to 
his  civil  government,  and  the  garrison  subject 
to  his  military  guvernment.  The  unavoidable 
consequence  of  this  would  have  been  ihe  total 
loss  of  this  island,  and  infinite  bloo«1shcd,  which 
must  have  ensued  upon  the  revolt  of  this  island. 
However,  the  man  still  uses  a  great  many 
threats,  which  you  will  have  a  particular  ac- 
count of  by-and-hy.  The  governor  thought 
proper  on  this,  (since  yon  find  all  which  had 
been  done,  and  which  this  Fabrigas  complained 
of,  was  the  pursuing  the  regulations  which  had 
been  made  l>y  governor  Joliuston — you  will  be 
amazed,  perha{>8,  at  my  telling  you — it  is  the 
strongest  proof  of  the  lenity  and  moderation  of 
the  governor  that,  perhaps,  can  ever  be  ima- 
gined) in  order  to  see  whether  that  regulatioa 
was  a  rii^ht  one,  and  ou^-ltt  still  to  be  cuntinned, 
the  governor  summoned  a  meeting  of  the  inha- 
bitants, even  Minorquins,  the  inhabitants  of  thit 
district,  in  order  to  take  their  sense  of  the  so- 
vemor's  regulation,  to  sell  by  lots,  or  wlieiner 
that  regulation  should  be  abolbhed,  and  that  he, 
or  any  person  within  the  district,  mty  be  at 


Fabrigat  v,  Muili/n. 
I  wise  H  Tut  u  Otty  cm  anUer 
in  |iriw.     Ill  onter  lo  lisre  their  full 
!  nikltvr,  he  look   the  utmoKl  ciu- 
MK  iloclor  Markadal  anil 
tiled  all  ihe  iohabiUDU; 
e  ibey  nughx  be  at  lull  leisure  from 
>cvanl(,  (fur  it  »■«  about  the  time  of 
,  ifnm)  that  xhey  might  le  ut  full  leinure 
k  allnid  Bad  meet  logcllicr,  they  apjioioted 
■*  -'     -  -    ■  aSuiiday, 


abatwaftill  meeting.  Mr.  FabrigBs,iii 
tteMEBp  lune,  aaei  nil  ^aioa,  (as  if  an  e^tion 
■w  gBtBg  ftrwaril)  be  u»e>l  all  imaginary 
f»^»  V>  Itcl  together  at  many  people  u  he 
CmM  niMl«r  to  think  wiili  him,  and  lo  have 
■kit  infulalian  of  the  f;overtiur  aboliEhed,  aod 
Aaltbe  nmm  he  cumplained  of  might  he  put 
a  tad  V,  AnJ  the  matter  he  required  eoforced : 
taiOMb  wu  Ihe  tenieur  Ihe  inhabitants,  that 
lkar«  «m*  ■  laojoriiy,  I  am  told,  olmoat  tneniy 
load*,  of  all  the  lUinorquius  ivho  attended 
•fan  ilul  8«0riay  ;  all  uleaxed  with  what  bad 
hiMiknc  by  gofernor  Juhostnn,  and  desinmi 
ti  CMlia»«  'ibal  rvgiilation.  They  liiund  it 
■Ml  bmefieiaJ  to  them<el*eii ;  iliey  found  it 
MMsded  inlh  lewt  trouhk;  they  fimad  it  most 
hr  tbcir  |itofil:  ihey  hII  Were  acainat  their 
(^■(rynaMi  Palirii;a*,  and  all  prayed  tint  the 
■  ■■MUhiiunt  innde  by  noveraor  JnhntlOD,  and 
kid  MBtionnl  to  that  tiiue.  raii,'ht  tlill  be  used 
N^coDUaaed  withnulsiiy  ulteraliou.  Fabrigai 
•■•ow  Trty  much  diualiefieil.  Now  I  will 
mI  joa  a  it'w  abjection.  All  this  it  iinlawrul. 
hoBw  ii  ■*■!■  uo  a  (Sunday,  anil  the  tense  of 
tm  (nylr  laiten  upon  •  Sunday  is  no  sense  at 
^;  tititihrr  inmanre  oflhe turbnleiiceOf  his 
A^Mkm !  all  vai  nroni; ;  nud,  at  the  name 
M,  *  threat  thai  hr  would  now  prefer  a  peti 
ba.  aad  ke  wmjld  luke  care  llwl  there  should 
W  !■■  tanodred  men  aimed  at  hia  heels!  oow 
Itf  ar  nk  any  man  (hot  bears  me,  whut  the 
fBMHir  wa*  to  do?  The  goTermir  (whose 
qMwMiwt  Inferior  to  his  other  qualilieslhat 
■ir  Wf  th*  tliararler  of  a  gi  ntlemaii  and  a 
aMm}»W»wl  to  beio  ffightrned.  He  wai  a 
•■■((tM  prrvonal  tear  ;  and  ■  AliaonjMin  ap- 
pviiiil  «t  llie  head  of  t-to  hunilred  people 
«■■!,  Ih«u|t)i  it  i*  irrious,  and  deserves  consi- 
taawa^bxwei'rr,  ilie  governor's  spirit  iths 
■■b,  Ue  Jul  Hut  coiiToke  Hoy  force  in  order  to 
■^  fbii*  :  kul  bo  look  a  Tory  wise  step  ;  and 
kn  «■•  (for  the  upki  dny  wa»  the  time  of  this 
^■nvdiua  h«  had  cauM  lo  apprehend,)  he 
|ti«  ■•  latitation  l<i  Ihe  comuiiodiiig  nlKcers 
■r  Ike  4dT«rrot  >«Kiii>enli  to  meet  him  next 
^mwtmg  %  mhI  if  ih'  te  Itud  been  any  force  at 
llr  herb  af  Mr.  Fobritcax,  the  comuinnding 
ittMfa  beiW  Ibni  .ii  the  honse,  it  would  not 
Mvapaiiy  liiuir,  iiFrhapa,  to  summon  iheir 
tan  M  trprt  it :  but  lio  wnuld  not  sumtiion 
fta  hetr  •>  Ihr  laland  any  farther  than  I  tell 
j-^.  Ai  ihi'  liiii«  llii*  pctilioo  irns  lo  be  pre- 
>  -MrJ  by  t'«briu>u  <*ith  two  hundred  itieo  at 
w«ti — 1  inittake  ;  lb*  |ii>litiaa  vras  then 
-Tiaiil.   aad  hc  WOUU  COOM  for   Ul    UUWtr 


A.  D.  1779. 
(he  next  morning  with  a  fore«  of  300  men  at 
his  heela — the  govero'ir  thought  proper  to  ask 
the  advice  of  the  officers  who  attended  there, 
nhal  ought  to  be  done  with  this  man,  and 
what  wan  lit  to  be  done  ?  Every  on«  of  tha 
officers  who  allended  upon  the  occasion  con- 
curred in  the  opinion — and  it  was  a  matter 
alwut  wbich  I  think  there  iwuld  not  be  two 
npiiiioQs, — that  nothing  was  safe  lu  he  done, 
b<it  iuimediaiely  laying  hold  of  this  man  tha 
first  opportunity,  and  sending  him  out  of  the 
island.  And  he  did  so.  Theru  is  the  cniu- 
plainl.  Now,  gentlemen,  I  have  let  you  into 
tbe  whole  history  why  this  was  dooe  that  Fa- 
brigas  coiDplaios  of ;  why  Fahrigas  was  kept 
(ilose,  OS  he  complains  ol.  A  mau  that  threat- 
ened an  insurrection  in  the  isbnd,  it  surely 
would  be  imprudent  io  the  governor  la  luiTer 
any  of  his  friends  io  the  inlaDil  lo  have  access  to 
him  :  general  Moityn  therr  lore  sent  him  off  as 
soon  as  possihle,  which  I  believe  was  in  li)ur  or 
live  days,  into  Spain,  with  a  prohibition  to  re- 
turn to  the  island  again  within  the  cuune  of  a 
year.  Hut  all  this,  say  they,  this  is  Ivranoica), 
this  is  arbitrary ;  this  u  w  hut  English  ifotem- 
Rient,  anil  English  laws,  and  an  Eiigli.'in  court 
of  jiietice  cannot  bear,  tiay  Ihey,  it  is  a  very 
improper  behnvicmr  io  governor  ftloslyn.  aoil 
onghl  lo  be  Ihe  aiilj|ect,  the  mailer  of  a  civit 
action  :  Mr,  Pabrigas  therefore  does  very  right 
to  lake  a  voyage  over  to  England,  lo  coma 
here  lo  Guildhall,  and  take  Ilie  senne  of  an 
English  jury  uprin  governor  Moilyii's  beha- 
viour. Lei  me  ubserve  lo  you,  ihis  is  uol  » 
□uvel  proceeding;  for thougfi,  very  liirtunateljr 
for  governor  Hostyn,  it  is  the  liriil  lime  that  ha 
lias  had  ati  occasion  lo  behave  in  tliis  way,  and 
to  proceed  in  this  particular  manner ;  yf  I  liir- 
raer  goveriiorti  of  Ihis  istatid,  upiin  much  lesa 
occasions  and  emergencies  ihan  this,  have  dona 
the  very  like  thing.  Do  not  be  aHloniahcd. 
geollemen,  nor  lei  it  fright  you,  when  I  tell 
you,  that  the  guvernor  hai  an  obioliile  right  ti» 
do  it,  and  is  accuuulable  to  nobudy  but  tlia 
privy 'Council.  The  governmeot  of  that  l^lauj 
IS,  io  many  respects,  an  arbiirary  government, 
and  as  desjiotic,  io  many  instances,  as  any  of 
tbe  governroeola  in  Aaia,  |iarticnr<rty  in  the 
part  now  in  queition  ;  and  |el  governor  Alos- 
tjD  would  Iw  »orry,  for  his  own  character'a 
sake,  if  it  was  in  his  power,  to  take  any  legal 
advLiniagei  coDCcniing  tbe  impropriety  of 
bringing  ihe  action  here  in  Englund.  Hia 
character  calls  upnn  himf  which  is  lo  him  the 
Srst  of  all  considerations,  to  explain  his  con- 
duct in  the  fullest  manner  possilile.  A  general 
acquittal  of  liiffl  upon  the  idea  that  the  law 
won't  punish  him,  would  be  but  a  poor  s&lis- 
faciioii  IO  governor  Moslyn,  ivbo  is  charged  in 
this  action  with  having  exercised  a  tyrannical 
power,  tietilleineu,  the  general  tenor  of  the 
trenerat's  behaviour,  from  the  time  of  hia  being 
first  appointed  lo  this  government  live  yeura 
Dgo,  to  the  moment  belast  left  the  ialarnl,  has 
been  to  preserve  and  to  maintain  onler  and  good 
govecnnient,  wiihont  a  wish,  or  rather  with  an 
Bblioneute,  to  opprcissny  one  man  Ibat  is  un^c 


115] 


U  GEORGE  III. 


Action  Jbr  Fahe  Imprisonment-^ 


Ciia 


his  gorernment  there:  least  of  all  could  he 
€ver  wish  to  oppress  or  injure  this  maD,  too 
incousiilerable  iu  bis  own  particular  private 
•tatinn  of  iii'e,  too  remote  from  a  counexion  or 
acquaintauce  with  the  governor,  for  him  to 
have  made  him  the  object  of  vindictive— 1 
voii'tcall  it  justice,  but  of  any  vengeance  or 
resentment  upon  any  occasion  whatsoever. 
When  the  man  made  a  complaint,  he  wished 
to  enquire  into  the  grounds  of  it ;  aud  when  he 
found  it  was  groundless,  aud  the  man  reiterated 
tlie  complaint,  however  he  might  be  teazed  by 
this  reiterated  complaint,  (for  it  is  grievous  and 
troublesome  to  a  man  to  be  teaz^  with  new 
remonstrances  and  petitions,  when  he  sees  the 
impropriety  aud  impossibility  of  granting  what 
M  requested)  still  takes  all  possible  occasion  to 
enquire  into  the  grounds  of  the  complaint,  to 
answer  the  complaint.  But  when,  after  every 
means  had  been  tried,  the  man  threatens  the 
dissolution  and  destruction  of  government  in 
the  island,  it  became  bis  duty  then  to  treat  this 
with  some  seriousness :  and  yet  for  the  general 
^^d  of  the  island  he  did  it,  never  complaining 
of  these  two  hundred  men  that  were  to  be  arm- 
ed, only  laying  hold  of  the  man  himself,  and, 
as  soon  as  a  ship  could  be  got,  to  send  him  out 
of  the  island.  And  now  governor  Nostyn  is 
called  upon  in  an  action.  The  laws  of  a  foreign 
country,  gentlemen,  are  matters  of  fart  here; 
and  it  is  very  well  worthy  consideration — it  is 
very  well  worthy  of  consideration  indeed  (I  do 
Dot  mean  to  trooble  you  with  a  discussion  of 
that  question ;  but  since  his  lordship  has  hinted 
about  it,  it  is  very  well  worthy  of  consideration) 
whether  such  conduct,  upon  such  occasions,  in 
auch  a  place,  can  be  the  subject  of  litigation  in 
a  court  of  justice  in  England;  it  is  very  well 
deserving  of  consideration.  I  know  very  well, 
upon  a  former  occasion,  when  an  action  wua 
brought  against  the  governor  of  the  island  of 
BarlKidoes,  by  a  man  who  succeeded  in  his 
absence  to  the  government,  without  any  parti- 
cular aj^pointment  so  to  do,  and  having  been 
guilty,  in  the  governor's  absence,  of  some  mal- 
practice, (he  was  ap|)oiuted  by  him,  but  had 
not  t(K>k  the  oath)  there  was  an  action  iu  that 
case  brought  against  the  governor  for  some 
proceedings  against  his  deputy,  as  was  the 
subject  of  an  action,  and  there  was  judgment 
in  that  case  given  for  the  plaintifi' ;  but  a  writ 
of  error  being  brought,  and  that  beincf  removed 
afterwards  to  the  House  of  Lords,  that  judg- 
ment was  reversed.  As  well  as  1  recollect  it, 
one  of  the  chief  grounds  iubistcd  upon  on  the 
part  of  the  defendant  was,  that  being  a  matter 
abroad,— (for  that  it  was  upon  de^Hurrer  to  a 
plea)— that  being  upon  a  matter  abroad,  it  was 
not  cognizable  by  the  courts  of  justice  in  Eng- 
land.    In  answer  to  that,  it  was  insisted — 

Court,  Was  it  not  the  main  question  in  that 
trial,  whether  the  council  of  state,  or  the  go* 
f  eroor  of  Barbadocs,  had  a  power  to  commit  ? 

8erj.  Duvif,  That  was  a  question.  I  have 
■ir  Bartholomew  Shower's  parliamentary  cases 
Upon  the  table. 

Ctmrt.   I  think  the  courts  held  they  had  no 


power  to  commit :   the  House  of  Lords  held 
they  had  a  power. 

Serj.  Davy.  Your  lordship  will  find  the  par* 
ticular  reason  of  the  reversi(»n  of  the  judgment 
is  not  stated,  but  only  that  the  judgment  waa 
reversed.  But  one  of  the  particular  reasons 
was  that  the  island  might  be  governed  by  par- 
ticular laws,  and  that  he  was  not  responsible 
here  for  what  he  did  there.  To  this  it  was  an« 
swered  and  insisted  upon  by  the  other  side,  that 
they  were  governed  by  English  laws;  that 
they  were  not  a  conquered  country ;  that  thej 
were  inhabited  by  tlie  subjects  of  the  crown  oif 
Great  Britain,  who  came  of  English  or  Briiau- 
nic  subjects,  going  from  Great  Britain  to  thai 
country  to  reside  and  settle  there,  and  were  not 
like  the  case  of  a  conquered  country.  The 
reason  of  it  does  not  appear.  Upon  that  re- 
port, the  House  of  Lords  thought  proper  to 
reverse  the  judgment.  In  the  present  case, 
see  how  strong  it  is !  for  every  objection  made 
upon  that  case  applies  with  double  force  here. 
Suppose  it  comes  to  that  question  of  law,  will 
not  that  question  be  of  too  great  magnitude  for 
me  to  say  a  single  sy  lluble  about  it  ?  This  that  I 
have  now  mentioned,  and  your  lordship  has 
gone  before  me  in  what  I  was  going  tosav,  is 
a  very  important  question  of  law  indeed;  a 
very  great  question ;  a  question  of  the  first 
magnitude,  and  which  will  therefore  deserve  to 
be  discussed  and  determined  by  the  highest 
court  of  justice  this  kingdom  is  acquainted 
with.  It  is  a  question  of  infinite  difficulty  and 
great  im|>ortance,  with  regard  to  the  respon* 
sibility  of  the  governor  in  a  conquered  island, 
with  respect  to  their  being  amenable  to  foreign 
sub^ts,  with  regard  to  being  aooenable  Tor 
their  conduct. 

Serj.  Glynn.  They  are  the  descendants  oC 
foreigners,  all  of  them. 

Sei].  Davy.  1  mean  those  that  are  bom  in  Ui*. 
norca,  that  descend  from  the  ancient  inhabitants 
of  the  island.  They  are  subject  to  be  governed 
by  whatever  laws  the  king  of  Great  Britain 
shall  think  proper  to  impose  upon  them.  The 
king  of  Great  Britain  may,  if  he  pleases,  alter 
his  government  of  that  island,  and  give  what 
laws  he  pleases  under  a  general  ratification ; 
and  they  are  all  bound  by  it.  I  say,  a  discus* 
sion  of  that  question,  as  a  question  of  law,  is  of 
great  magnitude.  I  do  not  mean  to  trouble 
you  with  It.  To  be  sure,  it  is  too  much  for  my 
grasp ;  it  is  too  much  perhaps  lor  the  grasp  of 
any  one  man  sitting  in  judgment,  much  more 
for  roc  standing  here  as  a  counsel,  who  have  no 
judgment  at  all,  only  a  duty  i  owe  my  client ; 
and  perhaps,  and  most  probably,  it  n  ill  beaquea* 
tion  to  be  referred  to  the  determination  of  the 
court  above.  And  you,  at  the  same  time,  will 
certainly,  if  you  think  nmper  to  find  a  special' 
verdict  in  this  cause,  which  I  suppose  you  will, 
you  will  do  well  to  consider  the  subject  with 
regard  to  the  damages,  which  we  call  contin* 
gent  damages ;  it  was  therefore  exceeding  fit.- 
to  mention  all  those  circumstances  to  you,  not 
only  with  regard  to  the  matter  of  fact,  but  also . 
tor  your  considivatioa  with  regard  to  th», 


libe 


k.  •» 


117]  Tabfigai  v.  Mosiyn. 

^UMfCi.  For  iappo*  (it  is  upon  that  ground 
I  mw  aiMren  you)  rappoie  the  go? enior  tnis- 
fmktbe  law  apon  this  oocasion;  suppose  be 
fns  wrong,  and  ought  not  to  ha?e  proceeded 
kiis  way  ;  suppose  that  notwithstanding  all 
fbf  spinloiis  he  had  look,  as  well  from  the  ciTii 
in  ttieir  different  departments,  the  law 
•ad  the  aitcsieur  judges,  and  so  forth, 
1  bT  all  the  military  officers,  whom 
bled  together  upon  the  threat  of  the 
suppose,  notwithstanding  all 
opinions,  he  ought,  instead  of  doing 
km  did,  rather  to  have  kept  this  man  a 
,  and  brought  him  before  some  tribunal 
tried :  suppose  that  ought  to  be  his  con- 
that  therefore  he  did  wrong,  instead  of 
insprisoa  the  man  immraiately,  and 
him,  upon  his  own  authority  ;  now  to 
W  sore  the  assessment  of  damages  b^  tou 
■■St  go  upon  that  supposition.  I  think  I 
speak  airiir  upon  the  occasion :  1  mean  in  this 
and  aO  other  occasions  to  act  with  character : 
I  suppose  that  to  be  so :  what  mighty  damages 
s^fht,  oo  that  occasion,  to  be  giren  against  Uie 
teteiuui  ?  He  in  that  instance  mistook  the 
fiae  of  his  duty ;  he  acted  as  he  thouffht  for 
dw  best,  lor  the  safety  of  the  bland ;  but  he 
acted  sroctpitately.  Why,  let  Mr.  Fabrigas 
er  bis  menos  (for  I  do  not  know  whether  he  is 
in  Ksgland  himself  or  no),  let  them  pnt  one 
•uesiisD  to  themselves  to  decide  it.  If  (reneral 
MsrtWB  bad  done  the  thin^,  the  not  doing  of 
wlien  they  now  complain  of;  if  ffeueral 
Hastyn  bad  brought  this  man  to  a  trial,  what 
■ifbt  liaTc  been  his  fate?  The  least  sorely 
8Mld  hare  been  that  which  he  now  complains 
iC,laaishnient  for  a  single  year;  for  with  re< 
'  W  iho  imprisonment,  it  is  not  an  unusual 
any  country.  Upon  great  and 
occasions,  it  is  not  an  unusual  thing 
fine  a  man  for  a  few  days,  and  debar  him 

0  of  his  friends :  that  is  not  an  extra- 
tbiog.    But  suppose  in  that  he  did 

1  will  suppose  the  whole  to  be  wrong. 
IVbeieiu  is  it  wrong?  It  is  wrong  from  a 
Misapprehension  of  judgment,  from  a  mistake: 
m  is  wnmi^  merely  in  respect  to  mistake.  It  is 
■St  wroog  from  malice,  from  wilful  wicked- 
ness towards  this  man,  from  a  tyrannical  dis- 
Miiioo,  from  a  desire  to  oppress  or  hurt  him. 
If  ibia  bad  been  the  case ;  if  the  governor, 
icspoctable  as  his  character  is,  could  for  a  mo- 
be  suspected  to  be  capable  of  acting  in 

nanoer,  from  tyrannical,  cruel,  or  wicked 
vrs,  be  would  hare  done  ill  to  call  upon 
to  be  bis  advocate  ;  for  though  even  in  that 
t  1  would  discharge  my  duty  towards  htm, 
I  could  not  have  spoke  with  cheerfulness  for 
But  here  1  consider  him,  and  the  whole 
of  bis  conduct  bids  me  so  to  do,  as  a  gen- 
wiiling  to  discharge  his  duty  to  the 
erawa ;  to  preserve  this  island,  as  it  was  his  duty, 
Is  Um  comoioawealth  of  England ;  willing  to 
da  ill  that  was  good,  right,  and  just,  without 
■lyvimkctive  oaotave  to  this  man,  to  whcm 
be  io  a  atrasiger.  But  upon  this  occasion  the 
r  wUTpafdowttey  if  1  take  notice  upon 


A.  D.  1778. 


[118 


this  occasion,  of  what  is  too  well  known  ewn 
to  be  questioned,  his  general  eood  character. 
And  yet  I  have  less  need  to  ask  his  particular 
pardon  upon  this  occasion,  because  that  gentle- 
man from  whom  I  received  mv  instructions, 
the  attorney  in  the  cause,  has  nlled  my  brier 
with,  I  think,  not  less  than  thirty  of  the  first 
names  in  this  kingdom,  who,  I  am  told,  are  all 
attending  here,  or  within  a  moment's  call  from 
this  hall,  some  of  the  most  respectable  charac- 
ters in  this  kingdom,  some  of  the  highest  rank, 
and  gentlemen  of  the  first  character  in  this 
kingdom,  to  tell  vou  that  thev  have  at  different 
tiihes  served  under  general  fifostyn,  and  that 
they  do  not  know  in  all  t^eir  acquaintance,  a 
man  of  a  more  cool,  dispassionate  temper,  a  mail 
of  greater  character,  humanity,  and  justice, 
then  general  Mostyn ;  as  celebrated  for  it  tia 
any  man  of  any  rank  or  of  any  degree  of  ho- 
nour in  the  world ;  and  yet  general  Mostyn 
must  be  supposed,  in  order  to  justify  vindictive 
or  exemplary  damages  upou  this  occasion,  must 
be  supposed  to  be  actuated  by  motives  which 
his  heart  abhors,  and  which  motives  nevcfr 
actuated  his  heart  a  moment  in  his  life.  I 
leave  it  upon  this  idea,  that  if  he  has  acted  im- 
properly m  every  step,  yet,  upon  the  idea  of 
Its  being  a  mistake  in  general  Mostyn,  I  appre- 
hend tM  plaintiff  has  no  right  to  expect  exem- 
plary damages. 

Serj.  Burland,  I  suppose  it  is  a  fact  ad- 
mitted between  us,  that  this  is  a  conquered 
island,  ceded  by  the  treaty  of  Utrecht? 

Mr.  Lee,  Minorca  was  ceded  to  this  crowft 
by  the  11th  article  of  the  treaty  of  UUrecht. 

James  Wright^  esq.  sworn. 
Examined  by  Serjeant  Burland. 

Q.  You  resided  some  years  in  Minorca  f'-^ 
A,  From  about  January  177 1,  to  the  middle  of 
1772. 

In  what  character? — As  secretary  to  the 
governor. 

To  Mr.  Mostyn  ?— Yes. 

You  know  the  division  of  the  island,  do  you  ? 
—Yes. 

What  are  the  districts  they  are  divided  into? 
—I  believe  originally  five;  but  two  are  blended 
together,  that  there  now  are  but  four. 

Do  you  mean  to  include  in  one  of  these  dis- 
tricts the  suburbs  of  the  fort  of  St.  Phillip's  f 
— ^They  never  do,  when  speaking  of  them  ; 
that  is,  extrajudicial  of  the  common  officer  of 
the  island. 

Under  whose  particular  jurisdiction  is  that  ? — 
I  always  understood  it  to  be  under  the  direc- 
tion of  the  governor. 

What  do  you  call  that  district  ?— The  arra- 
val  of  St.  Phillip's. 

Are  you  sure  you  understood  it  to  be  distincfi 
and  separate  from  all  the  other  districts  ?— 
Yes ;  insomuch  that  I  was  always  led  to  be- 
lieve, and  told,  that  no  magistrate  of  Mahon, 
which  is  the  district  next  adjoining  to  it,  ever 
did  go  there,  or  could  go  there,  to  exercise  any 
sort  of  function,  without  leave  had  of  the  go^ 


i 


119] 


14  GEOROE  Iir. 


Ac^oHfir  Falte  Imprisonment— 


[IfO 


▼ernor ;  and  whenever  there  was  oocasioii  to 
■end  an  V  of  them  down  there,  the  fort-major 
received  orders  for  their  admission. 

Are  these  laws  varietl  at  any  time,  and  by 
what  authority  ? — ^The  island  is  governed  by 
iBpanish  laws,*  subject  to  be  raried  by  the  go- 
Ternor,  with  regard  to  all  interior  matters.  A 
proclamation  of  the  governor  is  as  binding 
there  to  try  a  man  upon  a  trespass,  as  any  laws 
whatsoever,  subject  to  be  varied  by  the  order  of 
the  governor ;  not  in  respect  to  property,  not 
with  ref^ard  to  mtum  and  tuum^  but  with  regard 
to  the  internal  police. 

What  do  you  mean  by  proclamation  ?— That 
if  the  governor  issues  a  proclamation,  and  in- 
flicts a  penalty  for  the  breach  of  it  all  over  the 
island,  and  if  any  person  is  guilty  of  the  breach 
of  that  proclamation,  he  is  subject  to  the 
penalty  of  it,  and  for  want  of  payment  is  im- 
prisoned. 

1  suppose  you  mean  they  enforce  an  obedi- 
ence to  that  proclamation  by  imprisonment  ? — 
There  is  there  the  chief  justice  criminal,  and 
Uie  chief  justice  civil :  both  have  their  separate 
courts.  If  the  governor's  proclamation  is 
broke  with  any  penalty  annexed  to  it  of  impri- 
sonment or  fine,  the  man  is  seized  and  brought 
into  that  court :  the  proclamation  it  exhibited 
a^nst  hiia,  and  by  that  he  if  condemned  to 
cither  fine  or  imprisonment,  thougl)  that  prochi- 
nation  was  made  perhaps  but  the  day  before. 

According  as  that  proclamation  afllects,  whe- 
ther a  civil  or  criminal  matter  ?— I  do  not  re- 
collect any  of  a  civil  matter. 

Court.  W  bat  are  the  nature  of  the  proclama- 
tions yon  are  speaking  of? — A.  In  all  the  me- 
morials presented  to  toe  governor,  be  issued  an 
order,  that  no  memoriab  or  petitions,  ^except 
ibr  mercy,  should  be  presented  to  him  without 
l><^ng  signed  by  an  advocate  admitted  in  the 
tonrts. 

Q.  You  mean  governor  Mostyn  issued  this  ? 
—4.  yes. 

Whether,  though  the  Minorquins  by  the 
treaty  of  Utrecht  are  governed  by  the  Spanish 
laws,  yet  whether  our  government  here  do  in 
ifact,  or  not,  from  time  to  time  make  alterations 
mod  regulations  in  those  laws? — The  king  in 
ooun'cil,  upon  all  occasions  of  application  to 
them,  issues  out  such  orders  as  the  case  re- 

auires,  and  they  are  recorded  in  the  royal  court 
here,  and  are  as  binding  as  any  laws  what- 
•oerer. 

They  are  registered  there,  are  they  not  ? — 
Yes. 

What  do  you  call  the  royal  court? — The 
court  of  royal  government  is  the  criminal  and 
the  civil  court. 

You  know  Mr.  Fabrigas  f — Perfectly  well. 

What  is  he  in  the  islaod  f — I  was  directed 
by  governor  Mostyn,  who  was  very  much 
tea2ed  by  his  repeated  applications,  to  enquire 
what  sort  of  a  man  he  was. 

*  As  to  the  laws  which  thoold  prevail  in  a 
fiOMuered  country,  see.  the  Cite  M  Ibe  isliod 
•fGrtMMla,a.p.  1774. 


Firat,  as  to  hia  (joality  in  the  island ;  what 
station  is  be?— His  father  holds  some  vioe- 
yarda,  very  amall.  He  himself  I  believe  ac- 
tually, for  his  bread,  labours  and  din  and 
prunes  the  vineyards,  and  talks  and  cbatteni 
about  politics  perhaps  five  days  out  of  six.  It 
has  been  repeatedly  said,  Mr.  Fabrigas  is  a 
man  of  property.  I  believe  he  had  at  that 
time  no  property  upon  the  earth.  General 
Mostyn  ordered  me  to  make  enquiry,  and  that 
was  the  result  of  it. 

We  know  what  the  station  of  general  Mostjfi 
is ;  that  he  was  then  and  is  now  lieutenant- 
governor  of  Minort'A ;  that  he  is  commander  of 
a  regiment,  and  a  man  of  family  :  what  is  hif 
character  as  a  man  and  as  an  officer  ?  Is  he  a 
man  of  humanity  ?— 1  believe  as  much  so  as  it 
is  poHsible  for  a  man  to  have ;  that  is,  in  my 
opinion.  I  have  seen  much  of  him.  I  do  not 
believe  there  exists  in  the  world  a  man  of  ten- 
derer feelings,  for  any  ill  efiects  that  may  be 
produced  from  liim. 

Is  that  his  general  character? — I  believe 
him  to  be  much  more  so  than  common.  I 
think  that  is  his  comluct  that  will  be  found 
upon  every  enquiry  that  can  be  made  of  him. 

And  it  lias  been  so  under  your  own  know- 
ledge ? — I  am  sure  of  it :  1  have  had  many 
opportunities  of  seeing  the  working  of  it  in  a 
very  surprising  manner. 

Will  you  let  us  know  as  much  as  you  do 
know  of  this  transaction  between  Mr.  rabrigaa  * 
and  the  governor? — May    I;  refer  to  some 
minutes  I  have  here  ? 

Counsel.  Yes. 

Serj.  Olynn.  Did  yon  take  them  At  the 
time? — A.  No;  but  all  within  three  days. 
1  hope  I  ahall  be  excused  \\'  I  should  make  any 
mistakes  in  respect   to   date.     Mr.   Fabrigae 

S resented  a  memorial,  1  lielieve  to  myself,  to  be 
elivered  to  governor  Mostyn — that  was  the 
dlst  of  July  1771— complaiuinir  that  Mr.  Alli- 
mundo,  the  mustastaph,  the  only  officer  in  ibe 
arravaW— 1  think  that  was  the  first  petitioo, 
complaining  of  some  abuses  in  buyinif  wine. 
The  governor  said,  What  does  the  fellow  want  f 
He  bid  me  order  Allimundo  to  answer  ii,  lor  be 
knew  nothing  about  it.  I  sent  for  Allimundo 
op  to  the  heHd-quaners.  The  musiaNtapb  ie 
the  only  civil  officer  of  8t.  Phillip's  that  is,  in 
the  arraval :  he  is  put  in  by  the  governor,  and 
turned  out  by  him  at  pleasure. 

Did  you  order  Allimundo  tf>  give  in  an  an- 
awer  to  it  ?— -I  sent  for  him,  and  desired  him 
to  come  up  to  me.  I  gave  him  the  memorial, 
and  told  him  it  was  the  governor's  order  that 
be  answered  it.  Upon  Allimundo's  answer 
coming  op,  it  was  read  to  the  goiernor. 

Coufuel.  That  answer  is  dsted  the  8ib  of 
August  1771  ? — A.  I  read  it  to  the  governor* 
The  governor  ordered  me  to  tell  Mr.  Fabrigae 
and  Allimundo,  bv  an  interpreter,  that  he  wee 
rerv  well  satisfied  with  the  defence  Allimundo 
bad  made  to  Fabrigas's  charge.  I  told  tbfa 
both  ao.  Fabrigas  came  again,  and  desired  Ie 
see  the  defimce  that  AUimundo  bad  made.  I 
loM  bun  I  was  not  aatboiiicd  to  tbew  it  binii 


«w«HI  AwkU« 


Fabrigas  v,  Muttyn- 
%  m>lter  for  him  to  de- 
iMfti*  He  cmhc  again  llir  next  day,  or  tba 
fcf  •Aer,  ^(iog  in  annther  mpmorit),  cleiiriug 
Itelkal  mi|^t  be  shewn  lo  the  gforemor. 

CamiL  That  vm  delivered  Ibe  131h  of 
A^omT — A.  Yei:  in  ihnrt,  deaitinr  to  see 
Kr  jouificntinD  of  Allimuodo,  and  shimnE  the 
p^a4  of  bis  compUini,  aad,  I  thiak,  Rddiog 
«Mfacr  antcle. 

tarn  akeiveri  theic  two  nemorialR  to  the  ga- 
•fiMrf— 1  did.  GoT«rnor  MoMjn  ordered 
Itu  Dr.  Mafkadat,  «ho  then  acted  as  cliief 
JMicB  ci'i],  ^ould  rec^Te  and  Itear  any  cntn- 
fbMa  lluit  Fabri^RB  had  to  make  agiiiusl  Alli- 
■mA*  ;  uid  he  addeil  lo  bim  th«  ail*oeaIe  tis- 
cri.  Ike  Mcmid  officer  in  llie  island  Ihat  acts 
•ate  Ike  king'*  cammission :  the  chief  iuitice 
(Kd  is  lite  fint,  the  chief  justice  crimiDal  is  the 
sBCMul.  the  Bdvocite  fiscal  is  the  third,  next 
rfb*  thai  pxemor ;  he  gave  Ihem  authority  to 
waA  tor  papers  and  penons,  and  whataoeTet 
Mfkl  Iw  iueful  in  the  enquiry  in  his  name. 
B*  By  (Dtmeranduin,  I  think  it  nag  the  SOth 
«f  AntfOBt,  Ihal  these  tno  law  trentleioen,  aa 
rs,  met,  and  ordered  Fabrigas  and 
who  were  thpn  present,  to  attend 
ihtm  Ike  93il  fallowing.  It  may  be  nrcessory 
I*  akMrrr,  iliat  ihough  these  tiva  gentlemen 
■m  IbTD  aiilio^  in  ihfir  own  viril  cnurts, 
■kay  aoed  as  cuiumissioners  of  enijuiry,  be- 
owielkc  mwi  oaa  one  of  ihe  arravBl  of  Hi. 
nilkf**.  i  won't  charge  my  memory  by 
mtk,  kol  1  am  *ery  sore  they  had  a  se|iarate 
^■[■■Imiob  nn  purpose  imder  the  governor's 

Wm  ibe  iiHiuiry  made? — On  the  93d,  Fa- 
too*  (tertsied  h*  would  proceed  nn  I'urlher 
iStewM  allowed  to  see  the  defence  Ihut  Al- 
k««ia  had  made,  and  given  in  lo  the  go- 
■  II  w. 

Where  «»■  ihni  declaration  maile? — In  the 
aswt  batoie  ihc  cum tuiisi oners.  Mr.  Fabtigas 
fmamiA  a ibird  incmoriBl  lo  truvernor  Mosiyn, 
Mfioc  bu  hinif  more  than  what  be  had  said 
M*r  Ik*  eiiinroiMioners,  ihni  he  cnuld  not 
■w.**!  uU  he  had  seen  AJIiatundo's  answer  to 

brtorr  ihe  ihiid  memorial  llial  was  present- 
ai,  haJ  ihr  ciKDinUtioiiers  luade  any  report  T 


8rr)  lUrlmd.  Tiiat  is  the  third  memorial, 
ciMUiauis  the  \i  articles  he  exhibits  against 

Q  (.'an  Tooflilhedaieiolhat'— J.  I  think 
a  owfl  hrhelween  the  33d  aad  36tb  of  August. 
r>r«nal  SliMlya  refirrred  him  to  the  commis- 

Wbat  VM  done  afterwards  7— The  commis- 

lannpartad  lo  the  i;overDor,  that  Mr.  Pa- 
-.•aa,  ky  Iba  manner  of  his  carrying  on  ihis 
>'  ■  ■■tioa  apviul  Allimundo 

»  hw  waalbeif  report  r-The  a4tbof  August, 
'  >aiafina:  here  is  their  re)iort. 

L^art.  I  dan  <•;  lhi>  report  he  is  ipeaking 


un 


Seij.  Davy.  I  took  a  great  deal  of  pains  lo 
collect  dales,  and  I  did  it  from  Ihe  cuoieots; 
I  believe  they  were  rigbi,  r«  J  opened  it. 

Wri/iht.  There  were  two  reports,  one  Ihe 
3:slot  August,  the  other  ihe  4ih  of  September, 
thai  Fabrigss,  by  the  manner  of  carrying  on 
ihis  charge,  intended  to  mt*  dissentinn. 

Serj.  Duvy.  Mr.  nrighl.  I  find,  confoan^ 
Iwo  reports  togellier:  it  is  the  third  report 
where  Ihey  report  thst  it  is  tn  hi'eed   sedilion. 

Q.  Then  be  presented  this  third  memorial 
oonlainioft  the  13  articles  f 

Mr,  Just.  Gould.  My  brother  Davy  staleit, 
that  it  WDS  Ihe  lOlh  of  September  Ihak  thej 
took  notice  of  the  articles. 

Q.  Was  there  another  report  about  the  lOlh 
of  SepleroberF — A.  Yes,  there  is.  On  Ibe 
SGtb  of  August  the  governor  ordered  me  to 
desire  the  ctimioal  chief  justice,  and  the  civil 
chief  justice,  Ibe  advocate  fiscal,  and  the 
aecretDry  to  the  conrl  of  Ihe  royal  govern- 
ment, to  come  to  me  next  mnrniiig,  ihal  be- 
ing the  96th.  Fnbrigas  came  there,  task- 
ed him  in  the  governor's  name,  by  an  inter- 
preter, what  he  meantj  whelhera  civil  prose- 
cution to  recover  damages  against  Allimundo, 
which  be  had  sustained  ?  or  whether  he  meant 
In  make  an  eiamide  of  him  for  any  abuse  be 
bad  commiltediu  hisnfficef  These  gentlemen 
were  prearnt. 

•  What  answer  diil  he  make  ? — None ;  1  eoutd 
get  noansivcr  from  him. 

Serj.  Davy.  That  is,  upon  the  arlicles. 

Court.  Is  that  subsequent  lo  the  delivery  of 
Ihe  articles  F 

Serj.  Dofy.   Yes. 

Q.  This  question  arose  upon  bis  presenting 
the  13  articles  lo  ihe  governor  f — A.  Upon  ih* 
whole  uf  his  cuoduct. 

But  that  was  alter  he  presented  the  articles  f 

What  did  he  say  to  Ihal?— He  said  nothing. 
I  desired  him  lo  make  some  kind  of  answer, 
Ihal  1  might  tell  Ihe  govenior.  Hisanswerat 
last  by  eklnrtioD  was,  that  if  1  would  give  him 
a  quarter  of  an  hour,  be  would  go  and  come 
back  with  an  answer. 

Ileing  cnnfuundeil  at  the  question  at  first,  and 
giving  no  answer  for  some  tinie,  at  length  be 
said  that? — lie  did  nol  know  which  he  wanted 
nor  what  he  wanted.  He  gave  no  answer  at 
last,  but  Doty  asked  that  he  micht  bate  n  qoar- 
let  of  nn  hour.  I  told  bim  that  he  was  not 
cniiiined  loaquarier  of  nn  hour  ;  bulil  being 
theu  between  lO  and  1 1  o'cluck,  I  behered  that 
they  would  be  so  attentive  to  him,  that  he 
might  call  again  at  t9  o'clock  if  he  pleased. 
He  came  back  again  wiibin  the  lime,  and  gaf* 
noiicc  that  he  meant  a  civil  aclion- 

Serj.  G'ynn.  I  would  not  interrupt  Ihis  CTi- 
dence,  as  it  does  not  spprar  to  be  ul  great  con- 
sequence lo  na;  but  I  submit  10  your  lurdship, 
whether  this  is  properly  evidence,  Ihe  answec 
being  conieyeil  lUrougn  aa  interiiretci  f    and 


1S3] 


U  GEORGE  IIL 


Action  Jar  Fake  Ifaprisonmeni'^ 


[1S4 


whether  the  ioterpreler  ihoold  not  be  produced, 
who  knows  what  answers  were  mea  ? 

Mr.  Lee.  We  are  now  to  take  the  answer 
from  a  man  that  does  not  know  what  the  ques- 
tions were,  in  a  lang^oage  the  witness  does  not 
understand,  and  consequently  cannot  report  if 
there  were  any,  or  what  answers  gfifen ;  where- 
as there  is  a  man  li? ing  in  the  world  who  could 
report  the  answers  that  were  gi? en.  I  should 
not  object  to  it,  if  that  ffenthteum  could  himself 
understand  the  answers  that  were  given. 

Mr.  Just.  Gould,  1  think  it  is  very  clearly 
tMifficient  evidence. 

Mr.  Peckhom.  The  interpreter  was  appoint- 
ed by  the  goyemor,  or  by  bis  order,  tborefore 
we  caiuottell  whe^er  tliat  interpreter  gave 
the  fair  and  true  constructions  of  the  conver- 
sation which  pasted  between  Mr.  Fabrigas  and 
Mr.  Wright;  but  from  the  person  appuiating 
him,  we  have  reason  to  apprehend  ihe  contrary. 

CaurL  First,  it  is  very  dear,  from  what  Mr. 
Wright  says,  and  I  sup|iose  nobody  will  doubt 
from  the  subsequent  action,  but  that  this  in- 
terpreter very  fairly  and  rightly  interpreted, 
that  this  roan  desired  to  have  a  quarter  of  an 
hoar  to  consider  of  it :  that  is  clear.  He  has 
two  hours  given  him.  He  comes  back  again, 
and  then  the  same  interpreter  officiates.  TiMact 
wrovea  that  lie  had  ezpUuned  the  first  very  clear- 
ly, because  he  went  away  in  consequence  of  it. 

Wright,  The  assesseur  criminal  talks  as  good 
English  as  aay  gentleman  in  court,  and  he, 
whenever  there  was  the  least  mistake  or.con- 
liiBion  of  sound  or  words,  set  it  right  instant- 
ly. He  returned  again  and  said  he  meant  a 
civil  action. 

How  long  time  do  you  think  he  was  absent  f 
•—Within  two  hours,  probably  an  hour,  Ihe 
assesseurs  both  of  them  walked  out  and  came 
in  agfain.  The  commissioners  not  finding  Mr. 
Fabrigas  would  attend  them,  were  desired  by 
Ihe  general  to  send  him  an  answer  in  writing  tu 
■ix  questions. 

W  hen  was  this? — Subsequent  to  his  saying 
1m  would  proceed  by  civil  action. 

I  suppose  then  that  meeting  broke  up? — 
Yes.  The  governor  consented  that  he  might 
have  a  civil  action  agamst  hioi.  1  repotted 
il  to  the  governor. 

Did  you  tell  him  of  that  ?— 1  neter  saw  him 
afWrwards,  but  the  judges  present  heard  him 
any  he  meant  a  civil  action.  They  told  him 
they  would  admit  it. 

m.Feckkam.  Did  you  bear  that?— J.  Yes, 
I  did.  1  was  to  signify  to  him  that  Ihe  governor 
mted  lo  his  having  a  civil  action,  if  he 
■eit. 

And  was  il  signified  to  him  ? — Yes,  it  was. 

You  say  he  did  not  proceed  by  a  civil  action, 
fed  therefore  six  questions  were  proposed  lo 
Mm  r — ^The  assesseur  civil  canse  to  the  go- 
^^^^^9  and  informed  him  this  mau  did  not  pro- 
eivil  aotiou :  then  Ihe  governor  sent 
»Mlahira. 
iMf  i^cr  wan  it  thai  they  were  sent 
'~^I  oaMOt  ifceUeat. 

It^L Htti  digr r— N» ;  it  Blithe 


three  or  four  days.  The  ^neral  sent  for  his 
own  information  six  questions,  relative  to  Ihe 
conduct  complained  of,  of  the  mustastapb, 
for  the  opinion  of  the  chief  justice  civil,  whe- 
ther the  mustastapb  had  or  not  exceeded  his 
commission.  The  questions  are  in  court,  and 
the  answers. 

Is  there  any  date  to  these  six  questions  ? — 
The  mustastapb  of  St.  Phillip's  hearing  this 
great  confusion,  in  which  he  was  the  great 
person  complained  of,  spontaneously  sent  np 
an  attestation,  or  rather  a  desire,  of  many  of 
the  inbabitaolB  of  thearraval  of  St.  Phillip's,  to 
request  the  continuance  of  the  old  regulations, 
and  that  the  alterations  proposed  by  Mr.  Fabri- 
gas might  not  be  made.  That  was  signed  hj 
a  great  number  of  them,  and  was  as  mnch 
the  object  of  conversalioo  there,  as  any  thing 
ever  was. 

Was  any  order  made  upon  that,  or  what  was 
done  ?— On  Sunday  the  8tb  of  September,  Ihe 
governor  having  first  aiiked  Dr.  Oliver's  leaver 
a  very  considerable  merchant  in  the  town,  a 
doctor  of  laws,  and  the  chief  justice  civil,  he 
gave  them  a  commission  to  go  the  next  morn- 
ing, the  Sunday,  to  the  arraval  of  St.  Phillip's, 
to  a  country-house  the  governor  has  Ihere^ 
that  is  called  Stanhope's  Tower,  telling  them  he 
would  give  directions  to  all  the  people  thatdeaK 
in  wine,  that  they  should  come  before  them  se- 
parately to  be  examined,  and  give  their  oni- 
nions,  and  whether  they  chose  the  new  resolu- 
tions, or  to  adhere  to  the  old  rule. 

What  do  you  mean  by  asking  Dr.  Oliver's 
permission? — He  was  no  officer.  For  them 
to  say  whether  they  chose  the  new  institution 
of  general  Johnston,  or  whether  they  chose  ib# 
general  sale  of  wine  as  every  body  pleased.  A 
great  many  of  them  did  appear  the  next  room- 
ing ;  I  suppose  all :  1  understood  at  least  all  that 
clK»se  to  come. 

Whst  was  done  ?— They  re|iorted  to  the  go^ 
vernor,  that  93  were  for  the  then  practicn^ 
(that  is,  general  Johnston's  institutions)  41 
were  for  the  old  regulations,  sod  6  appeared 
to  be  indifferent,  and  4  wanted  some  alterations 
of  their  own. 

Which  were  the  old  ones?— They  never 
were  in  practice  in  the  arraval  of  St.  Phillip*a  ; 
but,  upon  all  the  enquir}-,  they  could  find  Ihat 
tlie  king's  regulation  subsisted  about  six 
months,  and  made  great  confusion,  but  that 
Ihe  regulation  of  1752  never  obtained  at  all  is 
the  arraval  of  St.  Phillip's. 

When  was  this  reported,  and  dated  P— 
The  8th  of  September ;  tbat  was  on  a  Sundaj. 

What  followed?  Was  this  reported  to  the 
governor  f — Yes ;  but  the  governor  waa  wdl 
mfbrmed  of  what  had  passed,  on  the  Sunday, 
Mr.  Fabrigas  came  on  the  Monday  rooming 
with  a  new  memorial,  complaioing'tliat  it  was 
Sunday;  and  he  protested  against  what  waa 
done,  and  Ihat  Dr.  Oliver,  and  the  chief 
justice  civil,  had  used  threats  and  menacen  l» 
thnpeoplt. 

Then  the  next  memorial  I  have  in  my  hand 
te  Dr.  Blvhidal,  and  Dr.  OKm^  r— Tb  g^ 


M5J 


I^brigoi  V.  MoHyn. 

was  to  cxecediogly  cautioat  in  erevy 
lliior»  whether  of  consequence  or  not,  upon  this 
BOMeoMca]  meoiorial,  that  be  submilled  every 
Inaftinn  to  the  people  of  the  island.  He  sent 
this  report  to  Dr.  Markadal  and  to  Dr.  Oliver, 
fbr  them  to  answer.  They  answered  it  on 
tklOth. 

What  ibUowed  the  next  day  after  that?— 
IiMl  it  was  the  same  day  Fabrigas  came  for 
as  soswer,  the  lOtb,  which  was  Tuesday.  He 
CHW  Ui  me  to  desire  an  answer  to  his  memo- 
lisl  about  the  Sunday  aflair.  I  was  not  at 
haiae.  He  em|uired  then  for  the  grovemor's 
ai4*de-camp,  and  gave  him  the  memorial. 

Hare  is  another  of  the  10th  of  September,  of 
Dr.  Piaiicisco  Segui,  and  Dr.  Markadal's. — 
FiaaeisoD  Scgui  is  the  advocate. 

That  was  an  opinion  of  their's,  as  the  law- 
j»s  ofthe  island  ? — I  fancy  that  accompanied 
tha  answer  to  the  articles ;  I  cannot  be  positive 
tadslci.  Retnminff  home,  1  met  Mr.  Antonio 
Fahrufas  immediately  after  he  had  l>een  with 
the  governor's  aid-de-camp  ;  I  think  the  10th. 
1  ralbcr  avoiiled  having  any  thing  to  say  to 
him:  I  bad  had  so  much,  I  was  quite  satisfied. 
Bs  ramr  to  nse.  I  called  Segui,  a  priest,  and 
gst  John  Vedall,  who  served  for  an  interpreter, 

~  who  happened  to  be  in  the  street,  almost 
the  governor's  wall.  I  desired  Mr.  Pa- 
in the  most  civil  manner  I  couki,  hav- 
MOaae  no  fifty  times  before,  to  say  what  he 
«iihed  or  wanted.  If  he  would  only  point  out 
iihat  be  wtabed,  it  ahould  be  done :  I  would 
viotake  to  answer,  the  governor  meant  to  do 
iij  thin^  that  he  wanted  ;  but  that  he  had 
in  such  a  manner  hitherhi,  that  nobody 
how  to  please  him.  Mr.  Vedall,  who 
natter,  as  every  body  in  the  island 
with  me  in  desiring  him  to  go  home 
his  family  affairs.  All  his  answer  to 
■e  was,  ooflsplaining  of  the  enquiry  being  on  a 
fiasdrf .  I  told  him  that  it  could  not  be  altered. 
JidM  vedall  joined  with  me  in  desiring  him  to 
gs  heoae,  and  not  bring  mischief  upon  himself. 
Ma  Vedall  lold  me,  ne  said  he  would  come 
the  next  day  with  one  hundred  and  fifty 
1  think  it  was  under  bis  interpreta- 
thengh  I  had  the  priest  there  some  part 
afthetiaaa. 

Q.  Jrvm  <Ad  Jury.  Was  it  armed  men.^— 
i.  Bio,  DO. 

What  did  he  say  ?-- -He  would  come  with 
mt  hoodred  and  fifty  men  to  back  the  petition, 
w  whatever  the  word  was,  with  a  petition  and 
•ae  hondred  and  fif\y  men,  or  with  a  petition 
kaeked  hy  one  hundred  and  fifty  men. 

Q.  yVoei  the  Jury,  What  do  yon  apprehend 
he  aaeant  by  that  expression  ? — A,  Upon  my 
aavd  I  catehed  at  the  expression,  and  desired 
John  Vedall  to  desire  him  to  desist  from  such 
aa  idea ;  which  John  Vedall  did,  and  treated  it 
as  Isaghiog :  but  if  I  understood  any  thing  by 
ii«  it  waa  not  to  como  with  guas,  for  they  had 
aa  such  thing,  but  to  come  as  a  mob. 

Q.  from  the  Jury.  Did  .he speak  Spanish  or 
Eaghsh  at  the  time?— J.  Miaorquin. 

What  was  tht  •Char  iotarpretar's  nama?— 


A.  D.  1775.  [188 

Segni,  a  priest,  one  of  the  Spanish  priests :  bw 
was  there  the  first  part  of  the  time,  and  Jobs 
Vedall  the  hitter  part. 

Court,  And  then  in  consequence  of  that,  yon 
thought  he  meant  a  mob  ? — A.  Yes ;  or  I  should 
not  have  got  John  Vedall  to  enter  into  a  k>ng 
conversation  to  desire  him  to  desist 

Q.  What  did  he  say  upon  that?— il.  H« 
went  on,  J  believe,  repeating  the  same  again. 
1  believe  the  conversation  was  closed  upon  that. 

Q.  from  the  Jury,  Has  Allimuado,  by  virtua- 
of  his  office  of  mustastaph,  any  particular  li- 
mited quantity  of  wine  to  sell  P 

Serjeant  Dairy.  When  the  papers  are  read, 
that  will  be  particularly  spoken  to. 

Q.  You  informed  the  governor  of  what  wav 
said  about  150  men?-»il.  Yes. 

Whatpaased  after  that?— I  think  on  Wed»> 
nesday,  the  governor  sent  his  compliments  t^ 
most  ofthe  officers  of  tlie  corpa^  desiring  thi^ 
would  come  to  him  the  next  morning,  to  ae*^ 
the  honour  that  was  to  be  done  to  him. 

Did  they  meet  there?— There  were  most  of 
them  there.  Every  one,  1  believe,  expected 
a  full  meeting  of  the  inhabitanta  of  St.  PhiU 
lip's. 

What  meeting  was  that  that  waa  expected  T 
--Those  people  Fabrigaa  had  spoke  of.  They 
waited  aome  time,  and  at  last  four  people  came, 
(I  think  all  four  were  shoe- makers)  and  they 
brought  a  memorial.  I  believe  a  gentleman  ia 
in  court  that  received  it  from  their  hands.  He 
took  the  memorial  of  them,  read  it,  and  I  thinle 
colonel  Mackellar,  afler  reading  it,  told  them 
that  they  were  to  go  about  their  business,  to 
go  home  peaceably,  and  liebave  themselves  aa 
good  subjects  to  his  majesty  ought  to  do.  I 
think  there  waa  a  conversation  preceding,  to 
shew  they  did  not  know  the  contents  of  that 
memorial  they  were  delivering,  which  I  be- 
lieve will,  by-and-by,  come  out.  The  general 
asked  the  opinion  of  the  general  officers,  as 
well  as  I  recollect,  whether  they  all  knew  that 
this  waa  founded  by  Fabrigas's  proceeding? 
and  the  next  day  he  asked  them  wha:t  they  un- 
derstood by  it?  They  said  they  understood  that 
the  man  was  to  be  ranished  the  islamii 

You  were  not  there  when  they  ^pire  their 
opinions,  I  believe  ?•*-!  cannot  tell. 

And  so,  in  consequence  of  it,  he  was  ba- 
nished the  island  ?-^The  general  ordcsred  him, 
in  consequence  of  that,  to  be  taken  up  that 
night.  He  could  not  be  found.  The  general- 
sent  to  the  chief  justice  civil,  and  tlie  chief 
justice  criminal,  and  the  advocate  fiscal,  to 
Icnow  what  he  should  do  in  that  case ;  tliat  he 
thought  him  not  safe  to  be  left  at  larg^  in  tha^ 
island.    They  told  him— - 

Q.  from  mt,  Serjeant  Glynn,  Were  ycai  pre-* 
sent,  or  do  you  speak  from  information  ?•— il.  I 
am  speaking  of  what  they  told  me:  il  waa' 
sent  by  the  governor  to  ask  their  opinion.  This 
is  their  answer. 

Q.  What  were  you  to  ask  of  themf— i(.  Tha 
governor's  power  upon  this  oocasion*     l?lirf' 
said,  the  govemor'a  power  extended  over  th^* 
man,  and  ha  might  do*  with  him  whal*lM« 


127] 


14  GEORGE  IIL 


AMcmJot  FaUe  Impruonment-^ 


[128. 


pleased ;  and  if  he  chose  to  banish  him,  thej 
would  answer  for  it  with  their  ears. 

These  f^tlemen  are  themselves  Minor- 
quins?— Yes;  and  hoth  talk  very  good  Eng- 
lish. 

Cowt.  This  answer  you  carried  back  tothp  ge- 
neral f'—A.  Yes ;  and  they  told  it  him  viva  voce. 
The  chief  justice  ciril,  upon  my  having  many 
doubts  about  it  myself,  and  saying  that  it  was 
not  quite  the  idea  of  Englishmen,  and  that  we 
had  not  any  such  law  in  England,  said  it  over 
and  over  again.  He  gave  me  a  piece  of  paper 
with  his  own  hand,  which  he  called  a  quota- 
tion from  the  law  of  that  land,  a  royal  order  in 
the  year  1500  and  something  else ;  a  positive 
order  from  the  then  kin^  of  Spain,  wherein  the 
king  says,  that  the  opinion  uf  the  assesseur 
criminal  is  consultative  only  ;  that  the  governor 
may  be  guided  or  not  by  it,  as  he  pleased  ;  but 
not  so  in  civil  cases.  Although  the  governor 
tt  absolute  in  regard  to  the  politics  and  oecono- 
tnical  government  of  the  island,  it  is  not  im- 
proper, but  very  prudent  to  take  the  advice  of 
the  assesseur  criminal,  as  has  been  recom- 
mended by  the  kin?  of  Spain  to  the  governor ; 
although  it  must  be  observed,  that  in  these 
cases  uie  assesseur  only  git^es  his  advice,  and 
consequently  it  is  in  the  governor  whether  he 
will  follow  it  or  not,  and  is  not  decisive,  as  in 
civil  cases.  This  man  being  a  Minorquin,  the 
governor  wanted  to  know  bow  he  ahould  ap- 
prehend him,  no  officer  of  his  knowing  him. 
The  assesseur  criminal  said,  that  the  officer 
that  attended-  him  as  tipstaff  was  an  old  fellow. 
Says  the  other,  **  You  shall  have.mine,  who  ia 
A  young  able  man :"  and  he  was  apprehended 
by  the  tipstaff  who  walks  before  the  assesMur 
civil  every  day  of  his  life  when  he  goes  in  or 
out  of  court. 

How  lon^  was  he  kept  in  prison?-— 1  do  not 
know ;  the  books  will  shew  it. 

Was  he  put  in  the  common  and  usual  prison  ? 
-—There  is  no  other  prison  in  the  arraval  of  St. 
Phillip's,  but  where  ne  was  put,  I  believe. 

Why  do  they  call  it  N""  1  ?— I  do  not  know. 

Court*  It  has  been  particularly  described  to 
me  and  to  the  jury  as  the  prison  where  capital 
offenders  are  confined,  and  is  called  N^  1 :  why 
is  it  called  N**  1,  if  there  is  not  some  other  pri- 
son ? — A,  There  are  gentlemen  better  informed 
of  the  castle  of  St.  Phillip's  than  T  am.  I  be- 
Here  there  is  no  other  prison.  That  may  be 
M^  1  room  in  the  prison. 

Cross-examined  by  Seij.  Glifnn. 

I  think  you  told  us  your  residence  in  Mi- 
norca was  about  a  year  and  a  half:  who  was 
ffovernor  during  the  time  of  your  residence  ?— 
Upon  our  arrival  there,  the  lieutenant-governor 
commanded ;  and  upon  our  arrival  the  com- 
mand devolved  upon  general  Mostyn. 

Then  the  command  immediately  devolved 
upon  him  ? — Within  two  days,  or  so. 

And  the  other  two  days  Mr.  Johnston,  as  his 
liealBpant,  commanded  ? — 1  believe  the  general 
cune  there  on  Monday,  and  took  the  command 
Ml  Thiuiday.    Beporti  iind«  general  John« 


aton*s  siirnsture  that  the  governor  was  arrived  - 
made  it  necessary. 

Tlien  your  experience  of  the  laws  of  Mi- 
norca has  been  cullectHl  in  that  residence?— 
That  is  all  1  know  uf  them  in  the  world. 

Which  lias  been  during  the  government  of 
governor  Mostyn  or  his  lieutenant.  Now  you 
told  us,  that  the  proclamation  of  the  governor, 
with  regard  to  tbe  criminal  court,  was  the' 
same  as  a  law  ;  and  you  distioifuish  the  court 
of  property,  which  regards  meum  and  tuuMf ' 
from  it? — Quite. 

Do  you  mean  that,  without  any  limitation 
whatsoever?  Suppose  the  governor  intended  to 
inflict  a  capital  punishment  upon  any  offender, 
most  that  law  be  obeyed  by  the  judges  ?— I 
should  imagine  it  would,  it  is  only  my  ima- 
gination, observe. 

I  think  you  were  so  kind  before  as  to  tiill  ns, 
that  thougn  that  proclamation  came  out  but  the 
morning  before,  it  would  be  equally  obligatory 
upon  the  courts  of  justice?— I  understand  ao. 

Now  this  roustastaph,  Allimnndo,  sells  wine, 
does  be  not? — He  makes  wine  of  his  own 
vineyards,  and  buvs  grapes  of  other  people  t» 
make  wine,  and  aells  it  in  the  arraval.  He  doeg 
not  sell  it  retaiL 

That  was  a  regulatM>n  of  goremor  John* 
ston's?— I  believe  so. 

I  would  ask  you,  whether  AUimundo  bad 
not  a  lot  himself  to  sell  his  wine,  and  exdode 
every  other  person  ? — I  think,  aa  the  papera 
are  upon  the  table,  they  will  sp^  for  them* 
selves.  I  think  Allimnndo  for  bis  own  vindi- 
cation urges 

But  I  aak  you,  of  yonr  own  knowledge, 
whether  the  lot  did  not  fall  upon  him  .'—I  be* 
lieve  he  did  not  draw  any  lot  at  all ;  it  is  not 
the  cuatom  for  the  mustastaph  to  draw  lots. 

You  think  he  did  not  draw  lots  ?— No. 

You  did  not  understand  the  Minorquin  Inn* 
gnage?— No. 

It  is  a  mixture  of  Italian  and  Spanish  ?— Yes, 
I  believe  so,  and  a  kind  of  bad  Spanish. 

You  have  told  us  of  the  two  interpreters :  I 
think  you  don't  recollect  exactly  the  worda  the 
laat  interpreter  said?  You  thinly  father  Segni 
was  gone  before  Fabrigas  said,  «« I  will  oome 
with  a  petition  with  150  men,  or  badced  bj 
150  men  ?*' — I  cannot  be  sure ;  I  think  it  waa 
Vedall ;  and  the  more  so,  from  his  joining  with 
me  in  endeavouring  to  persuade  bun  from  hie 
intention. 

1  think  you  communicated  this  matter  to  th« 
governor  ? — Yes. 

Did  you  carry  Vedall  with  you  ? — No. 

Did  you  make  any  enquiry  afWr  the  150 
people?— No. 

You  yourself  were  the  person  that  reported 
the  conversation  to  theffovernor? — Yea. 

What  time  did  you  write  this  paper?— 1 
fancy  the  memorandums  of  that  paper  wera 
wrote,  I  ahonki  think,  1  could  not  swear  to  it 
ao  particulariy,  I  should  think,  within  an  hour 
of  every  one  of  these  transactions  happening* 

Then  I  take  it  for  grantml,  that  this  ia  a 
Mtkfol  espy  of  a  fiuthfiu  coUcGlioD,  Mceniinc 


W] 


Fabrigas  v.  Mostyn. 


A.  D.  177S. 


[ISO 


li  your  iMDMiry,  within  an  hoar  aod  half  after 
neh  tnwMction  f — It  waa  not  pat  dowQ  for 
theMblae  eye,  but  to  refresh  my  own  mind. 

Tiio  yoa  did  nol  put  down  any  thin^f  which 
^4id  not  believe  to  be  true?— No,  I  tfaoold 
Mt4cam  of  inch  a  tbing^. 

Jiaw  long  after  did  yoo  communicate  to  the 
pMOi  what  Fabrif^  had  aaid? — I  never 
wi laager  between  communicating  to  Fabrigas 
wkat  the  nfovernor  said,  aod  to  the  governor 
vbat  Fabrigas  aaid,  than  going  from  this  wall 
li  that ;  uokaa  the  governor  was  not  arrived 
kibe  morning,  and  I  waited  bis  return. 

Tkn  you  coold  make  no  mistake  of  what 
Fabrigas  bad  said.  You  communicated  to  the 
pi u sot  what  yon  put  down :  vou  are  sure 
jm  are  wider  no  mistake  on  tbalheadf— I 
bsw  1  iniKht  mistake. 

Bat  I  ilo  not  ask  you  about  any  mis-spelling 
m  ■Msdat^s,  but  the  effect  of  the  conversation  ? 
•-Ufoo  my  soul,  I  believe  so. 

Snj.  Giynn.  Then,  Sir,  I  will  read  it.— 
"  The  same  day  Mr.  Fabrigas  came  for  an  an- 
iwv  to  bis  petition,  and  told  the  governor's 
■Mtlsiy  bo  aboold  come  the  nest  day  with  a 
palilioa  of  people  concerned  m  grapes  and 
«Ma.  whicb  they  wiU  sign  and  come  with 
AssbmIvco,  to  the  number  of  150." 

Hog.  Gfyun.  I  desire  it  may  be  read  ;  but  I 
Wii*t  aafc  Mr.  Wright  any  more  qdestions.— 
(kia  mad  bv  the  Ameiate.) 

Mr.  Petikmm.    Pray  read  the  nest  pava* 


<«On  Wednesday  the  11th  the 
r,  having  the  field  offioera  in  and  near 
with  him,  received  a  memorial  from 
^gmtd'  by  persons  of  St 

^'s,  deMriugthe  old  praetice  might  be 
i:   lo  which  he  answered,  that  tM  four 
ikould  return  home,  and  behave  them- 
es lenod  and  peaosable  subjects  to  his 
ttupsly  ought  to  do." 

Mr.  Lee.  Your  lordship  will  give  me  leave 
liash  npoB  this  paragraph  a  question  of  Mr. 
Wi^gbt.  You  say  tl^re  were  four  men  came 
oib  a  Biemorial  signed  by  persons  of 

ftillip'a,  desiring  the  oki  praetice  might  be 
]:    did  you  see  that  memorial  ? — A.  1 


OsB  yoa  take  upon  yoo  to  affirm  by  what 
~  er  it  was  signed?—!  shall  apeak  merely 
■aaaory,  for  ihey  were  all  scratches :  1 
iiaot  believe  there  were  ten  names  legible  to  it. 

What  number  of  signatures  were  there  upon 
te  poper  ?— I  have  already  said  1  really  and 
ipoo  my  word  do  not  know. 

Were  there  nearer  150  or  100  ? — It  is  mere- 
ly a  matter  of  memory  ;  there  were  from  41 
li  4r,  I  believe. 

Now  can  you  take  upon  you  to  affirm,  that 
Ikffie  were  not  more  peopje  signed  this  me- 
■Bfial  than  had  signed  the  memorial  for  the 
aev  ioslitoiion  P 

Csarl.  1  understand  it  is  in  the  report. 
Then  h  a  report  of  the  assesseur  civil  and 
Or.  Otivcr,  that  99  were  for  governor  John- 
Ma'a  institolisD,  and  41  for  the  okl  reguht- 

%ouxx. 


tuHi ;  6  appeared  to  be  indifferent,  and  4  want- 
ed some  alterations  of  their  own. 

Q>  There  were  90  odd  for  the  new  institU'* 
tion?— il.  My  memorandum  says  so. 

Can  you  tell  me  whether  there  were  or  wera 
not  imon  this  memorial  which  was  brought  by 
the  four  men,  the  signatures  or  requests  of 
more  or  less  than  that  number  for  the  oM  in* 
stitution?— I  have  already  said  ten  times,  that 
I  cannot  take  upon  me  to  ascertain  ihe  nnmbof 
of  signatures  upon  this  last  memorial ;  but  I 
do  know  Allimundo  proved  many  of  them  to 
be  false. 

You  know  that  is  not  an  answer  to  my  ques* 
tion.  I  did  not  ask  yau  what  were  the  number 
of  men  that  signed  this  rDemorial :  I  don't  meaa 
you  abould  answer  with  that  precision,  whether 
46,  50,  or  1 JM) :  but  my  question  is,  whether 
you  can  take  upon  you  to  affirm  atthia  distanoa 
of  time,  that  the  memorial  whiah  waa  brought 
by  four  men  was  signed  b;^  more  or  less  thaa 
90  ? — I  can  aay  no  more :  if  I  knew,  I  would 
tell  you.  I  looked  at  the  memorial,  it  was  foU 
of  crosses;  and  what  makes  me  think  it  waa 
between  forty  and  fifty  was,  beoaiise  I  connt* 
ed  it. 

Then  you  did  count  itP— -I  did  begin  im 
count  it. 

Did  you  proceed  to  count  them  through  ?•*-■ 
What  signifies  answering  that  ? 

Because  I  expect  an  answer.  What  signi^ 
fies  counting  numbers,  and  not  going  through 
it?— I  wish  your  head  was  capaUe  of  retaining 
every  little  circumstance  of  no  conaequencew 

Court.  The  gentleman  meana,  whether  yoa 
have  now  snob  a  certain  recollection  of  the 
number  of  signatures  upon  that  paper  aa  to  say, 
whether  there  were  more  or  less  than  90  P-^ 
A.  I  don't  recollect  any  thing  but  one ;  that  is^ 
that  I  began  counting;  any  other  circum* 
stances  that  shall  lead  me  to  the  number,  who* 
ther  I  left  off  at  40  or  what. 

We  understand  that  a  considerable  majoritj 
signed  this  very  memorial — we  want  to  Know 
that  fact? — Every  attention  was  employed, 
every  argument  UMd,  and  every  posnible  meana 
was  taken,  for  finding  out  the  true  sense  of  tha 
inhabitants;  and  amidst  the  various  methtNia 
taken,  there  did  not  appear,  wlien  enquired 
into  fairly  and  honestly,  to  be  one  in  ten  of  all 
the  names  that  were  presented  to  the  general 
in  support  of  Fabrigas's  complaint.  Mr.  Alli- 
mundo was  supposed  to  be  a  man  that  would 
produce  the  truth.  The  fort-mi\|or  was  seat  to 
examine  with  him. 

Mr.  Lte.  The  seijeant  will  tell  yon,  that  ia 
no  evidence  at  all.  Let  me  ask  you,  when  this 
particular  paper  was  copied  that  1  have  in  my 
band  ? — A,  As  soon  as  1  was  at  leisure  to  A 
it  myself. 

\V  hen  was  this  particular  paper  copied  ? — I 
have  said  balf*a-dozeu  times,  as  soon  as  I  had 
time  to  put  all  the  bits  of  paper  together;  in« 
stantly. 

Was  this  paper  copied  from  a  memorial  in 
which  this  number  is  stated  blank  as  it  is  here, 
or  have  yoa  that  original  nemorial  by  youT 

K 


131] 


14  GEORGE  m. 


Action/or  Fake  Imprutmment^^ 


[ISS 


In  whose  powession  was  that  memorial  f— Not 
in  mine. 

To  whom  was  it  gi? en  P— I  think  to  colonel 
Mackellar. 

He  was  an  officer  of  the  g^remor's? — Com- 
mander in  chief  o£  the  corps  of  engineers. 

So  he  had  the  possession  of  that  memorial, 
the  contents  of  which  you  have  stated  by  blank 
persons  ? — All  I  can  recollect  of  that  particular 
memorial  that  yoa  ipeak  to  is  this,  that  four 
people  brought  it;  it  is  a  hard  thing  to  be 
pinned  down  to  such  a  thing  as  that.  The 
mustastaph  himself  was  present.  I  think  col. 
Mackellar  was  talking  of  this  memorial:  I 
think  I  had  it  out  of  his  hand,  and  was  going 
to  read  it,  and  connt  it.  I  beliere  he  or  Alli- 
mundo  took  it ;  and  I  beliere  Ailimundo  took  it 
home  to  confute  many  of  the  names,  which  he 
did  afterwards. 

And  that  you  conceif e  to  be  the  reason  whj 
you  did  not  get  through  them,  why  you  did 
not  proceed  to  tell  the  number  ? — I  should  be- 
lieve so,  upon  my  word  and  honour. 

You  do  still  take  upou  you  to  affirm  that 
there  was  nothing  like  the  number  in  this,  that 
there  were  for  the  other  regulation? — I  did  not 
Attempt  to  sa^  such  a  thing. 

Upon  the  inspection  you  then  had,  you  can- 
not take  upon  you  to  affirm  that  f— I  have  told 
ou  all  1  know  of  it:  I  fancy  there  was  much 


you 
Jess 


Serj.  Burland,  You  were  asked  about  the 
lieut.  guf emor  being  general  Mostyn's  lieut. 
governor ;  I  believe  Uie  governor  does  not  ap- 
point his  own  lieut.  governor? — A»  No. 

I  believe  those  regulations  made  by  general 
Johnston  were  some  years  before  general  Mos- 
tyu  was  governor? — ^The  date  willshew  it. 

I  suppose  about  1759  ? — O  no ;  since  that. 

f  meant  1768  ? — I  believe  prior  to  the  exe- 
cotioo  of  the  office  of  mustastaph  by  Mr.  Aili- 
mundo. 

Prior  to  the  time  Mr.  Mostyn  was  made  go- 
vernor ? — ^Yes. 

You  were  asked  a  good  deal  about  that  me- 
morial that  bad  these  crosses  upon  it :  you  said 
Ailimundo  took  it  away  with  him  in  order  to 
confute-  I  know  he  had  it ;  1  don't  know 

whether  he  took  it  away. 

Had  the  governor  any  reason  to  apprehend 
that  those  names  at  the  bottom  of  that  memo- 
rial were  not  put  there  by  the  persons  ?-» Yes, 
he  had  reason  to  believe  it. 

Did  he  enquire  into  it  ? — Yes. 

What  was  the  result  of  his  enquiry  ? — The 
report  made  to  him  was,  that  a  certain  number 
of  their  names  were  absolutely  forged ;  that 
the  hands  of  others  were  obtained  under  a  sup- 
position that  the  memorial  related  to  oil. 

Court,  You  said  just  now,  that  upon  a  strict 
enquiry  there  did  not  appear  above  one  in  ten  ; 
did  you  yourself  make  enquiry  of  what  was  the 
general  sense  of  the  inhabitants?— il.  To  every 
body,  and  with  every  body  that  could  possibly 
give  me  information;  and  from  the  general 
conversatioD  I  had,  it  did  not  appear  to  me  thai 
there  waa^  I  might  say  one  in  twaoly  that  erer 


wished  it ;  and  it  wonid  be  worth  your  lord-' 
ship's  attentkin  to  see  what  these  regulationf 
are. 

Court.  Then  by  the  generars  direction  yon 
made  the  strictest  enquiry  you  possibly  could; 
to  see  what  the  sense  of  the  people  might  be. 
and  did  not  find  above  one  in  ten  that  wished 
for  this  alteration  that Fabrigas  desired? — A.  I^ 
according  to  my  own  opinion,  give  a  great  al- 
lowance when  I  say  that. 

Did  you  inform  the  governor  of  this  ? — ^When 
I  use  the  word  report,  I  don't  mean  an  idl« 
story  picked  up  from  one  or  other,  but  a  mili- 
tary term,  an  answer  to  the  enquiries  made  by 
the  governor. 

Then  the  intelligence  you  conveyed  to  th« 
general  was,  that  the  opinion  of  by  far  th* 
greater  majority  was  against  this  Fabrigaa's 
desire? — All  almost:  I  save  my  oath  by  lay- 
ing almost,  but  there  was  almost  all. 

John  Fleydel  sworn. 
Examined  by  Seij.  Walker. 

Q.  Yoo  were  aid-de-camp  to  general  Mottyq, 
I  believe  ?— il.  Yes. 

Upon  the  9th  of  September  177 1«  give  Ui 
account  of  what  you  know  of  this  afiair  when^ 
Fabrigas  came  to  the  governor's? — He  asked 
me  to  see  the  governor  in  the  morning.  I 
told  him  he  could  not  then  see  the  go- 
vernor, but  I  was  aid-decamp  to  the  go- 
vernor, and  any  ftvour  or  any  thing  he  bad 
for  the  governor  I  was  ready  to  receive. 
Afler  a  litde  hesitation  be  gave  me  a  paper,  a 
memorial :  he  desired  at  the  same  time  I  woidd 
inform  the  governor  that  he  should  come  the 
next  day  for  an  answer;  he  said  he  ahouki 
come  accompanied  by  300  or  S50  of  the  inha^ 
bitantsofStPhiUip's. 

Two  hundred  or  250?— 1  don't  ezactlj  ro- 
member  the  words. 

Was  that  all  the  conrersation  you  had  with 
him? — Yes.  I  immediately  acquainted  the 
governor  with  this  message:  1  read  the  me- 
morial to  the  governor  immediately,  and  in- 
formed the  gotemor  of  what  he  had  said  te 
me.  I  think  it  was  that  day  the  governor  seel 
to  the  field-officers  of  the  garrison  and  to  the 
commanding  officers  of  the  corps,  to  meet  at 
his  house  the  next  day,  in  order  that  they 
might  be  witnesses  of  the  manner  in  which  he 
should  receive  this  Fabrigas  and  the  |ieople  be 
mentioned  to  come  along  with  him.  Onlj 
four  men  came  the  next  day,  and  brought  e 
memorial. 

Were  any  of  the  commanding  officers  there  f 
—Yes  $  I  think  all  the  commanding  offioere 
were  there  when  these  men  came. 

What  were  the  sense  of  the  commanding 
officers? — I  think  the  sense  of  the  commanC 
ing  officers  was,  that,  in  abort,  this  man  should 
be  taken  up. 

Why  would  they  take  him  up  ? — As  a  troa« 
blesome,  seditious,  and  dangerous  person  in  the 
island.  The  governor  mentioned  to  me,  that 
he  had  eonanlted  the  chief  Mioorquin  judges  off 


159) 


Fahrigat  «•  MoHjfn* 


A.  D.  177S. 


[184 


Ike  idiBd.  I  know  he  bad  coDsolted  them, 
wfcieb  eorroborated  the  opinion  of  the  field- 
ifiofln  tbttt  were  there  attending. 

Who  18  this  Mr.  Fabrigas  ? — An  inhabitant 
if  %m  am?al  of  8t.  Phillip's. 

Of  that  district  that  does  not  belong  to  the 
far  where  there  are  jurats  f— Yes,  and  is  close 
Iftht  glacis  of  the  fort 

What,  has  he  there  anj  property  P— Hw 
Hhcr  is  alire ;  he  takes  care  of  his  father's 
fiaeyards,  I  belieTe.    That  is  all  the  property 


That  is,  the  liberty  of  working  in  his  father's 
lismnl  ? — 1  believe  so. 

What  sort  of  a  character  does  he  bear  there? 
—He  is  generally  supposed  to  be  a  seditious, 
IvkdeBt  man ;  that  is  the  general  character 
•f the  nan.  General  Mostyn  is  very  far  from 
bng  a  tyrannical,  overhearing  man.  I  had 
Mre  opportunity  of  knowing  him ;  I  served 
■wnwKately  under  him  the  greatest  part  of  the 
hit  war. 

A  man  of  temper  and  humanity  P— Tes, 
toy  much  so. 

Cross-examined  by  Mr.  Lee* 

0-  Yoo  were  aid-de-camp  to  general  Mos* 
^f— X  Yes. 

Do  3roa  remember  Fabrigas  declaring  that 
Kit  ay  he  would  come  accompanied  with 
fiOscn?— Yes. 

Do  yoa  know  whether  there  had  not  been  a 
itfof^  anaongst  the  inhabitants,  and  upon 
ihdi  aide  there  was  a  majority,  whether  for 
is  new  or  old  regulationsP-^l  cannot  tell. 

What  were  these  S50  men  to  come  for  P — I 
lagined  it  was  to  give  weight  to  the  petition. 

Ut  yoo  eonceif  e  that  the  object  of  Mr.  Fa- 
knswas  to  bring  200  or  250  men  that  were 
if  Mspinion  to  give  weight  to  his  request?— 

fly  learned  friend  tboupfbt  he  meant  to  at- 
tek  the  gmrnsoo  of  St.  Pbinip's.  You  did  not 
iwiibeud  he  meant  to  take  the  garrison  of  St. 
Kffip'e,  that  stood  out  against  the  whole  force 
tf  France  for  a  considerable  time,  and,  by  the 
|m  might  bare  stood  out  a  great  while  longer  ? 
Tie  Aa  not  understand  that  be  was  to  come 
Hike  bead  of  these  armed  peasants P— Not  of 

C0mrt.  You  apprehend  he  was  to  bring  these 
aaaale  lo  shew  there  were  so  many  |)eople  to 
bcK  kia  petition? — A,  No;  I  apprehend  he 
a  nioh  that  would  breed  confusion  in  the 


Whether  you  understood  that  he  meant  to 
ig  tbese  200  people  to  occasion  and  raise  a 
iialt,  or  whether  he  meant  to  bring  so  many 

rple  Co  shew  they  fa? oured  his  petition  P — 
oaany  people  together  in  a  garrison  would 
hned  eoofusion. 

Cmtri.     What  did  you  understand? — A,    I 
imOy  thought  be  meant  to  g^f  e  weight  to  his 


HmI  yen  heard  at  the  time  that  Fabrigas 
ipske  m  bringioj;  200  or  250  of  his  friends — 
M  joo  board  Of  aj»y  dispute,  whether  there 


were  more  of  one  opinion,  or  more  of  the  other ; 
or  had  it  been  asserted  that  the  people  in  ge- 
neral of  the  arraral  of  St.  Phillip's  were  con- 
senting to  the  new  regulations  ? — I  think  the 
people  in  general  wish«l  to  bare  the  old  regu- 
lation contmued ;  I  took  it  in  that  light. 

What  do  vou  mean  by  the  old  custom  ?  the 
custom  Fabrigas  contended  for,  under  the 
order  of  council  in  1752  P — Yes. 

I  dare  say  the  Serjeant  will  not  acknowledge 
that  you  mean  that 

Serj.  Davy.  No  more  he  does. 

Court.  Do  you  mean  by  the  oM  custom, 
that  which  was  aettled  by  governor  Johnston  f 
-—A.  I  do ;  it  was  some  years  before  general 
Mostyn  came  to  the  island. 

Court,  Or  do  you  mean  a  custom  that  was 
before  the  order  of  1752  ? — A.  1  do  not. 

Mr.  Lee,  Then  am  I  to  understand  you,  that 
you  think  the  majority  of  people  were  a^nst 
the  opinion  of  Mr.  Fabrigas  P — A,  That  is  my 
opinion. 

Do  you  recollect  that  having  been  alledged 
to  governor  Mostyn  as  the  general  opinion  P— 
Yes. 

Do  vou  recollect  that  having  been  alledged 
to  Fabrigas,  that  the  popular  opinion  was 
against  him  ? — I  don't  exactly  reeolWot. 

Don't  you  recollect  that  the  very  end  he 
had  in  view,  and  professed  to  have  in  view,  in 
bringing  a  number  of  his  friends  and  a  num- 
ber of  people  concerned  in  vineyards  to  present 
this  memorial,  was  for  the  purpose  of  convinc- 
ing the  general  that  a  majority  of  people  were 
with  him,  and  not  against  himP — I  suppose  he 
must  mean  so. 

Did  not  you  understand  him  so  at  that  time, 
when  he  talked  of  bringing  a  memorial,  and 
coming  accompanied  by  200  or  250  men  ?  Did 
not  you  understand  him  to  mean  that  such  a 
number  of  people  that  were  concerned  in  the 
wine  trade  ana  in  the  produce  of  vineyards 
would  come  and  signify  that  to  be  their  inten- 
tion P— Certainly  he  meant  so. 

Were  you  present  when  the  four  men,  not 
the  200  or  250,  came  with  the  memorial  sigu- 
ed  by  others  P— I  was. 

Was  that  memorial  ever  in  your  hands  P — I 
don't  remember  ever  having  it  in  my  hands.  I 
saw  it  in  colonel  Mackellar's  hand,  the  chief 
engineer,  when  he  questioned  them  about  it ; 
and  these  very  people  seemed  shocked  when 
he  explained  to  them  the  tenor  of  the  memorial. 
It  was  wrote  in  English,  and  they  seemed  not 
to  understand  the  import  of  it. 

Tliey  were  Minorquins?*-- Yes. 

Can  you  tell  me  what  number  of  signatures 
were  in  that  memorial? — 1  cannot  guess  at  it: 
I  should  think  much  about  50  or  60,  but  can- 
not guess. 

You  did  not  count  them  at  all  ? — No. 

Robert  Hudson  swnrn. 
Examined  by  Mr.  Buller. 

You  were,  1  belisvs,  fort- adjutant  at  this 
time?— Yes. 


1S5J 


14  GEORGE  m. 


Action Jbr  Fake  Jmpritonment'— 


[138 


Was  any  applicttioD  made  to  yoa  by  the 
ciril  maKittratet ? — Yea;  the  mustaataph  of 
Sc.  Phillip'v  came  to  me  oo  the  lOib  or  lltb  of 
8epteml)ir,  aad  told  me,  upon  readiaj;  aome 
oniera  of  general  Mogtyn,  ibat  Fabrigaa  aaid 
he  would  come  with  a  mob,  and  aaid  tbey  were 
Bull  and  Yoidy  and  tbey  would  aee  better  days 
to*  morrow. 

Air.  Peckham,  You  need  not  mention  what 
the  mustaataph  told  you  ;  that  is  not  regular. 

Cimn)>eifor  Defendant.  That  ia  the  regular 
metbo<l  there. 

Mr.  Peckham,  It  may  be  regular  there,  but 
it  is  f  ery  irregular  here,  and  cannot  be  admitted 
aa  e?  idence* 

Mr.  Just.  Gould.  I  ahould  be  glad  to  know 
bow  the  go? ernor  can  he  apprised  of  any  dan- 
^r,  unless  it  is  by  ane  or  other  of  his  officers 
wfbrmiiig  him  there  is  likely  to  be  such  and 
auch  a  thing  happen  ?  I  suppose  he  gires  the 
go? ernor  an  account  of  what  he  has  heard,  then 
thegoTeruor  makea  an  enquiry  into  the  matter. 

Mr.  Peckham,  Hearsay  is  no  eridence. 
Besides,  the  mustutaph  ia  an  interested  and  a 
prejudiced  person ;  at  least  he  appeara  ao 
throuifbout  the  different  parte  of  this  cause. 
Now  can  what  he  baa  said  in  Minorca  to  this 
witness  be  admitted  as  evidence  here?  The 
nustaataph  is  liring;  why  don't  they  produce 
him  ?  If  they  had  brought  him  here,  we  should 
have  his  e? idence  on  oath,  and  could  croaa-eza- 
mine  him  to  the  facta. 

Cauri.  We  do  not  take  it  for  granted  that  it 
ia  really  ao ;  only  that  this  gentleman,  bearing 
of  this,  tell«  the  gofernor. 

Mr.  Lee,  It  is  no  OTidence  of  the  fact:  if 
you  mean  it  only  aa  a  report,  we  do  not  object 
to  it. — A.  The  mustaataph  toM  me,  that  upon 
ffif  ing  out  some  orders  to  the  inbabitanta  of  8t. 
Phillip's,  some  orders  relative  to  the  aelling 
wine  in  St.  Phillip's,  he  came  with  a  mob,  and 
aaid,  >«  It  is  nuH  and  void,  and  we  will  see 
better  things  to-morrow."  He  further  said, 
Ibat  if  there  were  not  some  immediate  measures 
taken  with  this  Fabrigas,  he  was  afraid  of  the 
€onsf>quenoe,  the  rising  of  the  people. 

This  was  enough,  f  should  think,  to  give  an 
alarm.  Did  you  acquaint  the  governor  of  it  ?— 
Yes,  1  did. 

What  was  done  after  that  ?  Did  the  gover- 
nor call  you  together?— I  was  not  pnvy  to 
what  the  giif  ernor  did  in  cooaequence  of  this; 
iny  pott  was  two  miles  off. 

Omrl.  Gentlemen  of  the  jury,  then  all  this 
comes  to  nothing ;  be  pruves  no  Vact^- 

8*0  .-^^"vy.  No:  this  is  to  introiioce  the 
Bcxt  e«  idence,  of  the  goTemor  summoning  tlie 
•fficera  together. 

You  knew  this  Fabrigas ;  what  wu  his  be> 
havioiir  iu  the  island  .*— fikiremely  troublesome, 
wmya  repreainted  to  me :  there  never  was  anv 
•Igecliuu  m  governor  Johnaton'a  regulation  tdl 
hy  thia  nan.  Governor  Jobnstoa  did  this,  be- 
Ihe  wint  ttaed  loiaraaoar,  by  every  body 
•■•wadtoacU  wiMataiinM:  theydi^ 


in  order  that  no  more  might  be  opened  at  % 
time  than  could  be  aold  before  it  waa  sour. 

Cotir^  I  chose  to  bear  the  reaaon  and  ftnui- 
dation  of  the  reguktion. 

Q.  What  is  the  consequence  of  that  aoaouf 
the  soldiers  P—il.  Diaovdera  of  diifer«nt  kintK 
fluxes  and  tbe  like. 

Court.  There  bdng  no  celbura,  I  anppon 
they  could  only  buy  from  hand  to  mouth.-*il. 
In  general  they  are  open  aheda;  tbey  nra 
hardly  better  than  abeda. 

a  Did  that  produce  any  disagreemenii 
among  the  aellera  tbemaelvea,  that  tl^  under* 
aold  ^ich  other  ? — A.  Some  poor  people,  that 
bad  but  little  wine,  were  almoat  atarved:  the 
aeveral  yeara  after  governor  Johnaloo  made  this 
regulation,  there  never  was  known  to  be  neaali 
aour. 

Court.  I  waa  rather  apprehenaive  that  thin 
might  enhance  the  price. — A.  Tbe  price  was 
never  raiaed  upon  that  account. 

Mr.  BuUer.  There  waa  an  afforationjpric*. 

Mr.  Lee.  Yea ;  but  thia  waa  a  libarty  of 
aellin^  b«low  it— il.  The  town  of  fit.  Philiip*a 
was  divided  into  four  diviaiona,  and  four  peopin 
uacd  to  sell  at  a  time. 

Colonel  Patrick  Mackellar  swon. 
Examined  by  Seijeant  Daigf. 


Were  you  at  the  garriaon  in 
1771?— Yes. 

Did  ywi  know  Mr.  Fabrigaa  belbre  the  tune 
of  his  being  apprehended  P—-1  have  known  him 
by  character  a  great  white ;  they  called  him 
RedToney. 

Yoa  happened  to  aay  yon  knew  him  by  chn* 
racter ;  what  wu  the  cnaracler  be  bore  P— A 
very  bad  one  ever  since  I  have  been  in  lh« 
iatand,  and  for  aome  time  before. 

Of  what  sort? — He  was  sedituNis,  troohin- 
aome;  a  drinking,  gambling  fellow;  aat  upoC 
nigbta  with  low-life  people ;  and  lie  kapl 
women. 

In  short,  he  is  a  man  of  an  ordinary  chnrao- 
ter  ? — Yes. 

But  the  character  that  I  wanted  <^iiAy  In 
be  informed  about  waa,  concerning  hia  obedi- 
ence to  government,  whether  he  is  a  turbulent 
man  ? — I  hai-e  had  many  coniplainta  of  him 
from  two  musta^taphs,  when  I  have  been  com- 
manding officer  of  tlie  garrison. 

How  long  have  you  been  there? — I  waa  onn 
of  tbe  first  that  went  there  when  the  lalaad 
was  restored  after  the  la«t  war,  and  had  beaa 
there  a  good  many  \ears  before.  I  went  Arat 
in  1736,  and  left  it  in  1750.  I  ment  in  May 
1763,  and  remained  then:  till  May  laat. 

Tlien  you  must  be  prHi>  well  acquaintoi 
with  tbe  laws,  and  gotemmeot,  and  constiiutimi 
nf  ibis  country  ?— I  have  a  good  dealof  knofP« 
ledge  of  it,  as  much  as  a  uiiliury  asan  eaa 
have :  we  cannot  aiudy  these  things  aa  lawy  en 
do. 

Pray  is  there  not  a  district  tbey  call  by  Uw 
name  of  the  arraval  of  Sl  PhilMp^i  f— Yea. 

Mowfiff  bthatr^tii  mdmd  bj     ~ 


yahrigas  v.  Mottyn. 

4BB  ridi,  and  mrToimdcd  bj  water  oa 

tbe  fort  7— WitliiD  a  musket- 

!t  withio  tbislbeUcalleil  Ihear- 

Hftal  ilo  YOD  meBD  by  (tie  wati,  rnyalty?— 
hi  wImtc  Hie  ^vernor  bas  ■  greater  power 
tmrnuj  where  Vise;  nliere  lleJud|resot'lbe 
tteloMHWIinterpow  their  aulhurily  or  power, 
kHby  lii«  ifCrmiwioD  ;  ami  people  ol*ihe  arra- 
•ri  h«*B  pcrticular  pn>il^ge«  da  that  account. 
IWMfei  nnoot  conTflie  any  person  W  ap- 

CWVK  (bem,  but  by  ihe  j,'nTernur'B  appro- 
B,  wUbuttliearraval, 
li «  MM  tw  in  the  other  parts  of  the  iiland  7 

Yon  bare,  I  beliete,  in  the  other  parts  of  the 
Und,  officer*  called  jurati  ?— Ye«. 

I>  Ibere  aoy  aiwh  in  the  arravat  7— Ko ;  tbe 
■Mluupli  iithe  ddIj  ma^iatrate  there. 

IVn  tliere  tt  an  officer  irithio  thia  royally, 
vilbin  tbia  ftrraval,  calieil  a  iDugiuiuph,  who 
k  tbe  ovly  nauHlraie  there?— Yea. 

In  KAhit  parta  nl'  the  islaad  there  ere  other 
^QsiiBtea  of  iliffercnl  namea,  jurala  aod  so 
fcnb?— Y*i. 

WbMD  ia  tbe  miiataslnph  oflhe  arraval  ofSt. 
niilIifi'*appoiote<lby?--Thef;aTerDar;  orcom- 
MaaritT  it)  chief,  when  there  is  no  goTeruor. 

DaM  tir  dnplaeehim  at  his  pleasure? — Yes, 

Wbu  la  lite  office  of  muilBBlaph  ? — He  lakes 
WB  of  liie  Heights  and  meaeurea  of  loarheta ; 
M»  ■•■  ai-counl  of  all  (be  wine  that  is  made, 
—Alt  ilierNpMidilureot'lhe  wiae-,  andielllea 
laj  IHib  itianutea  among  the  inhabitants,  in 
*Mib«y  oil  the  flrst  instance, 

WW,  ia  that  wirii  rrgaril  to  tbe  alforalion, 
*W»mtt  o(  the  prii-e  of  tbe  wine  N--Thal  is 
4Mljr  idr  tnaKistrates  at  Mahou.  The  ma- 
fiHMsa  'if  Mahoo,  as  they  ilo  every  where 
•b,  «i  a  price  upon  tbe  "ioe,  wtiich  they  call 
■  iCvalioii  or  marbet  price,  aixl  the  artaral  nf 
k  Pt.Uh|t*a  t«  always  ruleil  hy  rhe  a(fi>ration  at 
Mil—  ;  the  niiipalrates  at  Halion  do  nnt  put 
ie  iipoo  ii,  but  it  is  always  adopted. 

'■•Toffifvrihat  in  point  111  fiirmsellte* 
n  |irice(--There  are  different  prices 

'Jhrrpi  iwttnitKM,  biil   ibal  in  t£'i>erned  tiy 

-  imcFUuiialiseilaiMahnn.     Mu boo  is  the 

-iff^ikMHctlotit,  Phlllifi's. 

tk  lio  ■■  the  prfsMi  ibsl  in  point  of  form  does 
iiofK  ttr_Tbp  niuMaaUph  is  the  nffiier 

'1  dora,  aoJbcnuly  wgnifipawhgilthepriteis. 

!t*  ts  tb*  iranipet,  the  niouib  by  which  they 
.'.dnaaDtl  ■hu  IB  the  afToratioo  price,  he 
bria(  rr«blrd  ami  i[nvenied  by  the  aOura- 
M>  al  MabdD  F— Yea ;  the  price  that  is  paid  at 
>*0B  b  always  paid  st  8t.  Phillip's. 

What  ia  Ibe  micral  law  f  Are  ibe  WmOT' 
y^  Hosenie'l  bt  tbr  English  or  tilpaniah  law, 
arabal  aiirt  7 — Yhry  always  plead  the  Hjianish 
ll*«,Mil  wataelllilhy  Ihe irraty  of  Utrecht; 
ht  vb^n  ibn  Kiigli<h  liwR  are  conrenient  fur 
(^•v,  iWy  pUad  Uiem. 

^  thai  wfakli  ia  ctmtenient  they  will  picail, 
-■^ *  -tar— Yet. 


iW-iwiip 
iVbi-iaUi 


A.D.  1773.  [158 

Bnt  which  is  the  law  that  moal  preTBJUF_ 
TheHttauisb  law.  When  the  island  tvae  given 
op,  I  btiliete  DOthioK  hi  all  was  seitleil  with  r«. 
lution  to  them,  and  Iherefure  we  were  sup- 
poseil  to  receire  thrni  upon  the  same  Inuting 
that  Ihe  French  bad  them ;  but  siace  that  tune 
they  made  interest  at  home  in  restore  lu  ibem 
Ihe  same  lawa  and  privileges  lliat  Imik  placa 
helbre  Ibe  island  whs  taken,  that  ia,  Ihe  Spa- 
nish laws. 

Were  you  there  when  Ibe  place  was  lakeo  br- 
ibe French  f—No;  I  was  in  America. 

Piay  what  is  the  temper  of  the  MinorquinabB 
general  f  Areihey  welleiTected  to  the  Eaghah 
govtrnmenl ? — Same aie  very  well,  t  believe; 
others  are  not  ao. 

Pray  do  yon  remember  the  occasion  F  wera 
you  one  of  those  that  were  invited  lu  meet  ^a- 
vemar  Itlotilyo,  wiib  the  other  gentlemen,  DpOB 
Ibe  occasion  of  being  coiisuitinl  about  Mr.  Fa- 
brigas  ? — I  was,  once  or  twice. 

Had  yon  been  arqnainled  thai  it  was  a  mat- 
ter of  public  uot'iriely  of  what  had  bappeneil 
with  regard  to  Pobrigai  f — 1  have  been  at  the 
presenting  several  memnriaU  to  Ibe  governor. 

Did  you  hear  of  tbe  report  ol'  what  had  pre- 
vailed, the  general  talk  of  ihe  place? — Yea. 

What  was  tbe  universal  opinion,  if  there  wu 
but  one  ?  or  if  there  were  vBrions  opioiDiia, 
ivbal  was  the  opininu  ol  you  and  Ihe  rest  of  the 
genilemen  thai  were  called  in? — The  opioion 
of  the  other  gentlemen  as  well  us  my  «wii 
was,  that  he  was  a  tery  dangerous  and  trou- 
blesome man.  fly  his  li>rii>er  history,  au^ 
Irom  antne  anecdutes  of  those  times,  it  waa 
IhuUElht  a  very  uii<iBle  thing  to  let  him  be  at 
liberty  ;  that  ii  would  he  a  righl  thing  to  lake 
him  Up,  and  bring  him  l<i  puniHbuienl,  lest  be, 
wbii  was  a  man  very  likely  to  be  prarlised 
upon,  would  luke  other  measures  productive  of 
mitchief. 

What  was  agreed  npnn  ? — It  was  in  loose 
converKatJon  thought  bisl  that  be  should  be 
banish  1^, 

According  to  the  practice  of  former  timet,  do 
you  rememher  a  pruciice  of  Ibiit  kind  having 
been  done  ?— I  have  tirnnl  of  several ;  whea 
Ihe  Eniflish  were  in  p-mi-ssinn  <•(  Ibe  island,  aa 
well  ar  when  theSpinisrda  were. 

Mr.  Lit.  Thix  M  uniting  a  prescriplioD.— 
A    I  tell  ynu  wbal  1  lisie  hrmd 

Srrj.  Glyna  li  io  impossible  that  it  can  be 
adniiltrd:  if  be  had  kuuwn  an  iustaace,  ba 
miff  hi  hate  men  tinned  ii. 

C'i'urf.  1 1  ia  nnt  question,  whether,  according 
Io  tlie  eiigcucc  nl  ilie  cose,  the  general  might 
ioHict  Ihii  hamslimcni  ?  and  another  thiag, 
whether  it  la  Ihe  urdaioed  law  eslalilishrd  id 
t Itch  a  case  to  be  applied  to  such  brhntiuur? 
Now,  if  you  go  inlu  a  usage  ul'  that  kind,  yan 
must  prove  particular  facti,  uoi  produce  ihit 

nieman  to  say  he  has  heard  such  things :  it 
not  Ibllow  from  hence  that  this  luigbt  ba 
Ibe  proper  puniabment. 

8erj.  Dam/.  You  have  known  general  Mot- 
tyn,  i  believe,a  great  while? — A,  Oolyslnce 
he  becuiM  goternor  of  Ihe  ialaad. 


1S9] 


U  GEORGE  III.  Actum  for  False  Imprisonment^ 


[140 


T  wigb  to  know  of  yoa,  what  is  hit  character 
and  beha? iour  ? — I  aUrays  beard  a  character  of 
him  aa  a  ffood  officer,  a  polite,  well-bred  mao, 
that  earned  bis  commaud  in  the  genteelest 
manner. 

Is  be  a  man  of  bumanitjr,  or  rather  ferocity  ? 
—I  always  understood  bim  to  be  a  man  of 
great  humanity. 

Cross-examined  by  Mr.  Txe, 

Q.  You  say  the  general  opinion  of  the  field- 
officers  was  asked,  of  which  you  are  one? — 
iL  I  do  not.  beliefe  the  geoeral  opinion  was 
asked ;  I  believe  it  was  private  conversation. 

Did  general  Mostyn  then  call  for  your  opi- 
nion, or  the  opinion  of  any  other  general  officer, 
touching  what  he  should  do  to  FabrigasP — 
jifterwards  we  thought  upon  the  subject. 

After  the  man  was  gone  to  Garthagena  P — 
The  same  day,  perhaps  an  hour. 

The  same  day  you  were  assembled  there  P — 

Yes. 

The  day  that  Fabrigas  had  spoken  of  as- 
aembling  a  number  of  bis  friends  together,  the 
general  sent  to  convene  a  body  of  you  P — Yes. 

Court.  You  were  a  field-officer  P—il.  Yes. 

Did  you  and  the  other  field-officers  meet  to- 
gether at  the  gjovemor's  P — ^We  came  there  by 
Eit  order,  by  bis  desire. 

Q,  He  proposed  to  you  then  for  your  opi- 
nion, what  should  be  done  with  this  man ;  and 
V0U9  partly  firom  the  former  history,  and  partly 
from  modem  auecdotes,  thought  he  should  t>e 
banished  P—il.  Yes,  1  did  so. 

That  was  the  ground  of  the  accusation; 
former  history,  and  late  anecdotes  P — Yes. 

Court.  I  shall  certainly  hear  his  evidence,  if 
you  ask  him  the  motives  and  grounds. 

Mr.  Lee,  I  only  ask  wheuier  1  bad  taken  it 
right 

Court.  Did  not  you  object  to  enquiring  into 
former  instances  of  banishment P 

Mr.  Lee.  No ;  he  has  spoken  of  former  in- 
atanoes  of  bad  conduct  in  Fabrigas. 

CL  Did  any  of  jrou  propose  to  the  general, 
or  did  be  propose  himself,  to  have  any  trial  of 
this  genUeman  before  his  banishment  P— jI.  I 
believe  he  never  did  propose  that ;  for  the  judges 
there  gave  it  as  their  opinion,  that  that  was 
lodged  entirely  in  the  governor's  own  breast ; 
two  of  them  particularly,  that  it  was  entirely 
in  his  own  breast 

And  needs  no  trial  at  all  P — 1  do  not  know 
that  there  was  any  form  of  trial  there. 

You  heard  of  no  trial  P — I  heard  no  trial 
mentioned. 

You  tell  me  the  opinion  of  the  field-officers 
was  this  P — Yes. 

As  I  don't  know  exactly  who  all  the  field- 
officers  were,  and  as  I  wish  to  deliver  as  many 
of  them  aa  I  could  from  the  imputation  of  that 
opinion,  pray  did  major  Norton  concur  in  that 
opinion  P— I  do  not  remember  particularly 
yrhether  be  did  or  not. 

Serj.  Davy.  That  is,  whether  he  was  there 
ornotP— il.  He  was  there,  but  1  do  not  remem- 
bar  what  hif  opinioD  wai  open  the  occaikip. 


Then  you  cannot  take  upon  you  to  sty  whe- 
ther it  was  a  majority  of  opinion,  pr  unani- 
mity of  opbionP — A  majority  of  opinion.  I 
believe  there  might  be  a  Uifference  or  opinion. 

Do  you  know  a  colonel  or  a  major  Rigby  ; 
I  do  not  know  what  rankP — Major. 

Was  he  there  P— Yes. 

Did  he  concur  in  that  advice  to  the  gover- 
nor P— Both  the  gentlemen  are  here,  and  can 
tell.  We  were  telking  among  one  another; 
our  opinion  was  in  general. 

Those  that  chose  to  give  an  opinion  in  fa- 
vour of  banishment  gave  it,  and  those  of  ano- 
ther opinion  either  might  give  it  or  were  silent P 
— It  vras  not  talking  of  giving  an  opinion,  but 
talking  of  the  man's  case,  and  what  ought  to 
be  done. 

Then  you  cannot  tell  what  number  dissented  P 
—No. 

Court.  Were  there  any  of  the  field-officers 
present  that  did  dissent  to  itP — A.  1  do  not  re- 
member that  any  did  indeed. 

Edward  Blakeney  sworn. 
Emmined  by  Serj.  Burland. 

Q.  I  believe  you  officiated  as  secretary  to 
general  BlakeneyP — A.  Yes;  I  was  there 
about  seven  years. 

What  sort  of  power  does  the  governor  exer- 
cise in  the  arraval  of  St.  Phillip's  P— There  is 
no  writ ;  nothing  can  be  executed  there  with- 
out his  commission. 

What  authority  does  he  execute  there  P— 
An  absolute  authority ;  it  is  a  royalty. 

Have  you  known  any  instance  of  people 
being  sent  out  of  the  arraval  P-7A  few  montha 
af\er  general  Blakene^'s  arrival,  he  banished 
two  Franciscan  friars  immediately  by  his  own 
authority. 

Where  did  be  send  them  to  P — ^To  the  con- 
tinent. 

Court.  Into  Spain  P — A.  1  cannot  tell  whe- 
ther to  Spain  or  Italy. 

Q.  from  Jury,  Was  it  in  peace  or  war  this 
happened? — A,  In  peacetime.  They  found  the 
way  to  Rome,  and  complained  to  the  general  of 
the  Franciscan  order,  who  corresponded  with 
the  general  upon  the  subject.  Several  letters 
passed ;  and  general  Blakeney  wrote  in  one 
of  his  letters,  if  they  did  not  behave  better  for 
the  future,  he  said  be  would  banish  all  the 
Franciscans  out  of  the  island,  and  make  bar- 
racks of  their  convent.  I  ntercession  was  made 
for  them :  they  asked  pardon  for  the  offeooe 
they  bad  committed,  and  upon  a  promise  of 
behaving  well  they  were  ailowea  to  come 
back. 

Did  you  ever  hear  that  the  power  of  the 
governor  upon  that  or  a  like  occasion  waa  erer 
called  in  question  in  the  island  P — No  ;  I  took 
it  for  granted  it  was  banded  down  by  the  Spa- 
nish governor,  and  they  were  governed  bj 
Spanisn  laws. 

Are  they  governed  by  Spanish  lawsP— Yce, 

We  are  told  the  arraval  is  a  distinct  juris* 
diction  fimn  thereat  of  the  istettdi  and  torn  m 


MI] 


Fahri^  v.  Mostgn. 


MM  aolbOTitv  MM'diwI  b^  the  gortmort— 
\m;  it  WwitbiD  KUn-ahot  of  the  foH.    The 


lln't  know  wbctber  jon  ra 
•iar  iaMuicea  of  baniihDMnt  I 


MUbi*.  Foot  reffimeDti  were  aeol  oat  by 
At  te  kiny,  to  ratine  four  t^idcqu  lb«t  had 
fan  «  longr  time  then  in  (he  ganifoo.  The 
fifcnor  KOeired  orden  to  send  home  erery 
oMwe  MoiwiDg  to  the  four  regiment*  then 
tea :  thej  bad  Men  many  ^ean  in  the  iiland. 
inpart  bad  been  msdetohim,  Ibatadnugbter 
(foaeof  the  miiitwrjr  people  wu  miMinff.  An 
tafBwj  waa  made:  ahe  wh  proved  to  be  lait 
I  priest  The  prieil ' 
Hting  any  tfa 
a  brought  bHbra 
Atgerenior;  he  gare  bail  nf  lira  people ;  (tbia 
*a(  a  military  affair  eotirel})  and  next  day  he 
■Mdcaned  to  produce  her.  He  did  not.  The 
pTwqi'  embarked  bioi  directly,  and  sent  bim 
«  baaid,  I  beh'eie,  in  the  very  tranapert  that 
WMteearry  thia  young'  nomao  away.  The 
iMtailcd  to  Gibraltar;  and  application  w»a 
^rfe  iaDBediBtcly  to  the  a;oTen>or  by  the  ma- 
airtraleaaf  Hahao,  and  by  the  religious  order, 
■miaftbe  gotemorto  forgive  him,  and  slay 
Ihaifcip,  Bad,  if  (be  gotremor  would  gire  leave, 
tapm  ('**JP'^  ■>"  l>oanl,  and  brin^  back  the 
jArnm-  Tbey  begged,  and  pelilioned,  and 
■ncd  tbe  governor.  Upon  that  the  girl  was 
MRBeal  up,  brought  Trom  the  ricar-general, 
•bind  at  a  remote  end  of  the  island.  She 
•M  baoghl  to  me.  The  alory  the  told  me 
•^Aat  tbe  vicar -general  had,  out  of  charity 
■Jwpaaaion,  lalteo  care  other.  She  wai  a 
njfKtty  giri.  She  caa  put  on  board  the 
tMMrt,  and  sent  after  the  Btet,  and  the  priest 
«M  Weugbl  back,  and  there  were  great 
^■(■fa  apOD  hia  arrival. 

Mr.  £e(.  Vou  know  how  little  material  that 
k 

Q,  Id  what  office  were  you  in  ibis  pli 
A.  ScCTCtary  to  the  governor  and  commander 
Bckicf  by  ui*  king's  commission. 

Wben  Jid  you  go  flrat  ?— In  the  year  IT*9. 

Tea  were  in  Minorca,  Ifancy,  whenapoaitive 
from  England,  that  if  any  I'riar  of 
!an  order,  not  a  native  ol'ihe  island, 
Atald  CMMf  ibto  that  islanil,  he  should  nut  be 
■rimd  lo  remain  upon  it?  Do  you  koon  of 
lay  aucfa  order  in  the  first  pUc«  ? — Be  so  good 
M  IB  rppeat  llw  order. 

■*  That  in  caie  any  friar  of  Ihe  Franciscan 
Oder,  opt  being  a  native  of  Minorca,  but  an 
Jdarram  friar,  ahall  come  into  the  island,  be 
iktU  Bot  be  permitlvd  to  take  his  reaidence 
Ane,  Ace."  Vuu  don't  recollect  any  thing  of 
Ms,  or  (hat  it  was  in  obedience  tu  (he  onler 
if  eoGDcil  ibat  this  Franciscan  was  sent  away  f 
bsjoa  tbrget  this,  though  it  happens  unfur- 
laately  when  the  g^emor  obeys  the  order  of 
banperior,  Ihatianowlobeauoted,  aiapre- 
Mdmi  offaja  CWD  r^al  uitbonty  f 


A.  D.  177S.  [149 

WbM  wa*  tbe  prirnt  f — A  native  of  Minorca. 
And  Ibe  friar  t— I  understood  them  to  be  Hi> 
norqoin*. 

Can  you  lie  positive  about  that  F>~I  do  be- 
lieve that  aa  a  certainty  and  a  fact:  I  am  mo- 
rally certain  of  it;  I  ivai  not  preMol  at  their' 


lt» 


tn*  that  yon  have  forgot  even  that  nicb 
r  existed,  till  1  reminded  you  i—I  am 
not  deKT  Uiat  I  remembered  anch  an  order  ex- 
isted; 1  hare  been  orer  agreat  dealofgrotmd 

Was  It  IheDBlnreofyoor  office  to  acquaint 
von  with  ail  the  orders  of  Ibe  council  of  Eng-  ^ 
land? — It  came  through  my  bands,  yet  very 
likely  and  probably  I  lurgotit. 

But  yon  might  not  have  forgot  it  at  the  tim« 
the  friara  were  ordered  away  f 

Mr.  Lte.  This  was  b  1753.— J.  That  k 
langsnbaeqnoit:  the  affiurof  tbe  fiiar  wa*  ui 
1743  or  1T49. 

Serj.  Bur/and.  Then  yon  admit  that  the 
king  basa  right  to  make  such  orderap 

Serj.  G/ynn.  No;  the  conocil  may  maka 
such  orders,  but  we  do  not  admit  tbem  to  Im 
legal. 

Court.  The  case  of  the  prieit  was  eome 
yeara  al^er  tbe  case  ofthetwo friars?— J.  Not 
a  great  while ;  about  a  year  1  believe,  sooM 
such  lime:  it  is  a  great  many  yeara  ago;  I 
cannot  be  powtiveto  a  few  months. 

Captain  Jatuci  Solaire  aworn. 
Examined  by  Mr.  Seijeant  Walker. 

Q.  I  think  you  are  a  natitt 


You  know  Mr.  Fabrigas? — Not  very  parti- ' 

I  thoD 

Phillip's  f— 

You  hare  teen  him  there  P — Several  times. 

What  sort  of  a  temper  and  disposition  baa 
he? — 1  cannot  answer  very  particularly. 

Do  you  know  any  thing  of  his  ^tneral  cha- 
racter?—No  j  I  do  not 

Serjeant  Burland.  I  hare  a  very  long  anil 
reapectable  lilt  of  persons  here  to  speak  to  tha 
cbs ranter  of  general  Mostyn,  and  hiag'tneral 
behaviour :  f  suppose  ibe  gentlemen  on  lh« 
other  ude  don't  dispute  Ihe  general  character 
which  haa  been  given  of  him. 

Seijeanl  Glynn.     I  shall  out  make  the  least 

Btirropt  to  asperse  general  Moslyo'a  characters 

I  shall  found  mysdrupon  tbe  facts. 

Raphael  Prato  sworn. 

Examined  by  Mr.  BuUer. 

(He  not  ipcabiog  English,  an  interpreter  wai 

Q.  Do  you  know  Mr.  Fabrigas  the  plaintiflT 
—A.  Yes. 

What  character  has  he  home  for  some  yean, 
past  in  the  island  of  Minorca  ?  Is  be  a  peaea- 
able  man,  or  what? — A  troublesome  man,  that 
meddles  too  much  with  aiain. 


US] 


14  GEORGE  m. 


Actimtfir  Fake  Impi'UommetU^^ 


(144 


WhataflMiBdo  you  umnf-^WA  tbe  go- 


Court,  The  quMtion  i«,  whether  opoB  the 
Iheli  and  cireomitaiiecf  of  the  traiiHictioo  it- 
gtlft  the  ({iraarsi  wet  joftified  is  what  he  did ; 
•Iberwiee  they  may  enpty  the  iilaod. 

Mr.  Lee.    Yet,  this  ishnd  of  all  the  people. 

Q.  to  Mr.  Wright,  Yoa  deliTered  in  theae 
difereat  memoriala  aod  papera :  all  that  yoit 
debt crcd  io,  are  they  genoioe  Pf  para  or  oapiea 
of  papera  that  were  prciented  io  MiaorcaP^- 
A,  All,  except  the  last,  which' waa  deUvered  to 
the  geoeral'a  aid-de-cmp,  were  deUrerad  to 
BM  ;  thai  ia  eadoiaad  oo  the ' 


Reads: 


^  To  hia  exoelleiicy  general  Moa^o,  co- 
vemor  and  commander  io  chief  of  theislaod  of 
Minorea,  ke.  The  hamUe  Petitioo  of  Antonio 
Fabriga8,a  aatireand  inhabitant  of  hk.  Phillip'a 
IB  the  aaid  ishmd,  abewetb,  that  your  petitioner 
baa  now  by  him  twehre  eaakt  of  wine,  the  pro- 
duoe  of  bis  own  rineyard,  without  baring  par- 
ohaacd  ao  much  aa  a  grape  of  any  other  per- 
son, of  which  he  baa  not  aold  a  drop,  when  ae- 
?eral  other  inhabitants  of  the  said  town  hare 
told  all  theirB»  aa  well  of  the  produce  of  their 
own  Yueyarda,  as  that  proceeding  from  what 
they  bought  to  make  a  profit  by ;  and  this  with 
the  permit  of  Mr.  AUimondo,  who  docs  the 
function  of  mostaatapb.    That  the  petitioner, 
nnthe35tb  of  July,  applied  to  the  aaid  Alii- 
mundo  for  meuures  to  sell  wine  by  the  rate  of 
two  douUera  less  than  the  current  price,  which 
would  bare  raised  a  benefit  to  the  troopa  and 
poor  inhabitants  of  St.  Phillip's ;  bat  notwitb- 
itanding  this  demand  was  ve^  reasonable,  and 
confbrmable  to  the  express  condition  of  the  first 
of  his  mijesty's  regulation  of  the  17th  of  May 
175S,  regarding  tnis  island,  where  it  is  ex- 
pressly mentioned  that  the  inhabitants  of  this 
island  shall  always  be  permitted  to  sell  at  the 
price  of  the  afforatioo  or  under  it,  Mr.  Alllmundo 
reftised  your  petitioner,  telling  him  he  should 
not  sell  his  said  wine.    And  aa  this  is  not  only 
•gainst  the  reaaon  and  justice  of  the  public, 
and  the  garrison  of  St.  Phillip,  but  also  contrary 
to  his  mi^esty's  order  in  the  said  reguhition, 
where  it  is  mentioned  that  the  inhabitants  may 
■ell  their  wines  whenever  thejr  please  without 
any  permit,  under  the  afforatioo- price  in  the 
island  ;  therefore  he  prays  your  excellency  will 
be  pleased  to  order  Mr.  Allimundo  to  be  more 
reguhu*  in  this  ffor  he  baa  made  above  50  casks 
or  wine  himself,  of  grapes  he  bought  to  make 
a  profit  bjT,  of  which  he  sold  more  than  the 
half,  in  prejudice  of  those  persons  who  have  old 
and  new  wine  by  them),  and  to  give  your  peti- 
tioner the  correct  and  just  measures  at  the  albre- 
WM  rale  of  two  doublers.*' 

Conrl.  There  is  no  date  to  this  petition,  I 
observer— il.  No. 

Mr.  Uo^d.  It  is  marked  on  the  back,  '*  deli- 
Tared  the  Slat  July,  1771." 

•  The  next  ia  iDclaaad  m  the  answer  of  tho 
■mstastaph's  feplj  to   Fabngaa  the  7th  of 


Aagnst,ini.    *«TobiaexoelleBeyrii      

gOMral  Mostyn,  governor  and  oooasanderui 
chief  of  the  isfand  of  Minora,  The  hnmble  P^ 
tition  of  the  nnder-writlen  iohabitanta  of  iha 
aoburbs  of  St.  Phillip's,  shews.  That  daring  Ifan 
government  of  hia  excellency  heulenantpyo* 
vemor  JohnBton,  onaecount  of  some  oeasplaiBin 
that  were  made  oooceroing  the  direciioo,  aaA 
selling  wine,  a  regulation  waa  made  in  the  fiiil« 
lowiiiir  manner :  that  the  sobtirbs  of  St.  Phll*^ 
lip'a  iihsil  be  divided  into  four  wards  ;  _that  iha 
people  ahall  draw  lota;  that  tfaey  who  ahnll 
eooie  out  shall  have  the  liberty  to  aell  their 
own  wine,  the  aooidenta  of  the  casks,  and.  the 
prelereooe  of  the  poor  helplefa  people  being 
eotirdy  under  the  direction  of  the  mustaalanh. 
That  regulation  was  accepted  by  tbeinlmbi- 
tants  of  the  auburba,  and  they  are  glad  of  iia 
continuance  aa  it  is  observed  to  this  diay.  They 
have  heard  that  some  of  the  inhabitanta  are  in« 
tending  to  destroy  the  aforesaid  regulation^  io 
order  that  every  one  might  sell  tbeir  wine  at 
the  place  they  please,  without  dividing  tli» 
wards.  This  will  be  not  only  the  total  roin  of 
the  inhabitanta,  but  it  will  also  make  them  cam- 
less  in  the  culture  of  their  lands,  and  leaa  can- 
ful  in  making  their  winea,  and  consequently 
there  will  be  very  little  wine  of  a  good  quality  ; 
therefore  your  petitionera  humbly  crave  yoor 
excellency  to  be  ao  good  aa  to  cast  an  eye  of 
pity  upon  them,  in  not  permitting  thatauch  a 
good  regulation  ahould  be  ever  altered :  and 
as  in  duty  bound  shall  ever  pray."  SigaaA 
by  58. 

Serj.  Glywu   Are  they  maika  or  DaiDea?««* 
A.  Most  of  them  marks. 

Directed  to  lieutenant-general  Mostyn. 

**  The  humble  petition  of  Antonki  AUimondo, 
mustastaph  of  St.  Phillip's,  sheweth,  that  your 
excellency  desiring  to  be  informed  about  aneli<* 
tion  made  by  Anthony  Fabrigas  of  St.  Philiip'a^ 
relating  to  the  selling  of  wine,  says,  that  for- 
merly the  aelling  of  the  wine  of  the  iohabitanta 
of  »L  Phillip's  waa  under  the  direction  of  the  ' 
mustastaph  of  that  suburb ;  but  as  aeveral  dia* 

fmtes  and  difficulties  arose  from  this,  his  exoel- 
ency  lieutenant-governor  Johnston  found  it 
proper  to  make  a  regulation  for  the  sdiiog  of 
the  wine,  which  was  accepted  with  an  entira 
satisfaction  by  all  the  inhabitants  of  St.  Phil« 
lip's,  and  bv  them  practised  to  this  day.  At 
the  time  1  bad  the  honour  to  be  made  mustaa- 
tapb  of  that  suburb,  the  aforesaid  regulation 
was  in  ils  full  force  and  execution,  and  the  aaid 
lieutenant-governor  charged  me  particularly  ta 
have  it  carefully  observed.  In  consequenoa 
of  this,  the  said  Anthony  Fabrigas  having  ap- 
plied to  me  a  few  days  ago  fur  tlie  measures  la 
sell  his  own  wine  two  douhlers  cheaper  thaa 
the  common  price,  I  thought  it  was  impiissibia 
to  grant  it  to  him  wiihout  forfeiting  the  dn^ 
of  my  employ,  because  his  demand  uuoo** 
trar^  to  the  aaid  reifulaiioo,  by  wbioh  the  ia*  ^ 
habitants  of  that  auburb  are  permitted  to  soil  , 
their  wiao  only  by  tuna^  after  Ihay  haw 


145J 


fiMga$  9.  MottjfH. 


A.  D.  1T7S. 


im 


fawn  loll ;  for  wbich  letiOD  your  petitioner 
laU  the  aid  Fobrigu,  that  he  oould  not  tell 
hb  wine;  inlendiDH^  to  say,  by  this,  that  he 
not  kU  it  in  the  manner  he  had  proposed, 
lit  to  tmjt  without  drawing  lots,  it  being  in- 
■stent  with  the  rtaid  regulation ;  thinking  it 
m  hlo  dutj  to  liave  it  omerved  till  such  time 
« joar  ezcelleiicy  or«lered  him  to  the  contrary. 
li  the  former  petiti<in  he  had  the  honour  to 
fUKnt  your  excellency,  he  thinks  to  haire  the 
CHW  privileges  with  other  inhabitants  of  St. 
nOKp's,  that  is,  to  buy  grapes,  to  make  wine, 
aid  sell  it ;  and  le^des,  seeing  that  his  prede- 
Mwnii  sold  this  wine  when  they  pleased,  not- 
vilhUaiidiiig  the  said  regulations,  he  thought 
Ihtt  tlie  mintastaph  of  8t.  Phillip's  was  not  in- 
chded  in  it ;  in  which  case  your  |»etitioner  did 
Ml  think  it  was  proper  to  prejudice  his  rights, 
•r  iboie  of  his  successors,  unless  your  ezceU 
kncy  ordered  him  to  the  contrary  ;  but  to  com- 
ply with  the  inhabitants  of  that  suburb,  that 
Acj  nit^t  be  satisfied,  your  pelilioner  always 
inosed  n  role  upon  himself  to  sell  his  wine  at 
iltient  times,  and  sometimes  b^  the  gross, 
■mnoch  that  most  of  the  inhabitants  of  that 
Mbwb  have  sold  the  half  of  their  wine,  whilst 

rpeiitiooer  has  not  yet  sold  a  third  part  of 
It  Anthony  Fabrigas,  or  his  father,  says, 
Aat  he  will  not  sell  his  wine  under  the  com- 
MB  price,  and  that  he  has  sold  none  of  it  as 
nl,  tke  former  having  none  to  sell,  the  reason 
■  aaly  becauoe  his  turn  did  not  come  at  the 
when  the  lots  were  drawn,  to  which  all 
of  the  inhabitants  of  St.  Phillip's  are 
but  his  wine  will  be  sold  when  his 


shall  come." 

1W  PETiTioir   of  Anthony  Fabrigas,  Aug. 
Idth,  177 1,  directed  as  before. 

*11ie  humble  petition  of  Anthony  Fabrigas. 
Ob  the  Slat  of  July  1771,  the  petitioner  had 
At  honour  to  present  a  memorial  to  your  ex- 
edkncy,  shewing  the  tran^igressiim  and  non- 
aiaerTaiioe  in  the  said  town  of  tno  regulations 
given  on  the  8ih  of  May  1752,  by  his  Britan- 
nic majesty,  6ic.  Sec,  viz.  thnt  any  native  or 
jihahitant  of  this  island  shall  be  permitted  to 
aril  bis  fruits  at  the  fixed  price  of  the  afforation, 
without  any  person's  authority  :  secondly,  that 
no  eoirmander,  judge,  nor  officer,  directly  or 
indircGlly,  for  himsflf  nor  through  any  other 

noos,  nhall  he  allowed  to  have  any  concern 

any  traffic,  bargain,  or  connurcc  wbatso- 
:  your  petitioner  having  likewise  repre- 
.«.^^  U>  your  excellency  that  Antonio  Alli- 
Moodo,  who  does  the  function  of  mustastaph 
in  Ht.  Phillip's,  haa  Itoui/ht  grapes  to  make, 
as  lie  rvally  maifeafterwardo,  50  casks  of  wine, 
af  which  he  s«>ld  more  than  one  hall',  in  prrju- 
ol  the  inhabitants  of  ii»t.  Phillip's,  who 
the  old  wine  by  them;  and  that  your  pe- 

_er  waotetl  to  enjoy  the  liberties  granted  to 
bin  in  the  said  regulations,  offering  to  sell  to 
Ihe  inhahitauts  and  garrison  of  St.  Pbilhp's, 
12  ra«fcs  of  wine  he  has  by  him  of  his  own 
induce,  at  two  doublers  less  than  the  ordinary 
iiurataoo  or  fixed  price,  dsc.  yesterday,  the 

VOL.  XX. 


19th  of  Aujpist,  your  excellency's  leeretary* 
told  your  petitioner  verbally,  &c.  at  which  year 
petitioner  was  greatly  surprised ;  as  he  is  ready 
to  prove  judicially,  before  any  one  of  his  ma* 
jesty'sjudges  of  this  island  that  yourexoelleticy 
may  think  proper  to  appoint,  all  that  he  hng 
said  in  his  last  snd  this  present  proposal ;  in 
which  caae,  &c.  beiog  sure  from  the  instice  ho 
has  in  his  favour,  and  from  your  excellency'o 
good  administration  to  administer  it,  prayo 
your  excellency  will  be  pleased  to  give  his  de- 
cree at  the  foot  of  this  memorial  to  your  peti* 
tioner.  He  hoiies  thereby  to  be  at  liberty  to' 
sell  his  wines  at  two  doublers  less  than  tha 
afforation  set  by  the  mustastaph  of  St.  Phil- 
lip's, &c.  and  that  the  mustastaph  hss  acted 
unbecomini''  the  office  he  exercises  of  musta- 
staph of  St.  Phillip's ;  which  being  evidently 
proved,  will  undoubtedly  oblige  your  excel- 
iency  to  give  the  necessary  orders  for  the  relief 
and  better  advantage  of  the  inhabitants  and 
garrison  of  St.  Phillip's." 

Serj.  Gfynn.  May  it  please  your  lordship, 
and  you  gentlemen  of  the  jury,  to  favour  me  in 
this  cause  by  way  of  reply.  Considering  the 
length  of  time  that  has  been  spent  already  in 
this  cause,  I  should  ask  your  pardon  and  in- 
dulgence for  adding  more  than  1  could  wish  to 
the  time  that  you  have  already  spent,  in  an- 
swer to  those  arguments  that  have  been  used 
in  behalf  of  the  defendant,  and  in  submit- 
ting to  you  such  observations  as  occur  to  me. 
For,  gentlemen,  the  cause,  as  1  conceive,  hav- 
ing already  \«andered  very  far  from  its  true 
merits,  and  being  perplexed  with  matters  very 
foreign  to  the  question,  it  is  incuinbent  upon 
me  to  make  such  an  attempt  as  my  powers  will 
enable  me  to  do,  to  recal  your  attentk>n  to  the 
real  and  true  question  in  tliis  cause. 

The  question,  gentlemen,  is  shortly  stated ; 
the  discussion  of  it,  however,  requires  some 
time.— The  question  is  merely  what  satisfac- 
tion and  reparation  Mr.  Fabrigas,  a  subject  of 
Great  Britain,  as  much  as  any  man  even  bom 
in  the  city  of  London,  has  a  right  to  demand 
for  the  treatment  he  ha^  received.  He  is  a 
native  of  the  island  of  Minorcii,  born  in  the 
Britannic  dominions ;  and  his  lordship  will  tell 
you  that  every  person  that  is  so  born  is  a  free- 
born  citizen  of  Great  Britain,  intitled  to  all  its 
liberties  and  privileges. 

The  question  therefore  is,  how  a  man  thus 
circumstanced  is  intitled  to  have  his  case  con- 
sidered by  an  English  jury,  and  what  satisfac- 
tion you  shall  think  due  to*  him  for  such  kind  of 
treatment  as  he  has  undergone ;  such  tortures 
of  the  most  studied,  and  the  most  perplexing 
and  excruciating  kind,  (if  you  take  into  consi- 
deration the  feelings  of  h  man's  mind,  as  well 
as  his  corporal  sufferings)  as  have  by  the  wan- 
tonness of  power  been  inflicted  u(Km  him. 

Gentlemen,  in  the  discussion  of  this  question, 
1  shall  now  barely  mention  to  you  one  topic 
upon  which  a  great  deal  of  your  time  has  been 
taken,  and  which  1  mention  merely  for  the 
pnrpota  of  clearing  the  cause  of  it,  and  die- 


147] 


H  GEORGE  IIL 


Actimjbr  False  ImprUonment^^ 


[148 


nliMng  it  totally  from  yoar  considenUion ; 
and  that  ia»  what  respects  tbe  character  of  Mr. 
Mostyn  the  defeudaot.  You  are  told  of  tbe 
high  and  respectable  names  of  great  men  that 
bare  given  their  attendance  here  to  coonte- 
nance  that  character  which  you  are  told  Mr. 
Alostyn  indisputably  possesses.  My  answer  to 
it  is,  that  if  be  bad  brought  the  pnYy-4souncil, 
if  be  had  come  with  testimonials  in  his  hands 
ftom  the  two  houses  of  parliament,  it  would  not 
hare  fsried  the  consiueration  of  this  cause. 
Tbe  question  here  is  wide  of  all  consideration 
of  character :  vou  must  decide  it  upon  the  facts 
which  appear  before  you  in  evidence,  and  from 
them  you  must  judge  of  the  merits  of  lliis 
cause.  The  motives  of  Mr.  Mostyn's  conduct, 
and  every  circumstance  that  is  material  or  re- 
lative to  that  question,  you  are  to  decide  upon ; 
and  beyond  that,  gentfemen,  it  is  neither  my 
desire  nor  my  duty,  it  is  far  from  my  province, 
and  far  from  my  inclination,  to  attempt  throw- 
ing any  kind  of  calumny  or  aspersion.  Let 
Mr.  Mostyn,  with  all  my  neart,  ir  he  can,  re- 
concile that  conduct  that  has  appeared  before 
yon  to  such  a  character,  to  that  verdict  which 
1  am  confident  you  must  pronounce  upon  this 
cause.  Let  Mr.  Mostyn  eiyoy  tbe  eaieem  of 
his  great  and  noble  Iriends ;  I  have  no  desire 
to  deprive  him  of  it :  I  have  however  a  zeal  fur 
the  justice  of  this  coimtry,  that  goes  something 
beyond  the  mere  line  and  duty  of  an  advocate, 
—1  owe  it  to  humanity,*— I  think  it  is  a  ques- 
tion of  humanity,  not  depending  upon  tbe  par- 
ticular laws  of  any  country :  but  it  is  a  ques- 
tion highly  aflectmg  the  honour  of  the  British 
nation,  and  a  question  that  will  throw  disgrace 
upon  our  laws,  oiur  constitution,  and  the  hu- 
manity of  our  judicature,  if  this  man  should  bo 
sent  Iwck  into  the  island  of  Minorca  with  his 
wrongs  unredressed,  and  an  accumulation  of 
ezpences  upon  him. 

I  own  therefore,  gentlemen,  upon  these 
grounds  and  these  considerations  1  fed  a 
warmth  and  a  zeal  in  this  cause,  which  I  hope 
will  justify  me  for  the  pains  that  I  mean  to 
take,  if  my  strength  will  support  me  in  it,  in 
laying  before  you  what  I  conceive  necessary 
for  your  consideration.  I  have  said,  that  I 
mean  to  deprive  general  Mostyn  of  nothing 
that  is  not  necessary  to  tbe  reparation  of  the 
wrongs  of  this  much-mjured  plaintiff;  that  be 
•ball  enjoy  his  good  name  and  his  character 
as  far  as  my  doty  will  permit  him  to  enjoy 
them  ;  1  shall  maze  no  observations  upon  him 
but  what  arise  from  the  cause  now  bmre  you. 
1  have  some  reason  to  wbh,  and  to  cximplain 
Ibat  the  like  conduct  has  not  been  observed  on 
the  other  side.  General  Mostyn  is  to  be  graced 
with  the  countenance  of  great  men;  and  a 
plain  En^ish  jury  is  to  hear  the  titular  testi- 
monies ot  the  character  of  a  man  invested  with 
a  high  office,  in  high  power,  and  possessed  of 

Kt  riches  ;  yet  ih%  cbsracter  of  a  poor,  un- 
ly,  helpless  individual,  an  inhabitant  of^an 
islaod,  part  of  tbe  territories  belonging  to  tbe 
crown  of  Great  Britain  (confident  too  that  be 
lifed  under  the  pielectioo  of  tbe  ooBStiliitM»  of 


Great  Britain,)  is  to  be  treated  as  a  subject  of 
ridicule,  because  he  is  not  a  man  of  high  rank, 
though  you  are  told  he  is  a  man  of  charader 
and  of  fortune,  such  as  has  intitled  and  recom- 
mended him  to  the  company  of  men  of  rank-sa 
that  island.  Have  we  not  some  reason  to 
complain,  that  such  matters  are  now  introduced 
to  reoutt  his  just  and  well-tbnnded  expectatione 
to  receive  aatisfaction  from  an  English  jury 
for  tbe  wrongs  he  has  already  sustained  ? — u 
it  not  eneogh  that  this  man  has  endured  «■ 
imprisonment  of  six  day  a,  under  the  must  UDf 
|>aralleled  hardships  of  rigour  and  cruelty  tba| 
can  be  inflicted  upon  a  human  being  ?  is  it  not 
enough  that  he  has  endured  a  banishment  from 
his  native  country  ?  but,  to  heap  calumny  and 
obloquy  upon  the  head  (»f  a  man  that  he  baa 
iiiiuied,  shall  be  with  impunity  be  permitted  te 
digress  wide  from  the  tacts  in  this  cause,  to  tell 
you  that  he  is  a  profligate  idle  map  ;  that  with 
a  family  be  neglects  aJl  the  duties  of  a  husband 
and  the  master  of  a  family  ;  that  he  is  devoid 
of  moral  character  ?  Is  a  poor  helpless  straamr 
In  this  kingdom  thus  te  ne  represented,  after 
having  ben  driven  out  of  his  own  by  cruelty 
unparalleled  in  tbe  British  history?  Nor  can 
any  history  be  produced,  even  of  any  other 
country,  tliat  did  not  receive  a  most  signal  die- 
countenance  from  tbe  power  of  that  country, 
A  man  thus  driven  out,  seeking  refuge  fram 
tbe  English  laws,  firiendlesB  in  this  oountryp 
ignorant  of  its  language,  is  treated  in  tba 
manner !  A  gentleman  comes  forth,  and  eu- 
tertains  you  with  tbe  oonnezions,  chareder, 
and  acquaintance  of  the  powerful  defendant  s 
he  then  enters  into  the  private  conoerns  eod 
private  character  of  the  plaintiff,  and  dwdlg 
upon  the  ignominy  of  it,  and  endeavours  te 
impress  you  with  a  prepossession  that  it  will 
not  be  in  "his  power  to  remove  it.  I  trust  thy 
conduct  has  not  escaped  you.  Not  a  word  bee 
fallen  from  us  of  tne  character  of  ffeueral 
Mostyn ;  1  mean  on  that  head  to  be  simt  for 
ever ;  and  if  I  had  it  in  my  power  to  eeperae 
his  character,  unless  it  was  something  relative 
to  the  cause,  that  made  it  my  duty  to  produce 
it  before  you,  l«should  be  very  silent  about  it. 

Having  dismissed,  I  hope,  from  the  caoee 
these  considerations,  let  us  now  recur  to  the 
defence  that  is  set  up  by  general  Mostyn. 
And,  gentlemen,  the  defence  set  up  by  the  ge- 
neral is,  that  Mr.  Fabrigas  is  a  man  dangerous, 
aeditious,  and  turbulent;  that  he  was  in  the 
act  of  perpetrating  sedition  in  the  garrison  of 
Minorca ;  that  there  was  danger  even  of  the 
loss  of  Minorca  itself;  that  it  afl'ected  the  com- 
mercial interests  of  this  country  ;  and,  as  well- 
wishers  to  this  country  and  the  commerce  of. 
it, you  are  called  upon  to  give  a  verdict  for  the 
derandant,  or  to  reduce  the  consideration  of 
damages  so  as  to  pronounce  something  worse 
for  the  pbuntiff,  if  possible,  than  even  a  verdict 
for  the  defendant. — Gentlemen,  their  state  of 
it  is,  that  this  man,  Mr.  Fabrigas,  being  a  fac- 
tious, turbulent,  and  nnouiet  man,  was  pursu- 
ing general  Mostyn  witn  an  improper  impor- 
tnoity }  that  he  was  eudeavounng  to  apctud 


I49J  FoMgoi  «.  Modj^ 

lidiiMt  to  raise  dinooteals  in  the  girriMm  it- 

•dr  Ibat  aflcdcd  the  very  wahnj  of  the  ffo- 

•ad  the  iibuid  was  in  danger;  thel 

a  threat  that  wenM  hate  made  ge- 

if ostjB  reepoaaible  with  hie  bead,  if  be 

Waol  preveotca  tneb  a  fobemefironi  being 

aniad  ioto  eieeiition ;  that  be  said,  if  bb  pe- 

iha  waa  agata  refected,  that  be  wonld  eonae 

tf  Ibe  head  of  150  flaen,  a  menaee  represented 

a  if  it  Bpported  a  threat  that  be  would  come 

m  Iha  bead  of  an  armed  force :  such  was  the 

SMBtroetioB  bis  eounsrl  put  apoo  it,  that  be 

aeald  appear  ia  such  a  way,  as  to  make  it  ne- 

mtmry  far  the  gencial  to  comply  with  his  de* 

■sada  ;  that  there  was  bo  end  of  all  gorern- 

■sat  aad  all  order  in  the  iiland  of  Minorca, 

«d  a  valuable  part  of  the  British  dominions 

by  Ihca  at  the  merc^  of  our  enemies.    Gen- 

Ibssea,  thie  is  a  well-drswn  picture,  and  was 

my  powerfully  urged  to  you.    It  was  some- 

over>paiBled,  as  I  conoeire  jrou  will 

And  the  necessity  of  doing  it  is  an  ob- 

ioa  that  will  aot  escape  you ;   for  less 

this,  1  do  conceire  (I  rest  myself  satisfied 

'btha  general  humanity  tbtt  prevails  in  the 

bassts  of  Baglisbmen,  and  iohahitants  of  the 

oiy  ef  London)  less  than  this  could  never  have 

BvVed  aa  any  colourable  justification  for  such 

swdnet   aa    has  been  proved   upon  general 

Msstyn:   this  therefore  was  necessary  to  he 

UMsd  to  yon,  that  it  was  extorted,  (contrary 

li  Iha  feelings  of  bumsnity  which  are  said  to 

nmy  and  influence  that  gentlemtn  in  all  his 

emdnei)  tliat  this  was  extorted  from  necessity ; 

Ihsl  there  was  no  time  for  cousideration ;  that 

itnaa  aa  eroerpfency  he  was  required  to  decide 

i;  it  snpeneded  therefore  all  forms ;  it  was 

ly  necessary,  for  bis  i^rovernment  would 

exiKted  if  be  had  been  at  all  induced 

one  it ;  and  that  possesnion  of  which 

kt  wMM  tlie  guardian,  and  for  which  he  is  said 

Is  be  tesponsible  with  his  head,  vi  as  in  danger 

if  being  for  ever  lost  to  Great  Britain.     1  can 

if  e  a  ease  like  that,  adding  more  circum- 

than  even  the  ingenuity  of  the  couniel 

ubich  would  not  justify,  though  it 

It  extenuate  indeed,  the  conduct  of  the 

naader.     But  waa  there  any  thing  like  it 

this  case  ?  This,  1  submit  to  yoa,  gentle- 

le  tbst  the  counsel  thought  neces- 

lo  o|ien ;  and  less  than  this  furnishes  no 

or  colour  of  justification  for  general 

Inalyn.      Gentlemen,  when  this  cause  was 

opened  to  yuu,  and  when  the  general's  de«' 

fcnec  waa  stated  to  you,  that  the  general  was 

ohiigod  to  act  in  an  emergency  ;  bonnd  by  the 

wmn  religious  of  ail  duties,  to  look  with  cir- 

cnmspection  to  the  care  of  the  garrison  in  in- 

naal  danger,  it  was  necessary  to  act  as  he  did ; 

h  was  an  act  therefore  not  of  inclination  nor  of 

dshheration,  it  was  an  act  of  absolute  cogent 

irrceikuMe  neces^ty,  and  which  he  had  been 

najoaiifijbte  if  be  bad  either  omitted  or  de- 

irrrcd  for  a  dar.     That  is  the  nature,  and  that 

is  ibe  colour  of  the  general's  justification :  but 

did  the  general  know  how  different  the  case 

thu  would  appcv  upon  evideooa  wouU  be 


A.  D.  1773. 


[150 


firom  that  which  be  had  instructed  his  coaasel 
to  represent  to  vouP  it  was  necessary  that 
the  defeace  should  be  guarded ;  and  then  thera 
is  a  prefiitory  defence  made,  which  in  my  opi- 
nion very  mucli  deserves  your  consideration. 
Gbneral  Moatyn,  with  the  prodeooe  that  from 
this  hour  1  smII  think  makes  psrt  of  hb  cha- 
racter, chose  to  decline  the  jurisdiotion  of  an 
Englbh  jury.  I  don't  wonder  that  be  did ; 
and  1  am  not  smased  that  you  are  told  that 
th|a  M  a  noatter  extraneous  to  the  jurisdiction 
of  the  courts  of  judicature  in  this  countrr  } 
that  you,  as  a  jurv,  are  incompetent  for  its  de« 
dsion :  it  b  of  all  cases  in  the  world  that  case 
which,  as  a  defendant,  general  Mostyn  must 
be  inclined  to  w»h  might  never  appear  before 
an  English  jury,  it  is  a  tribunal  that  he  must 
dread;  it  b  a  tribunal  that  he  must  shrink 
from  ;  and  be  acts  upon  the  soundest  motives 
of  policy  and  prudence  when  he  endeavours  to 
evade  it.— If  that  should  prove  insufficient  to 
him,  the  next  resort  is  in  the  general  law  and 
doctrine  resfiecting  the  power  of  the  governor 
in  the  island  of  Minorca;  and  you  are  re- 
peatedly cautioned  not  to  consider  yourselves 
as  administering  justice  by  the  laws  of  Bog- 
land.  You  are  told,  that  you  are  deciding  a 
3uestion  of  the  laws  of  another  country,  far 
ifferent  indeed  and  materially  opposite  to 
those  of  the  laws  of  England :  you  are  called 
upon  therefore  to  judge  thb  cause  by  another 
rule,  and  by  another  standard,  than  that  which 
you  are  in  the  habit  of.  Considering  and  try- 
ing causes  by  something  more  than  this  mitft 
be  desired  of  you,  before  the  ends  of  the  de- 
feodant  can  be  completely  answered.  Yoa 
are  desired  to  divest  yourselves  too  of  the  feel* 
ings  of  humanity  ;  and  they  are  endeavoured 
to  be  suppressed  by  representing  to  you  circum- 
stances of  horror  and  danger  to  the  general 
trade  of  this  country,  in  case  you  should  sufier 
even  principles  of  law,  of  justice  and  iiumaoity, 
to  prevail  in  this  cause.  Gentlemen,  it  waa 
stated  to  you,  that  in  this  island  of  Minorca 
there  is  no  law  whatsoever;  that  the  form  of 
government  is  despotism;  that  what  may  be 
called  the  law,  is  the  will  and  pleasure  of  the 
person  that  governs;  that  the  king  b  abso- 
Fntely  despotic ;  that  he  may  change  and  alter 
the  hws  of  this  island  as  he  pleases ;  and  not 
only  he  himself  can  do  it,  but  that  he  has  de- 
legated that  power  to  his  substitute ;  that  he  ia 
sent  over  to  govern,  not  by  any  fixed  invariable 
pbn  of  laws,  but  such  as  he  thinks  proper  to 
make,  such  as  he  thinks  |>r<»per  to  prescril>e  to 
the  inhabitants,  at  any  time  that  in  his  wb- 
dnm  it  shall  appear  just  and  expedient  that  it 
should  be  so.  This  U  the  state  at'  an  English 
government,  and  this  is  the  construction  put 
upon  an  Enf>liiili  patent  that  passes  the  great 
seal  of  Great  liritain.  1  will  be  bold  to  say,  that 
if  that  construnion  is  ever  attempted  to  be  put,  it 
must  be  put  lepugnant  to  the  words  of  thai  pa- 
tent. I  will  be  bold  to  say,  that  if  a  patent 
passes  the  great  seal  contaiuing  such  wonb, 
there  b  not  so  feeble  a  judicature  in  this  king- 
dom tbit  wonld  not  dare  to  pronounce  it  void. 


151] 


14  GEOBGE  lU. 


Action Jor  Fake  Imfriiotmaxt— 


[158 


tnd  every  act  done  ooder  it  illegal.  Aud  I  will 
venture  to  say  too,  it  it  imponible  that  the 
ffreat  man  that  ihonid  dare  to  put  the  frreat  sea], 
and  proititute  public  authority  to  a  patent  of 
tbatkind,  but  he  muat  anawer  to  pulilic  justice 
with  his  head.— And  yet  thia  haa  been  con- 
tended to  be  the  true  genuine  oonatniction  of  an 
English  patent,  the  authority  under  which  thia 
same  general  M  oaty  n,  thia  governor  ofthe  island 
of  Minorca,  has  presumed  to  act.  Gentlemen, 
having  stated  bow  repugnant  it  is  to  every  idea 
aud  principle  of  law  and  justice,  it  gives  me 
concern  to  hear  in  what  habits,  possessed  with 
what  ideas,  men  raom  from  the  island  of 
Miuorca.'  It  has  been  contended  to  be  right, 
because  it  has  been  done  before.  If  it  has  lieen 
done  before,  I  say  it  ia  alarming,  and  it  ia  time 
to  put  an  end  to  it.  You  have  had  gentlemen 
with  military  commiaaions  appearing  here  in  red 
coata,  to  give  you  legislative  constructiona ;  to 
tell  you,  aa  lawyers,  what  ia  the  law  of  the 
ialand  of  Minorca.  You  have  had  a  gentleman 
who  aerved  aa  a  aecretary  to  governor  Mostyn, 
who  comes  home  and  tella  you,  that  the  go- 
vernor with  respect  to  the  administration  of 
laws  that  regard  only  questions  of  civil  pro- 

Krty,  is  limited  by  the  laws  of  the  country ; 
t  with  regard  to  criminal  jurisdiction,  hia 
power  is  uncircnmscribed,  and  totally  unli- 
mited ;  that  by  his  proclamation  he  can  change 
lawa  whenever  he  pleaaes,  and  the  law  of  to- 
night is  not  the  law  of  to-morrow,  if  that  man 
tbinka  proper  to  issue  his  proclamation  to  re- 
peal it ;  that  the  courta  of  juatice  are  under  a 
tyeto  respect  these  proclamations  as  laws ;  that 
the  individuals  of  the  island  are  all  to  be  bound 
by  it,  and  if  these  laws  are  issued  but  an  hour 
before,  they  are  as  Ending  as  if  of  long  standing 
in  the  island. 

These  are  the  ideas  of  law  that  theae  gentle- 
men bring  from  the  island  of  Minorca,  under 
the  government  either  of  this  general  Mostyn, 
or  hia  lieutenant-general ;  and  upon  the  autho- 
rity of  theae  gentlemen  that  have  furnished 
thennselves  with  snch  ideas  of  law  and  justice, 
yon  are  at  once  to  be  prevailed  upon  to  deter- 
mine that  the  lawa,  liberties,  and  privilegea  of 
this  kingdom  in  no  respect  extend  there.     It  is 
something  shocking  to  English  ears ;    a  des- 
potic, an  arbitrary,  an  unlimited  power !   (for 
even  the  words  nave  not  been    spared)  and 
yon  are  here,  aa  an  English  jury,  to  pro- 
nounce that  the  king  of  Great  Britain,  and 
peraons  acting   under   bim,  are    to  exerciae 
thia  unlimited  power  within  a  part  under  the 
jurisdiction  of  the  jndges  of  England.     If  this 
i»  offered  in  extenuation  of  the  conduct  of  ge- 
neral Mostyn,  added  to  the  strong  irresistii>le 
calls  of  justice  and  humanity  that  must  press 
your  minds  more  than  words  can,  there  must 
be  added  to  it  the  most  powerful  political  consi- 
derations ;  for  you  have  been  told  in  the  course 
of  thia  argument,  that  the  ialand  of  Minorca  ia 
an  insecure  poasession  to  the  crown  of  Great 
i'nuin ;    that  iu  inluONtanta  are  in  a  great 
neaiuro  disaffected.    If  they  are,  has  not  the 
«ftUM  of  the  disaffectaoo  beeo  very  esplkiUy 


set  forth  to  yon?  Is  not  the  care  as  evident  F 
Correct  these  gentlemeji,  who  think  that  their 
hands  are  not  bound  by  law  and  justice,  that  go 
over  to  exercise  power  over  these  helplesa 
men.  Teach  the  poor  Minorquins  that  tho 
English  Uw  will  protect  them ;  that  their 
governors  are  bound  by  law  and  justice  to 
teach  them  the  blessings  of  an  English  govern- 
ment ;  you'll  remove  disaffection ;  yoo'U 
get  a  stronger  guard  than  all  the  caution  and 
wisdom  of  governor  Mostyn,  his  secretary  and 
friends,  powerful  and  titked  as  they  are,  and 
Uiis  fatal  system  of  military  despotiHm ;  yoa 
will  have  the  island  to  serve  you,  you  will  have 
the  affections  of  the  inbabiunts  to  assist  yon, 
von  may  command  them  whenever  you  will. 
Vet,  gentlemen,  it  has  been  dwelt  upon  as  m 
topic,  that  this  island  is  disaffected  ;  that  their 
inclinationa  are  against  the  English  govern- 
ment. And  who  can  wonder  at  it,  if  what  Mr. 
Blakeney  says  he  is  clear  in  his  recollection  of? 
I  hope  he  is  not ;  I  don't  mean  to  deroeate  from 
his  veracity  ; — that  a  power  like  this  has  been 
used  of  arbitrarily  aending  a  man,  a  native,  an 
inhabitant,  from  the  island,  his  friends  living 
there,  his  possessiim  there,  for  no  offence  com- 
mitted, but  at  the  absolute  will  and  pleasure  of 
the  governor.  You  have  heard  a  great  deal  of 
Turkey,  you  have  heard  aomethin^  ofthe  laws 
of  Ja|)an,  you  have  heard  of  other  despotic 
powera,  whose  names  I  trust  are  sufficiently 
odious  in  the  eara  of  all  English  hesrera ;  and 
yet  you  are  told  that  the  governor  of  this  island 
IS  equally  despotic  with  any  of  these  fmwera; 
tliat  he  has  no  limits  but  his  will,  no  bonnda 
but  his  pleasure,  no  law  but  his  inclinationa  ; 
that  the  lives  and  persons,  if  not  the  properties, 
of  all  the  inhabitanta  of  this  isianti  lie  prootrato 
before  him,  and  they  must  depend  upon  bio 
natural  good  inclination  and  humaniijp  in  whal 
degree  they  are  permitted  to  eujuy  them. 

This  is  the  state  of  thia  island  ;  and  1  will  bo 
bold  to  aay,  it  would  be  apeaking  injirioiialy  of 
the  government  of  Japan, — it  would  be  upeak- 
ing  injuriously  of  the  government  of  Turkey,— 
it  would  be  s|ieaking  injuriously  ofthe  emperor 
of  Morocco's  government,  to  def^cribe  that  as 
the  general  state  of  these  subjects  ;  it  never 
waa  in  the  idea  of  even  despotism  itself  till  thio 
very  hour :  it  is  violence  aud  outruge,  it  ia  tho 
law  of  robbery  ;  it  never  obtained  in  any  placo 
where  the  idea  and  form  of  a  civil  go«ernmenft 
ever  was  allowed ;  because,  if  the  legislative 
power  and  the  executive  meet  in  one  person, 
that  distinguishes  a  despotic  government  from 
the  happy  state  that  we  enj(»y  in  this  kingdom. 
Our  king  can't  prescribe  us  laws,  but  he  most 
administer  us  justice  by  those  lawa  that  our  re- 
presentatives make  for  us.  That  ia  the  state 
of  this  country,  happily  distinguished  from  the 
state  of  despotic  countries,  fiut  in  no  despotic 
country  whatever  did  this  idea  ever  obtain,  that 
the  prince,  the  despotic  Sovereign,  call  him  by 
what  name  you  will,  was  to  adminiater  justice 
by  bis  incident  pleasure,  will  and  power.  If 
he  made  laws,  he  made  them,  proclaimed  and 
divolged  thomi  and  the  ralgeeli  were  govomed 


Fahrigtu  v.  Mailyn. 

iff  Hbcn,  lud  iheir  k'mgv  were  raled  by  tho«e 
kuc  But  lierp  thia  gentl email,  Mr.  Blftkeney. 
fra  Hide  licyunil  iii!i  cotiiuel,  (hi«  counsel 
««U  Mt  tuu  an;  thittg  like  this)  but  bc- 
oriyiiC  to  ihi«  |^ntl*:'in*u,  the  inlittiitaniH  or 
itB«t«Dd,  trithoul  llie  leut  imputation  of  ile- 
tutacy.  oilluiiit  any  mode  or  Ibrm  of  trinl, 
•tre WDHnced,  instantly  iraniparled,aDd  re- 
Hrad  from  itieit  frieiidi  «nd  rvlatiiiu*  for  crer, 
Mtoa  il  M  the  i^od  will  Da<l  plmsure  of  ilie 
fncTBor  ever  to  pfnnlithem  tortfiuni.  I  say, 
all  lk«  most  *liiinie>ul  auecdote  I  list  ever  was 
fcMd  •I'  a>>y  governnirnt  wbalever;  aad  a 
ImImw  sf  Egypt  would  merit  l lie  bow-Blrinfr 
fo  brtaf  lii«  m  so  illpgnl  siid  so  indecent  a 
www.  The  ttmo,  llie  ajificarsTice,  the 
II  ■Mail  rr  of  joltice,  are  all  nt  importance  tn 
btWarteil,  anil  nbich  ibe  policy  even  of  Ihe 
h*<aM  prescribe ;  jiet  have  our  ears  been  tor- 
Mrcd,  and  oar  palieoce  and  lime  been  spent 
viAdaetritm  of  this  sort,  lij  gentlemen  who 
W>  (»jay«il  IfUttxin  that  inland,  and  nhich 
hii«  eoMMMMly  been  exercised  by  tliem.  This 
■  ■feal  geaeral  Hoslya  has  bet  up  in  bU  de- 

lUa  wiajMy,  it  is  Raid,  makes  laws  whenever 

kc  fWasM  i  it  il  iq  bis  sole  will  and  power  to 

wpH  vbat  laws  be  pleases  upon  a  conquered 

DHtry.      It  is  mnre  than«Ter  I  beard.     Tim 

fm^Mne  |;q«s  I'unber  than  any  book,  ihal 

I'f  I  rv*d,  can  justify  me  in  allowioo' ;   be- 

'•,  as    I    bare  understooJ  ii,  if  true,  the 

.  ui^rst  aulhoritin  support   thpse   prerojpi- 

rt      One  Cliritlian  pnuce  conquer*  a  Cliris- 

kiflgilotn,  thai  is  ijntemeil  by  ii«  own  laws, 

■••  H  i*  ll>e  will  of  the  dnqueror  to  aliro- 

.   'd»M>   laws.     The   t'unqurst  of  Ihe  island 

'  Hmorva  «■«  not  msile  liy  qiieeo  Anne  per- 

'  '■Hj.  btil   it  was  made  by  ibe  aiih|ecls  of 

m  Briinin,  and  belonfci  to  ibe  supreme  xinie 

''irat  Britain.     Dili  if  yoii  ifive  the  jiower 

ilie  aofrreiiiii   It  mnlie  Ihoie  Iuhb,  allow 

umlaW   rivbtly  exercised.     Can  you  sup' 

|a>*U  tt  Ixrlonirs  to  the  ^vemor  8p|H)iuIed, 


tlrfbyai 


I  arbitrarily  and  iDcontmlnhly,  accord' 
■f  m  Ihair  own  wdl  and  {deasurer  For  in 
w«»  W  funnab  the  defemfnnt  Willi  any  colour- 
lM»4»l«BCv  whaUter,  be  ia  in  lie  juslilied  by 
tin*,  which  you  mutt  candemn  a*  pre- 
1  «f  nildier^  and  burelary,  equal  in  point 
la  either  nf  Ihaselerm*-,  or  jon 


I  ibe  constituijiin  uf 


IW  apffit,  tbr  rraina, 

InM  Bnlain.  Gut  wilh  the  idva  of  any  law 

seiner  ihai  ««cr  obtained   in  any  stale  ur 

•■HH:  both  tbene  you  muit  lubacnbe  In  l>e- 

cutnply  wilh  ihereciuMi  thai  ia 

lprauonnceaterdictfurcen.MDB- 

kn^— TIm  (rBtlemrn  then  baring  lakeo  Ibis 

JhHi  aa4  rcmai'c  line  of  delence,  whirh  Ibey 

^'"oslrt  ••nlil  ooQlaiu  and  embrace  any  de- 

-  ■  ikal  (bay  IbotiKbl  proper  to  ulfer  to  you, 

f  aaJU  proceed  witli  ihcii:  ilefeiice.    And, 


A.  D.  1775.  [154 

gentlemen,  you  are  laid,  that  ma  il  was  Ihe  au- 
thority, 10  It  wan  the  duly  of  Ihe  jj^neral  to 
proceed  ai  be  did ;  that  be  could  have  nu  {ler* 
aonal  inalei  utr'nce  to  a  man  so  remote  from  bia 
silualion,  go  unlikely  to  fall  in  wilb  Ilk  connec- 
tions ;  that  the  man  was  mulioous  io  the  wbula 
of  his  conduct ;  aud  that  al  last  he  commiiied 
that  duDfferouB  act  of  muliny  thai  made  it  an 
indispenEible  act  of  justice  in  llie  ^fuveroor  to 
commit  him,  and  to  tend  him  out  of  the  isk'nd ; 
that  if  be  bad  not  done  il,  and  a  consequence 
had  happened  fatal  (o  the  inland,  Ihe  gurernor 
would  hare  been  responsible  for  il.  Why, 
l^llemeu,  llie  slate  uf  il  so  mui'b  exceeded 
Ihe  fncts,  it  cetlainly  was  expected  by  the 
learned  counsel  wbu  offered  il  to  you  tbat  ba 
should   prove  somelhing   less,   and   therefore 


EroTcil  this,  (lioLig-h  I  should  conceiie  il  would 
y  no  means  bate  inlitled  Ibe  general  to  a  verdict, 
yet  Buch  conaideraliani, — an  act  of  absolute 
uecessily,  Ibe  aliernaiive  of  seeing  such  a  Irnst 
as  Ibe  island  of  Minorca  lost  lhrou([li  his  re- 
missness, or  Ibe  rvmnring  of  this  man  out  of 
the  island — I  should  bare  conceived  might 
very  well  have  furnished  an  excuse  for  him  in 
bis  conduct :  1  am  sure  il  would  hare  taken  ofT 
from  any  edge,  any  waimth,  or  keeaness  in 
which  an  action  would  bare  been  supported 
Ihal  iTould  have  been  brought  against  him. 
Bui,  large  as  Ibe  ground  was  laid,  il  was  to 
lake  in  certainly  aimibrr  case  than  this.  No- 
ibing,  as  I  conceive,  and  as  ]  submit  to  vou,  of 
Ibis  kind  has  been  proved.  Petitions,  lellers, 
mesBsges  hare  been  giren  in  evidence  before 
you,  and  commeols  are  made  upon  the  very 
petitions  themselves,  as  carrying  wilh  them 
slroiig  proofs  of  a  mutinous  inclination ;  and  at 
last  there  is  a  broad  fad  asserted,  that  there 
Has  a  downrieht  threat  of  Bp|iearing  in  arma 
al  Ihe  head  of  laO  men. 

Now,  genilemen,  ^ve  your  allcnlinn  lo  llwse 
lellers,  lo  ihese  petition]  that  bare  been  read. 
They  are  expressed,  as  i  conceire,  in  decant 
and  in  reipeclful  terms ;  and  if  il  is  an  act  of 
muliny,  I  do  conceive  that  il  is  impossible  fer 
any  one  man  In  complain  tbut  he  has  received 
wrong  from  anoiber,  either  hy  word  or  letler, 
but  be  muKi  be  i^andemned  as  a  mutineer  in  Iha 
island  of  Minorca;  and  the  public  faith,  the 
ualional  faiib  Ibal  is  pledged  lor  the  proleclion 
aud  enjoyment  uf  their  property,  is  reduced  to 
thai  slate — *  You  shall  enjoy  il,  but  if  another 
presumes  to  wrong  you,  you  musi  not  dare, 
upon  Ihe  pain  of  transportation  and  long  im- 
prisonmenl,  to  iiliiT  a  word  of  complaint ;  fur 
It  it  jii'lged  dangeroiu,  ilis  nut  coiisiiteDl  with 
ihe  wisilum  of  i;o«ernmeni  lo  permit  it.  and 
we  are  called  upon  lo  puiiisb  you  inosl  severe- 
ly.'— Gentlemen,  the  transaction  appeara  lo  ba 
ibi>:  that  anotbcer  in  Ibe  island  of  Minorca, 
called  a  muslaslaph,  was  ibe  man  frum  whoin 
ibe  isUnders  were  to  receive  what  ibey  call  tlia 
alToraliDn  or  the  asviie  price:  Ibis  was  iba 
couceplion  of  Mr.  Fubngas  the  pntiiioner. 
Another  notion  preraileil,  thai  tbe  order  «( 


155J 


14  GEORGE  III. 


Ad6iimfar  Ftdae  Imprisonment— 


[IM 


CAUDcil  reeeired  from  the  erown,  which  iM  cod- 
sisteDt  wilb  their  oapitultdoo  and  the  rights 
stipulated  to  them,  ought  to  be  obeerred ;  hj 
wbieb  order  tbey  were  at  liberty  to  lell  their 
wines  after  a  certain  price  bad  by  a  public 
officer  beoi  once  asHzed,  which  is  called  the 
afibratioo.    But  the  mostastaph  of  the  island 
thought  proper  to  say  that  the  order  of  council 
was  superseded  by  another  order,  which  com- 
ing from  the  active  person  in  the  go? emment, 
though  not  the  principal  at  the  time,  muit  ne- 
cessarily supersede  thai  order  of  eouocil ;  and 
it  was  insisted  upon  that  goremor  Johnston's 
order,  judging  of  the  inexpedience  and  impro- 
priety of  the  former,  must  take  place ;  and 
that  Mr.  Fabrigas  was  wrong  in  his  concep- 
tion of  what  ahonid  be  underBtood  to  be  the  law 
of  Minorca.     Upon  lus  presenting  his  com- 
plaint to  Mr.  Mostyn,  be  recei? ed  for  answer, 
that  Mr.  Mostvo  would  immediaiely  call  upon 
the  mustasta|iD  for  bis  answer.    The  snswer  is 
fi?en }  and  u  consequence  of  it  Mr.  Fabrigas 
m  told  that  his  petition  was  groundless,  for  that 
the  mostastaph  had  most  perfectly  satisfied  the 
governor.    Mr.  Fabrigas  then  desires  to  see, 
lor  confident  as    ho  was  that   he  was  well 
grounded  in  his  complaint,  yet  he  desires  to  see 
file  reasons  that  the  mustastaph  has  assigned. 
The  sight  of  these  reasons  is  denied  him.    In 
consequence  of  that,  he  presents  another  peti- 
tion; which  is,  1  think,  reforred  to  some  of  the 
law  officers  of  the  island  for  their  considera- 
tioB.    They  run  it  over,  and  tbey  report  them- 
•rires  satisfied ;  and  tbey  insert  the  answer  of 
the  mustastaph,  wbiob  answer  the  plaintiff  Mr. 
Fabrigas  is  very  desirous  of  seeing  and  answer- 
ing.   The  business  then  proceeds,  as  it  is  said, 
in  repeated  petitions;  Mr.  Fabrigas  conceiving 
that  the  governor  is  misled,  not  that  be  wilfully 
denies  him  justice,  but  is  misled  through  the 
influence  and  misrepresentation  of  this  musta- 
staph ;  and  that  produces  at  last  a  convention 
of  some  of  the  island,  in  order  to  take  their 
of  the  matter.     Here  it  is  not  clear  what 
the  sense  of  the  majority  ;  but  here  the 
mustastaph  had  weight  and  interest  enough  to 
get  that  represented  by  the  miyority,  which  he 
wished  to  have  received.   This  being  on  a  Sun- 
day, when  many  of  the  inhabitants  were  in  the 
eountry  following  their  diversions,  and  Mr. 
Fabrigas  thinking  that  the  sense  of  the  people 
had  not  been  properly  taken,  comes  again  to 
the  governor  with  another  petition,  not  censur- 
ing the  governor,  not  upbraiding  the  governor, 
not  intimatinff  the  least  uisapprobation  of  the  go- 
▼emor's  conduct,  or  jealousy  of  his  inclination, 
couched  in  terms  of  the  utmost  decency.    The 
consequence  of  it  was  an  answer,  which  pro- 
duced from  Mr.  Fabrigas  that  very  answer  upon 
which  the  defence  of  Mr.  Mostyn  has  been  in 
■0  great  a  measure  built ;  to  which  the  gentle- 
men have  applied  that  evidence  which  was  pro- 
duced by  Mr.  Wright,  Mr.  Mostyn's secretary. 
Mr.  Wright  says,  that  first  of  all  the  conver- 
sation was  interpreted  by  a  priest,  and  then  by 
another  interpreter ;  but  he  does  not  know  who 
iaierpretcd  tnosa  expresskms  whidr  fell  from 


Mr.  Fabrigas,  which  he  apprehended  to  be  of 
a  dangerous  kind,  and  therefore  discouraged^ 
and  advised  him  never  to  repeat  again.  He 
does  not  know,  he  says,  whetner  the  expres- 
sion was  to  this  purpose,  that  he  would  come 
again  if  permitted,  and  that  there  ahould  he 
another  petition  backed  with  150  men,  or 
that  he  would  come  with  150  men  to  back  hia 
petition.  1  am  sorry  for  it.  But  here  1  can't 
tbrbear  a  comment ;  it  would  be betrayingmy 
cause  and  my  own  judgment  if  I  did.  This 
gentleman  is  very  sure  that  one  or  the  other  of 
these  were  the  expressions.  He  professed  ie 
refresh  his  memory  by  a  paper  he  had  written 
down  within  an  hour  and  a  half  of  the  trans- 
action ;  and  he  thought  proper  to  add,  that  it 
gave  him  au  alarm,  as  if  something  dangerous 
might  follow. 

Mow,  gentlemen,  what  are  the  words  which 
he  has  written,  from  which  he  said  he  made 
his  communication  to  the  governor,  and  which 
certainly  contains  the  truth,  as  he  recenllj 
wrote  it  down  P  Why,  that  Mr.  Fabrigas  said 
he  would  come  next  day  with  a  petitwn  of  the 
people  concerned  in  grapes  and  wines,  which 
they  would  sign  and  come  with  to  the  number 
of  150!  These  are  the  words  wrote  down  bj 
Mr.  Wright  himself.  Why,  gentlemen,  I 
submit  it  to  you,  whether  in  common  sense  and 
plain  honest  interpretation  there  can  be  any 
mistake  about  these  words. 

You  hear,  gentlemen,  this  was  a  oootest  be- 
tween the  mustastaph  and  Mr.  Fabrigas.  The 
governor  is  appealed  to  as  a  judge  eipected  !• 
be,  and  who  ought  to  be,  impartial  between 
them :  be  was  appeale<l  to  with  decency  on 
one  side,  hut  leaned  rather  with  friendship  on 
the  other ;  for  the  interest  of  the  governor  ie 
not  unconnected  with  the  emoluments  of  the 
mustastaph.  On  one  side  it  is  insisted  that 
this  was  not  the  sense  of  the  majority  of  the 
inhabitants;  on  the  other  side,  uotwiihstaading 
what  had  appeared  from  the  advantage  taken 
upon  a  Sunday,  when  many  could  not  appear, 
yet  still  that  the  real  sense  of  the  majority  of 
the  inhabitants  was  on  the  side  of  Fabrigas. 
Gentlemen,  is  not  that  the  most  natural  key  ? 
does  not  that  furnish  the  most  obvious  inter- 
pretation to  this.^  lie  would  come  with  150» 
in  answer  to  what  he  had  been  told ;  for  his 
petition  bad  been  rejected  upon  the  ground 
that  it  was  not  consonant  to  the  wishes  of  the 
inhabitants,  for  tbey  bad  been  summoned,  had 
declared  and  signed  against  it.  He  answers, 
that  1  will  come  the  next  day  with  a  petition 
signed  by  150  men.  And  who  are  these  men 
to  be  F  Why,  he  says,  persons  concerned  in 
grapes  and  wine.  Can  you  conceive  tlien  thai 
he  threatened  to  bring  an  armed  force,  that  be 
threatened  danger  to  the  garrison  ?  Was  it  not 
a  natural  answer  in  that  dispute  that  then  sub- 
sisted between  him  and  the  mustastaph  ?  la  it 
not  clearly  explained  by  the  words,  *^  the  per* 
sons  concerned  in  grapes  and  wines/'  that  ha 
meant  the  mistake  should  be  rectified  the  next 
day,  and  that  it  might  appear  from  the  number 
attending  that  petilioDy  upon  which  side  the 


Fabtigas  V.  Maslifti. 

kUnden  ireK  ?  There  wai  no 
toniiuokeil,  ihttcnul'I 
U  impuMlUe.  TliitI 
Ui»l  an  luau  lliit  wrote  lliis 
afv»«ald  h«*c  given  llie  eridencelbU  Mr. 
pnfhl  lias  givea,  tutil  mv  lie  waa  ia  ilauU 
•il|Hlk»  tec<4l«elkia  of  ific  particular  wordu 
■«*«Tc  a«d,  whtMlier  he  irould  cnmi;  with  a 
puiivo  Inefced  with  150  men,  ortbat  he  nould 
eve  oilb  liO  men  taback  his  petition,  lam 
piindil  ibat  110  tnae  who  had  wrote  ihJE,  am) 
•iKk  be  trtta  vou  is  the  Irutli,  could  «(ei'  eii- 
IHua  (hat  kioiinf  doubt  that  Mr.  Wri|;ht  au^'- 
fMi4  In  yo».  I  am  as  conKdeDt  that  nn  man 
mM  hate  aiiirtaken  lliii.  that  had  not  some 
MMea  W  UMw«r  bv  alfectinc  to  mtiflake  it. 
W  what  waa  Mr.  W  iiglit'i,  what  was  ihe  t.»i- 
IKWr'a  cooditct  upon  tbia  accuioof  Uid 
tMarur  llirni  enijuire  bIW  iheae  MO  men? 
V  lUi  waa  a  matter  that  would  gire  Kueli  uo 
imm  to  a  (pTcmnr  of  a  ffarrison,  wsh  it  jiro- 

Eta  acq«i«*cc  in  (be  remmsl  of  one  only  t 
•  thtra  any  enquiry  made  alter  the  others  ? 
If  it  Mrack  Hr.  \VTi|>hl  a«  danKerouf.  would 
fetal  bare  orcurrrd  to  him,  lo  tlOfi  Mr.  Fab. 
npaapaa  ibeiDManli'  Would  he  not  have de- 
mmM  iba  aMnei  nf  tbene  150  men?  Bat 
■r.  Haalya  at  ancc  abnndoM  all  his  irbaracter, 
kiba  furiHMe  of  Ilie  cauie;  he  is  noir  do 
haier  iha«  raithtnl  officer,  that  good  and  trusty 
MM',  (tiairidiffeiitHiid  circiimsueel  governor, 
te  jm,  ware  Wore  lold  he  was.  Is  it  not 
^•hUo  hoi  it  ihould  hnfe  ocourred  to  both, 
teAre  pnrpn-  coodiiL-t  naa.  if  iliis  was  sjuat 
^MfretaUoa  ordie  word!  that  oere u tiered,  lo 
1' that  man  U|i  P  not  to  atop  there,  but  lo 
>>ttoB4TaKBt»l  him.  I"  discover  his  nbetlora 
■1'  «Kam|>T>ce«,  to  nurtue  the  eoquirT,  aud 
;'^«  the  aatirty  oIlhcifarriBan.  wbicti  (hey 
■rm^^  10  tie  ao  iniicb  in  danger  ?  It  is  mac( 
•*M  fta*  all  the  rjrcamataiices,  thai  neither 
■'  dm  appfebended  any  danger  whitioerer 
■  Atfimaon;  Ihey  «li^[it  in  quiet  as  before, 
flaa  aaaM  he  tome  other  reason  I'or  their  pro- 
ta  the  uiauner  iliey  hare  done  against 
beaides  ibat  which  arises  from 
and  emcrgancy  which  naa  re- 
ynu,  or  the  isterposllion  that  the 
i'lraai  waa  called  il|>nn  by  iiidispensible  doty 
aaha,  br  the  nice  of  {ircsening;  the  i;ar- 
tliniwB  into  coDfuBJon,  from 
nnny's  bands.  There  must 
k,  I  aaj',  BOBia  oilier  rraiioii  lor  acting  in  (hit 
Mr.  Cabrii^a.  Mr.  Fabrigas 
tJiny  would  hnre  it,  of  a  dan- 
^  .  that  a  dangeroiia  design  was 
ataMl  J**  t>*  <*  tlie  nnlv  man  dial  I'or  aix 
fcj»  rwlai  in  the  istatid  in  close  imnrison- 
■M,  attd  thcR  ia  not  any  inquiry  made  after 
k  pnvMaa  pteanmed  ID  be  ooncemed  with 
ha  m  the  liuaiora*.  Ifilic  governor  had  coo- 
■BM4  that  ii»pn>aiiion,  and  withnl  lo  beset 
^Ib  M  kia  Hiiiniiin,  ibe  ammranee  of  the  pe- 
(^  iha  i>c«i  day  wmild  hate  anawerrd  it. 
*k«  (aor  poor  Minur(|aia<,  (wbirb  liir  some 

"'  Mber  are  drucrilied  to  be  of  the 

JttPf  and   which    yuu    will 


A. D.  177S.  [I5» 

therefore  presume  to  be  the  moil  inoflensire) 
wbeo  Ihese  four  men  iilooe  came  with  the  |ie- 
tilion,  did  governor  Moslyo  then  eontiooe  in 
the  o|Hniua  that  this  man  waa  the  frainer  and 
cnnlriTcr  of  dangerous  desigiw,  to  he  backed 
»nd  RUpiwrled  by  multitudes  f  Must  not  he 
change  iiis  ofiininn  (ben  i*  Did  the  imprison- 
ment end  thenf  Were  the  sufferini(s  of  ibis 
man  then  put  an  end  loF — No,  gentlemen; 
ihe  man  conlioues  in  prison  for  aiic  day*,  and 
is  arterwardi  by  sn  order  exira-judicial,  by  an 
order  of  (his  goTeroor  Mostyn,  8eD(  iolo  exile ; 
which  if  it  it  law,  any  thing  he  thinks  proper 
to  do  will  be  law  }  and  1  must  then  agree  with 
Mr.  Wright's  juridical  opinion,  thai  ibe  power 
of  the  goTemor  can  have  no  bounds  in  enmioa) 
mailers.  If  be  can  justify  this,  be  might  as 
well  justify  capital  nunishmenla ;  nnd  if  ne  had 
thought  projier  to  hn«e  ordered  hiui  lo  imme- 
diate exeeufiun,  he  wmild  bare  done  an  act  lull 
as  justifiable,  in  my  opinion  aometbing  mora 
agreeable  to  bumanily;  for  he  sends  (bis  man 
to  rot  in  a  dungeon,  Ibe  place  ordained  for  tba 
vilest  and  mosl  desperate malef actors,  for  ca- 
piral  oflrndera  only,  whether  under  ground  or 
not  is  immaterial,  but  it  was  gluomy,  damp, 
and  uncomfortable  ;  it  has  all  the  horrors  of 
a  duni^eon  belonging  to  i( ;  and  there  (his  man 
ia  kept  under  n  special  eilrnordinary  order, 
irhich  our  witneBses,  who  were  soldiers  of  Ihe 
garrison,  who  were  attendants  at  tbe  place,  tell 
vou,  were  unprecedented  }  no  food  lulTered  to 
be  admlnislered  to  him,  his  friends  debarred 
from  seeing  him,  his  wife  and  children  denied 
aCL'Mtias  often  as  they  apfitoscbed,  and  thia 
ID  consequence  of  ordeis  which  (heir  bnmanily 
shuddered  a(,  but  which  (hey  dared  not  pre- 
sume lo  contradict.  Singular  and  unexampled 
as  was  this  cruelly  even  in  the  government  of 
Minorca,  which  nas  the  peculiar  characier  of 
having  a  despotism  brloiigiiig  to  it  unknown  in 
any  other  place  upon  the  face  of  Ibis  globe; 
yet  even  itiere,  though  (hey  may  quote  in- 
stances  to  justify  some  part  of  their  beha- 
viour, they  never  can  pretend  that  a  man 
ever  was  treated  with  the  studied  cireuiu- 
slances  of  rigour  and  crnehy  cnnlaioed  in 
these  orders:  I  mean,  tbai  no  such  orders 
ever  issued  out  before.  This,  gentleme 
Ihe  lrea(men(  Mr.  Pabri^asbas  undergone 
this  Mr,  Mofityn  must  justify.  He  mtiat  not 
only  justify  (be  removing  this  genlteman  on 
of  ibe  way  of  doing  mischief,  but  he  mm 
say,  that  without  hearing,  without  any  iir« 
ceeding,  withaD(  (he  form  of  sentence,  with 
nut  even  so  much  as  an  inlimslioo  of  the 
oSence  with  which  he  is  charged,  he  has  ( 
right  (0  inllic(  tbe  greatest  of  all  punlsbmenta 
upon  him.  Tbis  Mr.  Mostyn  must  say  :  and 
you  are  to  conclude,  from  the  eiceediiig  good 
character  of  Mr.  Mostyn,  that  all  ibis  pro- 
ceeded from  tbe  pure  benevolence  of  bis  heart, 
from  (he  mas(  upright  and  commendable  of 
all  motives.  Yuuarcinyiurjndgmentto  pasa 
nn  approbation  of  denying  a  man,  untried  and 
unconvicted,  all  food  for  six  day*  but  biead  and 
water,  of  atrrppinij  him  of  all  comfort,  nod  of 


159] 


14  GEOBGE  III. 


Actimjbt  False  Imprttonment— 


[160 


^Kofvag  bim  eren  the  accommodatioo  of «  bed. 
Yoa  must  pronounce  ibAt  there  was  nothing 
improper,  nothing  unlawful,  nothing  inlvuman 
ID  leparatiug  a  man  from  bia  wife  during  this 
imprisonment,  stripping  htm  of  the  comfort 
of  bis  infant  children,  and  then  transporting 
bim  into  a  foreign  country,  without  ipving  bim 
Ihe  opportunity  of  providing  for  his  voyage, 
or  receiving  that  small  assistance  which  jrou 
have  been  told  bis  wife  and  son  were  ready  on 
the  spot  to  deliver  to  him.  This  you  must 
pronounce  to  be  legal  and  justifiable,  and  to  be 
agreeable  to  humanity,  to  be  necessarily  inci- 
dent to  the  office  and  duty  of  a  governor  of  a 
garrison.  You  are  desired,  admitting  for  a 
moment  that  you  can't  justify  the  general  in 
this  conduct;  admitting  that  some  form  of 
triftl,  that  calling  a  man  to  answer  and  signify - 
iog  what  he  was  charged  with  were  neces- 
lutry  forms  to  precede  the  infliction  of  any 
punishment  whatever ;  (which  admission  will 
be  an  affront  to  the  judgment  of  the  worthy 
gentleman  his  secretary,  who  insists  upou  the 
general's  will  being  the  law)  but  laying  that 
aside  for  a  moment,  it  is  said  the  governor's 
conduct  stands  so  circumstanced,  that  it  is  so 
mitigated,  that  you  can  never  find  it  consistent 
with  your  duty  to  give  any  considerable  da- 
mages against  him,  at  the  complaint  of  this 
man.  And  to  brand  him  with  the  most  danger- 
ous of  all  names,  you  are  told  that  he  is  a  pa- 
triot :  that  patriotism,  however  it  may  be  in- 
troduced here,  and  may  be  serviceable  in  a 
commercial  country,  is  of  no  use  and  benefit, 
but  of  the  highest  danger,  in  the  island  of 
Minorca ;  and  the  love  of  a  man's  country, 
which  is  called  the  first  of  virtues  in  other 
countries,  becomes  a  mark,  a  dangerous  offence 
in  that  country.  At  the  instance  therefore  of 
such  a  man  as  that,  and  against  such  a  man 
as  Mr.  Mostyn,  you  are  told,  you  can  give  no 
damages,  for  the  great  and  the  long  imprison- 
ment, for  the  cruel  and  afflicting  injury  done 
him,  in  sending  him  into  a  foreign  country 
from  his  wife  and  family.  You  cannot  do  it, 
because  it  is  said  Mr.  Mostyn  has  been  in  an 
error,  and  that  the  utmost  extent  of  Mr.  Mos- 
tyn's  crimes  amounts  only  to  that  of  error. 
To  support  this,  the  opinion  of  the  military 
was  asked,  and  the  opinion  of  those  wretched 
men  called  lawyers,  who  have  studied  law  in  a 
country  where  law  is  not  permitted  to  reside,  and 
where  the  will  of  the  governor  is  the  only  law. 
Upon  such  authorities  it  is  said  Mr.  Mostyn 
could  not  hesitate.  Clear  as  his  judgment  is, 
be  is  mistaken ;  he  is  misled  by  the  first  of 
authorities:  he  certainly  meant  well.  Gentle- 
men, if  5Ir.  Mostyn  had  offended  against  any 
C'cular  positive  law  of  this  country  or  even 
irca,  though  clear  to  common  understand- 
ings, ]^et  that  defence  mi^ht  be  open  to  him  ; 
but  it  is  not  open  to  him  m  this  case  :  for  he 
has  offended  against  the  law  of  humanity, 
impresaed  upon  every  good  mind  (no  man 
that  feels  it  can  ever  te  mistaken),  and  he  has 
offended  against  the  first  principles  of  justice. 
But  it  is  said,  he  only  erred  in  sending  a  man 


to  a  dungeon,  that  probably  might  kill  htos  ; 
out  of  error  too,  ^e  issues  out  orders  to  restrict 
him  to  bread  and  water  for  bis  sustenance ;  out 
of  error  too,  he  prohibited  the  access  of  hia 
wife  and  children  ;  out  of  error,  he  banishad 
him  into  a  foreign  country,  stript  of  his  pro- 
perty, and  all  the  comfort  ne  could  besupposed 
to  have  in  his  banishment,  not  suffered  to  take 
that  small  provision  wliieh  his  family  had 
made  for  him;  all  these  errors  are  incident 
— To  whom  r  To  the  governor  of  Minorca.  I 
trust  by  your  verdict  that  you  will  never  sufiar 
a  man  who  has  acted  this  part,  to  call  it  bo** 
manity,  and  go  back  to  Minorca  justified  bj 
your  verdict,  in  saying,  '  I  committed  theaa 
mistakes,  but  they  were  all  mistakes  of  tbo 
heart'  I  am  sure  you  will  not  give  him  the 
sanction  and  autbonty  of  your  verdict.  But 
if  these  argimients  prevail,  you  must  do  it ; 
you  must  give  the  plaintiff  small  damaffetp 
merely  because  the  defendant  is  mistafcca* 
Governor  Mostyn,  bred  too  in  England,  lately 
gone  over  to  that  coimtry,  does  not  reeoUeci 
that  it  is  necessary  that  a  man,  before  be  la 
punished,  must  be  tried:  you  are  to  call  that 
an  error  too.  I  do  conceive,  the  lowest  wretoii 
that  walks  the  streets  of  London,  is  incapable 
of  falling  into  that  error :  it  most  be  an  error 
produced  by  the  place ;  it  must  be  that  veiY 
intoxication  and  ornnkennesa  of  power  whica 
you  ought,  by  your  verdict,  to  correct.  1 1  is  in-  • 
possible  that  any  Englishman,  or  any  dmui  biei 
in  a  civilized  country,  could  fall  into  such  an 
error.  And  give  me  leave  here  to  remark  on 
one  part  of  the  case.  Gentlemen  are  brooght  to 
tell  you  of  reports  conveyed  to  the  goyemor. 
If  Mr.  Wright  reported  faithfully  what  be  was 
authorized  to  report,  the  governor  had  little'la 
build  upon.  Another  gentleman  adds,  that 
there  was  a  report  of  somebody ;  and  it  is  aaid 
it  may  justifjr  the  governor  as  a  report.  Near 
did  they  consider  now  the  governor  is  to  hn 
justified  by  a  report?  Does  a  report  justify  a 
man  in  proceeding  to  the  very  extremity  of 
punbhment  instantly,  without  trial  or  exami- 
nation F  Does  not  every  observation  that  can 
possibly  be  made  turn  against  general  Mostya  ^ 
If  you  pronounce  a  verdict  for  him,  roust  net 
you  give  a  sanction  to  tbst  horrible  and  danger- 
ous doctrine  here  advanced  in  his  support  f 
Are  not  you  called  upon  then  by  every  consi-' 
deration  that  is  dear  to  you,  to  give  great  and 
exemplary  damages  in  tliis  cause  ?  If  ever  ez- 
aniple  required  it,  it  does  in  this.  If  ever  the 
suffering  of  a  roan  required  it,  it  does  in  tbia  ; 
for  never  was  any  man  more  clearly  and  on- 
justifiably  wronged  and  injured.  II  yon  send  • 
Mr.  Fabrigas,  if  he  has  courage  to  return  tft 
the  island,  with  a  verdict  of  a  few  hundred 
pounds,  to  give  triumph  to  a  man  whose  re- 
venue is  seven  or  eight  thousand  pounds  a-year» 
who  does  not  regard  what  such  a  man  as  tbia 
recovers ;  then  the  despicable  doctrine  of  ar« 
bitrary  power  that  the  governor  was  ko  fond  of,' 
and  thought  so  well  established  in  this  ialand|* 
will  never  again  be  disturbed.  Is  it  not  ea^- 
sential  to  the  ycry  safety  of  the  islandy  thai . 


mi 


Fabrtgas  xh  Mostytu 


A.  D.  177S. 


[162 


the  inbaliitaiits  may  be  asiured  that  tbey  are 
pntecied  from  aocb  a  power,  that  tbey  shall 
■ever  be  told  that  io  a  court  of  justice  such  a 
|e*er  was  ever  insisted  upon,  and  that  the 
ivy^ve  only  a  few  hundred  |K>andsdaniaf2^, 
MI  mark  that  they  did  uot  bear  in  their  minds 
my  great  disapprobation  of  it  ? 

bo  the  other  hand,  it  is  of  no  great  coiise- 
fMQce  whether  Mr.  Mostyn  ever  returns  to 
llat  country  again.  It  is  my,  and  I  am  sure 
it  is  \  our  wiah»  that  be  may  never  be  permitted 
Is  rtiuni.  1  wish  he  may  never  see  the  face 
sf  Mr.  Fabri^as  af^ain.  1  wish  he  may  never 
Me  the  face  of  Mr.  Fabrigas  a^ain  m  that 
iiUnd.  But  it  is  of  the  greatest  concern  to  the 
peace  and  happiness  of  that  island,  that  they 
aic  nfely  protected  from  such  outrages,  from 
faeh  raropaat  violence  and  capricious  exercise 
■f  tyranny  and  despotism ;  that  they  shall 
■crer  be  disturbed  again  by  such  exertion  of 
■Qtborilv,  much  less  that  it  shall  ever  be  ac- 
faswlcfujied  as  the  claim  of  the  governor  of  the 
Uand  ;  but  that  they  may  quietly  enjo^  those 
rights  that  as  natural-born  subjects  ot  Great 
Britun  they  are  entitled  to,  and  which  the  na- 
lisaal  fi^th  is  pledged  to  make  good  to  them. 
This  will  be  the  advantage  that  will  follow  the 
giving  ample,  considerable,  and  exemplary 
bmgCB  to  the  plaintiff;  damages  that  1  must 
laj  in  this  cause  are  called  for  from  the  very 
astare  of  the  cause  itself:  for  if  there  was  not 
any  weightier  consideration  in  it  than  for  the 
nferinn  of  the  man,  the  damages  most  swell 
high  indeed  ;  but,  added  to  that,  you  will  pro- 
dsee  this  faappy  effect,  that  Minorca,  which  is 
■iilo  be  a  precarious  possession,  will  for  ever 
he  a  permanent  and  secure  possession  to  the 
~  of  Great  Britain.  I  much  fear,  if  this 
receives  countenance,  it  will  be  inse- 
isdeed  ;  and  much  as  I  love  the  trade  and 
of  this  kingdom,  I  protest  as  a  man 
tf  ftding,  great  and  valuable  as  they  are,  1 
vsnld  not  consent  that  they  should  be  pur- 
chased, I  cannot  consent  that  they  should  be 
puKTved,  at  the  expence  of  the  most  solemn 
i%hls  of  societv. 

Mr.  Jdlit.  dfould.  Gentlemen  of  the  jury, 
Anthony  Fabrigas  is  plaintiff,  and  John  Mos- 
lem, esq.  is  the  defendant.  This,  gentlemen, 
is  an  action  of  trespass  and  false  imprisonment, 
en  which  the  plaintiff  declares  in  two  counts. 

The  first  is,  that  the  defendant  upon  such  a 
day  made  an  assault  upon  ami  imprisoned  the 
plaintiff,  without  any  reasonable  or  probable 
eaase,  against  the  laws  of  this  kingdom,  and 
csmpelled  him  to  depart  from  Minorca,  where 
ht  was  theredwellingand  resident ;  and  carried 
•r  caused  him  to  be  carried  from  thence  to  Car- 
Ika^ena,  in  the  dominions  of  the  kine  of  8|min, 
aga-Dst  the  plaintiff ^s  will,  whereby  ne  was  put 
to  great  expence  and  trouble,  his  goods  were 
Vtoled  and  lost,  his  family  brouj^nt  to  {;reat 
vaaiand  distress,  and  he  was  depnved  of  their 
vmiort.  That  is  the  first  count.  The  second 
a,  the  general  cbarffe  of  false  imprisonment, 
»uhout  alledging  tnese  circumstances.  To 
dn  the  defendant  has  pleaded  two  pleas. 

VtiL.  XX. 


In  the  first  place,  the  general  issue,  that  he 
is  not  {Jfuilty. 

la  the  second  place,  he  says,  he  is  governor 
of  the  island  of  Minorca,  afii)  that  he  was  in- 
trusted with  ali  the  powers,  privileges,  and  au- 
thorises, civil  and  military,  bflonginaf  and  re- 
latint;  to  the  government  of  the  baiH  island  in 
parts  lieyond  the  seas.  Then  he  states,  that  ilie 
plaintiff  was  ffuilty  of  a  riot  and  disturbance  of 
the  peace,  order,  and  government  of  the  islnud, 
and  was  endeavouring  to  create  and  mifn  a 
mutiny  and  sedition  amongst  the  inhubitants  of 
the  said  islaml,  in  breach  of  tlieueare,  in  viola- 
tion of  the  laws,  and  ia  subversion  of  all  order 
and  government ;  whereupon  tlie  dc-fendant,  in 
order  to  preserve  the  pence  and  government  of 
the  island,  was  obliged,  and  did  then  ajid  there 
order  the  plaintiff  to  be  banished  the  said  island, 
and  to  leave  and  quit  the  island.  And  in  order 
to  carry  (his  into  execution,  and  to  send  him 
from  and  out  of  the  island,  he  did  (then  come 
the  words  of  form)  gently  lay  hands  upon  him 
for  that  purpose;  and  accordingly  did  cause 
him  to  be  kept  in  prison  for  a  reasonable  siiace 
of  time,  until  he  could  send  him  out  of  the 
island  ;  and  then  at  length  he  did  send  him  on 
board  a  vessel  from  the  said  island  to  Cartha- 
gena  in  Spain,  as  it  was  lawful  for  him  to  do. 

The  plaintiff  has  said  in  answer  to  this,  that 
he  did  it  of  his  own  wrontr,  and  without  any  such 
cause  as  he  has  alledged  in'  his  justification. 
Now  whether  this  justification  is  good  in  lunnt 
of  law  or  not,  is  a  matter,  gentlemen,  that  £ 
shall  not  enter  into  upon  this  occasion.  For  it 
seems  to  me,  that  if  what  has  been  laid  down 
by  the  gentlemen  upon  the  part  of  the  defen- 
dant is  well  founded  m  law,  tbey  ought  to  have 
pleaded  that  matter  to  the  justification  of  the 
court.  But  they  have  not  so  done,  but  have 
pleaded  a  justification,  which  is  denied  by  the 
plaintiff;  and  that  issue  coming  here  by  the 
king's  commission  of  Nisi  Prius  to  be  tried  by 
you  and  Itefore  me,  we  must  therefore  ^ee 
whether  he  has  made  out  that  justification  or 
not.  And  you  will  please  to  recollect  he  says 
in  it,  that  the  plaintiff  was  guilty  of  a  riot  and 
disorder,  and  did  endeavour  to  excite  and  stir 
up  mutiny  and  so  forth  in  the  island.  Thus 
much  I  think  one  may  say,  that  where  a  con- 
quest is  made  of  a  Christian  country  (there  ia 
some  strange  doctrine  relative  to  infidel  coun- 
tries, as  if  mfidels  had  no  laws  to  be  governed 
by,  that  I  meddle  not  with;  but  as  far  as  re- 
lates to  the  conquest  of  a  Christian  couuiry,) 
certainly  it  is  said,  that  until  the  crown  does 
promulge  laws  among  them,  they  are  to  be 
governed  by  their  ancient  laws.  ludeeil,  com- 
mon sense  speaks  it,  because  otherwise  they 
would  have  no  laws  nor  government  among 
them.  However,  thus  far  may  be  said,  to  be 
sure,  under  such  a  constitution  in  which  we 
live,  that  at  least  natural  equity  must  lie  the 
rule,  if  there  is  a  |M)wer  that  is  not  circum- 
scribed by  clear,  positive,  and  precise  rules. 
Yet  both  natural  justice  and  equity  are  the 

frinciples  that  ought  to  Gfnvern  sucli  a  trust, 
f  any  one  was  to  write  or  speak  upon  it,  it  is 
31 


163] 


U  GEORGE  HI. 


Action  for  False  Impruonment-^ 


[164 


impossible  bat  they  must  lay  down  that  propo- 
sition. Then  that  will  be  a  consideration  for 
you  to  try  upon  this  occasion  ;  consideriofi^  this 
distiDction,  that  we  are  not  trying  a  cause  now 
that  does  happen  within  the  compass  of  this 
island,  but  we  are  trying  a  fact  and  a  proceed- 
ing that  happened  in  a  garrison  beyond  the 
•eas,  a  place  possessed  by  the  crown  of 
Great  BriUin  for  the  general  benefit  of  this 
country  and  of  its  commerce. 

In  order  to  make  out  the  plaintiff's  case,  in 
the  first  place  they  hate  called  Basil  Cunning- 
bam,  who  was  Serjeant- major  in  the  soyal 
artillery  at  Minorca  in  1771.  He  says,  that 
the  plamtiff  was  there  at  that  time  (it  is  aj^reed 
upon  all  hands  that  he  is  a  natire  of  the  island 
ef  Minoroa.)  When  the  plaintiff  was  brought 
into  prison,  an  order  was  giren  out  to  put  three 
additional  men  upon  the  £[uard  to  do  duty  o? er 
the  prisoner  Fabrigas  :  this  was  S4  hours  afler 
be  had  been  in  custody.  The  prison  was  called 
N*  1,  and  is  a  prison  where  those  charged 
with  or  guilty  of  capital  crimes  or  desertion  are 
general^  put.  fle  was  brought  there  by  a 
part^  of  soldiers,  and  the  witness  thinks  hand- 
cufied.  It  was  afterwards  admitted  that  he 
was.  He  was  confined  there  four  or  fi?e  days. 
The  centioels  informed  the  witness,  that  they 
had  orders  that  be  should  bare  no  conversation 
with  any  but  the  prevost-marshal,  and  that  was 
put  into  the  general  orders :  in  fact,  that  no  one 
did  Tisit  him,  as  he  knew  of.  The  provost- 
marshal  has  the  custody  of  persons  accused  of 
capital  crimes,  and  keeps  the  key  of  the  prison. 
He  says,  that  the  plaintiff  lived  like  a  gentle- 
man in  the  island.  He  says  that  he  the  wit- 
ness was  at  SL  Phillip's,  and  that  the  plaintiff 
was  not  tried  for  any  crime.  This  witness  is 
cross-examined,  and  says  he  has  seen  the 
plaintiff  at  different  times  for  eight  or  nine 
years :  he  never  heard  but  that  be  was  a  quiet 
inoffensive  subject:  the  plaintiff  lived  in  St. 
Phillip's,  and  was  imprisoned  in  St.  Phillip's 
castle.  This  witness  was  there  before  Mr. 
Mostyn  became  the  goTernor:  Mr.  Johnston 
was  the  governor  when  the  witness  came  first 
to  that  island. 

James  Tweedy.— He  was  a  corporal  in  the 
toyal  artillery  in  1771,  and  was  seijeant  of  the 
guard ;  and  in  the  middle  of  September  the 
plaintiff  was  delivereil  a  prisoner  by  the  soldiers 
of  the  61st  regiment.  He  says  he  was  in  prison 
in  N*  1 ;  that  there  were  orders  from  the  ad- 
jutant-lieutenant not  to  let  any  one  converse 
with  him;  he  heard  the  adjutant  read  it :  the 
adjutant's  duty  is  to  deliver  the  orders  of  the 
commander  iji^chief.  To  relieve  us  from  any 
farther  examination  relative  to  that,  it  was  ad- 
mitted by  my  brother  Davv  that  it  was  done 
by  the  defendant's  order,  'fhen  a  book  is  pro- 
duced to  you,  and  the  title  of  it  is,  <*  Orders 
delivered  to  the  troop\i  in  Minorca  for  the  year 
t771."  '•  Sept.  15,  1771.  In  order  to  relieve 
the  main  guanl  at  St.  Phillip's,  which  now 
mounts  a  centinel  extraordinary  upon  Anthony 
fubrigas,  confined  in  prison  N**  1,  general  • 
Mostyn  orders,  that  three  men  be  added  to  the  I 


artillery-guard  in  the  Castle -souare,  as  they 
are  most  contiguous,  and  that  duty  taken  by 
them.  The  centinel  must  he  post^  night  and 
day,  and  is  to  suffer  no  person  whatever  to  ap« 
proach  the  grate  in  the  door  of  the  said  prison^ 
either  to  look  in  or  have  any  communication 
with  the  prisoner,  the  provost-marshal  ex- 
cepted, who  is  constantly  to  keep  the  key  in 
hb  possession."  Then  the  witness  goe%  on, 
and  says  the  plaintiff's  wife  and  two  children 
applied  to  see  the  plaintiff;  that  they  were  not 
permitted  to  come  nearer  than  30  yards  of  the 

C risen ;  that  the  plaintiff  lay  upon  boards ;  he 
ad  no  bed :  his  wife  brought  bedding,  but  was 
not  permitted  to  carry  it  to  him.    He  says  the 

Sard  was  sure  to  be  troubled  if  they  bad  suf- 
ed  any  one  to  come  to  him,  if  they  had  been 
guilty  of  a  breach  of  the  order.  lie  subsisted 
upon  bread  and  water :  that  when  persons  are 
confined  for  capital  offences,  they  have  the 
provisions  of  the  island,  bread  and  lieef,  bron^bt 
them.  He  savs  that  no  oue  attempted  Co  bnng 
any  to  the  plaintiff,  because  the  onler  was  so 
strict  There  was  an  air-  hole  at  the  top  of  the 
prison  ;  a  centinel  was  placed  to  keep  any  per- 
son from  approaching  it ;  and  says  that  was 
not  done  in  any  instance  before,  even  of  de- 
serters. He  says  the  plaintiff  bad  a  wife  and 
five  children.  He  never  heard  him  speak  dis- 
respectfully of  the  governor,  only  he  complained 
whilst  in  prison  of  his  sufferings. 

William  Johns  was  garrison-gunner  at  Mi* 
norca  in  177 1.  He  had  been  there  nine  vean. 
He  knew  the  plaintiff,  who  lived  genteelly,  ai 
much  so  as  any  one  in  St.  Phillip's.  He  says 
the  plaiutiff  was  brought  to  prison  by  a  file  of 
men.  Then  he  was  flying  on  about  hand* 
cuffing,  and  so  on,  which  the  defendant's  comi* 
sel  admitted,  as  described  by  the  last  witness  ; 
but  he  was  not  kept  hand-cuffed  in  prison.  Rft 
says  the  prison  is  a  ground -floor,  and  is  ael 
apart  for  capital  offenders.  The  first  day  he 
was  in  prison,  his  son,  a  lad  of  fifteen,  came  to 
see  him,  and  had  provisions  in  a  basket.  He 
desired  the  men  upon  duty  to  let  him  carry 
them  to  his  father,  and  they  refused  htm. 
You  see,  gentlemen,  it  is  owing  to  those  strict 
orders,  that  no  man  was  to  have  access  to 
him. 

John  Craig  is  a  matross.  He  says  he  wtt 
at  Minorca  in  1771.  He  had  lieeo  there  nino 
years.  He  knew  the  plaintiff  to  be  in  very 
good  circumstances ;  that  is,  he  was  so  reck* 
oned  by  people  in  the  island.  This  witness 
says,  that  he  did  duty  upon  him  when  he  wac 
in  prison,  and  none  were  admitted  to  see  him : 
that  his  wife  and  child  were  refused.  Ho 
says,  that  after  five  or  six  days  coiifinement, 
the  witness  was  at  the  quay,  and  saw  him  piil 
on  hoard  a  vessel  that  was  under  sail.  Ho 
says,  this  was  done  between  three  and  four  id 
the  morning.  He  says  his  wife  and  child 
came  down  then  to  speak  to  him,  but  the  ceo- 
tioel  would  not  let  them  come  near  him,  nor 
let  the  witness  speak  to  him,  though  he  wanted 
bu  to  do.  Then  it  is  admitted  that  he  was  ba- 
liibhed,  hy  Mr.  Mostyn'a  order,  to  ft^paia  foe 


Vahigm  v.  Mosiyn. 

^mSySTh*  Odlerml  him  to  be  taodeil  ol  Car- 
&•(■»«,  knil  it  w«<:  SI)  duDp. 

Cflloncl  James  Bi<lu]|ili  «ay»,  lie  has  licrn  al 
MiMrokt  that  he  knew  (lie  plaintiff  in  ,lune 
lltt.  He  ■laid  there,  I  llimk,  lill  the  year 
ini.  He  Myi  the  iiUitiliS'  appetnil  tu  him 
IS  mK  of  the  nhal  he  call)  the  aecoml  tori  of 
fafle:  be  was  reputed  to  hare  some  houses 
W  lincyutls;    he  had  ■  falher  Uring.     He 

Xlh«t  Ite  nas  oot  receired  as  one  iif  the 
Be,  htu  u  s  trenlleinan.  lie  aays,  "  1 
■kaoM  call  him  a  kiiid  ul'  a  Keolleinao  farmer." 
]|  na  kaid  \ty  ihe  couDBel,  that  the  Dohleate 
rfjirthemU  all  the  h'enlry  ;  but  ujjod  my 
■donf  tka  witnew,  he  lells  you,  "  No :  Ihey 
■ike  •  very  ooniidcrable  iliatiactioo  or  the 
lagbtr  MBil  niferiar  oobtesse ;"  lo  that  he  it 
•Cat  ji«iu  taty  call  in  Bn^^tgiiid  \a  ibe  litfht  uf 
tW  tiu4diing  class  of  men.  Ue  says,  that  as 
br  as  be  nfatcrred,  he  hehnved  very  well :  atid 
nai  K*  Ihia  i;Milleinan  speaks  frum  1763  lo 
Uf  1,  lltAI  be  liehareil  tery  well,  and  had  a 
•By  (mhI  characler.  lie  says,  that  he  oOeo 
tmthyt^  him  to  gei  wine  and  uther  things, 
■aJ  be  dispsli-'hed  his  commiiision  very  well. 
Be  Mys  be  |irinuiutlly  kept  company  at  Cita- 
4i^  with  •  iloa  Vigo  and  don  Saochio,  who 
»*n  l>o  of  (he  6rsl  rank  there  (lliat  is  I  lliink, 
thicapiul  of  ihe  Uland  ;)  that  he  always  be- 


Liimil.  K<H  era  or  of  ihe  itland  of  Minorca,  and 
Im  a  rc|[unetil  of  draguuns.  This  is  tbe  evi- 
teat  IB  (upporl  orihiKaclLOD  by  tbe  iilainliiT. 

ffhy  Ibni,  on  behalf  of  the  JefeDdaot,  they 
«di  you  thai  tbry  shall  make  out  Ibis  jusliG- 
i«as ;  tbat  they  shall  Hhew  lo  you  iba[  ihi« 
•■Whated  in  a  very  lorbuleut  and  disorderly 
-«<  iHtty  i  that  he  behaied  wiib  auch  ear- 
tsi^M,  bikI  id  such  a  mauaei',  under  such 
:-..^>l«tice<,  as  leaded  tu  incite  and  tu  rai«e 
'  idUatu  And  certainly,  gentlemPQ,  if  that 
'  ikt  ama,  it  is  ■  mailer  of  rery  serious  and 
~--  ■untmia  oonoerii  indeed.  For  the  go'erDor 
■■•  s  fnrtaon,  wtllioal  a  poiBibihty  nT  callinif 
<  BMber  armeil  lorce  to  auppreni  it, ' 
itrs,  it  a»  iiHurreciion  should  be 
ui  bvfi*  siDDngsl  thrm,  it  is  In 
my  fpr*^  muineot  aDil  irapurtaiice.  For  a 
fmw  inlrastnl  in  no  high  aud  important  a 
MMMB.  u»d  of  auch  a  delicate  sod  lichlisb  «uri, 
« lb*  (rnicrnnienl  of  ihe  island,  the  governor 
^amli  be  extremely  vigilant  tu  auppiess  the 
l«  Nmla  «r  mutiny  and  acdilion.     This  they 


A.  D.  1773. 


[166 


«  Mcila  «C  mutiny  and  acdilio 
*  Ibn  aliall  be  Blile  to  atieiv  y. 
A^,  a  we  shall  nol  be  able  Id 


Bui,  I 


strictly  and  duly,  accurdiiig  to  the 
-  >T  it>  whkb  it  ii  pleaded  ;  vet,  say  they,  we 
'  <ii<  by  ancb  dfcnmaiances  before  you,  ahew- 
at  thM  the  itmcral  behaviour  of  the  plaintifl 
■V  ni  Ibai  bind,  aad  of  that  coinptexion,  thai 
1  wifl  weigb  witliyou  by  no  means  In  give 
b|c  JsttUfn.  Tnis  is  what  I  think  was 
)nny  noeb  tbe  anbatanee  of  what  the  gen< 
4m»  ba* D  imalad  npou  by  way  of  opening 


Wb/  ibM,  in  tbe  KM  place,  though  ii 


read  at  Ihe  concltiilon  of  ihe  parole  ei 
may  remind  you  ol  the  several  matters  in  writ' 
ing  Ibat  have  been  read  ;  and  I  Ihiak  it  would 
be  but  mis-spending  your  time  tor  me  to  read 
(hem  ai  large  over  again  to  you.  For  when  I 
have  so  dine,  1  am  sure  1  shall  not  be  able  lo 
do  it  with  more  ditlinclness  thnn  the  iu|>eniaua 
officer  under  me  has  done ;  and  when  I  have 
finished,  Ihey  would  just  as  mnch  be  out  of 
your  memory  as  Ihey  are  now.  But  you  will 
remember  perfeclly  the  nature  of  the  pro- 
ceedings. I  purpoK  to  collect  them  ds  well 
as  I  can  intu  a  fncmi ;  to  bring  the  pith  of  ibem 
as  well  ss  I  can  to  you.  The  true  ground  uf 
the  dispute  was  this :  This  Fabrigas  the  plain- 
litf  wanted,  as  you  understand,  the  advantage 
of  an  order  of  hia  late  majasly  in  council,  in 
the  year  IT.'i'i.  by  which,  keeping  urdtr  the 
afforntian,  nut  exceeding  it,  but  keeping  under 
il,  every  one  was  to  have  ■  right  of  selling 
wines ;  so  as  he  did  not  exceed  the  affbratiou. 
Really,  genileinen,  an  exceeding  good  plan 
this  is ;  and  that  is,  a  tegulatiou  of  prices  ta 
keep  people  from  impuiinK  In  the  musi  iinmo- 
derate  manner  on  Ibe  inhabitants.  Very  likely, 
a  system  of  something  of  tbe  like  sort  would 
not  be  improper,  but  be  of  very  considerable 
uae  even  in  this  metropolis,  for  what  1  know. 
But  then  it  seems  that  this  order  lasted  ooly 
from  theyear  1752,  during  the  government  of 
general  Blakeney.  When  general  Johnston 
succeeded  general  Blakeney  as  governor  of 
this  island,  he  thought  proper  to  make  an  al- 
teralion  in  that  order ;  and  tbe  substance  of 
the  alleralioD  which  he  made  was,  Ibat  for 
the  future  it  should  not  be  in  Ihe  suburbs  of 

departments— lour  besides  ihia  ariaval,  as  it 
is  called,  of  St.  Phillip's) ;  and  that  lur  llie 
future  it  shall  not  be  sold  promiscuously  by 
every  une  when  Ihe  atforalion  was  made, 
but  that  for  the  future  Ihe  lour  wards  of  ths 
arravsl  of  St.  Phithp's  should  draw  lots,  and  so 
take  it  in  auccesiion  ;  I  suppose,  sell  one  aller 
anollier  till  ibe  wine  is  disposed  of.  And  it  dues 
seem  lo  me  by  the  evidence  which  has  been 
given  by  one  of  the  wiinessei,  which  you  will 

ler  than  when  sold  belter  skelter  and  promis- 
cuously. Aud  this  regulation  was  pursued  with 
anme  advantage.  Then  you  see  the  plaiutiff 
wanted  to  go  back  to  ihe  first  order  of  1753, 
wbicbistheorder  of  ibekiiig  incouucd.  From 
ibence  vou  see  all  ihia  bustness  sprung,  and 
from  Allimundo's  selling  wine.  That  is  one 
grievance  that  was  complained  of,  and  which 
seemed  to  be  pretty  material,  1  contest,  as  it 
strikes  me;  because  I  recoiled,  thai  by  one  of 
the  orders  It  ii  expressly  forbid  that  ihe  oScen 
or  judges,  or  any  of  them,  should  have  any  in- 
termeddling with  trade  or  tratBc.  Now  the 
complaint  nf  the  plainiiffngainsiibis  Allimundn 
is,  that  he  who  had  tbe  check  npon  alt  tha 
rest,  this  mustastaph,  buys  ureal  i^iianliiies  of 
grapes,  and  makra  a  vast  quantity  of  wine  him- 
self.   So  while  be  kept  the  othen  under  check, 


MT]  M  GEORGE  III. 

be  tells  his  own  wine.  Therefore  that  is  ano- 
tiier  tliinji  to  lie  considered  of.  Therefore  you 
aeo  there  are  ivjieaied  |»etilion8  upon  this  o<*ca- 
aioii.  And  I  will  only  say  this :  that  to  be  sure 
it  inma  out  at  ^enj^tti  to  hate  been  a  mistake  in 
Mr.  Wright'a  evidencf-,  that  that  numhfr  of 
160  |*era(Mis  that  were  nienlionc<l  by  the  defen- 
dant's counsel  as  people  by  him  to  be  produced 
to  back  bis  petition,  or  people  with  which  hta 
petition  should  lie  backed,  that  be  considered 
as  a  mob,  because  he  takes  it  down  in  writing" 
himself:  and  when  it  comes  to  be*  read,  it  docs 
Appear  that  the  ex|>re88i(in  of  the  plaintiff  was, 
that  he  would  bring  150  people  with  him, 
dealers  in  wine  and  grapes,  in  order  to  »ihew 
that  his  petition  was  exceedingly  reasonable, 
and  would  be  agreeable  to  tiiem.  Now  that 
you  see  is  the  substance  of  this  writing,  toge- 
ther with  the  several  |>articulars,  orders,  and 
proceedings,  which  1  dare  say  you  have  in 
ymir  memory.  1  must  obsenre  this,  to  be  sure, 
these  gentlemen  are  not  bred  in  the  train  of  the 
law,  and  in  a  course  of  legal  proceedings;  but 
general  Mosty  n  seems  to  me  to  be  as  inquisitive 
as  he  possibly  can  to  find  out  the  bottom  (»f  this 
thing.  It  does  not  appear  from  the  witnesses 
that  the  general  had  the  least  sdf- interest  to 
serve  in  this  business  of  his  own,  no  profit  or 
advantage  to  himself;  there  is  no  evidence 
whatever,  not  a  spark  of  that  sort  that  appears. 
He  sends  to  Dr.  Oliver  and  Dr.  Markadal  to 
nake  enquiry  into  this  matter.  He  sends  to 
them,  and  desires  to  know  their  opinion.  He 
convokes  together  a  council  of  the  field-officers : 
and  then  they  are  of  opinion  upon  the  whole  of 
this  business,  (whether  right  or  wrong  is  not  to 
the  present  question,  but  it  strikes  me  upon 
this  evidence,  that  this  general  Mosty n  noes 
seem  to  me  to  be  extremely  solicitous  and  de- 
sirous to  inform  himself  as  well  as  he  can,  what 
is  to  be  done  upon  the  occasion ;)  and  at  length 
it  ends  in  a  general  answer,  sucli  as  it  was,  that 
it  would  be  very  right  to  banish  this  man.  Now 
they  proceed  to  call  several  witnesses. 

James  Wright  says,  he  resided  in  Minorca 
from  January  1771  to  the  middle  of  the  year 
1773,  as  secretary  to  the  defendant  Mr.  Mosty  n 
the  governor.  He  tells  you  that  this  island  is 
divided  into  four  districts,  exclusive  of  the  ar- 
raval  of  St.  Phillip's,  which  the  witness  alwaya 
understood  to  be  separate  and  distinct  from  the 
others,  and  under  the  immediate  order  of  the 
governor  (you  will  observe,  that  it  is  in  that 
district  that  the  fortification  stands) :  so,  says 
he,  that  no  magistrate  of  Mali  on  could  go  there 


Action  Jor  False  Imprisonment^^ 


[1«8 


the  court  of  the  chief  justice  criminal.— I  would 
ask  a  question  of  Mr.  Wright.  Has  this  justice 
criminal  a  commission  to  try  offences  P 

Wright.  He  has  the  hing*s '  commission 
to  try  and  to  hear  all  causes  when  they  cimie 
before  him.  He  bnngs  them  to  the  governor, 
who  signs  them ;  and  till  the  governor  has 
signed  them,  they  are  not  valid. 

Q.  But  when  the  covernor  has  once  signed 
them,  ban  this  gentleman  thejuriFdictiontotry 
offenders?— /I.  The assesseur criminal,  and  the 
officer  fiscal,  who  sits  as  judge  with  him,  bring 
their  opinion  to  the  governor,  who  hears  and 
api^rovea  of  their  opinion,  and  signa  it.  . 

Do3«ou  make  any  distinction  beiween  one  part 
of  the  island  and  another  P— The  arraval  oi  Bt. 
Phillip's  is  so  exempt  from  all  kind  of  jnris- 
diction  (at  least  was,  when  I  was  there),  that  it 
is  a  rule  in  the  island,  that  if  any  biidy  dies, 
comes  by  their  death  by  any  accident,  drowned 
and  fished  up,  that  the  criminal  assessenr, 
with  I  believe  the  fiscal  and  his  officers,  goes 
to  the  dead  body.  They  take  the  thumb,  and 
ssy ,  Who  killed  yon  f  This  is  a  form  they  go 
through  by  way  of  bringing  about  a  kind  ef 
inquisition  taken  by  a  coroner.  Whenever  they 
bare  occasion  to  go  there,  they  ask  the  go* 
vemor  leave,  if  i^ithin  the  arraval ;  and  there 
is  a  particular  instance  of  a  soldier's  wife  beinff 
killed  by  her  hnsband. 

Suppose  a  person  is  guilty  of  a  murder  within 
the  arraval,  whom  is  he  tried  by  ?— -The  lasea* 
seur  criminal  goes  and  takes  inqnisition.  That 
be  does  not  do,  till  he,has  the  governor's  leave. 

Suppose  a  person  is  murdered,  and  the  mur- 
derer IS  found  out,  to  be  sure  you  don't  lei 
the  murderer  escape  with  impunity  ?— Ne. 

Now  let  me  ask  you,  wiihin  the  arraval  hy 
whom  is  he  tried? — ^The  governor  appoints, 
but  he  generally  appoints  the  assesseur. 

Then  the  governor  does  not  try  him  him** 
self? — He  never  tries  any  thing  of  the  sort* 

Then  be  deputes  somebody  to  try  himP— 
Yes. 

Suppose  in  lesser  offences,  of  thef\  oiir  riot, 
does  he  not  appoint  other  people?— In  smaft 
offences,  the  mustastaph. 

Mr.  Just.  Gould.  Gentlemen,  there  was 
in  consequence  of  this  affair,  a  proclamation, 
that  no  memorial,  unless  tor  mercy,  could  ho 
presented,  unless  it  was  first  signed  by  an  ad* 
vocate.  adroiited  in  their  courts.  He  saj^s  that 
the  king  in  council  issues  u|K>n  application, 
alterations,  which  are  registered  in  the  court  of 
royal  government ;  which  inclmies,  as  1  under- 

aSi*  •         B  I  **i  ^^1  **         a* 


to  exercise  any  function,  withnut  leave  first  ob-  stand  him,  both  the  civil  and  the  criminal  jn- 

tained  from  the  governor.    The  whole  is)»nd,  risdiction.     He  says  that  the  defendant  hein|f 

be  says,  is  goemed  by  the  Sp.uiish  laws,  sub-  much  teozed  by  the  plaiiitifl',  by  repeated  ap- 

2 ^  A.'L  I :^.i  t..  *u„— . -.    u..*  -...*  -.1.  _i: .:. i: Tl^.i  %mL   «v.:.^i..  «1 : uL* 


iect  to  be  varied  by  the  t;overiior ;  hut  not  s*. ob- 
ject to  that  variation  in  re spert  to  meum  and 
ftttfffi  of  property,  but  as  fo  the  internal  police 
of  the  island.  And  he  teJIs  yon,  that  his  pro- 
clamation, with  a  iiennliy  annexed,  is  of  such 
force,  that  where  the  penalty  is  annexed,  if 
it  is  broken,  the  party  is  subject  to  it,  and  u 
iSaUe  to  be  imprisoned  for  non-payment     He 

9«y9  tbil  1b9  putjT  if  fcised  aod  brought  into 


plications,  directed  Mr.  Wright  to  enquire  what 
aort  of  a  man  he  was.  He  tells  vou,  that  the 
plaintiff 'k  father  h^s  some  nmafl  vineyards; 
that  the  plniiitiflf  is  a  lover  of  politics  ;  that  he 
spends  five  days  in  seven  in  talking  of  |iolitics  ; 
that  at  that  time  he  believes  the  plaintiff  had  no 
property  at  all.  Then  he  speaks  as  to  the  cha« 
racter  of  Mr.  Mosiyn.  It  seems  net  to  be  dia-/ 
puted  at  kaat  but  lie  is  an  officeri  and  a  H&an  of 


^ahrigas  v.  Motlt/«. 


A.  D.  17T3. 


[ITO 


J  U  fiDssible:  no  one  ex- 
r  Feeliiigt,  antl  liis  conilucl  in 
inaniier.  Ttit-n  tliis  ffCH (le- 
ws CDCs  ihrougli  llie  whole  detiit  of  thcue 
^«tl  wrilittgB  wbkH  liaTif  liven  read  to  jimi, 
•Wi,H  I  nM  Wtiire,  I  •.liall  not  tske  i>|. 
jMrUcne,  f«r  llie  rfasuoB  I  hute  ■Ireaily  ^rea 

am  rrpMiltni;  oier  ajraio,  tor  you  tiive 
thrni  kII  read.  He  tells  you,  otnongat 
^dun^,  tb«l  tlie  bliabitaaU  of  (lie  urrnvil 
■H •  vetiliaft  to  Mr.  Hoatyn  (ha(  Ihe  r'^uiila- 
a«miic1tt  continue,  and  dot  be  alKted,  as  Hie 
jtitdfrdraiml.  He  iHlu  you.  that  tl.e  plain- 
•ffbinBi{be«a  willi  iWceDernl's aiiMu-camp, 
M  Miirss  inrt  him.  and  civilly  desired  him  to 
IMdOdt  irb«l  h«  trished;  that  il  should  be 
<ar.  lie  says  there  nas  one  Mr.  Vedall  that 
antnmnml^rpreitr.  and  spriest,  ooaSe^uy, 
IMjoinrd  witb  Mr.  Wcigh(  to  press  the  pFaiD' 
(f  la  (a  bame  >Dd  niind  his  affairs,  and  no( 
tihiae  trimaetf  >tito  (ruiible.  Then  (his  gen- 
Ibwa  cirears,  that  Mr.  Vedall  raid  rrom  the 
ftaixHT  •■  iol*rjireter,  thnt  he  would  come 
tilii  110  Htm  tn  back  his  petition,  or  with  a 
pMM  backed  viih  Hi}  m«n.  This  ^nlle- 
mniaia,  be  tiii'terstuod  by  thatamob.  1  i^hall 
pvany  stale  t» you,  us  I  hare  already  hinted 
(•pa,  the  niivtaVe  in  ibal  respect.  He  saya 
tM*  wtm  a  IvDiT  <i<>n*ergBlioD  by  Vedall  wilb 
iw  ^utiff,  aa  bis  interiirpter,  to  desire  him  to 
-  .1:  he  Mill  n;t<eBt<-d  the  tame.  Then  be 
.11  iliat  he  inlbrined  ihe  piiFrn'ir,  ihal  there 
■  |«i[ile  ibut  he  undvratood  were  tn  ac- 
-iiiif  tbis  man  as  a  mob  the  next  day. 
>'  ilie  x^neral  seat  Tor  the  officer*  to  nirel 
.  llie  neit  tnoraiiiif.  They  Bccordln<;ly 
V.  A  large  Dumber  of  people  were  ex- 
."id,  but  only  four  people  nt'  the  inferior 
'-r  W«wgbt  a  petiliun.  They  were  dis- 
^'^  to  go  bome  peaceably.  Thai  Ihe  result 
-M  nbole  «aa,  that  the  plainlitT  was  ba- 
.^  fnM)  tlie  island.  Ue  says,  Ilial  Ihe  de- 
-tMl  aent  him  the  iritnrsi  lo  the  chief  jus- 
tiMd*il  and  criminal,  who  are  both  Mioor- 
•W,  to  aak  what  wai  the  Kovenior's  power 
■  Ms  (!•»?  They  ae lit  word  back,  ibat  his 
pal  J  rxiOHli'd  nier  the  man  in  any  shape  he 
jlrii ;  and  if  he  chose  to  banish  him,  he 
tufbt  i  tbvy  would  aniner  It  with  their  ean. 
Be  carried  ilur  answer  to  llie  defetidanl;  tint 
Wnrr,  doubting:  Ititnself  of  the  law,  the  as- 
ivanr  eiail  deUnred  him  an  onler  In  wriliog;, 
vfcwh  wai  dated  in  I.'>90;  aod  that  imparled, 
Ihll  thoolfh  il  was  tery  Gt  Ibr  llie  goffrnifr  to 
■k  (b*  adne«  of  Ihe  asseaaeura  ciiil,  yet  that 
iS  DDt  by  any  meana  bound  lo 
Dt  deci^ite,  as  in  mat- 
lys,  that  die  assesseur 
.  leni  his  officer,  which 
bia  lipstalf,  to  the  ^orernor,  lo  ap- 
Ihe  plaiatilf,  who  accordingly  was 
r«  k««t  in  priuin  about  Arc  days,  and 


teiafpnipOTty.     ili 


Tben  ha  idb  you,  upon 
Ata.  tbal  AUtmiiiidn  uiakcs  wine  and  sells  it  in 
|l«a,  bnl  ox,  a*  be  hclievea,  in  retail.  He 
>p  thai  (be  Hhtofiutu  laofiiage  ia  very  bad 


Spanish.  Then  he  is  desired  lo  look  al  the 
pH|ier;  (ar  he  had  a  paper,  wiih  which,  in 
Kiting;  bis  e*id<9nce,  be  rH'reslied  his  memory  : 
biit  upon  hrokini;  lo  (he  words  iu  ihst  p»ier 
relative  to  Ibe  160  men,  the  words  that  Iw  baa 

"  I1ie  Earns  day  Mr.  Fubi  igas  came  liir  an 
■nsiver  lo  hie  |>el<tiOD,  be  told  the  governor's 
cpcretary,  iliat  he  should  Come  the  next  day 
with  a  pi-lition  nf  people  concerned  in  grapra 
and  wine,  which  they  would  eign  and  vnoie 
witb  ihemselies,  to  the  noraber^  150." 

Sotlint  you  see  this  gentleman  aayK,  as  I 
ajiprehend  him,  {  I  dou'l  know  whether  this 
pBpei'  that  be  has  now  producnl  ia  llie  original 
paper  that  he  set  down  the  minutes  on  Ibr  re- 
cnjleclioii  and  fur  remembrance  al  the  lime ;  I 
dnu'i  know  whe'hvr  lhai  is  so  or  not — how. 
erer,  it  may  be  a  cojiy  of  it)  he  said  he  set  il 
down  upon  loose  piecea  of  paper  at  first.  If 
thai  be  the  case,  tbc  strong  probability  ia,  that 
thia  entry  that  I  bare  read  (ii  you  must  hsie 
been  set  down  rei'eully  alter  the  convenalJon. 
You  see  the  worls  arc,  that  it  was  to  be  150 
people  concerned  in  graiies  and  winn.  Then 
he  tells  vou,  that  upon  the  lllh  the  governor 
and  the  neld-olBccTs  met,  and,  as  you  heard 
upon  his  original  examination- receited  a  me- 
niorlal  by  four  men  signed  by  blank  person* 
—  you  see  the  nnmber  it  letl  blank.  Thia 
gentleman  say«  he  cannot  recollect  ihe  numltr. 
He  says  be  was  couiilintc  them,  but  be  believes 
there  were  more  than  40,  between  41  and  47, 
he  can't  be  exact ;  but  Ihe  number  of  persons 
liy  whom  it  la  siijned  is  in  thia  copy  blank. 
The  purport  uf  llii>  memorial  is  la  desire  that 
ihe  old  practice  may  be  pursued.  To  which 
he  answered  by  the  officers,  ihsl  Ihcy  should 
return  home,  and  behave  as  good  and  j>eacea- 
ble  subjects  Iu  bis  majealy  ought  lo  do.  I 
have  anticipated  il.  I  see  he  says,  according 
to  hia  memory,  there  were  from  41  lo  47  aig- 
natnres.  There  were  a  greut  many  marks, 
yoii  understand,  lo  this  petition  delirered  by 
the  four  men.  He  can't  say  be  counted  it 
through,  and  can't  affirm  what  Ihe  number 
was.  He  nat  further  examined ;  and  he  aava, 
that  upon  strict  enquiry  it  did  nnt  appear  ifiat 
abore  one  in  ten  supported  ibe  plaintilTs  de- 
sire ;  he  ia  sure  he  allows  a  greater  pro|<ortioit 
than  the  truth  was  :  and  he  says  he  informed 
Ihe  defend  ant  Mr.  Mostvn  of  ihat.  Re  made 
the  enquiry  at  ibe  defendant's  request,  in  order 
to  discover  the  sense  uf  the  inhabitants- 
John  Pleydfll,  ard-du-camp  to  the  govenim', 
says,  that  on  the  9th  of  September  ITTl.tbe 
plaintiff  asked  btm  to  »ee  the  goremor.  He 
told  him  if  he  had  any  tbint^  fur  the  governor, 
he  would  deliver  it.  AIit  a  liiile  hetitaiion 
the  plainlifrdehvered  a  niemi.iial,  and  desired 
bim  to  tell  the  governor  he  should  come  die 
next  day  accompanied  by  300  or  iiO  Inhabi- 
tants of  SI.  Phillip's,  lie  aaya  he  carried  the 
memmial  lo  the  gnrernor,  and  told  tiiin  wbal 
the  plaintiff  bad  said  ;  ujHin  nhich  he  says, 
that  the  governor  that  day  tent  to  the  com* 
maniling  ofiicert  «f  tba  corps  to  toeet  at  tfaa 


171J 


U  GEORGE  III. 


Action  Jir  False  ImprisonmerU'^ 


im 


ffoveraor'fi  the  next  mdrning,  to  see  bow  he 
thoalil  receive  the  |)latntiff,  and  the  fieople  that 
were  to  come  with  him.  Now  here  you  see  in 
the  efidence  giren  by  this  Mr.  Pleydell,  there 
is  not  that  ezplaoatioo  of  the  nature  of  the  end 
and  desijp  of  these  200  or  250  people  being  to 
come  with  him,  as  there  is  m  tnat  memo- 
randum that  Mr.  Wright  produced :  for  this  is 
in  general  said  300  or  250  people.  And  I  can't 
help  remarking  to  you,  that  it  seemed  to  make 
an  impression  on  the  governor,  and  to  alarm 
him :  for  it  was  upon  his  delivering  this  mes- 
sage to  him  that  Pleydell  says  he  did  desire 
the  6eld  and  commanding  officers  of  the  corps 
to  assemble  the  next  morning,  to  see  how  be 
should  receive  the  plaintiff  and  the  people  that 
were  to  accompany  him.  But  he  says,  in- 
stead of  the  plaintiff  and  such  a  number  of 
people,  four  men  came  the  nexk  day  and 
Drought  a  memorial.  He  believes  all  the 
commanding  officers  were  there.  He  was  told 
by  the  governor  that  the  sense  of  all  the  offi- 
cers was,  that  the  plaintiff  should  be  taken  up 
as  a  daogen>us  and  seditious  person :  he  says 
be  had  consulted  the  Minorquin  judges,  and 
their  opinion  was  the  same  with  the  military 
officers.  He  says  this  gentleman  is  an  inha- 
bitant of  the  arraval,  just  by  the  glacis  of  the 
fort :  and  says  that  he  kept  his  father's  vine- 
yard :  and  that  the  defendant,  far  from  being 
a  tyrannical  over- bearing  man,  is  one  of  much 
temper  and  humanity,  and  the  witness  served 
under  him  the  last  war. 

Upon  his  cross-examination,  he  understood 
by  the  plaintiff's  saying  he  should  bring  200 
or  250  men,  that  it  was  to  enforce  or  give 
weight  to  bis  petition,  to  certify  that  that  was 
their  opinion  ;  that  is,  that  they  concurred  in 
the  plamtiff  's  opinion :  but,  says  he,  so  many 
people  coming  together  is  au  act  in  itself  of  a 
tumultuous  kmd.  He  says  the  people  in  ge- 
-neral  wished  to  have  Mr.  Johnston's  regulation 
continued.  As  to  the  memorial  that  was 
brought  by  the  four  men,  he  did  not  read  it, 
and  bad  it  not  in  his  hand ;  but  by  just  the 
superficial  glance  he  had  of  it,  be  thinks  there 
might  be  50  or  60  names  to  it. 

Robert  Hudson,  fort* adjutant,  says,  that 
upon  the  lOtb  or  1 1th  of  September,  tlie  mns- 
tastaph  of  St,  Phillip's  told  him,  that  upon  de- 
livenng  out  a  proclamation  (though  I  ought 
not  to  sum  that  up,  for  what  this  Allimundo 
■aid  is  no  sort  of  evidence) — but  he  says  that 
having  received  this  intelligence  (so  far  it  is 
material)  he  did  give  the  governor  an  informa- 
tion of  it:  the  governor  was  then  in  Mahon. 
He  says,  that  iK'fore  the  plaintiff  made  this  ob- 
jection, he  nerer  heard  any  objections  to  Mr. 
Johnston's  regulation ;  that  it  was  to  prevent 
the  wine  from  turning  sour,  by  being  sold  in 
that  hurrying  sort  of  way  ;  that  great  quanti- 
ties of  it  produce  fluxes  and  oUier  diseases 
among  the  garrison,  for  there  are  few  cellars  it 
seems  in  the  garrison.  He  says  after  this  re- 
gulation, in  ser oral  years  experience,  none  of 
the  wine  dkl  tarn  sour.  Tmd  Ihera  was  a- 
f  ucstMB  that  oocuicd  to  me  to  Hkf  wj 


^ 


the  serving  it  out  in  this  sparing  manner  did 
not  influence  the  price.  They  said,  no,  be- 
cause the  afforation  fixed  the  pnoe  that  it  could 
not  exceed  it. 

Colonel  Patrick  Mackellar  says  he  knows 
the  plaintiff;  he  was  called  Red  Toney:  1 
suppose  he  has  red  hair.  He  says  he  bprs  a 
very  bad  character ;  that  he  was  a  seditious, 
troublesome,  drunken,  shuflUng  fellow;  that 
he  had  many  complaints  against  him  from  two 
mustastaphs.  He  was  in  the  island  from  1736 
to  1750,  and  again  from  May  1760  to  last  May. 
He  tells)  you  the  arraval  of  St.  Phillip's  is  sur- 
rounded by  a  lime-wall  on  one  side,  and  the 
other  side  a  ditch ;  that  the  arraral  is  a  royalty, 
where  the  governor  has  a  jg^ater  power  than 
any  where  else ;  that  the  judges  can't  inter- 
fere but  by  the  governor's  consent. — That  cor- 
responds exactly  with  the  explanation  that  Mr. 
Wright  gites. — He  says,  in  other  parts  of  the 
island  there  are  jurats,  but  in  the  royalty  there 
is  only  this  mustastaph,  who  is  appointed  by 
the  governor  or  commander  in  chief,  and  is  aft 
pleasure  displaced  by  him.  He  takes  care  of 
weights,  measures,  and  markets,  and  of  all 
wine  and  the  expenditure  of  it,  and  settles 
little  disputes  between  the  inhabitants  in  the 
first  instance.  That  the  magistrates  at  Mahon 
ut  the  afforation  within  tneir  jurisdictions. 

his  mustastaph  does  not  make  any  afforatkn 
himself,  but  acquiesces  under  that  of  Mahon : 
he  only  signifies  the  afforation  that  has  been 
made  at  Mahon.  The  Minorquinsare  in  ge- 
neral governed  by  the  Spanish  laws.  When 
it  serves  their  purpose,  they  plead  the  English 
laws.  Some  are  well  affected  to  our  country  ; 
some  are  not.  He  attended  the  governor  once 
or  twice  on  account  of  the  plaintiff;  and  he 
says  that  the  general  opinion  of  all  the  offi- 
cers was,  that  the  plaintiff  was  a  dangerous 
person,  and  that  it  was  proper  to  take  him  up 
and  bring  him  to  punishment ;  and  were  of 
opinion  to  banish  him.  He  says  the  defen- 
dant is  a  good  officer,  a  polite  well-bred 
man,  that  he  carried  liis  command  in  the 
genteelest  manner,  and  is  a  person  of  great 
humanity. 

On  his  cross*  examination  he  says,  that  b« 
and  the  other  field-officerb  met  by  the  deten- 
ant's  desure,  to  know  what  was  their  opinion 
upon  this  business.  Two  of  the  judges  of  the 
island  thought  it  entirely  in  the  governor's 
breast  to  do  as  he  pleased  ;  but  there  was  no 
trial.  He  does  not  recollect  whether  major 
Norton  was  of  that  opinion :  it  was  the  opinion 
of  the  majority.  He  was  asked  whether  major 
Rigby  was  of  that  opinion  or  not  ?  He  says 
he  can't  say  how  that  was,  but  does  not  re- 
member that  any  one  officer  dissented  from 
that  opinion. 

Then  Edward  Blakeney,  secretary  to  the 

Swernor  of  that  name,  is  examined.  He  says 
at  nothing  can  be  executed  in  the  arraval  of 
St.  Phillip's  but  by  the  goremor's  permisskM-t 
it  is  a  loyahj ;  be  has  the  absolute  gofcn^ 
He  sava  that  gen.  Blatai^  a^ 
'  '1  the  jm  XTMba^ 


Fnbrigai  V.  Mostipu 

3U  tfiars  into  Suain  or 
1  time  uf  peace.  He  sayi 
■u  nfterwRrila  liy  a  gr*al  deal  of  inter- 
n  Ipflte  tnrPD  li>  ihoae  people  10  relurn. 
y<t  iliBt  llie  |iuwer  ilsell  trss  oeier  ills- 
porJ,  ■ml  he  look  ii  lo  be  baniletl  down  from 
Ik  Spaiiiarile,  bj  wliose  laws,  as  jou  obsene, 
Ih  IliiiurquiDi  are  goierned,  nnd  at  their  owd 
n^ue«t.  He  «ii]rB  the  juilges  have  applied  lo 
Hw  ■itnera  for  ibe  goveruor's  leare  to  execute 
pBce—w  ill  llie  arnTal.  lie  says  llie  lale 
imt  wnl  four  re^meols  to  relieve  tbe  irad|i« 
nuaned  liicre,  (bq  order  of  humanily,  like  liia 
a^jnly)aiHl  (olia*eall  llie vri*eB[in<l  chilitren 
tnofltt  Itoine:  Lowever,  a  priest  took  a  liking 
1»  vo*  of  the  ^a\mg  nomen,  and  wnulil  not 
Mrerherup.  The  Driest  wns  baiiiaheil ;  Ibe 
!  of  wbicl)  waa,  ibe  girl  vm  de- 
Bod  tlie  priest  was  brought  back 
(oin.  lie  gives  lbe«e  as  three  loaiances 
ntrc  pewtle  were  bHuiabed  from  tbe  iiland. 
H*  M]r«  tl»l  iheee  I'riart,  two  PraociECdug, 
w«r*,  •*  he  belieres, antireii,  MinorijuiaH.  This 

*  tbie  parole    etidence  that  i«  siren   on  the 
jKlaS  tb«  ilefendanl.     I  bave  already  slated 
-'}oo  Ibe  cabsiance  of  all  that  written  evi- 
nce :  joo  baie  heard  ji,  and  jou  are  fully 
•>ten  of  all  the  circamstances  Bltcnding  this 

Kaw,  geollemeD,  ii  is  for  your  consideralinn, 
ifcillirr  tbe  defendant,  general  Mostyn,  has 
afc  (wt  bi«  juiliGcation ;  whelher  he  has 
ymt6  that  tbe  derendant  was  guilty  ofa  riul, 
^itd  *  d»turbaoL-e,  and  that  be  emleaioured 
"=  'wiU!  and  lo  ilir  up  a  tnutiuy  and  a  sedition 
-  llie  ;[arr>*OD.  If  that  is  the  case,  I  should 
-■^ae,  gr'odflineu,  tbe  plainlilF  will  appear  to 
;«u  a  ncrwin  of  a  vety  dangerous  disposi- 
tM(  •»■(  I  bat  tome  very  strict  methods  must 
hmiwijf  to  be  taken  in  Buch  a  silualion,  In 
Mkllt  pre*erTe  the  (farrison,  and  to  preTent 
MaMrrcction.  If  it  is  insinuated  to  the  aol- 
tm%  tlwt  they  are  abused  by  the  officers  under 
Ik  cnrcToor,  by  the  gurernnr'a  connivance, 

*  ky  hit  rcmimneiB;  we  will  say,  Ihougli  he 
Ui»o  kind  of  iatereit  in  It,  but  by  his  gross 
MBHKMgemonl,  ibey  nre  oppressed  and  im- 
*Bais|nHi;--»uppo*e«uoh  a  persuasion  abould 
WiafMeil  into  ihe  people  composing  the  gar- 
nna,  1  think  it  i«  lery  clear,  and  I  neeil  not 
•f  ue  M  yan,  lo  abew  wbal  dnngertiui  conie- 
ytti-M  may  rMall  from  (hat.  Then  you 
*fl  eoMiler  tiow  this  case  stands  in  thai  re- 
dact. You  (re  thiit  this  pervon,  afier  several 
f^n  (»  D«rw  nvulalion  liDvIng  been  made  by 
piiBui  Johnnton)  is  for  selling  up  a^ain  and 
mVnnc  an  old  rri[iilBtiun  made  In  1752  i    and 

"      !  orerail  lO  to  do.      Then  the 

ad  was  to  be  taken.      It  lain 

ie|a  reacind  Ibis,  as  I  ap- 

*feaal  dispute  it  lint  that  by 

*^  -  ■     his  plea,  he  is 

il  and  military 

lod    I  presume, 

leBuch  an  aller- 

;   the  goferoor 

4  with  it.     Then 


..  D.  1778. 


[!T* 


Ibis  person  wants  lo  set  that  old  buiiness  oa 
loot  agaio ;  and  be  does  produce,  (lor  so  I 
must  lake  it  from  tbe  writing  which  Ihal  gen- 
tleman hai  produced)  be  does  mean  to  shew  l« 
the  governor,  that  there  are  a  Tast  nutnUer  of 
people  of  his  sense  in  tbe  affair.  Tbetnislor- 
lune  of  il  U,  however,  thai  Ibis  is  not  expreasly 
conveyed  lo  Ilia  governor  ;  because,  aecording 
to  the  whole  belief  of  Ibe  ageni,  ibougb  ha 
understood  that  it  was  meant  lo  give  weight 
to  tbe  petition,  uot  to  proceed  to  direct  vio- 
lence; forwbati  can  find,  that  was  notdirect- 
ly  explained  lo  general  Moslyn.  Now  you 
will  consider  u]ion  this  evidence,  whether  you 
are  satiified  that  ibis  was  such  b  behaviour  in 
plainiiff,  as  lo  affiird  a  juit  conclusion,  Ihal 


how 


n  that  V 


irup 


and  a  mutiny  in  the  garrison  ; 
tlier  be  meant  no  more  than  earnestly  to  presa 
his  suit,  and  le  endeavour  to  obtain  redreu 
from  what  seemed  lo  bim  to  be  a  grievance. 
If  you  shall  see  It  in  that  latter  light,  lo  b« 
sure  there  is  no  ijueslion  at  all  that  he  will  bw 
entitled  to  recover  in  ibis  action.  As  for  tha 
damages,  1  sliall  nut  say  a  word  upon  that 
matter,  because  it  is  yonr  province  to  coniider 
on  il  upon  all  the  circuuuiances,  Then  thera 
is  another  consideration,  which  will  be  a  legal 
CDDsideraiion :  that  supposing  you  should  ha 
of  opinion  that  this  was  really  a  seditious  helia* 
vionr  in  this  plaintiff,  which  yoa  will  consider 
of,  and  also  whether  he  acteJin  such  a  manner 
MS  to  siir  op  sedition,  you  will  be  pleased  to 
say,  that  when  you  brinjrin  your  verdict.  Tbe 
next  thing  is,  thatsupposingyou  seetheplaiu- 
liff's  conduct  in  that  light  as  a  mutinous  pur- 
pose, whether  the  defendant  could  be  warranted 
to  proceed  in  that  manner.  That  is,  to  be  sore, 
B  matter  of  very  great  consequence.  It  is  not 
like  persona  in  tbiseoantry,  in  England,  where 
no  freeman  shall  be  banished  his  country  ; 
which  is  carried  to  such  an  extent,  that  lord 
Coke  tells  us,  that  it  is  not  in  tbe  power  of  tbe 
king  to  send  a  man  against  his  will  even  to  he 
tbe  lord- lieutenant  of  Ireland  (1  don't  lielieve 
there  are  many  genllemeu,  thai  would  recoil 
at  Ibal);  but  it  could  not  be  done,  because  it 
would  be  ail  exile:  you  drive  a  man  against 
bis  will  out  of  his  native  country.  Bui  how- 
ever, this  iaa  case  you  see  in  a  coni]uere<t  island, 
in  a  ceded  island.  And  certainty  1  should 
conceive  myself,  that  if  in  a  garrison  where 
il  is  absolutely  necessary  to  beep  down  all 
these  inulinuiis  spirils,  from  the  aj'parent  rea- 
son of  danger,  that  il  must  certainly  be  law- 
ful for  the  governor  at  IcasI  to  lav  a  man  up  in 
prison  that  is  turbulent.  But  I  should  doubt  a 
great  deal  myself ;  il  wdl  beamalttr  thilyou, 
genllemeti,  will  have  an  opporlunily  lo  consider, 
if  you  please,  if  you  shall  be  of  opinion  that 
the  plainlilTs  behaviour  was  sediliuus;  and 
tbiit  IS  the  reason  that  I  desire  you  to  atlend  to 
that,  and  tell  me,  when  you  give  in  your  ver- 
dict. It  would  be  carrying  inalters  lo  a  very 
great  length  indeed,  in  my  appreheuaon,  lo 
■ay,  that  yoa  should  exile  and  banish  *  man 
from   bto  oativa  aountry.      I  ctnool,  litljog 


m] 


UGEOEGE  ni. 


AiAvmJijT  Falu  Jnipivotrnml'^ 


[176 


here,  and  u  at  prevent  adrited,  thick  that  cm 
in  such  a  situattuu  ibatcooM  be  ivamnUd.  I 
UDDOt  think  bnt  tbat  a  perMD  might  bo  ae> 
cuied  Biul  confiued,  in  oriler  to  be  brought  to 
trill,  uid  piMfierty  puniahed  for  it.  I  lea** 
il  to  ynu  UDdcr  them  obterfatiooa,  and  yoo 
will  cooaider  upon  tite  whole  of  it,  what  da~ 
mages  you  ahall  please  to  give  to  the  [iJaia- 
tifT.  As  to  the  defeodanl,  yoa  hear  the  cha- 
racter be  bcara  frum  all  the  wlluesaea:  a  maii 
of  great  humaDity,  who  haa  tteeo  guillj'  of  an  I  tot  damage* 
ioordinale  ute  ol*  hia  power,  but  sot   wiLb  a  '' — 

nalefukot,  bad,  aoil  wicked  detigo.  To  be 
•ure,  you  will  uot  deal  out  Ibe  dainagea  witb 
the  aaine  *ieir  aa  you  would  *gain>t  a  nuo 
that  acted  clearly  aud  Jema'ttralily  wilb  ma- 
lice, ll  ia  your  profiuce,  genllemen,  to  con 
ndcT  all  the  circumalMkcea,  and  to  gire  in  your 
Tetdict  accord  iugly. 

The  jury  withdrew,  and  in  abonl  an  honr 
Kturueit,  and  ga*e  in  their  ter<Jiet  for  llie  plain- 
tiff; with  3,000/.  danrai(a,andalleailRafwit. 
—And  at  the  aarae  time  nid,  that,  in  rbrir  opi- 
nion, the  plaintiff  was  not  guilty  of  mutiny  or 
icditioD,  or  acted  in  any  way  lending  thereto. 


FdKTHEB    nOCEBDIMGS    T 


TUIB  ClDSE. 


The  eouniel  for  Uie  defendant,  while  the 
jury  withdrew  to  cnoBider  ibeir  verdict,  tea- 
dcred  to  the  judge  mbiDtM  of  a  bill  of  excep- 
tjona  s  and  on  tlie  fourth  day  of  Klichaelmaa- 
term,  the  Coart  of  Comuion-PIeaa  waa  a»OTe<l 
Iw  a  new  trial. 

The  defendant'!  counael  made  hia  niotioD  od 
tvo  grouuU. 

First,  far  ezceu  of  damage* ;  alledgingthal 
iLe  jury  bad  proceeded  oo  a  inialalfe,  liir  they 
bad  found  that  ibe  plaintiff  was  noi  guilty  nl 
mutiny  or  sediliun  ;  whereoa  he  inuited  it  was 
IDotl  plain  from  the  wrilien  evidence,  that  the 

tlaintiff  had  endeafuured  ID  make  the  garrison 
elieve  that  be  was  their  friend. 

Secuodly,  that  a  new  trial  oaght  la  be 
granted,  because  Ibis  actioa  could  not  be  niain- 
taineil,  as  the  Court  had  no  juriadicliou. 

The  rule  to  ahew  cause  was,  of  course, 
granted. 

On  the  3Slh  of  November,  Mr.  Juat.  Gould 
r«|)orled  the  evidence,  which  agreed  with  tlie 
printed  trial.  On  the  46lh,  it  wu  tclemnly 
Ugued  on  the  Hrst  otyedion  of  exceis  uf  da- 
naKci,  ilie  Court  uot  permitting  Iho  defend- 
ant's couoael  lo  urgue  the  nemud  objection,  as 
ihey  said  il  would  be  introducing  a  new  mode 
of  practice,  which  might  e*eatnally  be  preju- 
dicial  lo  •ailor* ;  aud  ai  the  bill  of  exce|iliooa 
went  with  Iho  record  to  the  court  of  Kiug'a- 
beuch,  tbat  waa  the  proper  court  to  daiermine 
on  it. 

Lord  Chief  Jnitice  De  Grry  delirered  hii 
opinion  lu  the  following  purpon. 

I  have  always  considered  Ibia  node  of  ap- 
pHcation  for  a  new  IruU,  as  very  aaluury  to  the 
wtlor*.  who  may  be  injored  hy  mislako ;  and 
litawue  to  the  jury,  .»il  reftim.  Uwir  enoii, 


if  they  commit  any,  and  is  a  happy  subHitDlc 

for  the  much  more  grievnni  pnKvediug  tbat 

the  common  law   baa  directed.     With  regard 

to  the  interposiiiun  of  the  courts  nf  juiiice  on 

the  quantum  of  damages,  where  the  subject  of 

the  luit  ia  contract,  the  Court  hai  an  easy  ml* 

logo  by  in  rectifying  the  mistakea  uf  the  jury, 

because  there  is  a  certain  lest  and  ftaudard. 

As  liir  instance,  if  a  man  ihoald  bring  an  action 

'   "       lOOf ,  and  the  jury  should  give 

.,000/.    uoiter  the    idea  of   in- 

lereit,  they  would  gu  upon  a  mistaken  prin- 

certain  the  party  could  notnara 


dfi,, . 


injury  adequate  to  that  compruaa- 
tiiin :  the  damage*  would  be  excroaiTe,  imd  th* 
Court  would  correct  it.  But  in  peraonal 
wrongs,  it  is  much  mure  difficult  lo  draw  a 
line,  I  do  not  go  so  far  aa  lo  say,  ihat  in  per- 
sonal wronga  the  Court  will  never  iuierpoafc 
even  upoo  the  article  of  escemiTc  damage*,  if 
they  are  oulrageuua,  and  appear  so  to  ilie  Court; 
that  is,  aa  my  brother  Gould  expressed  it,  if  it 
apprari,  iu  giving  the  duniages,  that  the  jury 
did  uiil  act  will)  deliberation,  but  with  paasioii, 
partiality,  or  corruption.  As  <br  ioatauce,  if 
tiTO  ordinary  men  should  quarrel  at  an  al*> 
boi»e,  and  one  should  give  Ihe  other  a  fillip 
opon  the  nose,  and  1,(X)0/.  ahotild  be  gina 
for  dainageti,  which  is  ten  times  more  than 
bolh  the  parlies  are  worth,  such  damages 
iroiild  be  evidence  that  the  jury  had  not  acui 
wiih  the  deliberaiion  Ihat  the  administratioii  of 
justice  require*.  It  i*  a  peraonal  tori,  bolthc- 
damage*  are  excessive.  There  are  other  cir^ 
Gumatances,  where  lite  Conrt,  even  upon  ezcea* 
•i*e  damages,  might  interpose:  and  I  think 
the  couotel  lor  governor  Hoslyn  have  verj 
wisely  cndearourM  to  ground  ihemaelvea  tinoK 
such  a  principle  ID  this  cause;  which  is,  tut 
the  jury,  in  aaaeasin^  the  compenialion  fbr  tha 
injury,  have  proceeded  on  a  mistake.  It  it 
possible  tlml  to  many  instances  that  mistake 
may  arise  from  the  direction  of  the  Court ;  fbr 
the  Court  may  perhaps  direct  Ihe  jury  to  at 
tend  to  a  circumstauce,  that  in  point  of  law  ia 
not  prnved,  or  is  not  Ihe  subject-matter  for  their 
coosider.ll lull :  or  il  is  possible  that  Ihe  jury 
may  so  miilake  the  evidence,  aa  lo  believe  Ihe 
fact  to  betme,  when  it  isnotso:  then  it  cornea 
to  he  a  progier  motion  fir  a  new  tnal,  becauae 
the  verdict  is  contrary  to  evidence.  Or  tba 
jury  may  give  credit  \n  such  circnmstanceii, 
which  either  have  not  been  proved,  or  are  nK 
true,  and  they  may  ageravale  the  damagcy 
upon  lliat  account :  they  then  act  under  a  mia> 
take,  which  most  certainly  ought  lo  be  rectified. 
That  is  the  ground  upon  which  the  present  ap- 
idication  is  tnaile.  Bui  if  you  consider  it  u 
your  own  mind,  it  will  oecesaarity  result  to  thia 
propnsitioD,  that  the  jury  hare  Ibuod  a  fact 
contrary  lo  eiiilence.  As  my  brother  Davj 
u  aware  ihat  there  might  be  some  difficulty 
mamlaining  thai  proposiiinn,  he  put  it  ints 
BDOtber  shape,  and  aaid  it  was  a  circumstancs 
Ihat  was  proper  for  the  jury  to  consider  a*  a 
gronnd  for  mitigaling  the  damagea ;  inilead  of 
ahich,  they  bad  fron  Ihil  oiicunutuieo  >(■ 


177] 


Fabrigas  o.  Mostyiu 


A. ».  1775. 


[178 


fviTfttotf  the  damagM.    So  that,   upon  the 

wMe,  it  will  still  rfcar  to  the  same  propoti- 

tiM,  that  the  J  have  acted  upon  a  mistake,  in 

fifing  aari|^avatt*tl  damages  upon  a  fact,  which 

ihfy  hare  fooml  contrary  to  evidence.    For 

ftqr  were  ananimoasly  of  opinion,  that  what 

Ik  plaintiff  did,  was  not  done  with  any  sedi- 

iKm  vie^,  or  tending  thereto,  but  was  an 

flvaest  preasing  of  a  suit  to  be  relie?ed  from  a 

frievanee  supposed.    That  was  the  enquiry 

ttey  were  particularly  ordered  by  my  brother 

GsuM  to  make  ;  and  that  was  the  answer  that 

Ihcy  gave.     Now,  if  in  point  of  fact,  they  were 

m  mistaken,  as  that  they  ought  not  to  ha?e 

ken  of  opinion  that  the  plaintiff  did  not  act 

with  a  seditious  ?iew,  but  was  only  pressing 

kiportanately  a  suit  for  relief  from  a  supposed 

gnerance,  then  they  have  given  damages  upon 

a  fake  supposition ;  they  have  given  such  as 

ue  DOl  piroportionate  to  the*  injury  received. 

The  argament  then  seems  to  me  to  come  to 

this,  that  they  have  believed  a  fact  which  they 

aagbt  not  to  have  believed,  because  the  proof 

was  against  it.     We  are  therefore  to  consider, 

whether  the  damages  ought  to  have  been  raised 

ss  hiph  or  not.    And  there  are  two  cases  in- 

Mted  upon.    One  is  the  behaviour  of  Mr.  Fa- 

kigas,  as  tending  to  raise  disorder  and  sedition 

k  tbe  goreniment.    The  other  is  the  conduct 

af  |overoor  Mostyn,  in  extenuation  of  damages, 

is  acting  under  a  mistake,  and  having  taken 

Ae  best   adnce  the  nature  of  his  situation 

admit.    In  order  to  understand  this,  we 

for  a  moment  the  situation  the  go- 

vvMBeBt  stood  in. 

TUa  island  was  conquered  in  1708.  The 
nB|nererB  (no  matter  in  what  mode)  had 
•  i^|bl  to  impose  what  laws  they  pleased. 
^■Btbe  cession  of  the  island,  by  the  eleventh 
artide  of  the  treaty  of  Utrecht,  part  of  the  right 
if  the  conqueror  was  giren  up ;  for  it  is  stipu- 
falcd,  that  the  inhabitants  shall  enjoy  their 
bsBuurs,  estates,  and  religion.  So  far  there- 
Ike  the  right  of  the  conqueror  is  restrained ; 
bsl  with  regard  to  their  laws,  there  was  no 
MipolatioD,  nor  was  it  ever  understood  so  by 
Mwr  people.  It  is  well  known  that  the  earl 
if  Stanhope  and  the  duke  of  Argyle,  as  pleni- 
potentiarieii  upon  this  subject,  and  afterwards 
■y  lord  Boliogbroke,  did  assure  the  inhabi- 
tttls,  that  they  should  enjoy  their  own  rights 
ni  privileges,  still  subject  to  the  supreme  do- 
toiioo  of  the  conqueror.  Those  rights  and 
privileges  which  thev  were  to  enjoy,  were  the 
flSlabKshed  municipal  laws  of  the  island,  under 
soeh  regulations  as  the  legislature  of  this  conn- 
^  should  impose  upon  them.  This  assu- 
riBce,  made  at  that  time,  has  been  attended  to 
kr  government  ever  since ;  for  they  have  had 
m  enjoyment  of  their  privileges  so  assured  to 
Ibem,  and  have  had  such  regulations,  as  the 
gsvcrument  and  the  nature  of  iJTairs  have  from 
ttBc  to  time  required. 

The  king  in  council,  in  the  year  1752,  (upon 

wcral  complaints  having  been  made  a^inst 

fcacfml  Anstruther,  who  had  been  the  gover- 

isr)  made  tbe  regulation,  as  it  ia  called,  of 

VOL.  AX. 


1753  ;  by  which  the  king  in  council  intended 
to  provide  afifuinst  that  oppressive  power  of  the 
governor,  which  the  inhabitants  had  com- 
plained of,  and  that  the  people  of  the  island 
should  be  at  liberty  to  sell  their  wines  at  the 
price  fixed  by  the  jurats  of  (he  different  ter- 
minos.— -These  powers  were  soon  found,  or 
thought,  to  be  abused ;  which  occasioned  a 
representation  to  he  made  by  tbe  then  governor 
to  the  king  in  council,  which  produced  the  new 
regulation  of  1753,  which  leaned  on  the  other 
side,  as  the  natives  said  :  for  as  the  former  was 
supposed  to  give  too  much  power  to  the  magis- 
trates of  the  island,  making  them  independent 
of  the  governor ;  so  this  threw  too  much  power 
into  the  hands  of  the  governor,  and  laid  them 
too  much  at  his  mercy. 

There  is  one  thing  mentioned  in  my  brother 
Gould's  report,  which  I  think  proper  to  take 
notice  of,  because  it  should  not  be  so  mintaken. 
Oueof  the  witnesses  in  the  cauise  represented 
to  the  jury,  that  in  some  particular  cases,  espe- 
cially in  criminal  matters,  the  governor  resident 
upon  the  island  does  exercise  a  legislative 
power.*  It  was  gross  ignorance  in  that  person 
to  imagine  soch  a  thing.  1  may  say,  it  was 
impossible,  that  a  man  who  lived  upon  the 
island,  in  the  station  he  had  done,  should  not 
know  better,  than  to  think  that  the  governor 
had  a  civil  and  criminal  power  vested  in  him. 
In  the  island,  the  governor  is  the  king's  ser- 
vant :  his  commi^»ion  is  from  the  king,  and 
he  is  to  execute  the  power  he  is  invest^  with 
under  that  commission,  which  is  to  execute  the 
laws  of  Minorca  under  such  regulations  as  the 
king  shall  make  in  council.  How  does  it  stand 
after  the  conquest  of  this  island  in  1757,  by 
the  French,  and  the  relinquishment  of  it  upon 
the  peace?  When  general  Johnston  was  sent 
as  deputy -governor,  he  thought  fit  to  make  a 
new  regulation.  Now,  I  conceive,  it  was  a  vain 
iman^ination  in  the  witnesses  at  the  trial,  (for 
we  don't  want  to  go  to  Minorca  to  understand 
the  consitution  of  that  island)  it  therefore  was 
a  vain  imagination  in  the  witnesses  to  say,  that 
there  were  ^^e  terminos  in  the  island  of  Mi- 
norca. I  have  at  various  times  seen  a  multi- 
tude of  authentic  documents  and  papers  rela- 
tive to  that  island,  and  I  do  not  believe,  in  any 
one  of  them,  that  the  idea  of  the  arraval  of  St. 
Phillip's  being  a  distinct  jurisdiction  was  erer 
started.  Mahon  is  one  of  the  four  terminus: 
ISt.  Phillip's  and  all  the  district  about  it,  is  com- 
prehended within  the  termino  of  tl'Iahon.  But^ 
however,  as  it  happens  to  lie  near  the  glacis  of 
the  fortification,  and  the  governor's  power  (I 
don't  mean  his  legal  authority)  being  there 
greater  than  it  may  be  in  more  distant  parts  of 
the  island,  there  has  been  a  respect  shewn  him, 
a  decency  |>erhaps  to  the  governor,  which  has 
prevented  the  magistrates  interfering  without 
his  knowledge.  But  to  suppose  that  there  is  a 
distinct  jurisdiction,  separate  from  the  govern- 
ment of  the  island,  is  ridiculous  and  absurd  :  it 
is  what  1  never  did  hear  of,  till  it  was  men- 


N 


*  Vide  Mr.  Wright's  evidence,  ante. 


179J 


14  GEORGE  IIL 


Adionjor  Fabe  Impritmment-^ 


[180 


tiooed  in  my  brother  GouM's  report.  Geneial 
Johnston  made  an  alteration  in  the  arra? al  of 
St.  Phillip's,  which  is  a  district  of  a  luile  or  two 
in  circamference,  with  some  few  hundre<l  in- 
habitants. He  divided  this  into  a  subdivision 
of  four  other  districts,  and  annulled  by  his  own 
ttothority  the  regulation  of  1752,  respecting 
the  aiode  by  which  the  wines  were  to  be  sold. 
jia  far  as  appears  in  this  cause,  he  did  that 
without  authority.  If  he  had  the  sanction  of 
gofemment,  his  instructions  should  have  ap- 
peared, if  the  defendant  intended  to  a? ail  him- 
self of  them.  I  only  mean  to  be  understood, 
that  general  Johnston  had  no  authority  to  su- 
persede the  order  of  counsel  by  his  own  power ; 
out  at  the  same  time  it  seems  to  be  a  very  sa- 
lutary provision  ;  aud  if  he  had  represented  it 
to  tlie  lung  in  council,  no  doubt  but  it  would 
have  been  approved  of.  I  may  say  that 
the  inhabitants  approved  of  it,  because  from 
that  time  there  never  has  been  any  complaint 
of  it.  A  few  years  ago  there  were  a  multitude 
of  coiBplaints  brought  against  the  arbitrary 
acts,  as  they  were  called,  and  the  oppressive 
oonduct  of  this  very  general  Johnston.  They 
were  heard  in  a  full  coiuicil  with  a  great  deal 
of  solemnity  for  a  great  number  of  days, 
and  the  council  came  into  a  resolution  upon 
then.  This  alteration  of  the  order  in  1763 
'  was  not  one  of  their  charges  against  him  ; 
therefore  it  is  clear,  that  the  inbabilants  of 
the  arraval  did  sot  at  that  time  think  it  an 
oppression. 

We  come  now  to  the  point  of  time,  when 
Mr.  Fabrira  complained  of  it.  i  will  not 
condemn  him  for  referring  to  the  order  of 
council.  He  had  a  right  to  know  whether  this 
alteration  of  governor  Johnston  was  made  by 
authority,  and  whether  it  had  the  effect  of  the 
power  of  the  king  in  council ;  therefore  I  do 
not  condemn  the  thing  itself.  Mr.  Fabrigas 
not  having  met  wiih  that  success  which  he  ex- 
pected, (thouffh  governor  Mostyn,  1  think,  till 
the  time  of  the  arrest  and  commitment,  acted 
with  a  great  deal  of  caution,  judgment,  and 
prudence,  I  can  almost  say  impartiality)  and 
not  being  satisfied  with  the  opinion  of  the  go- 
vernor upon  the  representation  and  defence  of 
jlllimundo,  which  he  had  never  seen,  desires  to 
see  it.  His  petition  is  rejected.  This  produces 
a  peevish  application  again  and  again  to  the 
governor,  and  from  one  complaint  another 
arises.  New  grievances  are  supposed  to  be 
received,  not  f  nly  by  Mr.  Fabrigas,  but  by  the 
inhabitants  of  the  arraval  at  large :  and  1  can- 
not say  that  1  approve  of  the  manner  in  which 
he  did  prosecute  tiin  claim  :  the  effect  of  it  is 
another  thing  He  certainlj  did  not  obstrve 
that  decency  and  respect  to  the  (i^overnor  which 
he  oui;ht  to  have  done.  If  the  governor 
did  not  attend  to  bis  complaints,  the  kin^f  in 
council  was  open  to  him.  We  ail  know,  that 
the  way  to  the  king  in  council  has  been  pur- 
sued very  often,  where  the  governor  ban  not 
attended  to  the  complaints  of  the  Minorquins. 
Mm  expressions  indeed  have  ihe  appearance  of 
■ility  and  respect ;  but  yet  ihvro  is  a  petu- 


lance in  the  continuing  his  petitions,  which 
n\\g\ki  disturb  the  governor.    Thus  the  matter 
goes  on  ;  this  man  still  complaining,  and  ear« 
nestly  pressing  of  his  suit  upon  a  grievanco 
supposed,  till  the  secretary  informed  the  go- 
vernor, that  the  plaintiff  would  come  next  day 
with  his  petition  backed  with  160  of  the  dealers 
in  grapes  and  wine.    This  it  is  that  is  supposed 
to  alarm  the  governor.     Now  1  will  not  reflect 
so  much  upon  the  honour  of  any  governor  of 
the  garrison  of  fort  St  Phillip's,  as  to  suppose, 
that  he  really  tliought  his  garrison  was  m  any 
more  danger  than  this  court  is  at  the  present 
moment;  nor  will  I  suppose,  that  if  he  did 
think  his  garrison  was  in  danger,  that  he  would 
have  taken  such  feeble  means  to  defend  it. 
The  governor  was  disconcerted  by  the  petu- 
lance of  the  man,  and  was  off  his  guard ;  and 
though  he  took  the  advice  of  those  who  were 
the  proper  persons  to  advise  him  there,  yet  bo 
must  have  too  much  sense  to  imagine,  that  tho 
advice  they  gave  him  was  sucli  as  he  could 
either  in  law  or  reason  follow.      I  aai  not 
speaking  now  of  the  law  of  this  island ;  but 
it   is  totally  contrary  to  all  principles,    and 
to    every   idea   of  justice   in   any   country. 
But  the  next  day,  this  petition  is  presented 
by  four  men  only.      Then  there  is  an  end 
of  all  danger  to  the  garrison  and  the  govern- 
meot ;  and  you  plainly  see  no  disturbance  was 
meant;  nor  is  there  any  evidence  of  hiasolicit- 
ing  the  people,  of  his  breeding  cabals  among 
them,  or  exciting  any  tumult  or  disorder.   Tho 
plaintiff  had,  to  say  the  worst,  only  behaved 
nimself  ill  in  the  mode  of  his  importunity  ;  and 
when  he  was  open  to  the  laws  of  that  country 
(for  such  laws  I  presume  there  mtist  be)  if  m 
had  offended,  he  might  have  been  prosecuted 
in  the  courts  of  criminal  jurisdiction.  Whether 
he  acted  improperly,  from  not  having  suc- 
ceeded in  prevailing  upon  the  majority  of  tho 
people  to  think  he  was  ri^ht  in  desiring  to  in- 
force  the  order  of  1752,  is  not  the  question: 
the  people  seemed  to  be  content  with  tue  varia- 
tion, or  deviation,  made  by  general  Johnston* 
Now  when  all  these  matters  are  over,  this  man 
is  committed  to  prison  ;  and  there  is  the  first 
complaint :  and  I  must  toke  it  upon  this  mo- 
tion, that  it  was  a  false  imprisonment.    If  tho 
governor  had  secured   him,  nay,  if  he  had 
barely  committed  him,  that  he  micht  have  been 
amenable  to  justice;  an'd  if  he  had  immediately 
ordered  a  prosecution  tipon  any  part  of  his  con- 
duct ;  it  would  have  been  another  question,  and 
might  have  received  a  different  consideration. 
But  he  commits  him  to  the  worst  prison  in  tho 
island  ;  and  in  a  way  which  I  cannot  conceive 
came  from  general  Mostyn.     What  could  in- 
duce him  to  use  a  man  Mith  such  hardship  and 
inhumanity  P  Was  not  putting  him  into  prison 
sufficient?  Why  i«as  he  to  he  deprived  of  tho 
society  of  his  wife  and  children,  without  being 
allowed  any  thing  for  bis  sustenance  but  bread 
and  uater,  and  to  lie  upon  the  floor  P  In  this 
condition  he  remains  for  six  days :  then  comon 
a  ftec«>nd  impriKooment ;  for  1  take  the  whole 
year  to  be  a  cuntiututtion  of  the  fidse  imprisoBr 


Tahrigat  v,  Mailt/n, 

Hb  ta  lh#D  COnftneil  im  Uianl  a  aliip,  . 
r  ibr  iitn  nf  r  hmiinlimfnl  in  t'ar(hiii;eDii. 
r.  MnsTvn  wan  teil  ii>ii>  lliia.  iin- 
■  IbatiU  pncltcwuf  iheUlanil  tfl'Miiiorcn,  b; 
«Akh  ii  wu  tinual  to  Imnish  -  I  giiiiposp  ihe 
lU  HfDi)n|iim*  ibnuubl  fit  t»  iilviw  linn  lo  tliii 
wmmitr.  But  ibt-  ^trninr  Umw  th*i  lie  could 
Nnwf  imnrtsnn  him  for  «  iwelvemfinlh,  than 
tabeoBuU  inflici  lliulorlure;  yet  the  liir-  ' 
toe,  u  xpI)  an  haniiilinicnt,  tma  iliV  nIH  taw  nf 
HiMwrm,  whirh  fell  of  cnurip  wlirn  il  came 
itia  nor  {Ht^*iinii>n.  Eriry  BiiLrliiih  |[o»ernor  j 
kww  bf  coiilil  nnt  inflirt  tlic  toriure ;  ilie  eoD- 
ntiiiion  of  (bin  couniry  jiiit  nn  end  Id  lliat  idea.  . 
•n  - .  ..    II  ilrBg(f(s(nn  boinl  ■  Blii|i,  »ilb 

~~i  nf  inliiimanily  and  liaril-  I 
•  I  cmiiiai  iwlifce  of  i;Fneral  Moitvn  ;  ' 
beamed  inloafuiviun  enunlry,  anil  of 
i  for  I  belieie  there  are  , 
r-rfHMM  ipirn,  ibnt  no  peraoiis  ihould  an  lo  ' 
>^n,  ar  l>«  iiermilied  lo  qoit  ihe  pnri  nf  Car-  ' 
*yi.     All  liiR  mntiniKiiice  In  Spain,  I  Ionic 

CM  ■  «Duliiiuance  of  llie  falie  imprison- 
{  faaeauae  e>ery  cnnatraint  upon  nenonal 
Smj,  wilboul  leK^I  aulliurjiy,  ii  a  lalae  ioi- 
OlMit;  ami  il  a  nptain  leaies  a  sailor 
1  ilr<rrt  iKland,  tlioiigli  he  is  lell  al  liberty 
■,  trt  Ibe  keeplntj:  !'■■>■  from,  that  place  lo 
'■  be  bad  a  right  by  law  to  cociie.  Ii  an 


A.  D.  1779. 
years.  The  Court  was  applied  lo  for  ■  new 
■Hal,  upon  rxc-Biire  damsgcB.  Wliol  did  iba 
Cnuii  say?  (and  I  neier  be«nl  llieir  JiidEineiit 
in  Ibnt  rnatler  arraigned)  '*  We  are  noi  ilie  JD- 
diciitiirc  lu  delerniine  upon  the  deliberate  judj^ 
Jury,   iipnn  aurh  a  aiibjecl  as  Ihit. 


kHfiaaiUnes 
Irii|WD   r 


I  proper  cailae  the  ciiDfta  nf  jiiRlice 
men  ■aii  is  a  judicial  way  eiercined  any  power 
«bicb  tiMiir  Uwa  wnutd  hate  snppDrteit,  and 
■MHl  llir  tax*  nFUli*  oountry  nu|{lit  not,  what 
Ikceffrctof  that  wniild  have  becu  has  nolliin^ 
M  ilu  OTib  ibii  oauie ;  for  nuw  we  take  it  upon 
te  KPneral  Imuc,  Not  Ouilly.  In  thia  case. 
A*  niD  ha*  been  impritoned  under  circum- 
flneaa  »f  ifreiit  harditiip  for  Iwelre  niontha, 
■rfkefi  rramlheRammdnicaliat)  nfbia  family 
mt  km  own  cuDcema.  lu  this  lituaiino  be 
blag*  tm  aOiun ;  «ud  Ihe  Jury  huvu  tbnii||;hl 
•ilai^r3,0<io/.ilaDiagF«.  ToIm sura,  {1,000/. 
baa  unmenite lum  foraMinorquin  to  recoter : 
■y  brMber  Da*y  Ibouijhl  proper  In  une  the 
ttyaaaiim  "f  (U  ueia\g  an  imtra^eoii»  aiiin.  To 
«fi*ha(  ■■  ibr  talueafllM  liberty  nf  a  man'* 
fnaiiu.aeclnded  from  hia  braily.  under  circum- 
■UMvurhaidibip,  fur  Iweire  inonlbi,  ia  a  (tiffi- 
aill  inaltvr.  Men'a  minla  will  vary  tnucb  about 
it:  I  alimiUI  ibiok  one  tbinft,  another  would 
Ihink  ■mlha.  lu  tl>i<  cbm  of  penonnl  wrontfii. 
aha*  Im*  Ibe  law  aaid  ?  The  law  ban  naiJ,  Ihal 
^fary  of  IHalle  men  iball  he  llie  jnil^ea  lo  de- 
itrmtttt  aiHl  avea*  tbe  comiiensaiinii  for  Ihat 
^— pal  «ra<i|[.  \\  e  cannul  but  rei-ollrcl  what 
pM*rd  ia  ih-a*  iinfurlimaiF  affair*  ibal  tiap|>#n- 
alatout  <lir  wcrclary  of  uste  and  a  |irlnier'a 
bi].  A  ■•■rtaai  ia  taken  itp  under  a  mltiake, 
Ml  earri'it  l><  a  brlUr  tluiue  llian  liis  own,  la 
M  »>ib  Uirri  |>i..v.<iiuiH  llian  he  had  of  hia 
Dak.   ao'l  ••  t.rdii-il  briirr  Ihan  he  wnuld  have 


Hove  Ibejury  eacrclspd  their  jiid:jti 
there  any  iinpntaiion  upon  their  mnduct  ex- 
cept Ihp  Idea  nf  Ihe  comppnaation  not  being 
pro|inrtiuneil  ?  Not  at  nil."  Hov,  can  a  court 
of  justice,  thai  i*  to  determine  npnn  Uw,  set  a 
value  upon  tliii,  and  lay,  it  ia  wntngfF  What 
woiild  be  llie  onaeqiience  ofil?  If  we  say  tliii 
ia  nmng,  we  niuct  ^ay  irhal  la  righu  Then 
t*e  are  lo  tell  the  jury,  "  You  are  not  tn  Gnd 
S.OOD;."  ■■  Mb]  we  find  3,000/  1,000/,  500 (. 
or  100/.  r  Tell  ua  wliere  you  tblnk  we  ahould 
herlijlit?"  "We  muMnnl  lellyon;  we  bar* 
no  authority  to  do  that ;  liul  you  itiual  oot  gite 
oulrageoua  ilamaifes."  I'W  tliiiugh  1  may 
know  in  my  own  mind  whereaboulu  I  abould 
compeimta  the  Injurv,  wilhoiilBByinK  wbelher 
it  would  he  more  or  fesa  tbui  tbis,  yet  I  caiinol 
pretcribe  tn  the  jury  what  I  think  the  value  of 
perBonal  liberty.  But  il  is  aald,  that  tbe  go- 
Temordid  what  he  uould  in  hi«  ailualion ;  but 
wsa   miataben.     If'  be  wni  miniaken,  it  ia  a 


il  was  preasFd  belbte  the  jury,  and  they  paid 
Gucb  attention  to  it  a«  lliey  thouglit  proper; 
and  Iheretbre  It  would  be  totally  evoking  the 
cause  from  ita  pro|ier  determinalion  lo  say,  that 
ifaejury  ought  lu  give  some  other  damsgea  thau 
ttiey  hate.  Aa  lo  the  ground  on  which  the 
defvudani'a  counEel  have  made  this  moiinii,  it 
arisea  frooi  an  accident,  and  I  ihink  au  acci- 
dint  which  was  very  properly  protlded  for; 
for  bad  it  not  been,  thai  the  learned  judge  who 
tried  the  cause  had  patticularly  in  lermi  recotn- 
meaded  the  cnnsiderslion  ot'  (his  point  to  lbs 
jury,  and  taken  their  answer,  the  defendant 
could  not  hate  had  any  ground  lo  apjily  for  a 
new  trial.  In  my  opluion,  the  learned  judge 
did  tery  right,  and  acted  with  great  prudence 
and  justice  to  the  parties,  and  tu  the  future 
questions  that  may  arise  in  Ihiacauae;  tiir  it 
liiuks  aa  if  Ihe  parlies  from  the  beginning  in- 
tended tn  apply  either  hare  nr  elsewhere.  Now 
il  ia  a  terv  ditferent  question,  whstber  the  go- 
vernor of"^  Minorca,  finding  a  subject  mutinoiii 
and  seditious,  and  disiurbiog  his  ((overninent, 
can  ari-esi  and  imprison  him?  or,  whether  he 
can  justify  whut  be  has  done,  the  jury  baling 
found  thai  he  was  iieillivr  inulinous  nor  aedi> 
liousf  Had  they  fomtd  the  contrary,  ihatfact 
tiiight  have  been  taken  inio  cunslderaliun  in  a 
euuri  of  JQBtice ;  bui  as  ibcy  liate  exercised 
thai  jurisdiction  thecontliiutlon  has  given  ihetn, 
I  ililiik  there  aught  not  lo  be  a  new  trial. 

nir.  Just.  Guufdwd,  Ihat  the  Court  was  not 
wariMiiied  in  deirrinuilug  thai  ihe  damagea 
ne>e  exresaive,  wiiliout  bieakliig  in  upon  the 
fundumenial  principles  of  the  conaliiuUon. 

Hr.  Just.  BlaiktCoae  observed,  that  these 
(laiuagea  goqU  uui  he  called  angry  or  tiadialiv* 


I8S] 


H  GEORGE  III. 


Actitmjor  Fake  Imprhonment'^ 


[tSft 


Otroages,  as  the  injury  was  at  ontrtgeous  as 
the  dama^ret  could  l>e  ejccetsive. 

Mr.  Just.  Narfs  declared,  that  Mr.  Fabrigfat 
had  been  impriRoued  and  treated  in  such  a 
manner  ihat  he  did  not  care  to  repeat. 

The  whole  bench  were  unanimous  in  refuvin^ 
a  new  trial,  and  the  rule  wai  consequently  dis- 
cbarj^ed. 

Farther  Proceedings  in  the  Cause  of  Fa- 
brigas  and  mosttn. 

The  Court  of  Common  Pleas  ha? ingf  refused 
governor  Mostyn  a  new  trial,  be  reported  to  a 
Writ  of  Error,  which  was  allowed  on  the  14tb 
of  December  1773. 

On  the  16th  of  December  he  was  obUged  to 
put  in  bail. 

A  rule  was  ii^iFen  to  transcribe  the  record  in 
Hilary  term,  1774. 

The  first  Scire  Facias  issued  in  Easter 
term. 

The  second  Scire  Facias  issued  in  the  same 
term,  on  the  16tb  of  May,  returnable  in  Tri- 
mtv-terro. 

Mr.  Fabrigas,  the  defendant  in  error,  was 
•erfed  with  a  summons  on  the  7th  of  June, 
that  the  plaintiff  mi|y|^ht  have  time  to  assi^ 
errors  till  judge  Gould  had  put  his  seal  to  £e 
bill  of  exceptions. 

On  the  8(b  of  June,  judge  Gould  came  into 
the  court  of  King's- bench,  and  acknowWd^fed 
bis  seal.— The  errors  were  assigned  on  the  16th 
of  June.  The  defendant  pleaded  in  nulla  est 
erratum  on  the  30th. — A  Concilium  was  moved 
for  on  the  31st  of  June. — It  was  set  down  for 
argument  for  the  first  Friday  in  Michaelmas 
term. 

It  was  argued  on  Tuesday  the  15tb  of  No- 
vember 1774 ;  and  the  record  is  as  follows  : 

*'  The  Record  of  the  Proceedings  in  Fabrigas 

and  Mostyn. 

«  The  Writ  of  Error. 

'*  As  yet  of  Trinity-term,  in  the  14th  year 
of  tlie  reigu  of  king  Geoiige  the  third. 

■*'  Our  lord  the  king  sent  to  his  trusty  and 
well- beloved  sir  William  de  Grey,  knight,  hii^ 
chief  justice  of  the  bench,  his  close  writ,  in 
these  words  ;  that  is  to  say :  George  the  third, 
by  the  grace  of  Go<l,  of  Great  Britain,  France, 
and  Ireland,  king, '-defender  of  the  faith,  &c. 
To  oar  trusty  and  well- beloved  sir  William  de 
.Grey,  knight,  our  chief  justice  of  the  bench, 
greeting. .  Forasmuch  as  in  the  record  and 
prooesA,  as  also  in  giving  of  jud^'ment  in  a 
plaint  which  was  in  enr  court  before  you  and 
youp  associates,  our  Juittioes  of  the  bench,  by 
our  writ  lietween  Anthony  Fabrit^s  and  John 
Mostyn,  esq  of  a  plea  ot  trenpass,  assault,  and 
iilittimpri^nment,  as  it  m  said,  manifest  error 
bath  intervened,  to  the  great  damage  of  the 
•aid  John,  as  by  hiscomplaiut  we  are  informed : 
we,  willing  that  the  said  error  (if  any  be)  be 
doly  amended,  and  full  and  speedy  justice  done 
to  the  aaid  parties  in  this  befaalfi  do  comnHmd 


you,  that  if  judgment  lie  given  therenpon,  then 
you  send  to  us  distinctly  and  plainly,  under 
your  seal,  the  record  and  process  of  the  said 
plaint,  and  a41  things  toucning  the  same  and 
this  writ ;  so  that  we  may  have  them  in  fifleea 
days  of  St.  Hilary,  wheresoever  we  shall  than 
be  iu  England  ;  that  inspecting  the  record  aad 
process  aforesaid,  we  may  cause  further  to  km 
done  thereupon  for  amending  the  said  error,  •• 
of  right,  and  according  to  the  law  and  custooa 
of  England,  shall  be  meet  to  be  done.  WitneM 
oorself  at  Westminster,  the  6th  day  of  De- 
cember, in  the  14tb  year  of  our  reign,  Hil.  A.  L, 

"  The  Return  to  the  Writ. 

"  The  Answer  of  sir  William  de  Grayi 
knight,  chief  justice  within  named. — The  re* 
curd  and  process  of  the  plaint  within  nnentionods 
with  all  tnings  touching  the  same,  I  send  be* 
fore  our  lord  the  king,  wheresoever,  &c.  at  a 
day  within  contained,  in  a  certain  record  to  tbe 
writ  annexed,  as  I  am  within  commanded, 
5ec.  WnxiAM  de  Grey. 

*'  Pleas.  Inrolled  at  Westminster  before  air 
William  de  Grey,  knight,  and  his  brethren, 
justices  of  bis  majesty's  court  of  GomoMa 
Bench,  of  Easter- term,  in  the  19th  year  of  the 
reign  of  our  sovereign  lord  George  the  third, 
by  the  grace  of  God,  of  Great  Britain,  FranoOi 
and  Ireland,  king,  d^^fender  of  the  faith,  and  le 
forth.    Rolls  616  and  617. 

"The  Declaration. 

**  In  the  Common  Pleas.  London  to  «ril, 
John  Mottyn,  late  of  Westminster,  in  the  oount^f 
of  Middlesex,  esquire,  was  attached  to  answer 
Anthony  Fabrigas  of  a  plea,  wherefore  be 
with  force  and  arms  made  an  assault  upoe  tlw 
said  Anthony  at  Minorca,  (to  wit)  at  Londett 
aforesaid,  in  the  parish  of  Saint  Mary-le-Bew^ 
in  the  ward  of  Cheap,  and  beat,  wonnded,  aed 
ill-treated  him,  and  there  imprisoned  him,  aod 
kept  and  detained  him  in  prison  there  for  e 
long  time  without  any  reasonable  or  probable 
cause,  contrary  to  the  laws  and  customs  ef 
this  realm,  against  the  will  of  the  said  Anthony, 
and  compellml  the  said  Anthony  to  dejiart  freei 
and  leave  Minorca  aforesaid,  where  the  nid 
Anthony  was  dwelling  and  resident,  and  carriid 
and  caused  to  be  carried  the  said  Anthony  frea 
Minorca  aforesaid,  to  Carthagena  in  the  domi- 
nions of  the  king  of  Spain,  against  the  will  ef 
the  said  Anthony  ;  whereby  the  said  Anthony 
was  put  to  great  expence  and  trouble,  and  tbe 
goods  and  effects  of  the  said  Anthony  tliewi 
were  diminished,  lost,  spoiled,  and  consumed, 
and  the  family  of  the  said  Anthony  were 
brought  to  great  want  and  distress,  and  tbe 
said  Anthony,  during  all  the  said  time,  wee 
thereby  deprived  of  the  c«imfert  of  his  aaid 
family  :  and  also  wherefore  the  said  Johu  witb 
force  and  arms  made  another  assault  upon  the 
said  Anthony  at  Minorca,  (to  wit)  at  Ltondott 
aforesaid,  in  tlie  pari*ih  and  ward  aforesaid,  aed 
beat,  woended,  and  ill-treated  him,  and  ilwrne 
imprisoned  him,  aod  kept  and  detained  hint 
there  in  priteii  for  e  long  timt^  withoet  any 


185]   '  Fabrigas  o.  Moityn. 

NMooiMc  or  probable  caiMe,  cootrary  to  tho 
kvo  oo4l  ooaioont  of  tbii  realoi,  id^iiMfc  the 
vill  of  the  md  Aoihoo  j ;  and  did  other  wroo^v 
tihiiD,  to  the  ^reat  daniai^  of  the  iaid  Au- 
^^mj^  and  against  the  peace  of  our  lord  the 
■lokiiig:  and  thereupon  the  said  Anthony, 
^Richard  Gregory,  his  attorney,  complains, 
Ml  the  aaid  John,  on  the  first  day  of  Septeni- 
kr,  IB  the  year  of  our  Lord  177 1,  with  force 
•ad  anus,  (to  wit)  with  swords,  sta? es,  sticks, 
•ad  fislOy  made  an  assault  upon  the  said  Ao- 
dHsy,  at  Minorca,  (\o  wit)  at  lx»ndon  aforesaid, 
■  mt  parish  of  Ht.  Mary -le- Bow,  in  the  ward 
sf  Cbeaf  y  and  beat,  wounded,  and  ill- treated 
Msi,  and  then  and  there  imprisoned  him,  and 
bpt  and  detained  him  in  prison  there  for  a  long 
(to  wit)  for  the  space  of  ten  months,  with* 


•at  aoT  reaaoaabte  or  probable  cause,  contrary 
Is  iha  laws  and  customs  of  this  realm,  against 
db  will  aC  the  said  Anthony,  and  compelled 
'^~  '^  Anthony  to  depart  from  and  leave 
iforesald,  where  the  said  Anthony  was 
dvrelliog  aod  resident,  and  carried  and 
to  he  carried  the  said  Anthony  from 
aforesaid  to  Carthsgena,  in  the  do- 
«f  the  king  of  Spain,  against  the  will 
■f  the  aaid  Anthony ;  whereby  the  said  An- 
I  then  and  there  put  to  great  expenoe 
trovhie,  and  the  goods  and  effects  of  the 
Anthony  there  were  diminished,  lost, 
apoiM  and  consumed,-  and  the  family  of  the 
Anthony  were  thereby  brought  to  great 
and  distress,  and  the  said  Anthony  during 
tfaa  aaid  time  was  deprived  of  the  comfort  of 
aaid  family  ;  and  also,  for  that  the  said 
•o  the  said  first  dav  of  September,  in  the 
aComr  Lord  1771  aforesaid,  with  force  and 
(to  wit)  with  swords,  staves,  sticks,  and 
BMule  another  assault  upon  the  said  An- 
,  at  Minorca,  (to  wit)  at  London  afore- 
/in  the  parish  and  ward  aforesaid,  and  then 
there  beat,  wounded,  and  ill-treated  him, 
then  and  there  iuiprisoned  him,  and  kept 
detained  him  there  in  prison  for  a  long 
>,  (to  wit)  for  the  space  of  other  ten  months, 
any  reasonable  or  probable  cause, 
to  the  laws  and  custonns  of  this/ealm, 
apiDst  the  will  of  the  said  Anthony ;  and 
thm  and  there  did  other  wrongs  to  him  the 
■id  Autliooy,  to  the  great  damage  of  the  said 
Aalhoay ,  and  against  the  peace  of  our  said  lord 
kin|f:  and  thereupon  the  said  Anthony 
that  he  is  injured  and  hath  sustained 
to  the  value  of  19,000/.  And  thereof 
hehringvth  suit,  &c. 

"  The  Plea* 

**  And  the  said  John,  by  James  Da^e^  his 
mamey,  comei  and  defends  the  force  and  in- 
jary,  and  says  he  is  n(»t'guitty  of  the  premises 
above  laid  to  his  charge  in  manner  and  form  as 
the  aaid  Anthony  hath  above  complaineil  there- 
•f  against  him ;  and  of  this  he  puts  himself 
apan  the  country,  &c.  and  the  said  Anthony 
dstb  ao  Kkewiiie.  And  for  further  plea  in  this 
bthalf  as  to  the  making  the  said  assault  upon 
^  nid  Aathooy  in  the  firat  count  in  the  said 


A.  D.  177S.  [186 

declaration  mentioned,  and  beating  and  ilU 
treating  him,  and  imprisoning  him,  and  keep-* 
iog  and  detaining  him  in  prison  for  the  aaid 
space  of  time  in  tlie  said  declaration  mentioned^ 
sitid  compelling  the  said  Anthony  to  depart 
from  and  leave  Minorca  aforesaid,  and  carry- 
ing and  causing  to  be  carried  the  said  Anthony 
from  Alioorca  aforesaid  to  Carthagena,  in  tba 
fiomiuion^  of  the  king  of  Spain,  by  the  said 
Johu  al)ove  supuosed  to  have  been  done ;  he 
the  said  John,  by  leave  of  the  court  here  for 
this  purpose  first  had  and  obtained,  according 
to  the  form  of  the  atatute  in  that  case  mmim 
and  profided,  says,  that  the  aaid  Anthony 
ought  not  to  have  or  maintain  his  said  action 
thereof  againat  him  the  said  John,  becauae  ha 
says  that  he  the  said  John,  at  the  said  tima, 
&c.  aod  long  before,  was  governor  of  the  said 
island  of  Minorca,  and  during  all  that  time  was 
invested  with  and  did  hold  and  exercise  all  tba 
powers,  privile^,  and  authorities,  civil  and 
military,  uetonging  and  relating  to  the  go? em- 
ment  of  the  said  island  of  Minorca,  in  parts  be- 
yond the  seas;  and  the  said  Anthony  before 
the  said  time  when,  &c.  (to  wit)  on  the  said  lat 
day  of  September,  in  the  year  aforesaid,  at  tba 
said  island  of  Minorca  aforesaid,  was  guilty  of 
a  riot  and  disturbance  of  the  peace,  order,  and 
government  of  the  said  island,  aod  was  endea- 
vouring to  create  and  raise  a  mutiny  and  sedi* 
tion  among  the  inhabitants  of  the  said  island^ 
in  breach  of  the  peace,  violation  of  the  lawa» 
and  in  subversion  of  all  order  and  government ; 
whereupon  the  said  John,  so  being  goverdor  of 
the  said  island  of  Minorca  as  aforeaaid,  at  tba 
said  time  when,  &c.  in  order  to  preserve  tba 
peace  and  government  of  the  said  island,  was 
obliged,  and  did  then  and  there  order  the  said 
Anthoiiy  to  be  banished  from  the  said  island  of 
Minorca,  and  to  leave  aod  quit  the  said  island. 
And  in  order  to  banish  and  send  the  said  An- 
thony from  and  out  of  the  said  island,  did  then 
and  there  for  that  purpose  gently  lay  hands 
upon  the  said  Anthony,  and  did  then  and  thera 
seize  and  arrest  him,  and  did  keep  and  detain 
the  said  Anthony,  before  lie  could  be  banished 
and  sent  from  out  of  the  said  island,  for  a  short 
space  of  time,  (to  wit)  for  the  space  of  six  tiays 
then  next  following ;  and  afterwards,  to  wit, 
on  the  7th  day  of  Sf  ptemlier,  in  the  year  af<ira- 
said,  at  Minorca  aforesaid,  did  carry  and  causa 
to  be  carried  the  said  Anthony,  on  board  a  cer- 
tain vessel,  from  the  island  of  Minorca  afore- 
said to  Carthat^ena  aforesai<l,  as  it  was  bwful 
fur  him  to  do  for  the  cause  aforesaid,  which  ara 
the  same,  making  the  said  assault  upon  tha 
said  Anthony  in  tht*  first  count  of  the  said  de- 
claration mentioned,  and  beating  and  ih-treat- 
ing  him,  and  imprisfoning  him,  and  keeping 
and  detaining  him  in  prison  for  the  said  space 
of  titnc  in  the  said  first  count  of  the  said  decla- 
ration mentioned,  and  compelling  the  said  An- 
thony to  depart  fri»m  and  leave  Minorca  afore- 
said, and  carrying  and  causing  to  be  carried 
the  aaid  Anthony  from  Minorca  to  Gartbagena, 
in  the  dominions  of  the  king  of  Spain,  %^  hereof 
the  said  Anthony  hath  aboveeomplaiut  J  against 


187J 


14  GEORGE  III. 


Action  Jor  False  Imprisonment'-' 


[1S8 


him:  and  this  he  is  retdj  to  ferify.  Where- 
ibre  he  preys  juilgmeot  it'  the  said  Anthony 
ought  to  have  or  maintain  his  said  action  there- 
of againxt  him,  5ec.  without  this  that  the  said 
John  was  guilty  of  the  said  trespass,  assault, 
and  imprisoninent,  at  the  parish  of  St.  Mary  le 
Bow,  in  the  ward  of  Cheap,  or  elsewhere  out  of 
the  said  island  of  Minorca  aforesaid. 

'*  Thomas  Walker. 

*<  The  Replication. 

**  And  the  said  Anthony,  as  to  the  said  plea  of 
him  the  said  Juhu,  by  him  secondly  above 
pleaded  in  bar,  as  to  the  said  assaulting  the 
nid  Anthony  in  the  said  first  count  of  the  said 
declaration  mentioned,  and  beating  and  ill- 
treatiutf  him,  and  imprisoning  him,  and  keep- 
ing and  detaining  him  in  prison  for  the  said 
apace  of  time  in  the  said  declaration  mentioned, 
and  cump«*Uing  the  said  Anthony  to  depart 
IVom  and  leave  Minorca  aforesaid,  and  carry- 
ing ami  causing  to  be  carried  the  said  Anthony 
from  Minorca  aforesaid  lo  Carthagena,  in  the 
dominions  of  the  king  of  S|uiin,  by  the  said 
John  above  done,  protesting  that  the  said  plea, 
and  tiie  roattera  therein  contained  are  insuffi- 
cient in  law  to  bar  the  said  Anthonv  from 
maintaining  his  said  action  against  the  said 
John.  For  replication  in  this  ^half,  he  saith, 
that  the  said  Anthony  ought  not,  bv  reason  of 
any  thin^  bv  the  said  John  above  in  pleading 
alleged,  to  be  barred  from  havini^  his  said  ac- 
tion thereof  maintained  against  him  ;  becanse, 
he  saith,  that  the  said  John,  of  his  own  wrong, 
and  without  atich  cause  as  the  said  John  hath 
above  in  his  said  plea  alleged,  on  the  same  day 
and  year  aforesaid,  at  London  aforesaid,  in  the 
parish  and  ward  aforesaid,  assaulted  the  said 
Anthony,  and  beat  and  ill-treated  hiin,ttnd  im- 
prisoned him,  and  kept  and  detained  him  in 
prison  for  the  said  space  of  time  in  the  said  de- 
claration mentioned,  and  compelIe<l  the  said 
Anthony  to  depart  from  and  leave  Minorca 
aforesaid,  and  carried  and  caused  to  be  carried 
the  said  Anihony  from  Minorca  aforesaid  to 
Carthagena,  in  the  dominions  of  the  king  of 
Spain  aforesaid,  in  manner  and  form  as  the 
said  Anthony  hath  above  complained  against 
him ;  and  this  he  prays  may  be  enquired  of  by 
the  country.  And  the  said  John  doth  so 
likewise.  John  Glynn. 

"  Award  of  the  Venire. 

**  Therefore,  as  well  to  try  this  issue  as  the 
said  other  issue  between  the  said  parties  above 
joined,  it  is  commanded  to  the  sheriffs,  that 
they  caiibe  to  come  here,  in  three  weeks  of  the 
Holy  Trinity,  twelve,  &c.  by  w  hom,  &c.  and 
who  neither,  &c.  to  recognize,  Sec.  because  as 
well,  ^c. 

"  At  which  day  the  jury  between  the  said 
parties  of  the  plea  aforesaid,  was  respited  here 
.until  on  the  morrow  of  All  Souls  then  next 
following,  unless  sir  Henry  Gould,  kni^h  ,  one 
of  the  king*K  juHtices  of  the  bench  here  as- 
■igned  by  rorm  of  the  statute,  &c.  should  first 
eooei  00  Fndaj  the  Sod  of  July  last  pest|  ai 


the  Guildhtill  of  the  city  of  Loodoo.  And 
ROW  here  at  this  day  cometh  the  said  Anthony^ 
by  his  said  attorney,  and  the  said  justice,  before 
whom,  dkc.  hath  sent  here  his  record  io  thcae 
words. 


«( 


The  Postea. 


**  That  is  to  say,  afterwards,  on  the  day  and 
in  the  year,  and  at  the  place  within- raentiondly 
come  as  well  the  within- mentioned  Anthony 
Fabrigas  as  the  within-named  John  Mostyn,  by 
their  attornies  within-named,  before  sir  Hearv 
Gould,  knight,  one  of  the  justices  of  the  benco 
within- named,  and  certain  of  the  jurori, 
whereof  mention  is  within  made,  summoned  to 
be  upon  that  jury,  (that  is  to  say)  Thomas 
Zachary,  Thomas  Ashby,  David  Powell,  and 
Walter  Ewer,  being  required,  come,  and  od 
that  jury  are  sworn ;  and  becanse  tlie  rest  of 
the  jurora  of  the  same  jury  do  not  appear,  there* 
fore  eight  other  peraons  of  the  by-standcre, 
being  by  the  sherifls  within-written  hereuolo 
elected,  at  the  request  of  the  said  Anthony,  ami 
by  the  command  of  the  said  sir  Henry  Ooald, 
are  now  newly  set  down,  whose  nanotes  are 
affiled  in  the  within-written  pannd,  according 
to  the  form  of  the  statute,  &c.  which  said 
jun>ra  so  newly  set  down,  (that  is  to  say)  Wil- 
liam Tomkyn,  Gilbert  Howard,  Thomas  Boal- 
by,  and  John  Newhall,  John  King,  Jaaaea 
Smith,  William  Hurley,  and  James  Selby, 
being  also  required,  come  likewise,  and,  toge» 
ther  with  the  said  other  jurora  before  inipaa- 
nelled,  are  tried  and  sworn  to  speak  the  truth  of 
the  mattera  within  contained  ;  who,  upon  their 
oath  sav,  that  as  to  the  firet  issue  within-joined^ 
the  said  John  Mostyn  is  goilty  of  the  premises 
within  laid  to  his  charge,  in  manner  and  fiim 
as  the  said  Anthony  hath  within  complainedl 
against  him :  and  as  to  the  other  issue  within 
joined,  the  said  jurora  on  their  said  oath  further 
say,  that  the  said  John  Mostyn,  of  his  own 
wrong,  and  without  such  cause  as  he  hath  in 
pleading  within  alledged,  on  the  day  and  in  tha 
year  within  mentioned,  at  London,  in  the  parish 
and  ward  within  mentioned,  assaulted  the  said 
Anthony,  and  beat  and  ill-treated  him,  and  im* 
prisoned  him,  and  kept  and  detained  him  in 
prison  for  the  space  of  time  in  the  within  de> 
claration  mentioned,  and  compelled  him  the 
said  Anthony  to  depart  from  and  leave  Minorca 
within  roentifkoed,  and  carried  and  caused  la 
be  carried  the  suid  Anthony  from  Minorca 
aforesaid  to  CarthaGfena,  in  ihe  dominions  of  tha 
king  of  Spain  within  mentioned,  iu  manner  and 
form  as  he  the  sdid  Anthony  hath  by  his  repli* 
cation  within  alledged ;  and  ihey  aasess  the 
damages  of  the  said  Anthony,  by  reason  of  the 
premises  within  specified,  besides  his  coats  sod 
charges  by  him  laid  out  and  eiuended  aheiit 
his  suit  in  this  behalf,  to  3,000i.  and  for  his 
said  costs  and  charge*;,  to  turty  shillings. 
Therefore  it  is  considered,  that  the  said  An« 
thony  recover  against  the  said  John  his  da- 
mages aforesaid,  to  3,000/.,  and  UL  bv  the 
jurv  aforesaid,  in  form  atoresaid  asseascdy  and 
88/.  10  thesakl  Anthony,  at  his  leqacst,  ibr  thn 


J89] 


Fabrigoi  v.  MMyfU 


A.  D.  1773. 


[190 


CMfti  and  chftrfpes  aforesaid,  by  the  Court  here 
ftrndrease  adjudged  ;  which  said  damages  in 
Ike  whole  amouot  to  3,090/.,  &c.     Afterwards 

« at  is  to  say)  before  our  lord  the  kiog  at 
citminster,  conies  the  said  John  Mostyn,  in 
baprouer  peraon,  and  says,  that  at  the  trial  of 
Ikaid  caoae  before  the  said  sir  Henry  Gould, 
Isfhtt  the  counsel  of  him  the  said  John  Mos- 
t^  proposed  certain  exceptions  to  the  ophiion 
•  Be  aaid  sir  Henr^r  Gould,  which  exceptions 
■we  written  in  a  hill,  and  sealed  by  the  said 
■%e;  which  bill  of  exceptions  the  said  John 
Mtya  now  brings  into  this  court ;  and  prays 
i  writ  of  our  lord  the  king  to  the  said  sir  Henry 
Gaald,  to  eonfesa  or  deny  his  seal  so  put  to  the 
■id  bill  of  exceptions,  according  to  the  form  of 
Iha  statute  in  such  cases  made  and  pro? ided, 
vbicfa  writ  is  granted  to  him  returnable  iu  15 
^ta  firoiD  the  day  of  the  Hoi  v  Trinity ;  at 
vhidi  day,  before  our  lord  the  king  at  West- 
■iwatfr,  conies  the  said  Johu  Mostyn  in  his 

S«r  pamn  ;  and  the  said  sir  Henry  Gould, 
[bt,  likewise  in  his  proper  person,  comes 
acknowledges  bis  seal  put  to  the  said  bill 
tf  ooeptknia,  which  bill  of  exceptions  foUowa 
■  tiMao  worda. 

<<  The  Bill  of  Exceptions. 

^  That  ia  to  say,  on  the  morrow  of  the  Holy 
TWnity,  13  Geo.  3.  Be  it  remembered,  that  in 
Aatenn  of  Easter,  iu  the  13th  year  of  the 
MfB  of  our  sovereign  lord  George  the  third, 
■aw  kin^  of  Great  Britain,  and  so  forth,  came 
Aashaay  Fabrigaa,  by  Richard  Gregory  hia 
MHBCjt  into  the  court  of  our  said  lord  the  king 
if  Iho  Bench  at  Weatminster,  and  impleads 
Uoatyo,  late  of  Weatminster,  in  the 
of  Middlesex,  esq.  in  a  certain  plea  of 
on  which  the  said  Anthony  declared 
bim. 

[Tbe  declaration,  plea,  and  replication,  are 
act  out  verbatim,  which,  to  avoid  repeti- 
are  now  omitted.    Af^er.  those  pleadings 
the  bin  of  exceptions  proceeds  in  these  words.] 

**  And  afterwarda  (to  wit)  at  the  sittings  of 

Ma  Priua,  bolden  at  the  Guildhall  of  the  city 

af  London  aforesaid,  in  and  for  the  said  city, 

Mom  the  bon.  air  Henry  Gould,  knight,  one 

ef  the  joatioea  of  our  said  lord  the  king  of  the 

Bench,  Thomas  Lloyd,  esq.  being  associated  to 

him  aoDording  t/o  the  form  oC  the  statute  in  such 

caae  made  and  provided,  on  Monday  the  12th 

day  of  inly,  in  the  13tli  year  of  the  reign  of 

ear  aaid  lord  the  now  king,  the  aforesaid  issues 

aa  joined  between  the  said  parties  as  afuresaid, 

fsme  on  to  be  tried  by  a  jury  of  the  city  of 

Landon  aforesaid,  for  that  purpose  duly  iin- 

faaoelled  ;  at  which  day  came  there  as  well 

the  aaid  Anthony  Fabrigas  as  the  said  John 

Maatyo,  by  their  attornies  aforesaid.    And  the 

JBiora  of  the  jury  aforesaid,  impannelled  to  try 

Ibe  said  iasuea,  being  called  over,  some  of  them, 

asaKly.   Tliomaa    Zacbary,  Thomas  Ashby, 

Usvid  Powell,  and  Walter  Ewer,  came  aud 

acre  then  and  there  in  due  manner  chosen  and 

Mvom  lo  try  the  aame  issues ;  and  because  the 

OH  af  tba  jurors  of  the  same  jury  did  not  ap- 


pear, therefore  othera  of  the  by-atanders  being 
chosen  by  the  sheriffs,  at  the  request  of  the  said 
Anthony,  and  by  command  of  the  said  justice, 
were  appointed  anew,  whose  namea  were 
affixed  to  the  pannel  of  the  said  jury,  according 
to  the  form  of  the  statute  in  such  case  made 
and  provided  ;  which  said  jurors  so  appoioted 
anew,  (to  wit)  William  Tomkyn,  Gilbert 
Howard,  Thomas  Boulby,  John  Newball, 
John  King,  James  Smith,  William  Hurley, 
and  James  Selby,  being  likewise  called,  came, 
and  were  then  and  there  in  due  manner  tried 
and  sworn  to  try  the  same  issues.  And  upon 
the  trial  of  the  said  issues,  the  counsel  learned 
in  the  Ulw  for  the  said  Anthony  Fabrigas,  to 
maintain  and  prove  his  said  declaration,  on  hia 
part  gave  in  evidence,  that  the  said  John,  ai 
the  island  of  Minorca,  on  the  17th  day  of 
September,  in  the  year  of  our  Lord  1771,  aeized 
and  took  the  aaid  Anthony,  and  without  any 
trial  impriaoned  him  for  the  space  of  six  daya, 
a^inst  his  will,  and  banished  him  for  the  apace 
of  twelve  months  from  the  said  island  of  Mi« 
noroa,  and  caused  him  to  be  put  by  soldiers  on 
board  a  ship,  and  to  be  transported  from  the 
said  iaiand  of  Minorca  to  Cartbagena  in  Spain, 
for  the  said  space  of  twelve  months :  where- 
upon the  counsel  for  the  said  John  Mostvn  did 
then  and  there,  on  the  part  of  the  aaid  John 
Mostyn,  give  in  evidence,  that  the  said 
Anthony  was  a  native  of  Minorca,  and  at  the 
time  of  taking,  aeizing,  and  imprisoning  him, 
and  banishing  him  as  aforesaid,  waa  residing 
in  and  an  inhabitant  of  the  arraval  of  St.  Phil* 
lip'a  in  the  said  island.    And  it  was  further 

Siven  in  evidence  on  the  part  of  the  aaid 
efendant,  that  the  said  island  of  Minorca 
waa  ceded  to  the  crown  of  Great  Bri- 
tain by  the  king  of  Spain,  by  the  treaty  of 
Utrecht,  in  the  year  of  our  Lord  17 13 ;  and 
that  the  article  in  the  said  treaty,  relative  to 
the  said  island,  is  as  follows :  **  Rex  porr(>  Ca« 
tholicus,  pro  se,  hseredibus  et  successoriboa 
suis,  cedit  parit^r  corooie  Magne  Britannia 
totam  insulam  Minorca;,  ad  e^mque  transfert 
in  perpetuum  jus  omne  dominiCimque  plenisai- 
mum  aupradictam  insulam,  speciatlm  vero 
super  urbem  arcem  portum  muuitiones  et  si* 
num  Minorisenses,  vulg6  Port  Mahon,  un4 
cum  aliis  portubus  locis  oppidisque  in  prefatft 
insult  sitis ;  provisum  tamen  est  ut  in  articub 
suprascripto  quod  nullum  perfugium,  neque 
recpptaculum  patebit  Maurorum  navibua  bel-' 
licis  quibuscOnque  in  Purtu  Mahonis,  aut  in 
alio  quovis  portu  dictee  insulce  Minoitse,  qu6 
orae  Hispanise  ipsorum  excursiontbus  iniestea 
reddantur.  Quinim6  commorandi  8olummod6 
caus4  secundilm  pacta  convcnta  Mauris  eorCim- 
que  navigiis  introitus  in  insulam  pnefatam  per- 
mittetur.  Promittit  etiam  ex  su&  parte  regina 
Magnee  Britanniie,  qu5d  si  quand5  insulam 
Minorcce  et  portus  oppida  locaque  in  e^lem 
aita  a  coronll  regnorum  suorum  quovis  modo 
alienari  in  posternm  contigerit,  dabiiur  coronsa 
Hispaniee  ante  nationem  altam  qiiauictinque 
prima  optio  possessionem  et  proprietatem  pitr^ 
memoratce  insule  redimenUi.    Spondet  insup^ 


191] 


14  GEORGE  III. 


Adkmjbf  Fabe  ImpriMnment^^ 


[19f 


regria  ma  roajestM  Magne  Britannue,  ie  fitctu- 
rsm  lit  iocobe  omnen  insuls  pnelktoe  taiii  ec- 
desiastici  quam  secalam  bonis  suis  unirenis, 
etboDOribaa  tut6  pacal^ue  fruantur.  Atque 
reli^onia  Romaoa  Catholics  iiher  uaut  iit 
permittetura,  Otqae  etiamejut  modi  ratioDefs  in^- 
■ntnr,  ad  tuendaio  reliij^onein  praMlictain  to 
cftdem  insiilft,  que  ^  gtibernatione  civili  atque 
ik  legibas  Magnie  Britannie,  penit&s  abtiorrere 
noD  f  ideaolar.  Polenint  etiam  suis  honoribiis 
ct  bonis  frui,  qui  nuocsus  Catholice  majestatit 
verTitio  addicii  saiit,  etiamsi  in  eodrm  perman- 
•erint ;  et  liceat  cuicunque,  qui  prsefataro  in- 
aulam  relinquere  ? oliierit,  bona  sua  ? eodere  et 
liber^  io  Hispaoiam  transvehere."  And  it  was 
further  given  in  evidence  oo  the  part  of  the  said 
defendant,  that  the  Minoroiiins  are  in  general 
governed  by  the  Spanish  laws,  but,  when  it 
•ervet  their  purpose,  plead  the  English  laws. 
And  it  was  further  pvPD  in  evidence  on  the 
behalf  of  the  said  defendant,  that  there  are 
certain  magistrates,  called  the  chief  justice 
criminal,  and  the  chief  justice  civil,  in  the  said 
island.  And  it  was  further  given  in  evidence 
by  James  Wright,  the  secretary  to  the  defen- 
dant, that  the  said  island  is  divided  into  four 
districts,  exclusive  of  the  arraval  of  St.  Phil- 
lip's, which  the  witness  always  understood 
to  be  separate  and  distinct  from  the  others,  and 
under  tlie  immediate  order  of  the  governor ; 
so  that  no  magistrate  of  Mahoii  could  go  there 
to  exercise  any  function  without  leave  first  had 
from  the  governor.  And  it  was  further  given 
in  evidence  on  the  part  of  the  said  defendant, 
by  colonel  Patrick  Mackellar,  that  the  arraval 
of  St.  Phillip's  is  surrounded  by  a  line- wall  on 
4>ne  side,  aud  on  the  other  by  the  sea,  and  is 
called  the  royalty,  where  the  governor  has 
greater  power  than  any  where  else  in  the 
island,  and  where  the  judges  cannot  interfere 
but  by  the  governor's  consent.  And  it  was 
further  given  in  evidence  by  £dwanl  Blalce- 
ney,  who  had  been  secretary  to  governor 
Blakeney,  that  nothing  can  be  executed  in  the 
arraval  but  by  the  governor's  leave ;  and  the 
judges  have  applied  to  him  the  witness  for  the 
governor's  leave  to  execute  pnicess  there. 
And  ft  was  further  given  in  evidence  by  the 
■aid  James  Wright,  that  for  the  trial  of  murder 
and  other  great  offences  committed  within  the 
said  arraval,  u(M}ii  application  to  the  governor, 
be  generally  appoints  the  asseaseur  criminal  of 
Mabon,  and  for  lesser  offences  the  mustastaph ; 
and  that  the  said  John  Mustyn,  at  the  time 
of  the  seksing,  taking,  imprisoning,  and  banish- 
ing the  said  Anthony,  was  the  governor  of  the 
said  island  of  Minorca,  under  and  hy  virtue  of 
certain  letters  patent  of  his  present  majesty, 
under  the  great  Mai  of  Great  Britain,  bearing 
date  the  2il  day  of  March,  iu  the  8tli  year  of 
bis  reign,  whereby  hi«  majesty  constituted  and 
appointed  the  said  defendant  to  be  captain- ge- 
neral and  governor  in  chief  in  and  over  the 
said  island  of  Minorca,  and  the  town  and  gar- 
rison of  Port  Mahon,  and  the  castles,  forts,  and 
other  works  and  fortifications  thereunto  belongs 
ing,  and  all  other  towns  and  pUces  within  the 


said  island ;  and  his  majesty  did  thereby  give 
and  grant  onto  the  said  defendant  John  Mos- 
tyn,  or  in  his  absence  to  the  lieutenaint-govser- 
nor,  or  commander  in  chief  for  the  time  being, 
all  ffowers,  privileges,  and  authorities,  civil  and 
military,  unto  the  said  office  belonging,  to 
have,  hold,  and  exercise  the  said  office,  powers, 
privileges,  and  authorities.  dnrin^Jf  his  majesty's 
Hill  and  pleasure;  and  the  said  defendant  Jolin 
Mostyn,  or  in  his  absence  the  lieutenant-go- 
vernor, or  commander  in  chief  for  the  time 
beinsT,  arc  to  observe  and  obey  all  the  orders 
and  instructions  therewith  given  to  him,  and 
all  such  further  and  other  orders  and  instmc- 
tions  as  shall  he  from  time  to  time  given  to  him 
under  his  majesty's  royal  sign  manual  or  sig<' 
net,  or  by  his  majesty's  order  in  privy-coun- 
cil ;  and  his  said  majesty  did  thereby  strictly 
charge  and  command  all  his  officers,  ministem, 
magistrates,  civil  and  military,  whatsoever,  and 
solfliers,  and  all  others  his  loving  subjects,  in- 
habiting or  being  in  tbe  said  island,  to  obey 
him  the  said  John  Mostyn,  as  captain-c^eneral 
and  chief  governor  thereof;  and  that  the  de- 
fendant, being  so  governor  of  the  said  island, 
caused  the  said  Anthony  to  l>e  seized,  taken, 
imprisoned,  and  banished  as  aforesaid,  without 
any  reasonable  or  probable  cause,  or  any  other 
matter  alledged  in  the  defendant's  plea,  or  an^ 
act  tending  thereto.  But  neverthelera  tbe  said 
counsel  for  the  said  John  Mostyn  did  then  and 
there  insist  before  the  said  justice,  on  the  behalf 
of  the  said  John  Mostyn,  that  tbe  said  several 
matters  so  produced  and  given  in  evidence  on 
the  part  of  the  said  John  Mostyn  as  aforesaid, 
were  snfticient  and  ought  to  be  admitted  and 
allowed  as  decisive  evidence,  to  entitle  the  ssid 
John  Mostyn  to  a  verdict,  and  to  bar  the  said 
Anthony  of  his  aforesaid  action ;  and  the  said 
counsel  for  the  said  John  l^Iostyn  did  then  and 
there  pray  the  said  justice  to  admit  and  allow 
the  said  matters  so  produced  and  given  in  evi- 
dence for  the  said  John  Mostyn,  to  be  concla- 
sive  evidence  in  favour  of  the  said  John  Mos- 
tyn, to  entitle  him  to  a  verdict  in  this  cause^ 
and  to  bar  the  said  Anthony  of  his  action  afore- 
said. But  to  this  the  counsel  learned  in  the 
law  of  the  said  Anthony,  did  then  and  there 
insist  before  the  said  justice,  that  the  same  were 
not  sufficient  nor  ought  to  be  admitted  or  al- 
lowed to  entitle  the  said  John  Mostyn  to  a  ver- 
dict, or  to  bar  the  said  Anthony  of  his  action 
aforesaid.  And  the  said  justice*  did  then  and 
there  declare  and  deliver  his  opinion  to  the  jury 
aforesaid,  that  the  said  several  matters  so  pro- 
duced and  given  in  evidence  on  the  |iart  of  the 
said  John  Mostyn,  were  not  sufficient  to  bar 
tbe  said  Anthony  of  his  action  aforesaid,  and 
with  that  direction  left  the  same  to  the  said 
jury;  and  the  jury  aforesaid  then  and  there 
gave  their  verdict  for  the  said  Anthony,  and 
3,000/.  damages,  Whereupon  the  said  coun- 
sel for  the  said  John  Mostyn  did  then  and  there, 
on  the  behalf  of  the  said  John  Mostyn,  except 
to  the  aforesaid  opinion  of  the  said  justice,  and 
insisted  on  the  said  several  matters  as  an  ab- 
solote  bar  to  the  said  acliODt    And  inasmock 


ISS]  Fabr^eu  v.  Modyn* 

■t  tbo  Mid  ■ereral  matters  so  produced  sod 

B'nm  in  evideoee  od  the  part  uf  tbe  said  John 
ostjn,  mnd  by  bis  counsel  aforesaid  objected 
ami  inaisted  on  as  a  bar  to  the  action  aforesaid, 
da  ant  appear  by  tbe  record  of  the  verdict 
afanaiil,  the  said  counsel  for  the  said  John 
Ikryn  did  then  and  there  propose  their  afore- 
saitf  exceptions  to  the  opinion  of  the  said  jus- 
lier,  and  requested  the  said  justice  to  put  bis 
m\  to  tbw  bill  of  exception,  contsioing  the 
md  aereral  matters  so  produced  and  §p?en  in 
trideooe  oo  the  part  of  the  aaid  John  Mostyn 
ai  aferesaid,  according  to  the  form  of  the  sta- 
tala  io  such  case  miule  and  profided.     And 
Ibcieapoo  the  aaid  justice,  at  the  request  of  the 
■id  eouDsel  for  the  said  John  Mostyn,  did  put 
Ml  ami  to  this  bill  of  exceptions,  pursuant  to 
Ihe  aforesaid  atatute  in  such  case  made  and 
piwided,  on  the  said  ISth  day  of  July,  in  the 
15th  year  of  the  reign  of  his  present  miyesty. 

**  Assignment  of  Errors. 

**  And  hereupon  the  said  John  Mostyn  says, 
that  IB  tbe  record  and  proceedings  aforesaid,  and 
also  io  the  matters  recited  and  contained  in  the 
ssid  bill  of  exceptions,  aud  also  in  giving  the 
terdid  upon  the  said  issues  between  the  parties 
aferesaid  joined,  and  also  in  giving  the  judg- 
■eat  aforesaid,  there  is  a  manifest  error  in 
Ibif,  that  the  justice  before  whom,  &c.  had  no 
authority,  or  jurisdiction  to   try  the 
or  either  of  them,  at   the  time 
the  aaine  were  tried  as  in   the  record 
;     nor   had    the  said   JuNtice  any 
faver  or  authoritv  to  take  or  swear  the  said 
|MT  tlierenn.      There  in  also  error  in  this, 
Mtbe  said  justice  before  whom,  ^c.  at  ami 
^BB  tbe  trial  of  the  said  issut^  between  the 
fm^afonrsaid  joined,  did  declare  and  deliver 
Vk  opinion  to  the  jiir^  afnri'saiii,  thatuhe  said 
■Cftral    matters    nienlioiieil    in    the   said  bill 
sf  exoeptiiius,  and   so  as  albresaid    profluced 
aad  proved  on  the  part  of  the  Kaid  Joiin  Mos- 
t^a,  were  nut  upon  the  whole  of  the  case  suf- 
Barat  to  iMr  the  said  Anthony  Fabrigas  of  his 
aud  action  against  him,  aud  with  that  opinion 
kA  the  saoi*-  to  the  jury ;    whereas  the  Name 
were  suliicieot  to  bar  the  said  Am  bony  of  his 
■i4  acu«iD-      There  is  also  error  in  tliis,  that 
ly  the  record  aforesaid  it  appears,  that  the 
tcrtict  afuresaid  was  given  upon  the  suid  issues 
Wcwreo  the  naid  parties  joined,  for  the  said 
Aaiboiiy  Fdbrigas ;  whereas  l»y  the  law  of  the 
Und,  the  verdict  on  the  said  issues  ought  to 
hste  b*-eii  )(iven  for  the  suid  John   Mostyn, 
igsin^t  the  said   Anthony   Fabrigas.     Tliere 
ii  a]<m  ernn-  io  this,  that  it  appears  by  the  re- 
csrd  aforesaid,  that  judt^inent,  in  form  afore- 
■id  ifiveii,  was  i^iven  for  the  said   Anthony 
Fabrii^a^  aitainst  him  the  said  John  Mostyn  ; 
wbi-rrii%  by   the  law  of  the  land,  jndginent 
asuebt  to  have  been  given  for  the  said  John 
MiAl^n   against  the  said  Anthony  Fabrigas. 
Aad  ihe  said    John  MoMtyn  prays,  that  the 
jadgmeut  aforesaid,  for  the  errors  aforesaid, 
aad  others  in  the  record  and  proceedings  afore- 
,  may  be  re? erted^  annulled,  and  altogether 

VUU  XX. 


A.  D.  177S.  [I9A 

had  for  nothing ;  and  that  be  the  said  John 
Mostyn  may  be  restored  to  all  which  be  ha» 
lost  by  occasion  of  the  judgment  aforesaid,  &o* 

"In  Nullo.eat  Erratum. 

**  And  the  said  Anthony  hereupon  voluntarilj» 
cornea  in  bis  own  proper  person  into  court  here, 
and  says,  that  neither  in  the  record  or  proceed* 
ings  aforesaid,  nor  in  the  matters  recited  anit 
contained  in  the  said  bill  of  exceptions,  nor  ii| 
giving  the  verdict  upon  the  said  issuea  betweea 
the  parties  aforesaid  joined,  nor  in  the  giving 
the  judgment  aforesaid,  is  there  any  error: 
and  the  said  Anthony  prays,  that  the  court  of 
our  lord  tbe  king  now  here  will  proceed  to  the 
examination,  aa  well  of  the  record  and  pro- 
ceedings aforesaid,  as  of  the  matters  recited 
and  contained  in  the  aaid  bill  of  exceptions  and 
of  the  matters  aforesaid  above  assigned  for 
error,  and  that  the  aaid  judgment  may  be  in 
all  things  affirmed.  But  because  tbe  Court  of 
our  lord  the  king  now  here  is  not  yet  advised 
to  give  their  judi^ment  of  and  concerning  tbo 
premises,  a  day  is  therefore  given  to  the  par- 
ties aforesaid,  to  be  before  our  lord  the  lung, 
until  on  the  morrow  of  All  Souls  now  next 
ensuing,  wheresoever,  &c.  to  hear  judgment  of 
aud  upon  the  premises ;  for  that  the  Court  of 
our  said  lord  the  king  now  here  is  not  yet  ad* 
vised  thereof,  5cc." 

Mr.  BuUer.  My  lord,  there  are  aome  atraoge 
blunders  upon  tliis  record,  which  thoui^b  I 
might  make  objections  to,  I  will  not  mis-speud 
the  time  of  the  court  in  slating  them,  because 
1  can  easily  conceive  myself  that  they  will  ad- 
mit of  a  very  short  answer ;  and  therefore, 
waving  all  objections  to  the  formal  part  of  the 
record,  the  general  question  upon  this  record 
will  be,  Whether  an  action  can  he  maintained 
in  this  country  against  a  governor  of  Minorca^ 
for  an  imprisonment  committed  by  him  there, 
in  his  character  and  office  of  governor,  upoi^ 
the  person  of  a  Miiiorquin,  even  though  the 
governor  should  have  erred  in  his  judgment, 
anil  have  been  mistaken  in  the  necessity  whicU 
he  conceived  demanded  an  immediate  and  re- 
solute exercise  of  the  powers  of  his  office? 
My  lord,  thongh  this  be  the  general  question, 
I  shall  beg  leave  in  the  argument  to  divide  il 
into  two :  first,  whether  in  any  case  an  action 
can  be  maintained  in  the  courts  at  W^tstminster, 
for  an  imprisonment  committed  at  Minorca 
upon  a  native  of  that  place:  and  secondly,  if  it 
should  be  admitted  that  an  action  will  lie 
against  any  other  person,  yet  whether  such 
action  c^n  be  mahitained  against  a  governor, 
acting  as  such  within  the  i>eculiar  district  of 
the  arraval  of  St.  Pliillip's?  My  lord,  iu  the 
consideration  of  both  these  questions,  it  may 
be  material  to  attend  a  little  particularly  to  the 
situation  and  constitution  of  the  island  of  Mi- 
norca, and  arraval  of  St.  Phillip's,  within  which 
this  transaction  arose.  As  to  that  the  Conrt  will 
be  much  relieved  by  the  contents  of  this  re- 
cord;  for  it  is  l!here  stated,  that  this  island,  till 
the  year  1713,  waa  a  part  of  the  dominioni  of 


195] 


14  GEOHGE  m. 


AdUmJbr  FaUe  Impriaonmettt-— 


[19« 


the  kingdom  of  Spiin,  and  then  it  was  ceded  . 
to  the  crowD  of  Great  Britain,  reservini^  to  the  , 
inhabitants  their  property,  their  religion,  and  . 
the  laws  necessary  fur  the  preservation  of  their  i 
relii^ioo.  It  is  further  stated  in  the  record,  | 
that  the  island  is  not  governed  by  the  laws  ' 
of  England,  but  by  the  laws  of  Spain ;  and 
that  the  arraval  of  St.  Phillip's  is  subject  only 
to  the  controul  and  governnnent  of  the  go- 
Ternor  himself,  for  in  that  there  is  no  regular 
law-  officer ;  there  is  no  power  to  which  the 
subject  can  apply  for  justice  but  to  the  go- 
Yernor  himself;  he  is  therefore  the  sole  and 
absolute  judge  within  the  arraval ;  bis  will  is 
the  law  there,  and  that  district  tt  least  is 
t  despotic  go? emment.  Whatever  may  be  the 
case  in  colonies  and  newly- discovered  coun- 
tries, I  fancy  it  will  not  now  be  denied,  that, 
even  in  countries  obtained  by  conquest,  the  old 
]aws  of  the  place  continue  in  force  till  they  are 
changed  or  aller^  by  the  conquerors :  much 
less  can  it  be  contended,  that  In  a  country  ceded 
as  this  was,  the  laws  of  the  place  receive 
any  alteration  till  a  change  is  declared  by  the 
new  sovereign.  In  the  present  case,  there  has 
been  no  new  code  of  laws  established  in  this 
island ;  and  therefore,  indepciii^ently  of  the  par- 
ticular facts  which  are  stated  as  proved  in  this 
cause,  1  think  I  may  safely  assert  it  as  an  un- 
deniable proposition,  that  this  island  is  now  go- 
Terned  by  the  same  laws  as  it  was  before  the 
year  1713. 

It  is  stated  in  the  record,  that  'the  district 
where  the  present  cause  6f  action  ah»se  is  sub- 
ject only  to  the  immediate  order  of  the  go- 
Ternor ;   so  much  so,  that  no  judge  of  the 
island  can  exercise  any  function  there,  without 
the  particular  leave  of  the  governor  for  that 
purpose.^    If  the  laws  of  the  country  where  the 
offence  is  committed  are  different  from  the 
laws  of  this  kingdom,  it  seems  to  me  to  make 
DO  difference  with  respect  to  the  propriety  of  an 
action,  whether  such  country  is  subject  to  the 
crown  of  Great-Britain,  or  to  any  other  state; 
for  whether  the  fact  be  an  offence  or  not,  naust 
be  decided  by  the  particular  laws  of  the  place 
where  it  was  committed,  and  not  by  the  laws 
of  this  country.    This  is  a  case  whet«  the  law 
of  the  place  is  different  from  the  law  of  this 
country;   and  therefore  the  question   might 
have  been  taken  much  larger  than  I  have  done 
it :  namely,  whether  the  subject  of  a  foreign 
power,  wh*o  rules  by  laws  different  from  ours, 
can,  for  an  act  done  in  his  own  country,  seek 
redress  in  the  courts  of  England.    I  believe 
there  are  no  authorities  in  support  of  such  a 
position ;  and  whatever  may  be  the  case,  where 
the  laws  of  different  countries  agree,  and  where 
the  transaction  has  been  between  British  sub- 
jects, with  a  view  to  the  laws  of  England,  (which 
was  the  case  of  Robinson  and  Bland, Bur.  1078), 
that  can  be  of  no  avail  in  the  present  instance : 
for  I  take  it  in  this  case,  if  the  action  can  be 
maintained  at  all,  it  must  be  governed  by  the 
laws  of  Minorca,  and  not  by  the  laws  of  Eng- 
land.   It  is  said  in  the  case  of  Robinson  and 
BUody  that  the  laws  of  the  plac<  irhere  the 


thing  happened  does  not  always  prerail ;  and 
there  an  instance  is  put  by  Mr.  Justice  Wil- 
mot,  that  in  many  countries  au  action  may  be 
maintained  by  a  courtesan  for  the  price  of  her 

K restitution,  but  that  no  such  action  can  be  al- 
iwed  in  this  country.  That  is  undoulitedly 
true;  for  wherever  the  foreign  law  is  contrary 
to  the  law  of  God,  to  the  law  of  nature,  or 
'  contra  bonos  mores,'  this  Court  will  not  recogw 
oize  it ;  but  neither  of  these  is  the  present  case. 
My  lord,  besides,  there  is  a  great  difference  be- 
tween entertaining  a  suit,  and  giving  a  remedy 
upon  an  immoral  transaction,  and  punishing  a 
man  for  an  act,  which,  if  done  here,  would  be 
deemed  a  crime,  but,  in  the  country  where  it 
is  committed,  is  esteemed  none.  In  such  t 
case  as  that,  the  law  of  that  country  can  never 
be  the  rule  by  which  this  Court  will  govern 
themselves,  nor  could  they  with  propriety  give 
a  judgment  contrary  to  the  known  law  of  tbk 
land ;  and  therefore,  I  should  apprehend,  that 
in  such  case  they  would  refuse  to  hold  plea  at 
all.  That  seems  to  have  been  the  opinion  of 
lord  chief  justice  Pratt,  in  a  case  that  came  be- 
fore him  m  the  year  1765:  that  was  the  case 
of  Pons  against  Johnson,  and  a  like  case  of 
Ballister  aninst  Johnson.  Those  were  two 
actions  tricS  at  the  sittingi  after  Trinity-term 
1765 ;  an  action  of  trespass  and  false  imprisoiH 
meet,  bronghc  by  the  plaintiff,  a  native  of  Ml* 
norca,  kgminst  the  defendant,  who  was  gorer^ 
nor.  The  fkcts  were,  that  iii  Minorca  there  it 
a  court  called  *  Trihimal  of  Royal  Govemittent  :* 
the  gOTemoris  president,  the  assessor  is  judge: 
the  fiscal'  is  in  nature  of  attorney  gencnJi 
during  the  pendency  of  a  cause,  but,  when  sen* 
tence Is  to  oe  Mssed,  he  has  a  voice  as  well  ae 
the  assessor,  if  they  agree,  the  governor  ii 
bound  to  confirm :  if  they  disagree,  the  go- 
vernor has  the  casting  voice.  It  waa  proved, 
that  this  is  the  only  court  of  criminal  jurisdie- 
tion,  and  that  slanders  are  considered  as  cri- 
minal suits ;  that  the  defendant  wrote  a  letter 
to  the  assessor  and  fiscal,  complaining  that  the 
plaiiitiff  had  spread  re|K>rts  injurious  to  binii 
and  desiring  them  to  enquire  into  it,  and  act  ae 
theji^  thought  just  and  fit.  Upon  this  letters 
"  dire 


the  fiscal  directed  an  enquiry,  and  the 
ordered  ulaintiff  to  be  imprisoned:  he  ap- 
plied to  oefendant  Johnson  to  be  bailed,  wno 
refused  to  bail  him ;  but  it  appeared  that  the 
assessor  was  the  person  whose  business  it  WtiB 
to  bail,  though  orders,  as  well  for  impriaoning 
as  bailing,  often  passed  in  the  name  of  the  court. 
Upon  this  evidence  it  was  objected,  first,  that 
by  the  treaty  of  Utrecht,  the  inhabitants  have 
their  own  laws  preserved  to  them,  and  are  not 
to  be  sued  here,  and  therefore  have  no  right  to 
sue  here :  secondly,  admitting  them  to  have  o 
right  to  sue  here,  the  action  is  misconceived. 
Ice.  Lord  chief-justice  Pratt  said,  **  I  think 
it  very  improper  such  action  should  be  brought 
here,  where  foreign  law  is  to  be  brought  into 
question :  the  bconvenience  appeara  bere^ 
where  all  the  evidence  we  have  had  is  tlio 
testimony  of  one  vritness;  and  I  should  think 
if  1  were  under  the  neceintj  of  proiioiiBciiBf 


Fabrigas  v,  Moslyit. 

V'W^.^J'^  ^>'  pirole  «*icknce  ooght  not 

M&aiumcicDi,  but  a  coinmiHion  BbuuM  ^o, 

pi  ilM  k<*  be  certiBeil."    Ai  to  ilie  questiuo 

■jHiiMlictiaa,  his  lordship  Mid.  "  Itiacerlain 

Mn  tr*  maoy  cases  of  traotiKuy  actions  be- 

Rmi  Mibjecl  Kod  lubjecl,  where,  tbnugU  llie 

tMiariae*  in  a  foreigD  uounlry,  the  action 

■5  le  brouifbt  here ;  sucb  as  contract,  trcs- 

jM,are*M>Tab«iii]prigDDmEnlorioinefaind*: 

irflh*  rule  ihal  should  guvero  seemi  to  be, 

ikt«  Ibn  subject  miller  ii  nf  that  kind,  Hint 

ttlnr  of  DDlure  ahnuU  goiero  all  orer  the 

ndd.     And  I  Ibiak,  lliat  a  persou  nlio  is  au 

>.'3kb(iu)il  liare  a  ti(;bl  (o  Biie  here  in  cBics 

'<il  ku>4 :   bat  I  tbink  tbii  ia  not  to  be  ex> 

itS  M   tnutntory  aciloni  of  erery  kind, 

-reibc!  Um  foci  issoinlarmixeil  wilblbecase 

'  111  alter  tlie  caw,  anil  vary  the  legality  ol'tbe 

jntactioa."  Ilia  lurdibipihen  expressed la me 

M*  DO    the   form  of  tbe  plea;  and  finally 

.  .tinted  ibc  plaiatilfa  ua  auollier  poiot.     Aly 

M,  I  cilc  tbia  caae  Air  the  sake  ofthe  reaton- 

■r  eHilain««l  ■■>  <t ;  lad  lliere  trai  the  opinion 

mi  tay  learned  judge,  that  an  aclioa  in  this 

■■Htry  wmm  iiDpro)ier,  wh«re  it  was.to  inler- 

■nd  tad   I<1«oiled  wilU  the  law  of  another 

a^uy,   as  (o   vary  or  chaoKe  the  legality  of 

ihlniKacrio*!.    My  lord,  aonlher  thing  which 

mora  by  *)>at  c'^  *'r  tl»i  though  lord  Cam- 

^tMDf  Id  Ihitik  sn  acliun  may  in  some  esses 

baa  a  fanafi"  traiiiiaclion,  yet  he  confini:'!.  it 

ll  ^BH  ohnre  llie  tranaaclion  happened  lie - 

INw  •tilij'ct  and  suhjecl.    This  is  not  a  trans- 

fcwii   otiicb    bapjieiied  tielween  auhject  and 

I         .■'■^Uiiii  81  of  ihe  realm  of  Engtaod) 

>  ••■  where  the  same  law  gnverns  all 

rkl;  but  it  ia  that  pnrliculur  case 

<>v  lonl  Camdeu,  so  niixe<l  with  ihe 

>i  It  alli^ii  llie  caae,  and  rarlea  the 

ilie  IraoMciion.     In  crimioal  coses 

->  i>F  dear,  that  an  offence  cum- 

1 1  rf i|;n  parts  cnunol,  unless  under 

'  I  •lutes,  he  tried   in  tliii  country  j 

.<|iiiiiaannallie  Court  of  Exi:hemier 

r*  ported  in  tit  Vexey,   S16,  The 

<  ^<mpany  iguinsl  Campbell,  7tli  of 

I  -  Ku  lufurmuiron  was  hrouglil  in  ibe 

E(u>'  I''  iU<'  litorney  General,  that  the  defen- 

Awi  Diigbi  diacoter  bow  he  uaroc  by  the  poa- 

(r«Bd,  Txdencv,  cuntrirance,  or  oiher  meaus  ; 
«ail  It  kifUirr  ih»y  weie  not  the  property  of  tlie 
bsdiaua,  fruin  whom  tlicy  were  so  taken  by  the 
^fewtaai  ami  otliets.  The  court  there  aay  ihe 
nric  ia,  ilui  ibiaconil  ahall  not  ollige  one  to 
AaMTTFT  Ihal,  wbicl>,  iriieanBHera  in  ihe  af- 
6r)ut>",  will  s'>liji-ci  bun  to  the  puoishmcnl 
t^  a  criiD£  ;  rt,r  it  n  not  niilerlal,  that  if  he 
■^■ef«ui  Ihr  ue^-utiie,  it  wdlhc iiobnrin:  and 
ibu  he  M  puki'-hal-W,  appeara  from  the  caae  of 
ttmithti^':  ftarkvr,  Alk.  21.  as  ajuriadiction  ia 
wmad  nCalciUla  lur  criminal  lacis,  where  he 


bare  :  tike  the  case  i 

in  a  raps  in   Ireland,  and  sent 

imty  tbe  go' eminent  tu  be  tried,  al- 
IIm  ewn  ol  b-  B.  bare  tiluMU  lo  do  it. 


A.  D.  1775. 


[198 


My  lord,  here  is  a  posilire  o|>iuion,  that  in  cri- 
rnmal  cases  arising  abl-uad  there  is  no  juris- 
diction iu  the  copiinon  lair  court*  In  England. 
The  only  thing  to  be  done  is  to  send  the  party 
to  tbe  country  where  the  offence  was  com- 
mitted;  but  it  ahall  not  be  tried  here,  tfa  man 
were  lo  marry  two  wires  in  a  country  where 
bigamy  i*  allowed,  it  can  nerer  be  contende<l 
in  anch  a  case,  if  Ihe  rnan  came  into  England 
he  should  be  liable  to  he  hnnged  here,  becauss 
it  is  an  offence  in  Ihis  country,  though  nuna 
where  it  was  coilimilled.  If  a  crime  commit- 
ted abroad  cannot  be  tried  hrre,  upon  what 
ground  shall  a  civil  |iersonil  Injury,  done  out  of 
Ihe  kingdom,  be  tried  here  ?  There  are  many 
reasons  why  a  crime  committed  abroad  might 
be  tried  here,  and  a  civd  injury  not ;  but  do 
reaaon  occurs  to  me  why  a  ciTilinjury  should, 
and  a  crime  not.  Ciril  injuries  depend  much 
upon  the  police  and  conalitulion  ofthe  country 
where  they  occur,  and  the  aame  coudiict  mn^ 
be  Bclionable  in  one  cutintry  which  la  ju8ti& 
able  in  another:  but  in  crimes,  as  rourijer,  per- 
jury, and  manyother  uffencfs,  Ibe  laws  of  most 
counliies  lake  lor  their  basis  the  law  of  (lod  and 
Ibe  law  of  nature;  and  iherefore,  though  tha 
trial  be  in  a  different  country  from  that  in  whicb 
the  offence  was  cnmmilled,  there  is  a  greater 
prohabitity  ofUiKtributing  equal  justice  in  aucb 
cases,  than  in  ci»il  actions.  The  case  men- 
tioned in  Keilney,  20S,  and  canBinied  in  tha 
41h  Inslilute,  W3  and  i,  is  also  an  authority  ib 
myfamur.  Il  first  of  all  gives  a  hialory  of 
sir  John  Stanley's  family,  and  there  fiie  jioiuta 
were  resnlveil ;  first,  that  the  isle  of  Man  waa 
an  ancient  kingdom  of  itself,  ami  no  part  iif  the 
kingdom  of'Engbud  ;  secondly,  ibey  aflirlDed 
■he  case  reported  hy  Keilwey,  anno  ihe  I-llti 
Henry  Ihe  8lh,  to  be  law ;  namely,  Michael- 
mas Ihe  11th  Henry  8lh,  an  office  was  fumii), 
that  Thomns  earl  of  Deib^v.  at  the  limp  of  hia 
deuth  was  seized  of  the  fsle  of  Man  iu  fee  j 
whereupon  the  countess  his  wife,  by  her  coun- 
sel, moved  In  have  her  dower  in  the  Chancery  ; 
but  il  was  resolved  hy  Brudnell,  Bronk,  and 
F  ill  herb  erS  justices,  and  nil  theking'i  connsef, 
ihat  the  office  was  merely  void,  Itecause  t^e 
isle  of  Man  was  nn  part  of  the  realm  of  EnjJ- 
laud,  nor  »as  governed  by  the  laws  of  Ibis 
land  ;  but  it  wfs  like  to  Tournay  in  Nurmaiidy, 
or  Guscoign  in  France,  when  they  were  in  the 
king  of  England's  hands,  which  were  merely 
Out  of  the  power  of  the  Chancery,  which  waa 
Ibe  jilace  to  endow  the  widow,  icv.  Theii 
goevon,  and  sajs,  it  was  rcHuUed  hy  thera, 
that  ncilher  the  alaiute  of  William  the  ad, 
dc  dimit  canditianuMmt,  nor  of  Ihe  STih  qf 
Henry  tlie  Uih,  of  willa,  nor  any  other  general 
act  of  parliament,  did  extend  to  ibe  isle  of  Alan, 
for  the  cause  aforesaid.  8o  tiiere  il  is  held, 
(hat  fur  a  right  in  the  ifle  of  Man,  though  U 
was  part  ot  the  terrilorial  dominions  uf  Ilia 
crown  of  England,  yet  Ihat  no  suit  wnuhl  lie 
inlhecnnrtofChanciry  ;  and  that  this  suit  iO' 
diluted  by  the  widow  fur  htr  dower  there  wiis 
improper,  and  they  could  not  culerlaiuil.  Tba 
caaca  where  iba  courts  uf  Wealmiusicr  hat* 


i99J 


li'-QfiORGfe  III.  AcHainJor  FaUe  impr^onvMnt— 


[800 


taken  cognizance  of  transactioDs  arising  abroad, 
and  entertained  actions  founded  on  them,  seem 
to  be  wbolly  on  c«mtract8,  where  the  lawa  of 
the  foreign  country  have  aj^reed  with  the  laws 
of  England,  and  between  Eiii^'lish  subjects: 
and  even  there  it  is  done  by  a  quaint  lei^ral  fic- 
tion ;  namely,  by  sup|>osing,  under  the  sane  • 
tion  of  a  videlicet,  that  the  cause  of  action  did 
arise  within  this  cotuiiry,  and  that  the  place 
abroad  lay  either  in  London  or  in  Islington. 
But  where  the  contrary  has  appeared,  namely, 
that  the  place  where  the  transaction  did  arise 
was  not  in  Limdon  or  Islington,  there  the 
courts  have  said  such  matters  were  not  triable 
here.  There  is  a  pretty  strong  case  arising 
upon  a  demurrer  in  Lutwyche,  946,  Davis 
against  Yale.  That  was  an  action  for  false  im- 
prisonment of  the  plaintiff  in  Port  8t.  George, 
In  the  East- Indies,  in  parts  beyond  the  seas, 
Tidelicet,  in  Loudon,  in  the  iiarish  of  St. 
)^lary-le-Bow,  in  the  ward  of  Cheap.  It  was 
iresolved  by  the  whole  court,  that  the  declara- 
tion was  ill,  because  the  trespass  is  sup|)Osed  to 
be  committed  at  Fort  8t.  George,  in  parts  be- 
yond the  seas,  videlicet  in  London,  which  is  re- 
pugnant and  absuid  :  and  it  was  said  by  the 
chief  justice,  that  if  a  bond  bore  date  at  raria, 
in  the  kingdom  of  France,  it  is  not  triable 
here ;  so  that  judgment  was  given  upon  the 
ground,  that  it  appearing  upon  the  face  of  the 
record  to  be  in  foreign  parts,  the  supposition 
that  it  was  in  England  was  absurd  and  re- 
pugnant. 

In  Ward's  case,  in  I^atcb.  4,  in  debt,  the 
plaintiff  declares  upon  a  bill,  bearing  date  in  the 
parish  of  St.  Mary-le-Bow,  London  ;  and  upon 
oyer  of  the  deed,  it  bore  date  at  Hamburgh, 
and  the  writ  was  in  detinet  only.      Serjeant 
Bridgman  objected,  that  although  it  was  usual 
to  lay  such  actions  in  any  place,  to  wit,  in 
Kent,  London,  &c.  yet  as  tnis  case  is,  that 
cannot  be  ;   because  when  any  place  is  named, 
it  shall  be  understood  primi  facie^  that  the 
place  named  is  a  town,  and  not  a  particular 
place,  as  a  .house,   as  appears  by  3  Ed.  3, 
68,    et    Brev.   638:    from    whence    it    fol- 
lowed, that   Hamburgh    here  should   be  un- 
derstood to  be  a  town,  which  cannot  be  in  Lon- 
don ;  and  therefore  the  declaration  was  faulty, 
^r  not  laying  Hamburgh  wiil,>.i  London.  But 
**  *^^  *rgned  on  the  other  side  by  Barnei-s, 
^no  look  this  diflVrence  in  ph^ading :  "  I  con- 
Jeaa  that  a  place  named  shall  be  understood  to 
•t>e  a  city  or  town,  as  the  seijeant  has  said,  but 
^^i^eribcless  the  date  of  the  deed  shall  be  un- 
^etatood  to  be  a  particular  place  or  a  house ; 
^nd  iliererore,  if  an  obligation  bears  date  at 
x^^'wf'i'     «»"  Callis-Sands,  it  shall   be  under- 
oftiioJm    m      <>^' '*"'*«  taverns  in  London,  and  not 
Andin  th     ^^^^  beyond  the  seas,  21  Edw.  4.  26. 
SJac   A       ^  <^**<^*^"«  Wighansand  Flowers, 
Atblooe'L^^    R  the  dale  of  an  obligation  was  at 
tot  belJ-'^'^^^  lreland,and  therefore  the  action  could 
1  ^OitU^  ^^  '»«''^»  inasmucli  as  Ireland  cannot  l>e 

CQ  It  Jr^^  "^^  •  **"* *^  "  ''•*'  **'*"  '""  Athlone  only, 
H»e^fi^^^«««lf'^***''**«tcouldbe8ued  here,  be- 
"  lone  mightbe  alleged  to  be  in  Eogland. 


So  here  in  our  case,  if  the  date  had  l»een  at 
Hamburah,  *  in  partibus  traiismarinis,'  it  could 
not  be  Nued  here,  inasmuch  as  it  could  not  be 
in  Loudon ;  but  bearing  date  at  Hamburgh 
only,  it  may  be  understood  to  be  in  England.*' 
Whiilock  agreed  with  him:  Brook  faits,  0, 
and  so  have  been  all  deeds  by  experience. 
10  Jac.  an  obligation  dated  at  Elvin  was  sued 
in  this  court,  and  the  action  laid  in  Kent  and 
allowed;  and  yet  Elvin  is  in  Poland.  Dod- 
deridge  said,  **  I  agree  also,  if  the  deed  beara 
date  in  Litile  Britain  or  in  Scotland,  it  shall  be 
understood  to  be  dated  at  those  places ;  so  bera 
being  named  in  London,  we,  as  judges,  ought 
to  maintain  the  jurisdiction  of  our  court,  if  the 
caKe  is  not  plainly  and  evidently  out  of  our  ju- 
ristliction  :  and  f(»r  this  reason  we  ought  to  un- 
derstand Hamburgh  to  be  in  London,  to  main- 
tain the  action,  because  otherwise  it  would  be 
out  of  our  jurisdictiou.  And  if  in  truth  we 
should  know  the  date  to  be  at  Hamburgh 
ouster  le  mere,  yet,  as  judges,  we  should  not 
take  notice  that  it  ia  ouster  le  mere.'*  In  this 
csRc  it  does  appear  upon  the  record,  that  the 
offence  complained  of  was  committed  in  parts 
beyond  the  seas,  and  not  in  £ui;land.  Mr 
lord,  the  plea  states,  that  it  was  committed  m 
the  island  of  Minorca,  in  parts  beyond  the  seas; 
these  are  the  words  of  tne  plea;  and  the  de- 
fendant has  concluded  his  plea  with  a  traverse, 
that  he  was  not  guilty  in  London,  in  the  pariah 
of  St.  Mary-le-UoM,  or  el^eu  here,  out  of  the 
island  of  Minorca.  Now,  my  lord,  this  stands 
admitted  by  the  plaintiff,  because  if  he  had 
thought  fit  to  have  denifd  the  place  mentioned 
ill  the  plea,  and  which  was  absolutely  essential 
for  the  detiemlant  to  mention,  because  his  Joa- 
tification  was  a  local  one,  (and  though  the 
cause  of  action  be  transitory  in  its  uatiii^,  yet, 
if  the  defence  be  local,  the  defendant  has  a 
right  to  state  it  so  in  his  plea,  and  by  that 
means  make  that  local  which  l»efore  was 
transitory,)  he  should  have  made  a  new  assign- 
ment, or  have  taken  issue  on  the  place. 

It  was  incuniltent  upon  the  defendant  to 
aver,  that  what  he  had  done  was  within  the  ar- 
raval,  because  his  authoriiy  was  confined  to 
that  particular  place :  and  therefore,  however 
unjustifiable  be  might  be  elsewhere,  he  was 
justifieil  there.  That  part  of  his  alleiraiina 
stands  admitted  by  the  plaintiff;  therefore  it 
does  appear  from  the  rec«>rd,  that  the  cause  of 
action  did  arise  out  of  the  kingdom,  and  con- 
sequently, as  Dodderidge  says  in  L<itch,  it 
does  arise  out  of  the  jurisdiction  of  this  court : 
and  where  it  so  appears,  the  judges  cannot 
help  taking  notice  of  it;  for,  as  Lutwyche 
says,  as  I  mentioned  before,  it  is  not  triable 
here.  Even  in  cases  the  most  transitory,  be- 
fore the  statute  of  Jeofails,  if  an  action  waa 
brought  in  London,  and  there  was  a  local  justi- 
fication at  Oxford,  the  cause  could  not  have 
been  tried  in  London.  That  was  the  caae  in 
Ist  Saunders,  S47,  an  action  for  words  laid  ia 
London,  charging  him  with  having  stolen  plain 
out  of  Wadharo-College,  vis.  ia  London.  Thn 
ddendaiit  jostifiet  speaking  the  wordSi  bacaosa 


Fabrigat  v.  Mostyn% 

liMpUiaiilFllole  plate  out  nr\Vai1hnm>Ci>11eKe 
<  ittloni.  It  wns  Bitmilleil  iu  ItiM  cmc,  thai 
I  >■  iwld  have  been  ■  fatal  pmir,  btil  il  nul  b«eii 
I  r  the  ■ti.tuU  uf  ieohWa.  Now  the  sutule  of 
)»(«l«  duv*  Dbi  extern!  to  Minnrca ;  tlK^rtfore 
<t^  tave  aiti  aunil  entiTelj'  upon  llie  rommun 
Iu ;  and  hj  that  Ihe  trial  ii  bud,  nnil  ibe  ver- 
ni  f  dill :  (or  lapptnlittf  that  this  or  any  court 
u  Wrttmiiider  ciiulil  holit  cognixance  of  nny 
Ruw  that  nrisM  abrokd,  yet  it  shnulil  not  ha*e 
Uai  liitil  in  Lonilnii,  hut  ahoulJ  hare  been 
1  ilie  next  Knglisb  coiinly  tn  Minorca. 


A.  D.   1773. 


[Sftf 


IfUic  law 


it,  Uwl  l«r  a  inuriirr  coininilieil  by  a  t'treigiier 
■a  aanUier  ciiuiilry  itie  criminal  could  not  be 

Cnhol  farre,  1  am  al  a  \m*  Ibr  a  renaoo  why 
AiNilil  he  puoiilie^  here  tor  ■  treipan  com- 
""  ■  fHider  like  circumalances.     In  orJer  to 
t  that  doetrine,  this  ahiuiilily  muat  be 
d  tbr :  it'  Mr.  fttn&tyn,  who  siooil  there 
m  Mpaciiy  uf  a  noreraor,  anil  hail  the  sole 
'''a  ami  ^Ternineut  of  \\\\*  place,  liad 
I  Falirii^e  guilly  of  an  otTence  which 
d  his  lite,«uil  hall  punished  him  accoril- 
r,  be  coulil  not  have  he«n  |jiiDiabeil  ;  but 
«  hv  ha*  (trnceeileil  in  a  milder  wa^,  aud 
MtliriMneil  anil  banished  him,  tlivrelore  be 


.    of   enlerlaininir   such 
dlMt  tn  ibis  country  are  utany,  and  some 
■  waulit  certainly  be  iniulerable  ;    but 
(Qtild    ensue  from 
nittg   Ihe  aciiuu    woold   be    rcry   sli^it, 
■BT:    aud    (he  argument,  •  ab   inconreni- 
k*  nrd  Cuke  nays,  haa  beta  ever  allowed 
t  rery  forcible  in  our  law.     Now  if  ibe 
~  ba  maiolaineil  here,  il   must  be  deler- 
by  the  taw  of  tbii  country,  or  by  the 
'  tlie  nUc«  where  the  offence  was  corn- 
It  it  he  driermineil  by  our  law,  Ihat 
Id  Iw  utyual  indeed;  for  Ihen  a  man,  who 
iD|iellnf  Iu  regulale  his  conduel  hy  one 
wftQtd  becondemned  by  anoiher,  which  is 
'■"    npfonW.      Ami    yet  tlie  law    of  thit 
ia  ihe  law  ibe  jdainlilf  has  ihunictit  tit 
ibia  cause  upon  ;  and  1  ilonlil  not  bill  he 
■mder  tli«  idra  of  Enjibsh  liberly,  lo- 
la   dMruy   ibe   Mini>ri|uiii    cnnatitulioti. 
Mlaraliim  ia  futiudrd  on  the  law  of  Eng- 
TIm  imprisonment  ii  laid  in  ibe  dtcla- 
_  to  W  oanirary  to  tbe  law  and  cuaiotns  of 
nalm ;  »  that  Ibe  law  of  Eniclaiid  is  Ibe 
ianhM-h  be  sppcali,  and  by  wbieh  lie  de- 
))>>(•*«  may  lie  deli-rmined.     If  an  im- 
iNMal  i*  oammilled  there  aif  re^able  to  Ihe 
of  thai  place,  bul  noi  I'onwiDant  lo  ibe 
■fthit  realm,  is  ibat  a  Krnand  for  puiiish- 
ibis  country  ?  If  il  ia  nut,  the  plaiuiifl' 
inpparl   hi«  case  npon  the  law  of  Kii|(- 
be  manner  ha  now  alteinpla  to  do.     If 
■■  to   be  tried   here  by  the  law  of 
■Dw  in  Ihat  law  to  be  proved!'  There 
fasal  Bi'ide  of  certifyiPK  the  law,  and  lill 
rial  il  may  nut  l>*  known   what  points  of 
M  may  br  rfpiiaile  lo  inqnire  iiitni  wil- 
ts caitiKii  be  mmpelted  to  attend,  nor  can 
cewrl  by  ainr  lueaas  ubligc  them  to  answer 
;  ■»  Ibe  defcDdaot  would  lUud  iu  lb«  lilua- 


tion  of  beinff  ealleil  upon  l<>  make  his  itelencr, 
without  the  power  of  profini;  either  the  law  in- 
ihe  fads  of  bia  case.  If  Ibis  acliou  succeeds, 
erery  FrencbiDun  Ibat  iscoiiltoedinlheBaslile, 
and  has  the  t;ood  thrlune  afietwanls  la  etcape 
lo  litis  country,  would  be  brinuitt^  aelious 
a^ninsl  the  ufli<^ers  Ihal  confloe'l  biiu  ;  every 
loldier,  who  in  time  of  war  ibinkd  hiniaelf 
ill  used  by  bia  cmnmander,  when  hp  re- 
turns home  will  barrass  tbe  comioander  nilb 

that  be  may  hare  suffered  abroad ;  and  it>  the 
end  it  would  lie  nothing  less  then  thai  a  Ger- 
man army  Mould  he  governed  by  an  £ni;lish 
jury.  I(  would  be  necessary  Ibr  every  general 
officer  to  have  a  lawyer  always  al  bia  elbow  ; 
and  even  that,  aa  Mr.  Mnsiyn  has  found  by 
fatal  experience,  would  not  be  sufficient  10  se- 
cure hiro  from  censure  and  punishment:  fur 
in  this  cause  it  was  proved,  that  Mr.  Mnslyn 
had  consulted  all  Ihe  lawyers,  and  all  the  mili- 
tary gentlemen  in  the  iaUud,  on  the  expediency 
and  necessity  of  the  measure  be  look,  before 
he  did  what  is  nnw  complained  of,  and  that 
they  were  all  unanimous  in  their  Ideas  uf  Ihe 
absniule  necessity  of  the  business.  Some  of 
them  openly  prolesied  ibeir  opininna,  and  the 
resi  acquiesced  by  their  silence.  The  lawyers 
went  further,  and  underlmik  la  answer  Jiir  tbe 
legality  of  ibe  measure,  even  at  the  [leril  of 
their  heads. 

In  tbe  second  place,  fnppnning  an  action 
could  be  maintained  here  at  all  liir  a  thing 
done  in  Minorca,  1  shall  beg  leave  lo  sub- 
mit to  yniir  lurdahip,  ihal  whatever  might  b« 
the  case  of  other  persona,  lliuiigh  they  might 
lie  liable  lo  an  action  here  fur  things  done  in 
foreign  parts ;  yet  that  thegovernor  or  general 
officer,  who  baa  the  immediate  command  and 
absolute  direction  of  tbe  place,  aliall  not  be 
called  u|ion  in  an  action  here  tn  answer  for  bia 
conduct  in  that  character.  Minorca  is  an  ab- 
solute govemmeni.  Tbe  guvcmur  for  Ihe 
time  being  IB  Ibe  immediate  representative  of 
Ihe  king  there;  and  he,  al  least  within  Ihe 
arravalnfSt.  Phillip's,  whalever  may  lie  the 
case  iu  the  rest  uf  the  islnuil,  as  all  absolule 
sovereigns  do,  goveroa  aabelbinkk  cnnvenient, 
without  being  tied  np  In  any  fixed  rules, 
There  it  ia  nul  lawful  for  him  to  deviate  from, 
which  ia  no  garerament  wbrrein  Ibe  |i«war 
over  the  lives,  as  well  as  the  liU-riie!i  snil  pro- 
peniea  of  ihe  aubjeirt,  is  nut  lesied  in  the  su- 
preme power;  and  whether  ibat  |H>wer  be 
lodged  in  a  ainule  person,  as  s  mt'iiarch,  or 
many,  asa  psri  lament  or  an  aristocracy,  what- 
ever ihat  snprenie  |>nwer  dues,  il  is  accountable 
fur  to  none  bul  God  ;  aud  ihe  drpuiy  uf  ibtt 
power  is  answerable  unly  lo  God  and  his  prin- 
cipal. Thai  a  judge  cannot  be  piinitbeil  for 
any  ibtng  be  does  in  bis  capacity  as  a  judge  will 
not.  I  believe,  lie  diipulHl ;  il  it  be.  there  ar« 
Ihe  strongest  ■uiburiiiea  ii(ion  that  |Kiii>t.  Ths 
atrongeal  perhaps  in  Sslkeld,  39G,  and  9  Mod. 
318;  iu  Ihe  latter  of  which  cutit-s,  ihi- jui'ge 
had  heeu  guilty  of  the  mi'sl  iiii«Misiiiuiioiial 
conduct.  My  lord,  that  in  Nalkcld  ia  Grocnvelt 
Bgaiusl  Burnell  knd  ulbers.    Tbe  cau  <iaa 


IDS] 


14  GEORGE  IIL  AdiM/or  False  Impritonmeni— 


[204 


this :  the  eensors  of  the  Colle^  of  Pbywciaiie 
in  London  are  empowered  to  inspect,  go?em, 
and  oentare  ell  nractifers  of  physic  in  the  city 
of  London,  and  seten  miles  round,  so  as  to 
ponbh  by  fine,  amerciament,  and  imprison- 
ment. They  con? icted  Dr.  GroenTeltof  ad- 
ministering  *  insalubres  pillules  et  noxia  medi- 

<  oamenU/  and  sentenced  bim  to  a  fine  of  20^ 
nnd  Id  months  imprisonment.  Accordingly, 
the  doctor  was  taken  in  execution  upon  this  sen- 
tence, and  brought  trespass  against  the  officers 
nnd  the  censors.  And  it  was  bolden  by  Holt, 
chief  justice,  first,  that  the  censors  had  a  judicial 
power ;  for  a  power  to  examine,  convict,  and 
punish,  is  judicial,  and  th^  are  judges  of  re- 
cord, becaase  they  can  fine  and  imprison: 
iocondly,  that  being  judges  of  the  matter,  what 
they  have  adjudged  is  not  traversable;  and 
the  plaintiff  cannot  be  admitted  to  gainsay  what 
the  censors  have  said  by  their  judgment,  which 
is,  that  they  were  '  innlubres  pillulas  et  noxia 

<  medicaments,'  4dd  £d.  3,  17,  9tb  £.  4,  3, 
IS  Co.  S4,  25 :  thirdly,  that  though  the  pills 
•nd  medicines  were  really  wholesome  pills  and 
good  medicines,  yet  no  action   lies  sgainst 
Sie  censors,  liecause  it  is  a  wrong  judgment  in 
tt  matter  within  the  limits  of  theicjurisidictioQ ; 
nnd  a  judge  is  not  answerable  either  to  the  king 
or  the  party  for  the  mistakes  or  errors  of  his 
judgment,  in  a  matter  of  which  he  has  juris- 
diction.    It  would  expose  the  justice  of  the 
mition,  and  no  man  fi'onid  execute  the  office, 
at  the  peril  of  being  arraigned  by  action  or  in- 
dictment for  every  judgment  he  pronounces. 
The  other  case,  which  is  in  2d  Modern,  218, 
is  as  strong  a  case,  if  an  action  oouM  be  main- 
tained against  a  judge  at  all,  as  any  that  can 
exist :  that  is,  an  action  for  false  imprisonment. 
The  defendant  pleaded  specially,  that  there  was 
a  commiflsion  of  Oyer  and  Terminer  directed 
to  him  amongst  others,  9cc.  and  that  before  him 
and  the  other  commissioners,  Mr.  Peon  and 
9Ir.  Mead,*  two  preachers,  were  indicted  for 
lieing  at  a  conventicle,  to  which  indictment 
they  pleaded  Not  Guilhr ;  and  this- was  to  be 
tried  oy  a  jury  whereof  the  plaintiff  was  one; 
and  that  after  the  witoesses  were  sworn  and 
examined  in  the  cause,  be  and  his  fellovrs 
found  the  prisoners,  Penn   and  Mead,  Not 
Guilty,  whereby  thev  were  acquitted ;  and 
^id  the  plaintiff  tnali  te  getterit  in  acquitting 
them  both  against  the  direction  of  the  C^urt  in 
matter  of  law,  and  against  plain  evidence,  the 
defendant  and  the  other  commissioners  then 
upon  the  bench  fined  the  jury  forty  marlcs 
a- piece,  and  for  non-payment  committed  them 
to  Newgate.    This  was  a  case  where  a  judge 
had  taken  upon  himself  to  fine  a  juryman,  be- 
cause he  did  not  find  agreeably  to  his  direction, 
and  had  commjtted  bim  to  Newgate.    Setjeant 
Goodfellow,  wbo  ewied  for  the   defendant, 
-aaid,  he  would  not  ofier  to  speak  to  that  point, 
whether  a  judge  can  fine  a  jury  for  girmg  a 
▼erdiet  contrary  to  evidence,  since  the  case  was 

<*  See  their  Case,  vol.  «,  p.  951,  and  Bn- 
AdTi  Case,  vol  6,  p.  999. 


so  lately  and  solemnly  resolved  by  all  the  judges 
of  England  in  BuHnell's  case,  that  he  could 
not  fine  a  jury  for  so  doing.  But,  says  he, 
admit  a  judge  cannot  fine  a  jury,  yet,  if  ha 
doth,  no  action  will  lie  against  him  for  so  doing, 
because  it  is  donees  a  judge:  but  the  Court 
told  him  he  need  not  labour  that  point,  but  de« 
sired  to  hear  the  anrument  on  the  other  side. 
In  this  manner  the  Court  would  not  suffer  the 
question  to  be  argued,  whether  an  action  would 
lie  or  not  against  a  judge  for  that  which  was 
done  by  him  in  that  character.  On  the  other 
side  it  was  urged,  that  what  was  done  was  not 
warranted  by  the  commission :  but  at  last  the 
whole  Court  say,  that  the  bringing  this  action 
was  a  g^reater  offence  than  fining  of  the  plain- 
tiff, and  committing  him  for  non-payment; 
and  that  it  was  a  bold  attempt  both  against  the 
government  and  justice  in  general.  Cord  Coke 
in  his  19th  Report,  25,  says,  that  the  reason 
and  cause  why  a  judge,  for  any  thing  done  by 
bim  as  a  judge,  by  the  authority  which  the 
king  has  committed  to  biro,  and  as  sitting  in 
the  seat  of  the  king,  concerning  his  justice, 
shall  not  be  drawn  in  question  before  any  other 
judge  for  any  surmise  of  corruption,  except  be- 
fore the  king  himself,  is  for  this:  the  kinjf 
binnself  is  de  jure  to  deliver  justice  to  all  his 
subjecte ;  and  for  that  be  himself  cannot  do 
it  to  all  persons,  he  delegates  his  power  to 
his  judges,  who  have  the  custoily  and  guard  of 
the  king's  oath.  And  forasmuch  as  tuis  con- 
cerns the  honour  and  conscience  of  the  king, 
there  is  great  reason  that  the  king  himself 
shall  take  account  of  it,  and  no  other.  My 
lord,  within  thearraval  of  St  Phillip's,  general 
Mestyn  was  ^iui/enii«  judge ;  there  was  no|Da«» 
gistrate  within  the  place  but  himself;  he  mighl 
appoint  another,  or  might  preside  himself,  ta 
decide  upon  offences  committed  within  that 
district,  it  was  so  stated  in  the  record,  that  it 
was  subject  to  the  immediate  order  of  the  go- 
vernor, and  no  judge  could  interfere  there  un- 

deputed  by  him  ;  so  that  ibe 


particularly 
lute  ffovemi 


1 

absolute  government  of  that  part  at  least  of  the 
island  rested  solely  in  his  hands.  He  acted 
there  under  an  authority  committed  to  him  bj 
the  king,  and  there  (  which  is  the  reason  in  the 
19th  Report  why  an  action  will  not  lie  against 
a  judge)  he  had  the  custody  and  guard  of  the 
king's  oath ;  and  therefore,  as  lord  Coke  sayf, 
if  he  acts  improperly  in  the  discharge  of  the 
functions  of  his  office,  he  is  accountable  to  the 
king  only,  and  no  other.  My  lord,  there  m 
another  case  in  the  Uw- books,  upon  which  I 
shall  beg  leave  to  lay  great  stress;  and  at 
present  1  am  not  aware  how  that  case  will  be 
distinguished,  so  as  to  make  it  inapplicable  Id 
the  present:  but  1  can  find  many  circumstancea 
even  in  that,  which  are  much  stronger  against 
the  determination  there,  than  any  that  exist  ip 
this  case  against  a  determination  in  iavoar 
of  the  defendant.  The  case  I  allode  to  ia 
that  of  Dutton  against  Howell,  in  ShoweHa 
Paribmeotary  CaMs,  t4 ;  that  iaa  writ  of  emr 
upon  a  judgment  given  in  the  King's-baach. 
ne  case  ftam  the  KconI  is  ihii }  IheplaiaMF 

4 


Fahrign)  v.  Muiti/n. 

A  Dutton,  for  thitl  he  nllh  seve- 

V  BNaulteil,  beu,  wDuaileil.  aoil  ini- 

d  bira,  aoil  look  anil  seized  hi*  gnuils, 

■isoDciI  the  |'l«>iitiir  for  tbree  m<inU)i. 

kpleiM  lofirtQiit  guilty,  aoil  as  (olLc 

R  iuslilicattiiii,thDl  llietMfnilaiit  al 

I*  ifUrernnr  of  BurbaJoe*,  auil  hcIs 

lit  conMiliitio^  liini  govcroar ;  lliai 

e  RiftlitDg  this  |Mteiit,  aiiil   before  the 

f  tiir  MHUlt,  the  defendant  arrived  ■( 

I,  and  did  lake  upon  him  and  exercise 

It  of  Ihil  anil  llie  olher  i^lBiids  in 

leal  •ni'nlitnied,    till  the  flrht  of  Miiy, 

''  ~    "liKd  licence  to  reluru  to  En|f  land  ; 

I    W  departure  h«   consiiiuted   tlie 

*  Im  hi*  deputy -gOTernor,  and  ihat  llie 

i)[ii*l  fu11uwlii){  the  delendant  arrival 

I,  in  England;  tbutthe  4ih  of  May, 

^M'l  drpiniirp,  the  plainiilT  took 

If  theadminiMralion  of  the  govern- 

e  i«Und  of  Darl>Bilues,  and  did  un- 

tatfiiMy   and  arbilrsiily  execute  ihal  gnietn- 

mtat  and  nSiee,  to  the  oppreMion  of  the  kioc's 

■utgrdti  Iliatal\«r  ibervturnof  liiedef.-odani, 

ill'   liUirjiilT   al  a  ri)»iicil  wib   charged   willi 

.   i;r  in  Ihe  adniinialnilinfinf  bis  olfice, 

1-^  ibe  OBlh  of  nffice,  not  obseriing' 

iia*i(^iion,  aMuming  the  tiile  of 

:^<>ii^riii<r     and    altering   decrepB  in 

■     ~...r,,  ,   ihat  il  was  ihennrdered  liy  Iheile- 

'  .-Uut  iiiid  c«u aril,  that 'the  plaiutifT  should 

'  Fomaiiilcd.     Tu  thi«  ihere  is  a  demurrer. 

Tliti  conn  judgtneni  was  giren  tar  the  plain- 

I  i  on  wUith  a  writ  of  eiror  t»as  brougiit  in 

I  ■'  Hmka  of  liords ;  and  though  the  parlicu  - 

ffftsana   of  the  judgment  Ju  the  Hunsa  of 

I   rtM  do  not  appear  further  than  can  be  col- 

-1^1  froo)  lUe  arguinenl,  yet  tliere  are  aereral 

-y^  in  tlic  i^umeul,  from  whence  it  may  be 

li^rinJ  UiHm  what  grounds  Ihe  jiid^metit  of 

'  •  Hoaae  of  l»rda  wt^nt.     It  wasargued  upon 

'  ;>arl  <<f  tlie  plaiotilT In  error, that  tbiiaotion 

ii;,'ain*l  him,  because  it  was  broiiij:lit 

.  Igr  lhat  which   he  did  os  a  Judge; 

•'  <-<<«'[ri«  10  be  ibe  lame  for  one  sort 

,;ii  anolher,  Bud  tbst  tlii«  (lersoD  was 

.;.,  .tijilf  a  gniemor,  end  so  had  all  the 

■itii  ul  a  goTL-Tiior.     As  lo  the  pl«a,  it  was 

railicd  lii«t«  »erp  seieral  inli>rniBlilieBln  lhat. 

''-  ••■••■14  it  niirlit  be  much  shorier  than  il 

"  11  ;  hut  ibat  il  suflicieDlly  >h«ned  what  the 

1  otitr  in  error's  auihortly   was.     Tlmt  this 

•  untieUiMI  lie,  because  the  tact  it  not  triable 

•  rt  1    III*  laws  Ihere  iimj  be  diffrreiit  from 

.      TU*id...  Di,  action  Res,  tlnlesi  il  ven  a 

'  ..'ii<  as  well  ni  causeless; 

i.'^.d  lhat  an  action  can 

■....rnor  or  liL^utenant of 

.    >iiiill>v  thesnine  reoMDii 

^iii  11:11   ir.   ...i-.i.i»c.     He  had    a  poucrtc 

rko  ju<lc<a<  'ki>'l  ilifrefore  tvas  more  than  t 

V-      Oib#r  tnnoua   alledgfii   ii)raiiihi  Iht 

.MioD  IviDg  bc-re  are,  first,  tiisi  all  tlm  reeordi 

<'.']  ctiiuMCi!  ars  ihrre  ;    secondly,  Ihe   lawi 

li  Tr  difff*  lh>m  wlint  Ihey  are  here ;  and  go- 

''^aeaWwMiM  he  very  neak,  and  die  pet' 

1  «tilb  Ikeni  eery  uneasy,  if 


A.  D.  1T75. 


f«» 


-ere  anbjecl  lo  lie  charged  with  actions  here  for 
iliat  tbey  do  in  those  countries.  In  the  argu. 
meut  ou  the  part  of  the  defendant  in  error, 
h  pains  are  taken  to  shew,  and  it  is  iusisled, 
Ibaltlie  lawof  Barbadoea  is  the  same  as  iheJai* 
of  England.  Aaotherthincthatisiherereliedbn 
lliat  Ibis  was  an  action  between  two  EnKlish- 
;n,  for  an  injury  done  by  one  Enghslimaa 
Bgoiualanotlter.  Thesesronndsare  strongly  r«- 
led  upon  on  Ihe  part  of  the  then  defendant  in 
rror ;  and  tbey  ahew  at  least  tbal  his  couusel 
houghl  these  diBtinclions  tery  necessary  antl 
nslerialin  order  losupportlheacliun  at  all:  for 
(bough  tl  is  denied  in  one  part  Ibat  the  jaws  <^ 
BnrlraJoes  were  the  same  as  in  England,  yet  on 
theeiher  side  ilisinslsled  tbey  were,  and  rhal  tiu« 
action  arose  belween  Eiigllshmun  and  English- 
man, and  tlial  therefore  the  aclinn  iiuglit  lo  ba 
maintained  in  Ibis  court.  The  Bouse  of  Lords 
Boally  determiaeil  lhat  the  aclion  could  not  |ia 
here,  and  the  judgment  was  giren  for  tlie  plaio- 
4iff  in  error.  A»  lo  tlie  form  of  the  plea,  it  was 
impossible  for  any  one  to  aay  a  word  in  (indi- 
cation of  lhat,  or  to  say  thai  Ihe  judgment 
could  go  upon  any  other  ground  than  llial  of 
ibe  dclcndaot's  being  gnvernor,  and  the  olTenca 
comfilaiued  of  committed  by  him  in  lhat  cha- 
racter. ThAt  was  Ibe  substance  of  the  case, 
and  upon  tbsl  the  judgmenl  of  Ihe  House  of 
Lnrds  was  Ibanded  j  for  os  lo  Ihe  plea,  il  ia  ad- 
mitted by  Ihe  counsel  for  tbedetendaul,  tbalia 
other  respects  it  was  bad  upon  the  lace  of  it. 
In  tiiBt  case,  one  argument  relied  on  is,  lhat  it 
wai  an  injury  commitled  by  one  Engliihman 
against  another.  Now  ibat  is  not  ilie  ca«e 
here :  for  the  |i1alDliff  himself  was  a  Minor- 
quia  ;  he  iraa  so  by  birth,  and  had  always 
lited  in  lhat  country.  My  lord,  in  Ibis  case, 
tlie  argument  cannot  bold,  that  llie  aclion  shall 
lie  because  Minorca  it  governed  by  ihe  same 
laws  OS  England^  for  it  is  olherwise,  and  it  Ja 
sUled  lo  be  goferned  by  Ibe  law  of  Spain, 
The  acts  upon  which  the  cnDiinilrnQnt  was 
founded,  in  the  case  of  Dulton  ami  Uowtll, 
Mere  done  by  the  iilainliff  in  the  choracler  of 
gOTecnor  ol  the  place,  which  is  an  ultjaclion 
against  that  case  that  will  not  hold  in  the  pre- 
sent ;  for  that  is  not  Ibis  case.  Mr.  Fabrigas 
neierstood  in  the  cliaracler  that  the  plaintiff  in 
thai  aciioo  did,  for  there  the  acts  complained 
of  were  done  by  him  iii  the  characler  of  go- 
vernor; andllut  was  urged  as  oneground  why 
il  should  not  be  caniassed  here.  Uut  ueilber 
of  these  distinctions  will  holil  in  the  present 
case  i  but  all  Ihe  innnnveuienccs  pointed  out 
against  the  action  in  thai  case  will  hold  rery 
■troDgly  in  tlie  preseul.  This  is  an  aclion 
brought  agaiail  the  detendanl  for  what  he  did 
BB  judge;  be  had  0  power  111  lhat  case  to  mak* 
judges  there,  and  therefore  be  was  something 
more  tlifin  a  judge ;  all  the  records  and  evi- 
dente  which  relate  to  the  transaction  ore  there, 
and  cnnont  be  brought  here)  Ihe  laivs  tbera 
are  ditferenl  from  what  they  are  in  this  coun- 
try ;  anil,  as  it  is  said  in  (be  conclusiou  of  lhat 
argument,  government  must  be  very  weak  in- 
deed, and  the. penon*  intrusted  wiih  ibcmreij 


807] 


14.  GEORGE  III. 


Actum Jor  Fake  Imprkonment*^ 


[SOS 


^neisy,  if  they  are  tbbject  to  be  chamd  with 
■ctiont  here  for  what  they  do  in  that  character 
ID  tbbse  cuuDtries.  My  lord,  iioless  that  case 
can  be  materially  distin^iiisbed  from  the  pre- 
•ent,  it  will  be  an  authority,  and  the  highest 
authority  that  can  be  adduced,  to  shew  that 
this  action  cannot  be  maintained,  and  will  be  a 
sufficient  authority  to  entitle  the  plaintiff  in 
error  in  this  cause  to  your  lordship's  judg- 
ment What  answer  may  be  given  to  that 
case,  or  distinctions  made  between  that  case 
and  the  case  now  before  the  Court,  I  cannot 
at  present  foresee ;  but  if  any  are  attempted, 
when  I  hear  them,  I  shall  be  at  liberty  to  give 
•uoh  answers  to  those  arguments,  as  may  occur 
|o  me  by  way  of  reply. 

Mr.  Peckham.  My  lord,  as  the  moderation 
end  mildness  of  gOTemorMostyn's  proceedings 
have  been  insisted  on  by  Mr.  Buller,  I  trust 
it  will  not  be  thought  irrelative  to  the  present 
question,  if  1  shortly  state  to  your  lordships 
the  nature  of  those  injuries  which  gave  birth  to 
the  action. 

It  appeared  in  evidence  on  the  trial,  that  Mr. 
Fabrigas  was  a  natural  born  subject,  being 
born  m  Minorca  subsequent  to  the  cession  by 
the  Spaniards  at  the  treaty  of  Utrecht,  and 
prior  to  the  capture  by  the  French  in  the  year 
1758 ;  that  he  was  a  roan  of  irreproachable 
eharacter  and  good  property ;  not  of  the  first 
class  of  nobility,  but,  to  borrow  an  expression 
from  colonel  Bidulph, '  what  we  should  call  in 
England  a  gentleman  farmer ;'  that  he  lived  in 
firiendship  with  the  first  noblesse  in  the  island ; 
and  that  he  had  a  father  living,  and  a  wife  and 
five  children. 

Thus  circumstanced  and  thus  situated,  be 
was  at  the  express  command  of  the  governor 
taken  from  his  house  by  a  party  of  soldiers, 
end  dragged  at  noon- day  through  the  streets 
ct'  Mahuu  as  a  criminal,  and  thrown  into  a 
^lungeon  appropriated  solely  to  capital  of- 
iemiers. 

It  appeared  likewise  in  evidence,  that  he  was 
eonfined  six  days  in  this  dungeon,  with  no- 
thing but  the  boards  to  lie  on,  and  with  no  other 
tustenaRce  than  bread  an<l  wattfr,  though  felons 
under  sentence  of  death  were  allowed  the  com- 
mon ft>od  of  the  island  ;  that  he  was  refused  the 
consolation  of  his  friends,  and  denied  all  inter- 
course with  his  family  ;  that  on  the  seventh 
morning  he  was  hurriiMl  aboani  a  ship,  without 
being  permitted  to  lake  leave  of  his  cliildren,  to 
eee  his  wife,  er  to  he  acconiiuotlated  with  money 
or  other  uecessiaries  for  his  subsistence ;  that 
during  this  wliule  time  he  had  heard  of  no 
charge  against  him,  he  had  been  confronted 
with  no  accuser,  he  had  not  even  seen  his 
judge :  yet  he  was  to  lie  banished  to  Cartha- 
gena  in  Spain  for  the  space  of  twelve  months. 
The  senteuce  was  faithfully  executed ;  and 
Mr.  Fabrigas,  having  experienced  that  distress 
which  a  moneyless  stranger  must  necessarily 
lie  reduced  to  in  a  country  whose  language  he 
did  not  understaod,  as  fortunately  for  himself 
ft  lUMzpeGtedly  to  go? ermr  tt^pttyn,  «icap«d 


from  the  Spaniards  :  1  say  unexpectedly,  my 
lord,  because  he  liule  thought  that  Mr.  ^«^ 
briifas  would  live  to  tell  an  English  jury  of  his 
sufferings  and  the  governor's  oppression. 

I  thought  it  necessary  to  state  these  fiiCts  to 
your  lordships,  that  you  might  judire  of  the 
mildness  of  that  treatment  which  Mr.  BuUer 
deemed  it  prudent  to  expatiate  on. 

It  now  becomes  requisite  for  me  to  state  the 
conduct  of  the  governor  through  the  subse- 
quent stages  of  his  very  extraordinary  defence  ; 
and  that  I  must  do  with  some  precision,  as  I 
mean  to  contend,  that  the  plaintiff  in  error  by 
that  defence  is  estopped  from  agiuting  the 
question  of  jurisdiction. 

The  declaration  was  delivered  in  Hilary 
term,  1773  ;  a  rule  to  plead  was  given,  and  a 
plea  demanded.  Had  the  governor  then  plead- 
ed to  the  jurisdiction,  the  question  would  have 
come  before  the  Court  on  a  demurrer ;  and  if 
that  had  been  determined  in  our  favour,  a  writ 
of  enquiry  would  have  been  executed,  and  Mr, 
Fabrigas  would  in  a  short  space  of  time,  at  a 
little  expence,  have  received  a  satisfaction  ade- 
quate to  the  injury,  and  would  have  been  en- 
abled to  return  to  his  friends  and  to  his  family. 
But  that  would  not  have  answered  the  purpose 
of  the  governor,  as  Mr.  Fabrigas  would  not 
then  have  been  delayed  in  England,  nor  have 
been  harassed  with  this  expensive  litigation. 

Had  the  governor  at  the  ex|nration  of  the 
four  days  piraded  in  chief,  he  might  then  have 
had  the  appearance  of  an  argument  in  his  ap- 
plication to  your  lordshi|>s ;  for  it  then  would 
have  been  competent  for  him  to  have  said,  *  I 
was  hurried  into  this  plea  before  I  had  time  to 
advise  with  my  counsel,  and  consult  upon  the 
propriety  of  aclmitting  the  jurisdiction.'  But 
ne  has  debarred  himself  even  of  this  shadow 
of  an  argument ;  for  instead  of  pleading  at 
the  usual  time,  he  applied  to  the  Court  of 
Common  Pleas  for  six  weeks  time  to  pleaili 
Here  then  was  an  admission  ef  tlie  jurisdic- 
tion ;  for  he  could  not  apply  for  time  to  plead, 
unless  the  Court  had  cognizance  of  the  matter. 
1  shall  presently  state  to  your  lordships  some 
cases,  whose  authority  cannot  be  shaken,  to 
prove,  that  even  after  imparlance  the  questioa 
of  jurisdiction  cannot  be  gone  into. 

But  this  was  uot  the  only  submission  to  the 
jurisdiction  of  the  Court ;  tor  he  then  applied 
t(»  put  off  the  trial  till  after  Easter  Term.  It 
would  have  been  nugatory,  it  would  have  beeo 
absurd,  to  have  prayed  the  Court  to  put  off 
that  trial,  which  they  had  no  |K>wer  to  try  at 
all.  When  Easter  Term  arrived,  the  governor 
made  a  second  attempt  to  postpone  the  trial ; 
but  the  Court  saw  through  his  design,  and, 
satisfied  that  he  did  it  onl)^  for  the  pur|»ose  of 
delay,  they  lieil  him  down  by  the  rule  to  try 
it  peremptorily  in  Trinity  Term,  and  that  be 
should  not  bring  a  writ  of  error  for  delay. 

When  he  saw  the  Court  of  Common  Pleat 
would  not  lend  him  their  iMiwer  for  so  Imse  m 
purpose,  lie  next  made  application  to  the  Court 
of  Exchequer  for  an  injunction  to  stay  pvo- 
ceediDgBi  and  a  biU  wu  filed  ia  Trioity  iW^ 


Tabtigat  v.  Mostyn. 

a  i&ctiule  IhM  iolcDtton  ;  bul  the  bill  »*s 
i-miaKd  on  arguinelil,  Hnd  the  goTcrnor  wu 
.:  k-oglb  Jriiifii  in  the  subsequent  sitlinifs  to 
MiL  f¥liRill.rMii«eCuneoii,the<lelenilHDl'B 
notr)  dU  nnt  nbjcti  (o  th«  juriBrliciluii,  ihey 
oi  oM  requni  ijie  leuined  juil|{e  to  nontuit 
UipliiDbff;  bul  tli«y  sufirrml  us  lo   |[°  'dI" 


biwl  iiiacle  fgooA  our  deula- 
re  tradable,  they  then  went 
bM  Lbra  jiutifieation,  nail  callpil  manj  wji- 
■«■!•  in  auiiiMiTt  nt'  it.  Biii  a  Tetdict  beiag- 
livul  for  Iha  pkinlilT,  they  icnilfred  a  bill  of 
oeqplton* ;  anil  lu  last  Mirtiaelma*  Term, 
Ihrr  apfiliMl  lo  tht  courl  of  Cuuitnon  Fleas  fnr 
a  »ew  Irtti  ;  lir«l,  li>r  exceM  of  darnairea ; 
mtMid\y,  btcaiue  llie  Court  bad  Dojutisdiction 
— diB  iDud  exiiaordiiiary  reaaon  |jerbaps  tbat 
••«  KBa  \pf*a  i  la  detire  a  seouiid  trial  b«- 
noM  Uie  L'oiirl  bad  no  juriBdiclioa  lo  trv  it 
MalL 

Govmor  BIuRtvn  ha>'mf(  m  aa  msDT  in- 
Hmm  ■  admitted  ine  jurjiidiclion  of  Ibe  Court, 
I  HMal  bcf;  leaie  hi  atnie  some  aulliorities  lo 
nsr  Inrdnhiji,  whith  prove  ihat  be  ia  now  loo 
bit  Id  lake  any  adiantage  of  a  defect  of  juris* 
dcnaii. 

TheftrsK^ielahall  mention  to yourlordshipa 

•  la  W(«Mnd  in  ibeyear  InokaJD  tbe  tsd  H.fi, 

.'-T,iiW»r«lhercTrBiuRiiecial  imparlance, 'lalvii 

.  noibiia  alte^tioaibus  el  eiceptinnibua,  latn 

it  l-reie  ijtiani  ad  narrBtionen';  and  IbeCoorl 

.iM  iMt  kIIdw  ibe  defeadaol'a  privilege,  be- 

I'V,  aaya  the  cnie,  by  imparling  be  has  ad- 

■   unl    ifie  juriidiclioQ  of   the  Court.      ThJH 

■'.nat  it  cunGrmed  by  lord  Coke,  iu  bis  cnm- 

'^1  on   ibe  I9Slh  aeclioD  of  LilllptDn,  where 

;-ikm^  of  a  pCTEOiial  action  he  says.  Ihree 

.n  are.  to  be  considered;  first,  whpn  the  de- 

-''zalilcl'eudi  Ibe  KTODij  and  force,  beinaketh 

■^t»W  •  p*'ty  to  ibe  mailer;    aecooilly,  by 

-'  dalfitcc  bf  the  ilamagf!*  he  aflirnieih,  that 

-t  I'Uibtiff  ia  able  tu  iiio  and  lo  recover  da- 

vmftm  upon  just  t-anie;    and  by  Ibu  latil  parr, 

ik.  •  M  dial  which  he  ought  lo  defend  when 

N^wiicn   he  aii{[bt,'  bt  aKrmelh  the  juria- 

teka  of  the  Cnurt, 

The  caMi  of  Barrin^oti  and  Tenablva,  13  C. 
1.  rvforlml  in  air  Thomas  tlaymood,  34,  ii 
•B3r  dew  on  tbi*  bead.  The  dclendnnt  after 
lapatlMicc  pleaded  lo  the  jurisdiction  ;  the 
■toialtfl  ilmiurred :  the  juif^menl  was,  that 
laAoitld  aaawer  over,  for  such  plea  cBODOt  be 
phatlirf  after  imparlance. 

The  next  caac  in  order  of  lime  is  repotted  in 
t  Mmim,  m,  Coi  and  St.  Albon's,  3S  Car,  2. 
i  piahiliitiaM  wu  prayeil  for  the  city  of  Lon- 
li^  kteaoN  tb«  dttendant  bad  oHered  a  plea 
b  Ikt  nriatietiun  ivhieb  had  been  refused. 
ImA  tUcT  {nance  Hale  »ud,  "  in  transilorv 
tttiDaa,  if  ilarjr  will  plead  a  matter  tbat  ariselh 
•dI  «f  iba  JMrmllctiun,  and  swear  it  before  im- 
f»ikttot,  aad  it  be  refused,  a  prohibition  will 
pi."  Tberv  was  n  case,  aitid  bi-i  lordship,  in 
•b«kil  was  ai)jitd)(cd  Ihat  the  jurisdiblionmual 
k  alcadcd  aod  <be  pica  aworn,  and  it  must 
Infin-c  toiparliwn.    Il  waa  also  agreed 


A.  D.  1775.  1910 

in  that  caae,  "  Ihat  Ihe  party  choold  nefcrho 
received  to  aui^n  for  ernir,  ihal  il  was  out  of 
the  juiisdiclinn,  but  it  muki  be  uleadrd."  I 
hare  in  rain  endeavoured  In  find  idii  raw ;  but 
it  ia  sufficient  for  n>y  purpone  to  nbnerve,  Ihat 
lord  chief  JRsIice  Hale  would  not  have  died  it 
unless  it  had  btvn  law.  If  llierrfiiTe  ihe  opi- 
nion of  that  Kreat  man,  solemnly  given  in  the 
eoiirl  of  King's-beocli,  issuibriritr.  I  am  Mi 
In  say.  that  jroverniir  Itl-islyn  ool  havio);  plead- 
ed lo  the  jurisdiction,  <:annut  now  assifpi  il  for 

In  a  few  year)  after,  lord  chief  justice  Hale 
was  ai(ain  called  upon  to  cunijiler  tbii  qneslion 
in  the  case  of  Maodvke  anil  Slint,  3  Modern 
3T3,  ea  Car.  'J.  There  waa  a  prohihilion  lo  the 
aheriff'a  court  of  London :  ihe  Biiir^eation  was, 
tiial  ihe  contract  waa  made  in  Mirldleitex, 
theretbre  the  cause  of  action  did  nut  arise 
wilhin  their  juriadiclion.  The  cliief  jiisiice 
and  justice  Wyndham  were  of  opiomn,  "  ihal 
after  ihe  delendant  had  admitted  ihe  juriidic' 
lion  by  pleading  !□  the  action,  eapecially  if 
verdict  and  judgment  past,  llie  court  will  not 
examine  whether  the  cause  of  action  did  arise 
oul  of  the  jurisdiction  or  not ;"  on  which  b 
prohibition  was  denied,  and  judgment  was  given 
for  the  plsinliS'.  I  cannot  di«tint{iiis)i  Ihi* 
from  the  present  case;  for  as  Ihe  Court  will 
not  examine  whether  Ihe  cause  of  acfi'in  did 
ariaeout  of  the  jurisdiction,  there  can  benn  ilif- 
ferCDce  whether  il  was  in  Midrtlesex  or  in  Mi- 
norca; and  that  question  cannot  now  be  asked, 
because  verdict  and  jurigmenl  have  pawed. 

Lord  chief  justice  Holt,  in  Llie  case  of  An- 
drews anil  Holl,  iilord  Kaymontl.  884,  said, 
tbat  he  was  counsel  in  tlie  case  of  Deoning  and 
Norria  (reportnl  in  2  Leviolz,  S43}  and  ihat 
the  Court  held  there,  "that  since  the  deleo- 
dant  had  admitled  the  judge  lobe  a  judge  by  a 

Clea  t*  the  action,  he  was  estopped  to  say,  that 
c  was  not  a  judge  afterwards."  If  Ihen  a  de- 
fendant, by  having  submilled  the  decision  nf 
his  cause  In  a  judjfe.  precluded  himself  from 
ohjecliog  to  bim  afterwanls,  bow  much  stranger 
ia  the  present  case,  where  the  itefendaol  baa 
Eubmilled  his  cause  to  the  determinatinn  of  a 
court  which  haa  cogni7:ince  over  all  tranaitory 
actions.  It  is  again  laid  down  by  lord  chief 
justice  rtoll,  '■  that  there  ought  to  be  no  plea 
to  ibo  jurisdictiiiD  after  imparlance,  and  Ihat  a 
apecial  imparlance  admila  the  jurisdiction. " 
Holt's  Reports,  Pasch.  S  W.  and  M. 

1  must  trouble  your  lordibipa  with  the  casa 
of  Trelawney  and  Willrams,  toshew,  thai  thers 
has  been  but  one  opinion  on  Imlh  sides  of  the 
hall  respecling  a  plea  to  the  juriidiclion  ;  and 
that  equity  and  common  law  bate  united  in 
saying,  tbat  if  the  jurisdiction  is  ootpteaded  to, 
it  must  be  afterwards  admitted.  This  case  is 
reported  iu  8  Vernon  1113,  Hil.  1704.  The 
plaintiff  prayed  an  account  relative  to  a  tin-set ; 
ibedelrndant  Iniisled  that  he  ought  lo  have 
been  sued  in  the  Stannary-court.  The  lord- 
keeper  decreed  an  account;  nod  aa  to  Ihe  «b< 
jecliim  Ihat  the  plaintiff  nui,'bt  l( 
the  8lau  nary -court,  be  said,  "  ' 


SU] 


14  GEORGE  III. 


Action Jbr  False  Imprisonment^-' 


[212 


of  its  jarisdiclion,  the  defeDdaot  must  plead  to 
the  jurisdictiuD,  and  not  object  to  it  at  the 
hearing." 

There  are  a  great  variety  of  casea  tendini;  to 
establish  this  p«*8itioD,  that  when  a  defendant 
has  once  submitted  to  the  jurisdiction,  he  has 
for  ever  precluded  himself  from  objectinfif  to  it. 
To  state  them  all,  after  the  great  authorities  1 
have  mentioned,  would  be  tf»  multiply  the  wit- 
sessei  without  strengthening  the  testimony  :  I 
■ball  therefore  only  site  a  few  passages  from 
lord  chief  baron  Gilbert's  History  of  the  Com- 
mon Pleas,  which  are  decisi?e  upon  this  part 
of  the  argument.  In  page  40,  speaking  of 
the  order  of  pleading,  he  says,  "  the  defendant 
first  pleads  to  the  jurisdiction  of  the  Court ; 
secondly,  to  the  person  of'  the  plaintiff;  and 
thirdly,  to  the  count  or  declaration.  By  this 
order  of  pleading,  each  subseqoeut  plea  admits 
the  former.  As,  when  he  pleads  to  the  person 
of  the  plaintiff,  he  admits  the  jurisdiction  of  the 
Court ;  for  it  would  be  nugatory  to  plead  any 
thing  IB  that  court  which  has  no  jurisdiction  in 
the  ease.  When  he  pleads  to  the  count  or 
declaration,  he  allows  that  the  plaintiff  is  able 
to  come  into  that  court  to  implead  liiiii,  and  be 
may  be  there  properly  impleaded."  Be  lays 
it  down  in  a  subsequent  part  of  his  treatise  (p. 
148,)  as  a  positive  rule  of  law,  that,  **  if  a  de- 
fendant pleads  to  the  jurisdiction  of  the  Court, 
he  must  do  it  inttanter  on  his  appearance; 
for  if  he  imparls,  he  owns  the  jurisdiction  of 
the  Court,  by  craving  leave  of  the  Court  for 
time  to  plead  jn,  and  the  Court  shall  never  be 
ousted  of  its  jurisdiction  afler  imnarlance." 
IV hen  1  find  tnis  doctrine  in  our  old  law-books, 
when  I  see  it  ratified  in  modern  times,  and 
stamped  with  the  authorities  of  Coke,  Hale, 
Holt,  and  Gilbert,  1  am  warranted  in  saying, 
that  goveriHtr  Moslyn  cannot  now  agitate  the 
question  of  jurisdiction  :  and  if  he  cannot,  the 
judgment  must  be  affirmed. 

Notwithstanding  which,  I  have  no  objection 
to  follow  Mr.  BuTler  through  the  grounds  of 
argument  that  he  has  adopted;  and  J  shall 
endeavour  to  prove, 

That  an  action  of  trespass  can  be  brouglit  in 
England  for  an  injury  done  abroad : 

That  Mr.  Fabrigas  is  capable  of  bringing 
such  action : 

And,  that  governor  Mostyn  may  be  the  sub* 
ject  of  it. 

It  cannot  be  contended,  but  that  an  action  of 
trespass  is  a  transitory  action,  and  may  be 
brought  any  where :  *<  all  personal  actions," 
says  lord  Coke,  **  may  be  brought  in  any 
county,  and  laid  any  where."    Co.  Litt.  282. 

In  the  earl  of  Derby's  case,  12  Coke,  the 
chancellor,  the  chief  juntice,  the  master  of  the 
Rolls,  and  iustices  Dodderidge  and  WiOch,  re- 
solved, **  that  for  things  transitory,  although 
that  in  truth  they  be  within  the  county  pala- 
tine, the  plaintiff  may  by  Uw  alle<l:^e  them  to 
be  done  in  any  place  within  England ;  and  the 
defendant  may  not  plead  to  the  jiiriMliction  of 
the  Court,  that  thev  were  done  within  the 
muoty  psUtifie."    This  doctrine  is  not  coo* 


fined  to  counties  palatine ;  for  lord  Coke,  in  his 
comment  on  Littleton,  $61,  6,  says,  **  that  ao 
obligation  made  beyond  the  seas  at  Bour- 
deaux,  in  France,  may  be  sued  here  in 
England  in  what  place  the  plaintiff  will.** 
Captain  Parker  brought  an  action  of  trespass 
and  false  imprisonment  against  lord  Clive,  for 
injuries  received  in  India,  and  it  was  never 
doubted  but  that  the  action  did  lie.  Even  at  this 
moment  there  is  an  action  depending  between 
Gregory  Cojimaul,  an  Armenian  merchant, 
and  governor  Verelst,  in  which  the  cause  of 
action  arose  in  Bengal.  A  bill  was  filed  by 
the  governor  in  the  Exchequer  for  an  injunc- 
tion, which  was  granted  ;  but  on  appeal  to  the 
House  of  Lords,  the  injunction  was  dissolved. 
The  supreme  court  of  judicature,  by  dissolving 
the  injunction,  acknowledged  that  an  action 
of  trespass  could  be  maintained  in  England, 
though  the  cause  of  action  arose  in  India. 

The  next  point  to  be  considered  is,  whether 
tliere  is  any  disability  attending  the  person  of 
Mr.  Fabrigas,  that  incapacitates  him  from  bring- 
ing this  action.  But  it  will  be  requisite  for  roe 
first  to  state,  that  governor  Mostyn  pleaded  not 
guilty,  and  then  justified  what  he  had  done  by 
alledging,  that  the  plaintiff  had  endeavoured  to 
create  mutiny  among  the  troops ;  therefore  he, 
as  governor,  had  a  right  to  imprison  and  ba- 
nish him.  Your  lordship  observes,  that,  ac- 
tionling  to  his  own  plea,  he  does  not  pretend  to 
justify  what  he  has  done  as  governor  merely 
from  the  plenitude  of  his  power,  but  from  the 
necessity  of  the  act,  because  the  plaintiff  had 
endeavoured  to  create  mutiny  and  sedition. 
The  learned  judge  who  tried  the  cause,  fore- 
seeing the  importance  of  this  justification,  re- 
quested the  jury,  at  the  same  time  they  brought 
in  their  verdict,  to  find  whether  the  governor's 
justification  had  been  proved.  The  jury  found 
a  verdict  for  the  plaintiff,  with  3,000/.  damages, 
and,  that  the  plaintiff  had  not  endeavoured  to 
create  mutiny  or  desertion,  or  had  acteil  in  any 
way  tending  thereto. 

In  consequence  of  that  decision,  the  question 
now  is,  whether  Mr.  Fabrigas,  a  man  perfectly 
innocent,  can  bring  an  action  against  gover- 
nor Mostyn  for  this  wanton  and  unparalleled 
injury  ? 

As  the  law  grants  redress  for  all  injuries,  so 
it  is  open  to  all  persons,  and  none  are  excluded 
from  bringing  an  action,  except  on  account  of 
their  crimes  or  their  country.  Littleton  says, 
there  are  six  niaiiuer  of  peritons  who  cannot 
bring  actions  :  Mr.  Fabrigas  is  not  included  in 
either  of  those  descriptions.  The  only  persod 
that  can  bear  the  least  resemblance  to  liim  is 
an  alien,  who,  Littleton  says,  to  be  incapaci- 
tated from  bringing  an  action,  must  be  born  oat 
of  the  ligeance  of  the  king.  Lord  Coke,  in  his 
comment  on  that  passage,  observes,  that  **  Lit- 
tleton saith  not,  out  ot  the  realm,  but  out  of 
the  ligeauce;  for  he  may  be  bom,  says  Coke,' 
out  of  the  rtfslm  of  England,  yet  within  tb« 
ligeance,  and  shall  be  called  the  king's  liege- 
man, for  ligeut  is  ever  takea  for  a  natond-bora 
subject."    Co.  Litt.  129. 


813] 


Pabrigat  v.  Mottyh. 


A.  D.  1773. 


rsi4 


Mr.  Fabrigas  was  boro  in  Minorca  subse- 
fMol  to  the  ceaaioD  of  Spain,  consequently  be 
if  a  iuuaral-born  subject ;  every  natural-born 
Mbiect,  accordinnf  to  lord  Coke,  owes  alle^ance 
li  me  king ;  allegiance  impliea  proit* rtii>n,  the 
iM  is  a  necessary  consequence  tif  tbe  other ; 
ihekiiigrof  England  can  protect  only  by  his 
kai ;  bv  tlia  laws  of  £ng:land  tiiere  is  no  in- 
JHj  willioot  a  remedy  ;  the  remedy  for  false 
■friaooment  and  banishmf*nt  is  an  action  of 
fecipBsa,  w  bich  is  a  transitory  action,  and  may 
be  btoogbt  an V  where,  therefore  riiBrbil)*  brought 
m  tbe  city  of  London,  where  this  action  was 
aeloalljr  tried,  and  Mr.  Fabri|pi8  recovered 
3,0001.  damages.  I  hope  your  lordtthips  will 
JHtii^  me  in  saying,  that  this  is  a  fair  deduc- 
JilB  men  eatablisbed  principles. 

Coke  (Co.  Litt.  130),  mentions  three  things 
vbcraby  every  sdbject  is  orote cted,  *  rex,  lex, 
'  et  reacripta  regit*  ;*  and  he  adds,  **  that  he 
that  ia  out  of  the  protection  of  the  king,  cannot 
ka  aided  or  protected  by  the  king's  law,  or  by 
tbe  bing's  writ."  The  natural  inference  to  be 
dnwB  mm  thence  is,  that  he  who  is  under  the 
blag's  protedion  may  be  aided  by  the  king*s 
law,  Mr.  Fabrigas  is  under  the  king's  pro* 
Iselioo,  because  he  owes  him  allegiance,  there- 
ktt  be  may  be  aided  by  the  king's  laws ;  con- 
ssfseoUy  is  warranted  in  bringing  this  action, 
lbs  only  aid  the  laws  of  England  can  afford  bim 
fcr  that  injury. 

Mr.  Buller  has  mentioned  the  case  of  Pons 
mk  Johoaoo,  lieutenant-governor  of  Minorca, 
aM  aeefna  to  rely  on  wbat  was  said  by  lord 
faaden  <mi  that  occasion.  If  my  memory  does 
Ml  aialMid  roe,  tbe  plaintiff  could  not  make 
fiad  bia  case,  being  unable  to  prove  Mr.  John- 
■i^a  band-writing  to  the  order  for  the  fiscal  to 
flMBil  bim,  and  the  question  of  jurisdiction 
ais  not  SLgitated ;  but  if  it  had,  however  re- 
ijpsdable  lord  Camden's  opinion  ever  will  be, 
m  it  was  only  the  opinion  of  a  judge  at  Nisi 
hies.  And  according  to  Mr.  Buller's  own 
Urie  of  tbe  case,  he  makes  lord  Camden  con- 
ftsi,  that  an  action  might  lie  in  a  transaction 
batween  subject  and  subject.  That  concession 
iisafficieot  for  me;  for  1  have  your  lordship's 
swa  words  to  prove,  that  Mr.  Fabrigas,  being 
hsn  in  a  conquered  country,  is  a  subject. 

Id  tbe  kinff  and  Cowle,  2  Burr.  868,  your 
Isrdsbip,  apeaking  of  Calvin's  case,  said,  **  the 
fMStion  was,  whether  the  plaintiff  Calvin,  b<»rn 
ia  Seollaod  after  the  descent  of  the  crown  of 
England  to  king  James  the  first,  was  an  alien 
hsm,  and  consequently  disabled  to  bring  any 
ifal  or  personal  action  for  any  lands  within  the 
italm  of  England ;'!  and  your  lordship  added, 
**  bat  it  never  was  a  doubt  whether  a  person 
koni  in  tbe  conquered  dominions  of  a  country 
iisobieei  to  the  king  of  the  conquering  couu- 
ky."  From  this  two  points  are  gained  :  first, 
tint  Calvin,  though  born  in  Scotland,  was  not 
•a  aUeOy  and  might  bring  a  real  action  ;•  and 
that  there  never  was  a  doubt,  but  that  a  person 
Urn  in  a  conquered  country  waa  subject  to  the 
esaqveror.  Aa  therefore  tbe  twelve  judgea  de- 
that  CalFin  could  bring  a  real  actiooy 


I  because .  he  was  not  an  alien ;  certainly  Fa- 
!  briufas  may  bring  a  transitory  action,  as  he  ia 
a  subject,  being  bom  in  a  country  that  waa 
conq  lereil  by  the  state  of  Great  Britain. 

There  is  an  anonymous  case  in  1  Salkeld, 
404.  4  Ann.  A  bill  was  brought  in  Chancery 
to  foreclose  a  mortgage  of  the  island  of  8arke : 
the  defendants  pleaded  to  the  jurisdiction  of  the 
court,  viz.  that  the  island  of  Sarke  was  governed 
by  the  laws  of  Normandy  ;  and  it  was  objected, 
that  the  party  ought  to  sue  in  the  courts  of  the 
island,  an-i  appeal.  On  the  other  side,  it  was 
said,  that  if  the  person  be  here,  he  may  be  sued 
in  Chancery,  though  the  lands  lie  in  a  county 
palatine,  or  in  another  kingdom,  as  Ireland,  oir 
Barbadoes.  Lord-keeper  Wright  over-ruled 
the  plea,  saying,  *<  that  the  Court  acted  against 
the  person  of  the  party  and  his  conscience,  and 
there  might  be  a  failure  of  justice  if  the  Chan- 
cery would  not  hold  plea  in  such  a  case,  the 
party  being  here."  How  much  stronger  then 
is  the  present  case  ?  for  this  is  a  transitory  ac- 
tion that  may  be  brought  any  where;  Mr.  Fa- 
bngas  on  the  spot  to  bring  it,  and  governor 
Mostyn  in  England  to  defend  it. 

The  case  Mr.  Buller  has  cited,  of  the 
East- India  Company  and  Campbell,  admits  of. 
a  short  answer  ;  for  had  the  defendant  con- 
fessed  the  matter  charged,  he  would  have  con>- 
fessed  himself  to  be  guilty  of  a  felony ;  and  the 
humanity  of  the  laws  of  England  will  noi 
oblige  a  man  to  accuse  himself:  but  this  is  not 
a  pttbHc  crime,  but  a  civil  injury.  As  Mr.  Bul- 
ler has  gone  to  the  East- Indies  for  a  case,  I 
shall  be  excused  mentioning  the  case  of  Ram- 
kissenseat  and  Barker,  lAtkyns,  51,  where 
the  plaintiff  filed  a  bill  asrainst  the  representa- 
tivea  of  the  governor  of  Patna,  for  money  due 
to  him  as  his  banyan.  Tbe  defendanta  plead- 
ed, that  the  plaintiff  was  an  alien  born,  and  an 
alien  infidel,  and  therefore  could  have  no  suit 
here :  but  lord  Uardwicke  said,  as  the  plaintiff's 
was  a  mere  personal  demand,  it  wss  extremely 
clear  that  he  might  bring  a  bill  in  this  court ; 
and  he  over-ruled  the  defiendant's  plea  without 
hearing  one  counsel  of  either  side.  As  there- 
fore lord  Hardwicke  was  of  opinion,  that  by  the 
laws  of  England  an  alieu  infidel,  a  Gentoo  mer- 
chant, the  subject  of  the  great  mogul,  could 
claim  the  benefit  of  tbe  English  laws  against 
an  English  governor  for  a  transaction  in  a  fo- 
reign country ;  I  trust  that  your  lordships  will 
determine,  that  Mr.  Fabrigas,  who  is  neither 
an  infidel  nor  an  alien,  but  a  subject  of  Great- 
Britain,  may  bring  hia  action  here  for  an  injury 
received  in  Minorca. 

The  case^of  the  countess  of  Derby,  Keilway 
202,  does  not  affect  the  question ;  for  that  was  a 
claim  of  dower,  which  \h  a  local  actipn,  and  can* 
not,  as  a  transitory  action,  be  tried  any  where. 
The  cases,  mentioned  by  Mr.  Buller,  from 
Latch  and  Lutwyche,  were  either  local  actions, 
or  questions  upon  demurrer,  therefore  not  ap- 
plicable to  the  case  before  tbe  Court;  for  a 
party  may  avail  himself  of  many  things  upon  a 
demurrer,  which  he  cannot  by  a  writ  of  error. 

Mr.  BuUer's  endeavouring  to  confound  Uraa- 


SIS] 


14  GEORGE  m. 


Ad^iomjar  Fcise  Jtnjpruenmtnt'— 


[S16 


■itorj  with  local  action  ,  must  be  my  apoloey 
for  mcfDtioninflf  another  rate  in  iiupport  of  the 
distinction.  The  case  I  ullude  to  is  Mr.  Skin- 
ner's, which  was  referred  to  the  tweWe  judflies 
/roin  the  council-board.  In  the  year  1657, 
when  trade  was  open  to  tKe  East- Indies,  be 
possessed  liimself  of  a  house  and  warehouse, 
which  he  filled  with  ^oods  at  Jamby  ;  and  he 
purchased  of  the  kinnf  of  Great  Jamby  the 
islands  of  Baretha.  The  af^ents  of  the  East- 
India  company  assaulted  bis  person,  seized 
his  warehouse,  carried  away  his  goods,  and 
took  and  possessed  themselfes  of  the  islands  of 
Baretha.  Upon  tiMs  case,  it  was  propouniled 
to  the  judges,  by  an  order  from  the  king  in 
council,  dated  the  12th  April  1666,  whether 
Bf  r.  Skinner  could  have  a  full  relief  in  any  or- 
dinary court  of  law  P  Their  opinion  was,  **  that 
his  mtjesty's  ordinary  courts  of  justice  at 
Westminster  can  -  gif  e  relief  for  taking  away 
and  spoiling  his  ship,  goods,  and  papers,  and 
assaulting  and  wounding  his  person,  notwith- 
atanding  the  same  was  done  beyond  the  seas : 
but  that  as  to  the  detaining  and  possessing  of 
the  house  and  islands,  in  the  case  mentioned, 
he  is  not  relierable  in  any  ordinary  court  of 
justice." 

Your  lordships  will  collect  from  this  case, 
that  the  twelve  judges  held  that  an  action  might 
be  maintained  here  for  spoiling  his  goods,  and 
aeizing  his  person,  because  an  action  of  tres- 
pass is  a  transiterv  action ;  but  an  action  could 
not  be  maintained  for  possessing  the  bouse  and 
land,  because  it  is  a  local  action. 

I  trust  I  have  proved  that  an  action  of  tres- 
pass may  be  brought  here  for  an  injury  re- 
ceived in  Minorca ;  and  that  Mr.  Fabri^,  a 
natural 'born  subject,  is  capable  of  bnnging 
•uch  action.  The  only  remaining  question  is, 
whether  Mr.  Mostyn,  as  governor,  can  tyran- 
nize over  the  innocent  inhabitants  within  his 
government,  in  violation  of  law,  justice,  and 
umani^,  and  not  be  responsible  in  our  courts 
to  repair  by  a  satisfbctioii  in  damages  the  injury 
be  has  done  ?  Mr.  Buller  has  contended,  that 
general  Mostyn  governs  as  all  absolute  sove- 
reigns do,  and  that  *  stet  pro  ratione  voluntas* 
is  the  only  rule  of  his  conduct.  I  did  not  ex- 
pect to  hear  such  an  assertion  advanced  in  this 
court.  From  whom  does  the  governor  derive 
this  despotism  ?  Can  the  king  delegate  abso- 
lute power  to  another,  which  he  has  not  in 
himself?  Can  such  a  monster  exist  in  the 
British  dominions  as  tyranny  uncontrouled  by 
law  ?  Mr.  Buller  asserts,  that  the  governor  is 
accountable  to  God  alone ;  but  this  Court  1 
hope  will  teach  him,  that  he  is  accountable  to 
his  country  here,  as  he  must  be  to  his  God 
hereafter,  ff»r  this  wanton  outrage  on  an  unof- 
fending subject.  Many  cases  have  been  cited, 
and  much  argument  adduced,  to  prove  that  a 
man  is  not  responsible  in  an  action  for  what  he 
has  done  as  a  jadge.  I  neither  deny  the  doc- 
trine, nor  fball  endeavour  to  impeach  the 
casea ;  but  I  most  obeerve,  that  they  do  not 
affect  the  present  question.  Did  goTemor 
Hoityn  rit  u  jodginait?  Did  ke  hear  toy  ac- 


cusation P  Did  he  examine  a  witnesa  P  Did  he 
even  see  the  prisoner  P  Did  he  follow  any  rule 
of  law  in  any  country }  *  Stet  pro  ratione  vo- 
luntas' was  his  law,  and  his  mercy  was  twelve 
months  banishment,  to  an  innocent  individual. 

As  Mr.  Buller  has  dwelt  so  much  «|ion  the 
case  of  Dutton  and  Howell,  it  will  be  ex|»ected 
that  I  take  some  notice  of  it.  1  need  not  go 
over  the  case  again,  as  it  has  been  already  very 
accurately  stated;  but  1  must  beg  leave  to 
read  the  reasons  which  were  given  with  the 
printed  case  to  the  Lords,  before  it  came  on  to 
ne  argued  in  the  House  of  Peers.  It  is  stated, 
that  sir  Richard  Dutton  ought  to  have  the 
judgment  that  was  obtained  against  him  below, 
reversed  ;  for 

1st,  That  what  he  did,  he  did  as  chief  gea 
vemor,  and  in  a  council  of  state,  for  which  he 
ought  not  to  be  charged  with  an  action.  If  he 
shall,  it  may  be  not  only  the  case  of  sir  Richard 
Dutton,  but  of  any  other  chief  governor  or 
privy -counsellor  in  Scotland,  Ireland,  or  else* 
where. 

8.  What  was  done,  waa  in  order  to  bring  a 
delinquent  to  justice,  who  waa  tried  in  BarSa- 
doea  and  found  guilty ;  and  if  for  this  he  shall 
be  charged  with  an  action,  it  would  ,be  a  dis- 
couragement to  justice. 

d.  What  was  done,  was  done  in  court;  for 
ao  is  a  council  of  state,  to  receive  complaieta 
against  state  delinquents,  and  direct  their  triala 
in  proper  courts.  What  a  judge  acta  in  court, 
as  sir  Richard  Dutton  did,  no  action  lieaagaioit 
him  for  it. 

4.  There  never  waa  such  an  action  aa  thii 
maintained  against  a  governor  for  what  bf  did 
in  council ;  and  if  this  be  made  a  preoedeiit,  it 
will  render  all  governments  unsafe. 

5.  If  a  governor  of  a  plantation  beyond  the 
aeas  shall  be  charged  with  actions  here,  for 
what  he  did  there,  it  will  be  impossible  for  him 
to  defend  himself:  first,  for  that  all  recordi 
and  evidences  are  tliere:  secondly,  the  laws 
there  differ  in  many  things  from  what  they  are 
here. 

Though  the  first  part  of  this  reason  seems 
to  operate  in  favour  of  governor  Mostjm,  yet 
it  goes  no  farther  than  this ;  that  if  an  aetm 
is  brought  here,  it  will  be  impossible  for  him 
to  defend  himself.  The  latter  part  ahewa  the 
meaning  of  the  whole;  that  is,  if  an  action  is 
brought  here  against  the  governor  for  euj 
thing  done  by  him  in  his  judicial  capacity, 
then  he  will  not  be  able  to  defend  himself,  «s*> 
cause  all  the  records  and  evidencea  are  there. 
This  clearly  proves,  that  it  refers  to  what  he 
did  as  judge,  otherwise  there  could  have  been 
no  occasion  to  have  mentioned  the  reoor4p 
being  there. 

These  reaaons  roust  have  been  the  grmiBi 
of  the  counsers  argument,  and  the  whole  is 
bottomed  in  sir  Richard  Dutten's  having  acted 
with  hia  council  in  a  judicial  capacity.  I  take 
no  notice  of  the  arguments  of  counaH,  as  rt^ 
ported  bjr  Shower,  because  it  can  be  no  an- 
tliority  Ar  thia  court.  1  shall  only  ohacffTS^ 
that  u  reaped  to  the  junsdidiooy  wbieli  mm 


Fabrigat  v.  Mosiyn. 

m  tottcheJ  on,  Ihat  tlie  mu«rltoD  uf 

A  tor  ibe  Uctendtnl  iu  errnr,  Hfiirm- 

wuJtctinn,  ii  he  goul  lUlliorily  for 

I  uf  ii  by  sir  Uiohard  Duiiod'e 

r,  biiller.     Tlie  repnrt  ii  gjkal 

*  ftriMinili  ii4  Uie  JudufDient;   Jl  onlj 

Ibal  the  action  wan  rererseil;"    liul 

I   vonl   thni   ilie  BCliou  ciiuld   ont  be 

111  I  teiilure  lo  ufBnii,  Uial  iliig 

!  Irwl  rrtrinbluice  lu  Ihe  pre- 

M;  duty  calli  OD  roe  lo  dnvr  the  iuTi- 

■  puvIIH. 

mur  DultuD  ul  wllh  his  oouocil,  to 
il  «iii|uira  iu  the  supreme  cuurl  of  ju- 
a  llarbidoei : 

ir  Mtniyn  »t  neither  *s  ■  mililtry 
il  jud^e. 
t.  F«bfl|[M  was  not  brau^ilil  belbre  him, 
'It  he  Becuard  by  any  man  : 

iililicly  BccQKd  be- 

•n  iaio  B  dimgeon, 
nib  tlie  mom  uiibeard-nrgeTerily; 
nil)  oDJy  rooBiied  for  tne  . 
_  hilt  |ieri>uo . 

m  biiiishedrarliTelTeiDniitbs 
0  8|itni»b  duiniiiioiiit : 
jrJobn  wM  kriil  in  cualoily  for  11  diys, 
•  MnU  ba  hroufjhl  to  bia  trial ; 
r.  Fabriga*,oiitlje|;<>r«rnur'ijii«lilicAlian, 
bund  to  lie  lanoceni : 
Sr  John  Wiiham,  when  bronchi  beforr  Ibp 
wartor|{«ieralwsBioD>,  woifouud  ({uiliy.snd 

The  gavernor  of  Btkri'adoM  followed  Ihe  iawa 
rfBwiMloes'. 

The  KDTprnor  nf  MInnrca  acted  in  dinme- 
k«tJ  opimfiliun  tn  all  latrs.  nnil  in  viulatioD  of 
is  •MtmldicliilMof  homaiiily: 

Sa  Ri^liard   Duitou  let  the  law  take  its 

It  out  of  bia  way  to 

H>«iny  abt-wM  the  dilTerenre  betneeu  the 
i*a  caB««,  permit  me  In  mmlion  an  obierra- 
iii«  of  loint  «birl*-juitic«  <le  Grey,  \a  bia  nrii- 
aam  an  Ihc  malioo  for  a  new  trial.  "  If  Ibe 
C*>n«or  liad  tvcured  lilm,"  said  bis  lonlthip, 
"  asy,  if  be  bad  Wrcly  committed  him,  that  lie 

a  hi  ba*c  been  atntnable  to  jusiice,  and  if  be 
wnn>p<lial*ly  ordm^  a  proaecullon  upon 
uy  wn  '>(  bi«  i-nuduci,  il  would  have  been 
asMbcr  ijUMioD:  bitt  tbe  cnveroor  knew  he 
taaU  DO  morn  tmpnsoa  him  Ii>r  a  Iweliemonlb, 
(iind  lb*  liaBiahnwnl  far  a  year  i»  a  conlinualion 
tl  tbe  ortcina)  impriaoiimeni)  Iban  ibiit  be 
■MiU  iaAtcl  tbf  t0it<ire." 

La«4  cbiefguatice  de  Grey  llitn  undoubtedly 
lb«agb(  (bat  Bo*«Tnor  Moctyn  had  actetl  ille- 
ttUjf :  ifao,  I  hope  1  nball  be  able  to«bew, 
iiiil  bt  H  mffleiiable  to  Ibe  courlaof  law  in 

Lflrri  MlBmnnt't  ciae,  iu  3  Salkeld  695, 
'     R.  Pvek.  IU  W.  $,  evince*,  tbat  a  ico- 

rndrkbmad  ■■  rMpoutihle  here.  "Tbeal- 
'  riiey-f •neral  mnifd  tor  a  Itial  at  bar  ibe  last 
•,^4ky  ■■  llie  tattu,  ia  an  Mtioa  aKaiufl  ilia 


A.  D.  177S. 


[918 


clUe 


gOTemor  of  New-York,  for  niatlerdoneby  him 
as  §;o>ernor,  and  sTanird,  because  Ibe  Itingde- 
fended  it."  I  collect  fi'am  Uiie  caw,  that  Ihe 
Btlurney-||;eaeral  knew  ibe  Court  bad  jurisdie* 
lion,  or  be  would  not  ba<e  nude  the  motion  ; 
and  tbe  Court  wonld  nut  haie  granted  It,  if 
they  bail  not  been  Icgully  impowered  lo  Iry  it. 
The  IdcitlHInre,  in  U>e  aame  year  (13  VV.  3, 
cup.  1^,)  enacted,  that  govettntn  beyund  Ihe 
sea  iliould  be  tried  in  the  King''a-beuch,  or  in 
aucb  cnuiily  as  shall  be  asiigued  by  bis  ma- 
jesty, by  good  anil  lawful  men,  lor  ofl'encea 
cuainiitlcd  in  Ilieir  govtfiimeols  abroarl  againit 
Ihe  kioi;'s  suhjec Is  there.  Aa,  by  tbe  common 
law,  ao'  indiclineat  could  be  preferred  only  in 
that  county  where  tbe  offence  was  commiiled, 
goveraiirs  abroad  were  not  crimiiiBlly  amena- 
ble llll  Ibis  act  had  passed.  When  the  legisla- 
ture so  carefully  provided  la  bring  gorernon  to 
juitice  for  Ibe  olTcnceB  they  mi|[bl  cnmmil  in 
their  governments,  ihey  would  indisputably, 
by  the  same  law,  have  protested  the  suhjecla 
from  civil  injuries,  had  ibey  not  bnown  Ibat 
aucb  pRitiaioo  was  unnecessary,  and  Ihat,  by 
the  common  taw,^  [lersnnnl  actions  iDiiibt  be 
brought  in    Bnu'Und  ;    of  which  lord   Betla- 

In  Michaehnas  lerm,  11  Geo.  3,  1737,  Ste- 
phen Conner  bmughl  ao  action  iigainsi  Joseph 
Kslirne.  KOternnr  ul  Gibraltar:  aud  be  elated 
in  btH  declaration,  tliat  he  was  a  iimster  c»t- 
penler  of  tbe  iiRice  of  ordnance  at  Gibraltar  ; 
ibnl  e''ivernor  S»hine  tried  hiiti  by  a  cuurl-mar- 
iial,  Iu  which  be  was  nut  sulijeci ;  and  that  be 
underwent  the  senlence  of  reoeiviog  900  laihes, 
and  that  he  was  compelleil  to  depart  from  Gib- 
raltar, which  he  taiil  to  his  daniage  of  lO.OUOf. 
Tbedefeudaiit  pleaded  Nut  Guilty,  and  justified 
hy  Iryiu^  htm  by  a  court-martial.  There  was 
a  verdict  (br  the  plainlitT,  with  JOOl.  damaf^cs. 
A  will  of  error  was  brnughl,  and  Ihe  judgment 
affirmed.  No  diilinclion  cnn  be  made  between 
Ihe  gnternnr  of  Gibraltnr  and  Ibe  gorernor  of 
Minorca ;  except  only,  Ibal  the  one  tried  Con- 
ner by  a  court  mnrUal,  and  punished  him  by 
military  law;  while  tbe  other,  without  any 
trial,  banished  Mr.  Fsbrigas,  contrary  to  all 
ideas  of  justice  and  of  law. 

I  masl  now  bej;  leave  lo  advert  lo  t)ie  bill  of 
exceptions;  in  which  ilisalledgnt,  thai  •■  Mi- 
norca is  divided  iuto  four  districts,  elclusive  vf 
Ibe  arraval,  which  Ibe  wiineisei  always  under- 
stood lo  he  diBlincI  from  Ibe  others,  and  under 
the  immediate  order  of  ihe  goveruor." 

I  am  well  aware,  lliat  I  am  not  al  liberty  lo 
go  out  uf  the  record  ;  if  I  waa,  the  lact  war- 
rants me  iu  saying,  that  tbeeiiJciiceis  moil 

tt  is  iinlorioag  that  Minorca  is  divided  into 
four  terminoxouiyi  Cientadella,  Alayur,  Msr- 
cadel,  and  Malum,  which  latter  inrluiles  tbear< 
raval  of  Ht.  Phillip's.  Tbii  is  known  tu  every 
man  who  has  been  at  Minorca,  and  to  every 
wan  who  has  read  Armslrung's  history  of  Ihat 
island.  Thai  tbe  guveronr  has  a  legislailve 
HUtbority  within  tbe  arraval,  is  ton  absurd  lo 
dwell  ou.     By  what  law,  by  what  (truniion. 


2I9J 


14  GEORGE  IIL 


Actionjlr  False  Impruonment'^ 


rs2o 


doet  he  elaina  that  power?  When  process  is 
ezecuteil  withio  St.  PbillipX  or  its  enrirons, 
Ibe  cifil  magistrate  asoall^  pays  the  gofemor 
the  complimeot  of  acquainting  him  with  it ; 
but  the  same  compliment  is  paid  to  the  com- 
manUio^  officer  at  Cieutadella,  where  an  ex- 
clusive jurisdictioa  is  not  efen  pretended.  In 
fact,  it  is  a  matter  of  ciFility  merely,  but  nef er 
was  a  claim  of  right. 

Lord  chief  justice  de  Grey  in  the  solemn 
opinion  which  he  gave  upon  the  motion  for  a 
new  trial,  has  been  explicit  on  these  two  heads. 
**  One  of  the  witnesses  in  the  cause  (said  his 
lordship)  represented  to  the  jury,  that  in  some 
particular  rases,  especially  in  cnminai  matters, 
the  gofernor  reudent  upon  the  island  does  exei^ 
cise  a  legislatire  power.  It  was  gross  igno- 
rance in  that  person  to  imagioe  sudi  a  thing : 
I  may  say,  it  was  impossible,  that  a  man  who 
lired  upon  the  island,  in  the  station  he  had 
done,  should  not  know  better,  than  to  think 
that  the  gOFemor  had  a  cifil  and  criminal 
power  in  him.  The  gOTernor  is  the  king's  ser- 
vant ;  his  commission  is  from  him,  and  he  is 
to  execute  the  power  he  is  invested  with  under 
that  commission,  which  is  to  execute  the  laws 
of  Minorca,  under  such  regulations  as  the  king 
•hall  make  in  council.  It  was  a  vain  imagina- 
tion in  the  witnesses  to  say,  that  there  were 
i&ve  terminos  in  the  island  of  Minorca.  I  have 
at  various  times  seen  a  multitude  of  authentic 
documents  and  papers  relative  to  that  island  ; 
and  I  do  not  believe,  that,  in  any  one  of  them, 
the  idea  of  the  arraval  of  6t.  Phillip's  being  a 
distinct  jurisdiction  was  ever  started.  Mabon 
is  one  of  the  four  terminos,  and  St.  Phillip's, 
and  all  the  district  about  it,  is  comprehended 
within  that  termino  ;  but  to  suppose,  that  there 
is  a  distinct  jurisdiction,  separate  from  the 
government  of  the  island,  is  ridiculous  and 
absurd." 

These  were  the  words  of  lord  chief  justice 
de  Grey  ;  to  which,  1  am  confident,  this  Court 
will  pay  a  proper  attention. 

The  bill  of  exceptions  then  states,  that  gene- 
ral Mostyn  was  appointed  governor  bv  the 
king's  commission,  which  gives  him  all  the 
powers  belonging  to  the  said  office.  I  wish  to' 
ask  Mr.  Buller,  whether  to  persecute  the  inno- 
cent, and  to  banish  those  subjects  committed  to 
bis  care,  is  a  power  incident  to  or  springing  out 
of  the  office  of  governor  ?  If  it  is  not,  the  go- 
vernor cannot  justify  himself  under  his  com- 
mission. 

It  is  then  stated,  that  the  king  ordered  *<  all 
his  loving  subjects  in  the  said  island  to  obey 
bim,  the  said  John  MosUn ;"  but  nothing  in 
particular  is  mentioned  ofthe  arraval.  Had  it 
beeriji  peculiar  district,  under  the  despotic  will 
of  the  governor,  there  must  have  been  some 
notice  taken  of  it,  either  in  the  commission,  or 
in  his  majesty's  orders.  The  governor  then 
confesses  m  his  bill  of  exceptions,  *<  that  he 
banished  Mr.  Fabrigas  without  any  reasonable 
or  probable  cause,  or  any  other  matter  alledffed 
in  bis  plea,  or  an^  act  tending  thereto."  JNot- 
wiihatiuMiiDg  which  admiiiioD)  in  the  very  next 


sentence,  he  inbists  that  the  plaintiff  ought  to 
be  barred  his  said  action,  although  it  is  stated 
in  the  bill  of  exceptions,  that  *'  the  Minorquios 
plead  sometimes  toe  English  laws." 

Were  the  bill  of  exceptions  less  absurd  than 
it  is,  yet  I  should  contend,  that  the  governor, 
by  plc»ading  in  chief,  and  submitting  bis  cause 
to  the  decision  of  an  English  jury,  has  pre- 
cluded this  Court  from  eoc|uinng  into  the  ori- 
ginal jurisdiction.  Were  it  possible  that  this 
ground  should  fail  me,  when  supported  by  so 
many  great  authorities,  yet  I  should  be  very 
easy  about  the  event;  for,  as  an  action  of  tres- 
pass can  be  brought  in  England  for  injnriec 
abroad,  and  as  every  subject  can  bring  that  ac- 
tion, and  as  governor  Mostyn  (Ijeing  a  subject) 
must  answer  to  it,  I  have  no  doubt  but  tba 
judgment  will  be  affirmed.  Should  it  be  re- 
versed, I  fear  the  public,  with  too  much  troth, 
will  apply  the  lines  of  the  Roman  satirist  oa 
the  drunken  Marius  to  the  present  occasion  ; 
and  they  will  say  of  governor  Mostyn,  as  was 
formerly  said  of  bim. 

Hie  est  damnatns  inani  judicio ; 

and  to  the  Minorqnins,  if  Mr.  Fabrigas  should 
be  deprived  of  that  satisfaction  in  damages 
which  the  jury  gave  him. 

At  tu  victrix  provincia  ploras. 

Mr.  Buller,  1  beg  leave  to  trouble  tha 
Court  with  a  few  words  by  way  of  reply: 
and  though  Mr.  Peckham  has  thought  nt  to 
declaim  so  much  upon  the  particular  facts  of 
this  cause,  yet  I  was  confident  at  first,  and  do 
not  now  find  I  was  deceived  in  thinking,  I 
should  not  be  contradicted  in  what  I  said  about 
the  propriety  of  governor  Mostyn 's  conduct ; 
that  he  bad  taken  every  precaution^bat  a  maa 
in  his  situation  could  do,  had  consulted  many 
persons  there,  civil  and  military,  and  that  they 
were  alt  unanimous  in  advising  the  governor  to 
do  what  was  done. 

The  first  objection  made  by  Mr.  Peckham 
has  been,  that  Mr.  Mostyn  should  be  precluded 
from  conteiiiliog  that  this  Court  hath  not  a  jo- 
risdiction,  because  he  has  submitted  to  the  ju- 
risdiction of  the  Court  in  so  many  instances 
during  the  whole  of  these  proceedings.  He 
has  stated  the  whole  proceedings  during  the 
stages  of  this  cause,  by  which  he  supposes  Mr. 
Mostyn  hath  done  such  acts  as  shall  be  <Mm- 
strned  into  a  submission  to  the  jurisdiction  of 
the  Court,  and  is  therefore  now  precluded  from 
entering  into  the  question.  Further,  Mr. 
Peckham  has  insisted  upon  it,  that  at  the  trial 
we  did  wrong  in  making  a  defence ;  because, 
if  we  meant  to  ^  into  the  question,  whether 
the  Court  Itas  junsdiction  or  not,  we  should  have 
then  insisted  upon  a  non-suit,  and  not  gone 
into  the  merits  ofthe  cause.  I  do  not  appre- 
hend any  of  the  cases  he  has  cited  will  come 
up  to  the  present :  and  as  to  the  different  pe- 
riods of  the  cause,  where  he  supposes  we  have 
submitted  to  the  jurisdiction  of  the  Court,  if 
this  Court  hath  no  jurisdiction  at  all,  1  do  not 
know  how  it  can  then  be  mmI  we  have  lubiiut- 


»1] 


Fabrigas  v*  Mottyn* 


lei  to  it    Siying,  that  at  the  trial  we  should 

kove  insisted  upon  a  non-suit,  is  sayinff  we 

should  have  insisted  upon  what  we  could  not 

demand  ;   for  it  is  at  all  times  at  the  option  of 

the  plaiiilifl',  whether  he  will  submit  to  a  non- 

IMI  or  mit.     1 1' the  defendant  can  avail  himself 

tf  the  objection  at  all,  it  must  be  by  entitling 

liflBBrlf  by  that  means  to  a  ferdict ;  for  it  is  in 

As  power  of  the  plaintiff  to  get  up  and  say,  I 

till  not  be  non- suited.    It  was  impossible  for 

Bf  to  insist  upon  the  objection  in  any  at  her 

wsy  than  it  is  now  done :   the  objection  arises 

•at  of  the  facts  of  the  case,  and  what  was 

BroTcd  at  the  trial.     It  was  there  proved,  that 

Mr.  Moety n  was  the  governor ;    that  what  he 

M   was    in  that  character;   and    therefore, 

■ys  he,  these  facts  being  proved,  1  insist  I 

•«  not  answerable  in  a  court  of  justice  in 

£oglaod,  for  what  1  have  done  in  (hisch^trac- 

tff :   therefore  the  objection  would  have  been 

■Bproper,  if  it  had  come  at  any  other  time ; 

it  could  only  come  when  these  facts  appeared 

is  evidence  upon   which  this  objection  was 

ftooded.     As  to  the  many  cases  that  have  been 

died,  I  bdieve  I  may  safely  give  this  general 

isswer  to  them  all :   they  are  cases  where  an 

•dioD  has  been  brought  in  a  court  in  England, 

fir  a  transaction  arising  in  England,  but,  on 

aeeoont  of  a  charter  or  statute,  the  jurisdiction 

if  the  soperior  court  has  been  excluded.  Where 

thit  ifl  so,  and  this  Court  has  a  general  super- 

islcDdent  jorisdictioD,  but  it  is  taken  away  by  a 

pirtiailar  law,  in  such  case  it  is  necessary  to 

Ijhad  to  the  jurisdiction:   hot  when  the  ques- 

liM  ariaes  upon  a  transaction  happening  in 

facign  parts,  and  where  the  courts  of  England 

aMMH  liave  any  controul  whatsoever,  suppose, 

iiinstaofse,  in  France,  where  the  king  or  par- 

fiiBeot  of  England  can  make  no  laws  to  bind 

4e  inhabitants,  it  is  just  the  same  as  a  court 

if  inferior  record  in  England,  where  it  holds 

.  plea  of  a  thing  done  out  of  their  jurisdiction. 

■•that  case,  if  it  appears  upon  the  proceedings 

Uttt  the  cause  of  action  arose  out  of  the  juris- 

MoDo,  the  whole  proceedings  are  void ;  thpy 

ire  coram  non  judice  ;    aud  an  action  will  lie 

•f^aiast  the  party,  the  officers  and  the  judges, 

Air  what  is  done  under  them. 

In  this  case,  as  I  submit  to  your  lordship, 
the  question  is  the  same  ;  because  it  is  not  on  a 
Iraasaction  happening  within  the  limits,  or 
vithin  the  country  where  this  Court  resides  or 
bs  a  jurisdiction,  but  on  a  transaction  arising 
is  foreign  dominions.  1  beg  leave  to  mention 
<•«,  that  if  these  cases  were  so  very  general  as 
Mr.  Peckham  wishes  to  have  them  understood, 
it  if  not  possible  that  the  case  in  Latch,  or  the 
case  iu  L*utwyche,  e^er  could  have  existed ; 
Weaufte,  if  it  wa>«  to  hold  as  a  general  rule, 
iktt  where  the  cause  of  action  arises  out  of  the 
kise(k»in  you  must  plend  to  the  jurisdiction,  it 
v«Mi(d  have  l>een  a  sufficient  answer  in  those 
tmts  to  say,  it  was  not  so  pleaded.  In  tlie  case 
it  Lotwyche,  there  wa.s  a  plea  in  bar,  and  de- 
Siorrer  to  that  plf»a  ;  but  it  ap|>earing,  that  the 
Cum  Iff  action  did  not  arise  in  this  kingdom, 
^  la  foreign  paru,  the  Court  agreed;  that  the 


A.  D.  177S.  t«S 

supposition  and  quaint  legal  fiction,  which 
otherwise  would  avail,  that  it  was  in  London  or 
England,  was  absurd,  and  the  plaintiff  could 
not  support  his  action.  It  was  tlte  same  in  tha 
case  hi  Latch  ;  for  that  was  not  on  a  plea  to 
the  jurisdiction,  but  the  objection  arose  long 
after,  and  in  a  subsequent  period  of  the  cause : 
the  judges  there  agreed,  that  if  it  appeared  on 
the  record,  that  the  case  was  plainly  and  evi* 
dentlv  out  of  their  jurisdiction,  they  were  bound 
to  take  notice  of  it. 

Mr.  Peckham  has  divided  his  argument  inta 
three  heads:   first,  whether  a  transitory  actios 
is  capable  of  being  brought  in  England,  if  tha 
cause  of  that  action  arise  beyond  the  seas :  8e« 
condly,  whether  the   plaintiff  is  capable  of 
bringing  such  action :    and,  in  the  third  place, 
whether  the  defendant  is  a  proper  object  of  it. 
On  the  first  ef  these  questions  it  has  been  in- 
sisted, that  an  action  of  false  imprisonment  is  a 
transitory  action ;  and  some  cases  dted,  whera 
transitory  actions,  arising  abroad,  are  holden  to 
be  maintainable  here.    An  action  of  false  im- 
prisonment certainly  is  a  transitory  action :  but, 
my  lord,  the  cases  dted  from  IStb  Co.  and  Co. 
Lit.  were  not  cases  of  aation  for  false  imprison- 
ment, but  debt  upon  bond.    These  cases  wera 
where  the  law,  in  the  different  countries,  was 
the  same ;  and  they  therefore  come  within  tha 
distinction  laid  down  in  the  case  before  lord 
Camden.    For,  where  the  law  of  the  different 
countries  is  the  same,  this  Court  may  hold 
plea;  it  may  do  as  much  justice  as  the  foreign 
courts,  and  can  he  involved  in  no  difficulty  with 
respect  to  the  rules  by  which  they  are  to  de- 
cide.   But  in  the  case  of  transactions  arising  in 
foreign  dominions,  where  the  law  of  the  foreign 
country  is  different  from  the  law  of  this  king- 
dom, this  Court  has  no  way  of  informing  them- 
selves what  the  foreign  law  is,  nor  can  they 
know  what  rules  to  decide  by ;  and  therefore 
every  inconvenience  arises  against  their  enter- 
taining such  a  suit.    Mr.  P^ham  tlien  cited 
the  case  of  Parker  against  lord  Clive,  in  this 
court,  and  observed,  that  there  never  was  any 
objection  taken  there,  that  the  action  would  not 
lie.    That  case  is  different  from  the  present. 
That  was  a  case^between  English  subjects,  and 
a  case  that  was ^ to  be  determined,  not  by  the 
law  of  the  East  Indies,  (for  that  was  not  set  up 
as  a  defence,  or  at  all  intermixed  with  the  case) 
but  by  the  law  of  England  ;  and  therefore  is 
still  within  the  distinction  1  have  laid  down 
and  endeavoured  to  support.    Then  the  second 
question  Mr.  Peckham  has  made  is,  whether 
the  plaintiff  can  maintain  this  action?   The 
plaintiff,  he  says,  is  not  an  alien,  but  a  natural- 
born  subject,  and  as  such  he  owes  allegiance, 
and  is  entitled  to  protection  ;  and  that  the  king 
of  England  can  protect  only  by  the  laws  of 
England,  and  therefore  this  man  has  a  right  to 
bring  his  action  here.    The  proposition  will  it- 
self shew  how  enormous  it  would  be,  if  it  were 
to  hold  in  this  case.     How  is  the  king  to  rule 
by  the  laws  of  England  ?    Is  it  meant  that  this 
case  is  to  be  determined  by  the  laws  of  Eng- 
land ?  If  so,  that  would  be  injustice  in  the  most 


SS3] 


1*  GEORGE  m. 


Aclionjbr  False  Impriiovvifut — 


fav  ilie 


I 


I 


ghring  1ig:ht;  hecauoe  it  wiulJ  becondnnitiiiK 
ibe  det'enihiDl  by  one  lair,  viXiva  lie  wm  bound 
to  regulate  lib  cotiiluci  by  a  different.  But  il 
true  that  the  kin|r  ol  Engluiil  can  prnl<ct 
~  law*  of  England  only  ;  for,  in  other 
.  a  Iranxsclioo  rouflt  be  tried  by  the  laws 
of  that  place  where  it  arises ;  and  ibe  king  can, 
Id  Dllier  (ilaces,  goiern  by  other  laws  tlwn 
those  of  EDiclaod:  to  J  I  contend,  tliia  quesllun 
mutt  be  deleriiiined  by  sucli  laws,  and  uot  by 
the  laws  of  this  country.  Mr,  Peckharo  hm 
then  insisted,  tbnl  this  is  a  case  between  siibjecl 
mod  subject.  If  lie  ineanii  il  Is  between  subject 
and  sntyect.  ipealtin]^  ol'ihe  kiii|;  of  England. 
it  Is  true;  but  FabriigM  Is  nut  a  aubjeci  of  Ibia 
realm,  nor  subject  to  be  gorerned  by  the  laws 
of  this  conn  try,  and  therefure  shall  not  avail 
himielf  of  the  lawi  of  Ibis  country.  The  caae 
ID  Salkeld,  401,  was  then  cited,  w^ere  IheCourt 
of  Chancery  (iroceedpfl  against  a  lnrel)j;oer ; 
and  the  reaaon  there  giico  lor  so  doine  is,  be- 
cause that  Court  acts  in  penonaia.  Bui,  my 
lord,  that  case  does  not  appear  to  be  at  all 
blended  with  foreign  law ;  nor  ia  any  thing 
ibere  atatrd,  which  called  on  the  Court  (o  de- 
termine that  case  by  any  other  law  than  the 
known  laws  of  thi^  country,  and  the  rules  of 
their  own  court.  The  case  in  the  4tb  losli- 
lule  was  then  eodearoured  In  be  distinguished 
from  ihe  present,  by  insisling,  ihal  the  subject- 
matler  of  Ibal  case  was  loeaf:  hut  Ihai  answer 
cannot  hold.  If  it  had  been  an  action  In  a 
court  of  law,  the  answer  would  have  been  a 
good  one  1  because  an  action  af  dower  Is  local, 
and  can  only  be  tried  In  the  county  where  the 
land  lies;  but  that  was  a  suit  In  Chancery, 
and  not  an  action  ;  and,  as  ia  saiil  In  the  case 
cited  from  Salbeld,  the  Court  of  Cliincery 
don't  proceed  against  the  thing,  but  against  the 
IKWin. 

Then  the  last  inealioa  that  has  been  innde  is, 
whether  the  deleodant  in  (his  cast  Is  the  proper 
■ubjed of  au  action?  Aly  loni,  Sir.  Frcldiam 
has  observed,  I  said  the  governor  wns  absolute ; 
but  that  he  iusists  is  impossible,  because  there 
is  no  person  who  could  delegate  such  an  autho- 
.  rily  to  him ;  ibat  If  he  derited  such  authority 
from  any  one,  It  must  be  from  Ihe  king  ;  but  the 
king,  out  bring  absolute  himself,  could  not  grant 
warn  BUlhorily  to  Mr.  Slustyn.  If  it  be  meant 
«nty,  titat  Ibe  king  is  not  obsolnte  in  this  coun- 
try, 1  mosl  readily  accede  to  the  proposition  ; 
but  what  the  cniislitutiou  of  this  country  is, 
oaa  be  nv  arguiuent  to  pro«e  what  is  the  state 
«r  consiitulion  of  Minorca.  That  Minorca  la 
«f  A  different  caostitution,  and  ia  governed  by 
different  laws  from  what  prevail  iu  this  coun- 
try, is  staled  In  the  record  ;  which  record  is 
deciaive  upon  tbat  point,  fur  the  Court  cannot 
deiiart  from  it.  It  ut  there  iilaied,  that  the  arra- 
*al  of  8i.  Phillip's  Is  au<<ject  to  Ihe  imiaediate 
order  of  llie  governor,  and  to  his  order  and  di- 
ftclioa  only ;  for  on  judge,  either  criminal  or 
oiril,  can  Interfere,  or  has  auy  jurisdicti'iD 
there,  unless  under  bi»  express  leave;  there- 
fore the  argument,  as  tn  Ihe  authority  or  power 
«r  lite  king  here,  is  luially  foteigo  to  the  silua- 


P 


lion  of  the  gnvernor  of  Mil 
or  jurisdiclinn  he  has  there. 
it  does  not  appear  in  the  record,  Ihat  the « 
fendant  did  act  as  Judge.  This  also  must 
decided  by  the  record  ;  and  it  Is  Ihiire  slab 
that  ibe  defendant  was  governor,  snd  so  bei 
gnvernor  he  caiiged  the  plaintiff  to  be  taki 
Imprisoned,  &c.  The  case  of  Dulton 
Howell  has  been  much  observed  upnn.  and  t 
printed  reasons  given  iu  thai  esse  parliculai 
staled  ;  but  I  do  not  perceive  the  case  bl 
bet-n  disling  Ills  bed  from  the  present.  Some 
the  reasons  alledged  for  the  defendant  the 
are  equally  strong  In  favour  of  the  prei«nl  ( 
(endanl.  It  Is  said,  there  never  was  lucb 
action  maintained  before;  and  If  a  goven 
beyond  sea  be  charged  here,  he  cannot  delii 
himself,  becniise  all  the  records  and  evidec 
are  there.  Mr.  Peckbam  has  not  been  able 
produce  one  rase,  in  which  such  an  nclion 
lliis  has  been  maintained  before.  Itul  lb 
another  ilistinclion  he  endeavaureil  to  a* 
himself  of  is,  Ihat,  in  the  case  of  Uiilton  s 
llowel),  ihe  action  was  fur  un  act  done  In  con 
cil,  and  therefore  varieil  from  this  case,  I 
cause  here  there  was  nocouncil  al  all,  I  ca 
not  see  hnw  that  difference  will  at  all  avail  H 
Peckham's  client.  In  the  first  place,  in  Oi 
hadoea,  there  was  a  conned,  and  ibe  goven 
had  no  power  without  the  cnuncil ;  but  is  tl 
Ihe  case  heref  In  Minorca,  there  Is  uo  coun 
at  all;  and  therefore,  in  this  case,  the  g 
vemor  stands  in  Ibe  same  siiualion  (a  I 
governor  and  council  of  Barhadoes.  As  lal 
neces^ly  of  pleading  In  abatement  to  the  jut 
diction,  it  is  very  observable,  thai  in  the  CIM 
Outton  V.  Howell,  the  cuuOKel  who  argued 
that  cue  do  not  venture  lo  rely  upnn  tMl  C 
Jection.  But  they  insist  further,  that  ibeJM 
diction  cannot  be  examined  in  ibe  Bxcb«|l 
chamber,  because  both  the  statute  and  wnl 
error  expressly  provide  agninsi  II:  and  lbe_ 
fore,  say  they,  it  is  questionable,  whriher 
can  be  insisted  upon  In  the  Ilniue  of  *  ' 
and  it  is  admitted  by  Ihera,  that  a  quesli 
might  have  been  made  on  the  trial  of  an  iisi 
if  one  had  been  joined.  However,  that  qui 
tlon  was  gone  Into  in  the  Huufc  ol  Lords,  a 
the  6nal  decision  of  the  cause  appears  fr 
the  book  ;  namely,  that  the  jnilgiueni  ii  ~ 
case  was  for  tbe  ilef'endani,  aud  that  the 
could  not  be  maintained.  Then  Ihe  words 
[I  cbierjukticu  de  Grey,  in  this  present  < 
>a  a  iiiolion  for  a  new  iriul,  have  been 
relied  upon  i  and  his  lordship  la  made  lo 
Ihat  if  the  governnr  had  srcurerl  the  pr 

Clainliff,  merelj  for  tbe  sake  of  a  trial.  It  woi 
9  a  different  affair.  In  Ibis  case,  1  apprehi 
uld  be  quite  sufiicieiit  (or  me,  il  thi 
vcrnur  had  a  jiower  of  comotii 
he  bad,  that  Is  suSicienl  lo  preveol  thi 
I'tiidant's  being  a  IreapHSser  by  such 
taeai :  and  the  reason ablenei.8  of  the  time  fat 
hich  be  was  ciiiumilK^,  would  be  a  very  dif- 
rent  qiieslion ;  for,  if  Ihe  governor  had  a 
,  awer  of  cummiiling,  he  has  pursued  that 
power,  and  tbca  tbi«  ■ciion  cannot  be  uiaii- 


Fahrigo)  v.  Moslyn. 

Tbe  Heart  cate  that  b*H  been  ciied, 
in  ad  SBlkeli],  which  w 
agUMM  a  gotemur  I'nr  wliat  he  did 
Meri  bul  thai  is  kimjily  a  motioD  fur 
Imt.     Tbe  merits  of  the 
|wly  »f  ibe  aciioii,  wero  not  bttbre  tbe 
Uk  or  at  alt  enler«(l  into  ; 
■  manle  la   tbe  jurisdiciian  nf  the  Cuurl; 
'here  a  ibiog  is  DOt  nbjecled  to,  the  case 
i-ner  be  na  aulUortiy  on  ibe  |>oint:  there 
'  gae  >}'Ilab!e  isaid  Hbuiit  it ;  and  iherel'ore 
i.-ise  cautiM  kave  Ibe  leut  weigiit  wbatto- 
ici peeling  this  qjestion.  Then  Mr.  Peck- 
-   I  tbe  statute  uf  the  Vi\h  of  William 
bat  ibai  »as  admitled  by  him  to  ex- 
In  (n-imiDal  prosecutiunsatlbeking's 

jtmS  ttkerefore  can  hate  noihiog  to  do  ulth 

4r  fKtot  qaestioD.  The  case  of  Conoer 
4piM  Sabtite  ia  as  dilTereot  frnni  this  cuse,  as 
MNC  ease  caa  be  frura  another.  There  the 
Mace  was  uut  upon  the  ground,  that  the 
' -  -ial.    The 


A.  D.  ms. 


[236 


ootolherwise:  theystated  a  limited 

yij^ctioa.   and  it  appeared   (be  ptainlilf  was 

Wlbe  object  of  that  jurisdiction.     Then  it  is 

■y,[haL  Minorca  ia  not  a  niihiary  camp,  hut 

MikcT«  are  judges  huth  criminal  and  civil. 

br  f^ia   I   must  hue  recourse  to  the  re- 

adtatH',   for   there  it  is  Etsied,  that  within 

fctfiaral   of  8L  Philh|i'B,  where  tlii«  Iraus- 

MH  Bcctirred,   there  is  no  jnilge  either  cri- 

■mI  ar  civil ;   there  is  no  power  but  that  of 

k  ptenwr.      Mr.  Peckhtun   observed,  that 

*■  atfrd  in  the  record,  that  the  iubabitants 

aaants     ctaim    jirotection    from    the    law 

4b(tan-l,  as  well  as  tbe  law  of  S|iBin.     It 

•  a  ftalei);     bul    what    is    said    further.' 

titU  tbey  erer  have  it  allowed  In  them, 

*%  Uii?y  are  governed    by  it;    but  it  is 

Vdj  stated,  that  they  are  in  genernl  go- 

MJby  llie  law  of  Spain  ;  therefore  tbe  re- 

■Ifcei  oat  [irute,  ibat  Ibe  people  ii>  Minorca 

v^nnoedby  the  same  laws  as  the  people 

'-.  bM  it  does  p  rote,  that  they  are  governed 

•  t%  ■rliich  are  tiiUlly  diflereol,  and  that 

.  Ibe  nrraval  uf  St.   Phillip'*,  the  will  of 

rrrmtat  is  the  law.     Hr.  Feckbam  then 

-kt  ib«  veiaciry  of  the  record  vrilh  respect 

-!  ttStrtat  disiricM  which  there  are  within 

jalaaJ  ;  ami  baa  insisted,  that  though  in  the 

-  :ti«a  of  process,  Sta.  the  law-oSicers  may 

'  ill  tbe  ^tcmor,  or  inform  him  witat  they 

.-Has  ta  do,  yet  that  ihey  are  nol  bound  by 

10  du  Ml,     My  lord,  the  record  must,  in 

-K  ce^wcu,  aNo  decide  for  us.     It  is  there 

xifd  wbal  the  districts  are  ;  that  Ihe  arraval 

<*  i*.  Pbilhii'a  is  distinct  from  the  others ;  and 


■  be  executed  there,  without  the 
rnraar'a  particular  leave.  Mr.  Peckham 
,  a^  wtwre  ia  tbe  authority  that  ennhli^s  a 
nnw  to  banish  an  innocent  man?  In  ihe 
a  |he«,  •■  to  bis  beioK  an  innocent  man,  it 
t«  oawprtent  to  this  Court  In  ennuire  whe~ 
«■  kc  n>  innoceDi  or  ool,  or  whether  the 
■vmnr  was  ttrictly  jnsiihable  or  uot ;  bul  it 
•Abrnt  10  prgTc,  that  the  gOTeruoi  bud  i 


authority  to  imprison.  That  authority  appears 
upon  Ihe  lace  of  the  record ;  for  it  is  Ibera 
staled  iliBt  he  was  governor,  and  had  every 
power,  civil  aud  military,  and  ihat  all  he  did 
wav  in  the  character  of  a  governiir.  I'liesa 
lads  lieioir  proved,  I  snhtnii  are  a  sutficienl  bar 
to  this  action,  and  ihe  Court  rannot  go  into  tha 
((ueHtiou,  whether  the  plaintiff  was  iimuceni  ur 
guilty.  The  last  argument  that  has  been  rrlieil 
ujion  by  iUr.  Peckham  ia,  some  other  esprev- 
siuns  of  lord  chief  justice  de  Grey,  in  iha 
course  of  this  cause;  in  which  his  lordship 
said,  that  the  witnesses  must  have  been  mia* 
taken  in  the  account  Ihey  ga«e  of  the  cimsti- 
lulion  and  law  of  the  island.     Here  it  is  im- 

Cossible  tor  ilie  Court  to  go  out  of  ihe  record  ; 
ut  these  ohservationa  of  lord  chief  jiislice  da 
Gre^  go  certainly  a  great  way  towards  proving 
Ihe  impmpriety  nf  maintaining  «uch  an  aciioa 
here  as  the  present.  If  the  account  [fiven  by 
lord  chief  justice  de  Grey  of  the  islanit  be  true, 
aud  I  make  nu  doubt  il  ia,  Ihe  consequence  ia 
this :  that  even  Ihough  all  the  evidence  was 
obtained  in  this  cause  that  could  be  had  j 
though  persons  were  called  as  wilnesses,  ivho, 
from  their  sitimlinn,  and  the  departments  they 
had  officiated  in,  were  most  likely  to  be  con- 
versant with  the  law  and  conslilulioa  uf  the 
island ;  yet  that  all  the  acuoiiols  that  have  been 
given  are  imperfect,  erroneous,  and  unworthy 
of  credit.  That  is  tbe  slmngesl  evidence  of 
Ibe  impropriely  of  malnlatDing  such  an  action 
as  Ihis  in  England.  For  if,  as  lord  chief  jui- 
tice  de  Grey  says,  the  evideuce  that  has  been 
given  of  the  foreign  law  in  this  case  is  not  ta 
be  relied  upon,  bul  is  all  a  niistake;  itmajr 
happen,  and  it  must  naluialty  he  expected,  that 
in  every  case  which  is  brought  here  from  fo- 
reign dominions,  where  the  cause  of  action 
arises  abroad,  all  the  cvideuce  Is  abroad,  and 
the  Courl  can  get  no  other  evidence  of  tlie  law 
of  the  place  than  Ihe  loose  opinions  of  ihoso 
who  have  occasionally  bten  Ihcre;  and  ihe 
courts  here  having  no  established  legal  mode  of  ' 
obtaining  cerliticatea  froia  such  country,  pro- 
perly HuUienticated,  to  say  what  the  law  there 
IS,  ttie  same  mistakes  and  inconveuienue  will 

Therefore,  on  the  whale,  I  trust  the  Court 
will  be  of  opinion,  that  this  action  is  improper, 
and  ought  not  to  be  niainiained  here. 

Lord  Manifteld.  Let  il  stand  for  anolhec 
argument.  Ii  has  been  extremely  well  argued 
on  both  sides. 


On  Friday  tFie  B7th  January,  1775,  it  naa 
very  ably  ii^ued  by  Mr.  Serjeant  Glynn,  on 
the  part  of  Mr.  Fabrtgas,  and  by  Mr.  Serjeant 
U'alker,  on  behalf  of  govennr  Moslyu  :  but  as 
no  new  cases  were  cited,  we  shall  proceed  to 
give  Ihe  Judgment  of  the  Court  uf  Klng's- 
beuch,  which  was  in  substance  as  follows : 

Lord  Mamjleld.     This  was  an  nntion  for  an 
ssanlt  aud  lalse  imniisonmeni  by  the  defen- 
dant upDD  the  plainiilf.    And  part  of  tbe  com* 
Q 


283] 


U  GEORGE  III. 


AtAonJbr  Fahe  Imprisonment^-^ 


[22ft 


ghurinf  light;  becaoie  it  would  becomteMunf 
the  defendant  by  one  law,  when  he  waa  hoond 
to  regulate  his  conduct  by  a  different.  But  it 
is  not  true  that  the  king  of  England  can  protect 
bv  the  lawe  of  Enghmd  only  ;  for,  in  other 
places,  a  transaction  must  be  tried  by  the  laws 
of  that  place  where  it  arises ;  and  the  king  can, 
in  other  places,  gofeni  by  other  laws  than 
those  of  England:  and  I  contend,  this  question 
must  be  determined  by  such  laws,  and  not  by 
the  laws  of  this  country.  Mr.  Peckham  has 
then  insisted,  that  this  is  a  case  between  subject 
and  subject.  If  he  means  it  is  between  subject 
and  sulgect,  speaking  of  the  king  of  England, 
it  is  true;  but  Fabrigas  is  not  a  subiect  of  this 
realm,  nor  subject  to  be  governed  by  the  laws 
of  this  country,  and  therefore  shall  not  avail 
himself  of  the  laws  of  this  country.  The  case 
in  SalkeM,  404,  was  then  cited,  wliere  the  Court 
of  Chancery  proceeded  against  a  foreigner ; 
and  the  reason  there  given  for  so  doing  is,  be- 
cause thtft  Court  acts  in  pertofuan.  But,  my 
lord,  that  case  does  not  appear  to  be  at  all 
blended  with  foreign  law;  nor  is  any  thing 
there  stated,  which  called  on  the  Court  to  de- 
termine that  case  by  any  other  law  than  the 
known  laws  of  this  country,  and  the  rules  of 
their  own  court.  The  case  in  the  4th  Insti- 
tute was  then  endeaToured  to  be  distinguished 
from  the  present,  by  insisting,  that  the  subject- 
matter  of  that  case  was  local:  but  that  answer 
cannot  hold.  If  it  had  been  an  action  in  a 
court  of  law,  the  answer  would  have  been  a 
good  one  ;  because  an  action  of  dower  is  local, 
and  can  only  be  tried  in  the  county  where  the 
land  lies;  out  that  was  a  suit  in  Chancery, 
and  not  an  action  ;  and,  as  is  said  in  the  case 
cited  from  Salkeld,  the  Court  of  Chancery 
don't  proceed  against  the  thing,  but  against  the 
pemn. 

Then  the  last  question  that  has  been  made  is, 
whether  the  defendant  in  this  case  is  the  proper 
subject  of  an  action?  My  lord,  Mr.  Peckham 
has  observed,  I  said  the  governor  was  absolute ; 
but  that  he  insists  is  impossible,  because  there 
is  no  person  who  could  delegate  such  an  autho- 
.rity  to  him ;  that  if  he  derived  such  authority 
from  any  one,  it  must  be  from  the  king  ;  but  the 
king,  not  being  absolute  himself,  could  not  grant 
such  authority  to  Mr.  Miistyn.  If  it  be  meant 
only,  that  the  king  is  not  absolute  in  this  coun- 
try, I  most  readily  accede  to  the  proposition ; 
but  what  the  coustitutioii  of  this  country  is, 
can  be  ncr  argument  to  prove  what  is  the  state 
or  constitution  of  Minorca.  That  Minorca  is 
of  a  different  constitution,  and  is  governed  by 
different  laws  from  what  prevail  in  this  coun- 
try, is  stated  in  the  record  ;  which  record  is 
decisive  upon  that  point,  for  the  Court  cannot 
depart  fh>m  it.  It  is  there  stated,  that  the  arra- 
val  of  St.  Phillip's  is  subject  to  the  immediate 
order  of  the  governor,  and  to  his  order  and  di- 
rection only ;  for  no  judge,  either  criminal  or 
civil,  can  interfere,  or  has  any  jurisdiction 
there,  unless  under  his  express  leave :  there- 
fore the  argument,  as  to  the  authority  or  power 
of  the  king  herep  is  totally  foreign  to  thesitna- 


tioD  of  the  governor  of  Minorca,  or  the  power 
or  jurisdiction  he  has  there.    Then  it  is  said, 
it  does  not  appear  on  the  record,  that  the  de- 
fendant did  act  as  judge.    This  also  must  he 
decided  by  the  record ;  and  it  is  there  stated, 
that  the  defendant  was  governor,  and  so  being 
governor  be  caused  the  plaintiff  to  be  taken, 
imprisoned,  &c.      The  case  of    Dutton    9. 
Howell  has  been  much  observed  upon,  and  the 
printed  reasons  given  in  thst  case  particulariy 
stated ;   but  I  do  not  perceive  the  case  has 
been  distingubhed  from  the  present.    Some  of 
the  reasons  alledged  for  the  defendant  there, 
are  equally  strong  in  favour  of  the  present  de- 
fendant.   It  is  said,  there  never  was  such  an 
action  maintained  before;  and  if  a  governor 
beyond  sea  be  charged  here,  he  cannot  defend 
himself,  because  all  the  records  and  evidence 
are  there.    Mr.  Peckham  has  not  been  able  to 
produce  one  case,  in  which  such  an  action  as 
this  has  been  maintained  before.     But  then 
another  distinction   he  endeavoured  to  avail 
himself  of  is,  that,  in  the  case  of  Duttoo  and 
Howell,  the  action  was  for  an  act  done  in  coun« 
cil,  and  therefore  varied  from  this  case,  be* 
cause  here  there  was  no  council  at  all.     I  can* 
not  see  how  that  difference  will  at  all  avaU  Mr. 
Peckham*s  client    In  the  first  place,  in  Bar- 
hadoes,  there  was  a  council,  and  the.  governor 
had  no  power  without  the  council ;  but  is  that 
the  case  here  ?    In  Minorca,  there  is  no  council 
St  all;  and  therefore,  in  this  case,  the  go- 
vernor sunds  in   the  same  situation   as  tho 
governor  and  council  of  Barbadoes.    As  to  the 
necessity  of  pleading  in  abatement  to  the  juria- 
diction,  it  is  very  observable,  that  in  the  case  of 
Dutton  V.  Howell,  the  counsel  who  argued  ia 
that  case  do  not  venture  to  rely  upon  that  oh* 
jection.     But  they  insist  further,  that  the  juria* 
diction  cannot  be  examined  in  the  Exchequer 
chamber,  because  both  the  statute  and  writ  of 
error  expressly  provide  against  it :  and  there- 
fore, say  they,  it  is  questionable,  whether  it 
can  be  insisted  upon  in  the  House  of  Lords  t 
and  it  is  admitteo  by  them,  that  a  question 
might  have  been  made  on  the  trial  of  an  issue, 
if  one  had  been  joined.    However,  that  ques- 
tion uas  gone  into  in  the  Houi^e  ol  Lords,  and 
the  final  decision  of  the  canse  appeara  from 
the  book ;  namely,  that  the  judgment  in  that 
case  was  for  the  defendsnti  and  that  the  action 
could  not  be  maintained.    Then  the  words  of 
lord  chief  justice  de  Grey,  in  this  present  cauae^ 
upon  a  motion  for  a  new  trial,  have  been  mods 
relied  upon ;  ami  his  lordship  is  made  to  say, 
that  if  the  govern' t  had  secured  the  present 
plaintiff,  merely  for  the  sake  of  a  trial,  it  would 
be  a  different  affair.     In  this  case,  1  apprehend 
it  would  be  quite  sofiicient  for  me,  if  the  go- 
vernor had  a  power  of  committing  at  all ;  for  if 
he  had,  that  is  sufficient  to  prevent  the  dn» 
feudunt's  being  a  trespasser  by  such  commit* 
ment :  and  the  reasonableness  of  the  time  for 
which  he  was  committed,  would  be  a  very  dif> 
ferent  question;   for,  if  the  governor  bad  n 
|iower  of  committing,   he  has   pursued 
power,  and  then  this  actum  caonoi  bo 


10] 


Fabrigas  v.  Motijflk 


A.  D.  1779, 


[82S 


tiioed.    The  next  caie  that  has  been  cited,  is 
htd  BeUamoot's  case  in  2<1  SalkelJ,  which  was 
wm  tctioa  agaiasl  a  governor  for  what  he  did  in 
tkit  cbaractflr :  hot  that  is  ftiniply  a  motion  for 
a  tiial  ftt  bv.    The  merits  of  the  case,  or  the 
fnpriety  of  the  action,  were  not  before  the 
Onit,  or  at  ail  entered  into ;  nor  was  any  oh* 
JKiios  made  to  the  jurisdiction  of  the  Court  4 
mi  where  a  thing  is  not  objected  to,  the  case 
Oi  nmrcr  be  an  authority  on  the  point:  there 
■  let  one  syllable  said  about  it ;  and  therefore 
tkt  case  cannot  have  the  least  weight  whatso- 
raspecting  this  question.  Then  Mr.  Peck- 
cited  the  statute  of  the  12lh  of  William 
tbe  third :  but  that  was  admitted  by  him  to  ex- 
lad  oohr  to  criminal  prosecutions  at  the  king's 
sail,  aod  therefore  can  have  nothing  to  do  with 
the  preaeol  question.     The  case  of  Conner 
^fHHt  Sabine  is  as  different  from  this  case,  as 
aa?  oae  eaae  can  be  from  another.    There  the 
immw  was  pot  upon  the  ground,  that  the 
pbioliflr  was  amenable  to  a  court-martial .    The 
6ci  tamed  oat  otherwise:  they  stated  a  limited 
'   'idiedon,  aod  it  appeared  the  plaintiff  was 
the  object  of  that  jurisdiction.    Then  it  is 
that  Minorca  is  not  a  military  camp,  but 
that  tbere  are  judges  both  criminal  and  civil. 
Acre  agaio  1  must  have  recourse  to  the  re- 
csri  itself;  for  there  it  is  stated,  that  within 
the  airaral  of  St.  Phillip's,  where  this  trans- 
adiaa  occurred,  there  is  no  judge  either  cri- 
■iaal  or  ciril;  there  is  no  power  hot  that  of 
At  governor.     Mr.  Peckham  observed,  that 
it  is  staled  in  the  record,  that  the  inhabitants 
SMMliaies    claim    protection    from    the   law 
if  SogfoDd,  as  well  as  the  law  of  Spain.    It 
ii  as   stated;    but  what    is    said   further? 
Kn  that  tbey  ever  have  it  allowed  to  them, 
vibat  they  are  governed    by  it;   but  it  is 
opreasly  stated,  that  they  are  in  general  go- 
Mned  by  the  law  of  Spam :  therefore  the  re- 
cvri  does  not  prove,  that  the  people  iti  Minorca 
Iff  gorerued  by  the  same  laws  as  the  people 
hoc;  bat  it  does  prove,  that  tbey  are  governed 
fty  kws  which  are  totally  different,  and  that 
viihia  the  arraval  of  St.  Phillip's,  the  will  of 
the  governor  is  the  law.    Mr.  Peckham  then 
ttlMdu  the  reracity  of  the  record  with  respect 
Is  the  different  districts  which  there  are  within 
the  islaod  ;  and  has  insisted,  that  though  in  the 
tieeution  of  process,  &c.  the  law-officers  may 
csasolt  the  governor,  or  inform  him  what  they 
lie  going  to  do,  yet  that  thev  are  not  bound  by 
liv  to  uo  so.     My  lord,  tne  record  must,  in 
tbtae  respects,  also  decide  for  us.    It  is  there 
ostid  what  the  districts  are  ;  that  the  arraval 
of  81.  Phillip's  is  distinct  from  the  others ;  and 
Ihit  00  toagistrates  can  come  there,  nor  can 
I    isj  process  be  executed  there,  without  the 
ftveroor's  particular  leave.      Mr.   Peckham 
ttkk,  where  is  the  authority  that  enabltfs  a 
|sv#mor  to  banish  an  innocent  manf    In  the 
te  pfaice,  as  to  his  being  an  innocent  man,  it 
b  BOt  competent  to  this  Court  to  enquire  whe- 
ther be  was  innocent  or  not,  or  whether  the 
strictly  justifiable  or  not ;  but  it 
to  profCi  that  the  governor  bad  an 
VUU  XX. 


authority  to  imprison.  That  authority  app^rs 
upon  the  face  of  the  record ;  for  it  is  there 
stated  that  he  was  governor,  and  had  every 
power,  civil  and  military,  and  that  alt  he  did 
was  in  the  character  ot  a  governor.  These 
facts  being  proved,  1  submit  at«  a  sufficient  bar 
to  this  action,  and  the  Court  cannot  go  into  the 
question,  whether  the  plaintiff  was  innocent  or 
guilty.  The  last  argument  that  has  been  relied 
upon  by  Mr.  Peckham  is,  some  other  expres- 
sions of  lord  chief  jtistice  de  Grey,  in  the 
course  of  this  cause;  in  which  his  lord<*hip 
said,  that  the  witnesses  must  have  been  mis- 
taken in  the  account  they  gave  of  tlie  consti- 
tution and  law  of  the  island.  Here  it  is  im- 
possible for  the  Court  to  go  out  of  the  record : 
out  these  observations  of  lord  chief  justice  de 
Grey  go  certainly  a  great  way  towards  proving 
the  impropriety  of  maintaining  such  an  action 
here  as  the  present.  If  the  account  i^iven  by 
lord  chief  justice  de  Grey  of  the  island  be  true, 
and  I  make  no  doubt  it  is,  the  consequence  is 
this:  that  even  though  all  the  evidence  waa 
obtained  in  this  cause  that  could  be  bad  | 
though  persons  were  called  as  witnesses,  who^ 
from  their  situation,  and  the  departments  they 
had  officiated  in,  were  most  likely  to  be  con- 
Tenant  with  the  law  and  constitution  of  the 
island ;  yet  that  all  the  acconnts  that  have  beea 
given  are  imperfect,  erroneous,  and  unworthy 
of  credit.  That  is  the  strongest  evidence  of 
the  impropriety  of  maintaining  such  an  actran 
as  this  m  England.  For  if,  as  lord  chief  jus- 
tice de  Grey  says,  the  evidence  that  has  beea 
S'ren  of  the  foreign  law  in  this  case  is  not  to 
I  relied  upon,  but  is  all  a  mistake ;  it  may 
happen,  ana  it  must  naturally  he  expected,  that 
in  every  case  which  is  brought  here  from  fo- 
reign oominions,  where  the  cause  of  action 
arises  abroad,  all  the  evideuce  is  abroad,  and 
the  Court  can  eet  no  other  evidence  of  the  lavr 
of  the  place  than  the  loose  opinions  of  those 
who  have  occasionally  been  there ;  and  the 
courts  here  having  no  estsblished  legal  mode  of 
obtaining  certificates  from  such  country,  pro- 
perly authenticated,  to  say  what  the  law  there 
IS,  the  same  mistakes  and  inconvenience  will 
arise. 

Therefore,  on  the  whole,  I  trust  the  Court 
will  be  of  opinion,  that  this  action  is  improper, 
and  ought  not  to  be  maintained  here. 

Lord  Mansfield.  Let  it  stand  for  another 
argument.  It  has  been  extremely  well  argued 
on  both  sides. 


On  Friday  the  S7th  January,  1775,  it  was 
very  ably  argued  by  Mr.  Serjeant  Gl^^nn,  on 
the  part  of  Mr.  Fabrigas,  and  by  Mr.  Serjeant 
Walker,  on  behalf  of  governor  Most^u  :  but  as 
no  new  cases  were  cited,  we  shall  proceed  to 
give  the  Judgment  of  the  Court  of  King's- 
bench,  which  was  in  substance  as  follows : 

Lord  Mamfield.  This  was  an  action  for  an 
assault  and  lalse  imprisonment  by  the  defen- 
dant upon  the  plaintilf.    And  part  of  the  com* 

Q 


S27J 


14  GEORGE  ni. 


AdUmfir  False  Imprisonment^^ 


[888 


plaint  beingf  for  IwDishinfj^  bim  fnim  the  island 
of  Minorca  to  Cartha^feDa,  in  Spain,  it  was 
Decesnary  for  the  plaintiff  to  take  notice  in  the 
declaration  of  the  real  place  where  the  c^use 
of  coin|ilaint  arose ;  which  he 'has  stated  to  be 
at  Minorca,  with  a  videlicet  in  London,  at  St. 
Mar>-le  Bow.  Had  it  not  been  lor  that  par- 
ticiiJHrity,  he  mi^ht  ha?e  slated  it  to  ha?e  been 
in  the  county  of  Middlesex ;  but  part  of  the 
ctMnplaiiit  luakinfjf  the  locality,  where  the  came 
of  action  arof>e,  necessary  to  l»e  stateil,  being  a 
banish uieut  fn)ui  Minorca  to  Carthaafena,  he 
atates  it  with  this  videlicet.  To  this  declaration 
the  df leudunt  put  in  two  pleas;  fir8t,Mot  Guilty; 
and  then  he  pleads,  that  he  was  Kovemor  of 
Minorca,  bv  letters  patent  from  the  crown,  and 
that  the  defeudant  was  raismjf  sedition  and 
mutiny  ;  in  consequence  of  which  he  did  im- 
prison him  and  send  him  out  of  the  island, 
which  he  alledgfes  he  hud  an  authority  to  do, 
for  that  sedition  and  mutiny  that  he  then  was 
raising.  I'o  this  plea  the  plaintiff  does  not 
demur,  nor  does  he  deny  that  it  would  be  a 
justification,  in  case  it  was  true ;  but  he  denies 
the  truth  of  the  fact,  and  puts  in  issue  whether 
the  fact  of  the  plea  was  true.  The  plea  avers, 
Uiat  the  assault  for  which  the  action  was 
brought  arose  in  the  island  of  Minorca,  out  of 
the  realm  of  England,  and  no  where  else.  To 
this  the  plaintiff  has  made  no  new  assignment, 
ftnd  therefore  by  his  replication  he  admits  the 
locaHty  of  the  cause  of  action.  Thus  then  it 
•tood  upon  the  pleadings.  When  the  trial 
came  on,  the  plaintiff  went  into  the  evidence  of 
his  case,  and  the  defendant  went  likewise  into 
his  evidence.  But,  upon  the  |>art  of  the  de- 
fendant, evidence  different  from  any  fact  al- 
ledged  in  his  plea  of  justification  was  given ; 
and  witnesses  were  called  to  prove  that  the 
district  in  Minorca  called  the  arraval,  %vhere 
the  injury  complained  of  was  done,  was  not 
within  eitnerof  the  four  precincts,  but  that  it  is 
in  the  nature  of  a  peculiar  liberty,  more  imme- 
diately under  the  fiower  of  the  governor,  and 
that  no  judge  of  the  island  can  eiercise  juris- 
diction there  without  an  appointment  from  him. 
That  is  the  substance  of  their  evidence. 

The  judge  lef\  it  to  the  jurv  upon  the  facts 
Af  the  case;  atid  they  found  for  the  plaintiff. 
The  defendant  then  tendered  a  bill  of  excep- 
tions, upon  which  bill  of  exce|)tions  it  comes 
before  us.  And  the  great  difficulty  1  have  had 
upon  both  tliese  arguments  is,  to  be  able  clearly 
to  comprehend  what  question  it  is  that  is  meant 
•eriously  to  be  brought  before  the  Court  for 
their  judgment.  If  I  understand  the  counsel  for 
govarnar  Hoatyn  right,  what  they  say  is  this : 
the  plea  of  Not  Guilty  is  totally  immaterial, 
and  the  pka  of  jnstifiostion  ia  totally  imina- 
Ifffial,  for  it  ap|w«ra  oo  the  plainti&T's  own 
-^_   ,      ^^  ^1^^  matter  arose  in  Minorca; 

rapKcntloa  to  tha  plea  admita  it :  and 
pIm  appMn  that  the  defendant  was  go- 
af Jnam;  and  aa  the  inprisounent 
hylhtfMllMrity  of  the  da- 
«i«kl  la  Inte  Mopptd  aU 
kivt  diiicied 


I  jury  immediately  to  have  found  for  the  defen- 
dant. Why  ?  There  are  three  reasons  given. 
One  of  them  insisted  upon  in  the  first  argument 
(but  abandoned  to-day)  is,  that  the  plaintiff  h 
a  Minorqutn,  born  in  the  island  of  Minorca, 
To  dispose  of  that  objection  at  once,  I  ahali 
only  ssy  that  it  is  wisely  abandoned  to -day. 
A  Minorquin  ;  what  then  ?  Has  not  a  fnlncci 
of  the  king,  born  at  Minorca,  as  good  a  right 
to  apply  to  the  king's'  courts  of  justice,  aa  a 
person  oorn  within  the  aound  of  Bow-bell,  in 
Cheapsiite  ?  If  there  is  no  other  objection  to 
him,  would  that  make  any  ?  To  be  sure  not. 
But  it  is  abandoned,  so  I  shall  lay  it  out  of  the 
case. 

The  other  two  grounds  which  are  enforced 
to-day  are,  if  I  take  them  right — but  1  am 
under  some  difficulties,  bi'cauRe  they  are  such 
propositions  that  you  may  ar^ue  as  well  whe* 
ther  there  is  such  a  court  existing  as  tliia  which 
1  am  now  sitting  in — the  first  is,  that  he  waa 
governor  of  Minorca,  and  therefore  for  no  in- 
jury whatsoever  that  is  done  by  him,  right  or 
wrong,  can  any  evidence  be  beard,  and  that 
no  action  can  lie  against  him ;  the  next  is,  that 
the  injury  was  done  out  of  the  realm :  I  think 
these  are  the  whole  amount  of  the  questiona 
that  have  been  laid  before  the  Court.  Now  aa 
to  the  first,  there  is  nothing  so  clear  as  thai 
in  an  action  of  this  kind,  which  is  for  an  as- 
sault and  false  imprisonment,  the  defen<knty 
if  he  hu  any  justification,  must  plead  it; 
and  there  is  nothing  more  clear  than  that,  if 
the  Court  has  not  a  general  jurisdiction  of  the 
matter,  he  most  plead  to  that  jurisdiction,  and 
he  cannot  take  advantage  of  it  upon  the  ge- 
neral issue :  I  therefore,  upon  that  ground,  at 
once  lay  out  of  the  ca^ie  every  thing  relative  l» 
the  arraval;  fi>r  if  he  acted  as  a  judge,  it  it 
syuonimous  to  a  court  of  record  :  and  thonvh 
it  arises  in  a  foreign  country,  where  the  tech- 
nical distinction  of  a  court  of  record  doea  nal 
exist,  yet  if  he  sat  in  a  court  of  justice,  and 
subject  to  a  superior  review,  it  is  within  the 
reason  of  the  law  of  England,  which  says, 
that  shall  be  a  justification,  and  he  would,  if 
he  had  acted  according  to  the  law  of  the  land* 
be  entitled  to  a  justification  in  the  fact  tliat  it 
complained  of;  but  that  must  be  pleaded.  If 
an  action  is  brought  against  a  person  who  it 
a  judge  of  record,  he  must  lay  it  before  the 
court,  b^  way  of  plea  and  justification,  that  Im 
was  a  judge.  1  don't  lay  a  stress  upon  the 
'  word  reconi,  but  there  is  no  colour  upon  the 
I  evidence  that  he  acted  as  a  jud^e  of  a  court 
'.  of  justice;  therefore  every  thing  stated  re- 
lative to  the  arraval,  inhich  is  stated  in  the  bfll 
of  exceptions,  is  nothing  at  all  to  the  nurpoea. 
The  first  point  that  I  shall  begin  with  is  the 
sacredness  of  the  person  of  the  governor. 
■  Why,  if  that  was  true,  and  if  the  law  waa  aog 
I  he  must  plead  it.  This  is  an  action  of  falac 
imprisonment:  prima  facie,  the  Court  Iih 
junadictiou.  If  he  was  guilty  of  the  fad,  ha 
must  shew  a  special  matter  tiMt  he  did  thia  hj 
a  proper  authority.  What  is  hit  proper  an* 
tlioritj  P  The  lung'a  cwniaittion  to  maka  hia 


m} 


Fabrigat  v.  MoHyn, 


A.  D.  1773. 


[230 


pmxfMr,  Why  then,  he  certaioly  must  plead 
t :  but,  howerer,  I  will  not  rest  the  answer 
BpOB  that.  It  has  been  sinj^led  out,  that  in  a 
eshojr  that  is  beyond  the  seas,  but  part  of  the 
of  the  crown  of  England,  thou((b 
wonid  lie  for  inioriea  committed  by 
peraona,  yet  it  shall  not  lie  against  the 
iMUuor.  Now  I  say,  for  many  reasons,  if  it 
il  not  lie  against  any  other  man,  it  shall  most 
■pfcitiraHy  lie  iqi^inst  the  go?emor.  In  e? ery 

tlo  the  jarisdiction,  you  must  state  a  iuris- 
Mi ;  for  if  there  is  no  other  method  of  trial, 
Aat  alone  will  give  the  king's  courts  jnris- 
ielion.  If  an  action  is  brought  here  for  a 
arising  in  Wales,  yo\k  must  shew  the 
'  m  of  the  court  in  Wales :  and  in 
sicry  case  to  repel  the  jurisdiction  of  the 
king's  ooarts,  you  must  shew  a  better  and  a 
Mre  proper  jurisdiction.*  Now  in  this  case 
IS  other  joriadictionf  is  shewn,  eren  by  way 
€  argument ;  and  it  is  most  certain,  that  if  the 
lag's  courts  cannot  hold  plea  in  such  a  case, 
mn  is  no  other  court  upon  earth  that  can  do 
It:  lor  it  ia^truly  said,  that  a  governor  is  in  the 
Mara  of  a  viceroy,  and,  of  necessity,  part  of 
At  privileges  of  the  king  are  communicated  to 
liAi  durinff  the  time  of  his  government.  No 
crisiiiial  prosecution  lies  against  him,  and  no 
dvil  actioo  will  lie  against  him ;  because,  what 
wsald  the  consequence  be  P  Why,  if  a  civil  ac* 
lisB  lies  against  him,  and  a  judgment  obtained 
fer  daaiages,  he  might  be  taken  up  and  put  in 
man  oo  a  Capias  ;  and  therefore,  locally,  dur- 
agtke  tioie  of  his  government,  the  courts  in 
Aeidaod  cannot  hold  plea  against  him.  But 
b  this  peculiar  case,  it  is  said  to  have  happened 
■  the  arraval.  Why,  it  is  stated  in  the  evi- 
iaee,  that  no  judge  can  sit  there  at  all  with- 
SAhia  leave.  If  he  is  out  of  the  government, 
it ;  he  comes  and  lives  in  England, 
be  has  no  effects  there  to  be  attached: 
ihere  is  no  remedy  whatsoever,  if  it  is 
■it  ID  the  king's  courts.  But  there  is  another 
fcry  atronir  reason  alluded  to  by  Mr.  Serjeant 
CHJyno,  which  would  alone  be  decisive.  This 
ii  a  charge  against  him,  which,  though  a  civil 
\  has  a  mixture  of  criminality  in  it:  it 
lult ;  which  is  criminal  by  the  laws  of 


*  As  to  this,  see  the  Case  of  the  hon.  Robert 
JahiMOii,  6  East,  583.  See  also  the  Case  of 
the  KJnIoehs,  vol.  18,  p.  305. 

f  Speaking  of  lord  Mansfield's  judgment 
ia  tfaia  case,  Mr.  Duller  in  bis  long  disquisi- 
Isrial  note  to  Co.  Lilt.  391  a,  Kays,  **  wherever 
a  personal  injury  is  doue  to  an  English  sub- 
jpsi  abroad,  tbe  remedy  muNt  he  sought  iu  the 
nrisdiction  where  the  cause  uf  action  hapiiens, 
/  il  ia  subject  to  the  king's  jurisdiction  ;  if 
'^  king  has  no  jurisdiction  in  thai  place,  this 
-^aarily  gives  the  king's  courts  a  jurisdic- 
rithia,  which  it  is  brought,  by  the  known 
J  of  laying  the  venue  in  som^  county  of 

aaod.      This  is  explained  by  lord  Mans- 
with   his  usual  clearness  and  ability." 
■r.  Butler  refers  to  Phill^brown  v.  Rvlaod, 
dM.  Lord  Ray m.  1388,  and  8  Mod.  354. 


England,  and  is  an  abuse  of  that  authority 

S'ven  him  by  the  king's  letters  patent  under 
e  great  seal.     Now,  if  every  thing  within  a 
dominion  is  triable  by  the  courts  within  that 
dominion,  yet  the  consequence  of  the  king's 
letters  patent,  which  gives  the  power,  must  be 
tried  here  ;  for  nothing  concerning  the  seignio- 
ry can  be  tried  in  the  place  where  it  is.    In  tha 
proprietary  governments   in    America,   they 
cannot  try  any  question  concerning  the  seignio- 
ry, in  their  own  courts ;  and  therefore,  though 
questions  concerning  lands  in  the  isle  of  Mwx 
are  triable  in  the  courts  of  the  isle  of  Man,  yet 
wherever  there  is  a  question  concerning  the 
seigniorv,  it  must  be  tried  in  some  courts  in 
EngUnd.    It  was  so  held  by  the  chief  justice 
anamanv  of  the  judges  in  the  reign  of  queea 
Elizabeth,  upon  a  question  arising  concerning 
the  seigniory  of  the  isle  of  Man.    Or  when* 
ever  there  is  a  question  between  two  provincea 
iu  America,  it  must  be  tried  in  England  by 
analo|fy  to  what  was  done  with  respect  to  the 
seigniories  in  Wales  bein^  tried  m  English 
counties  ;  so  that  emphatically  the  governor 
must  be  tried  in  England,  to  see  whether  he 
has  exercised  legally  and  properiy  that  autho* 
rity  given  him  by  the  king's  lettm  patent,  or 
whether  he  has  abused  that  authority,  contrary 
to  the  law  of  EngUnd,  which  governs  the 
letters  patent  by  which  he  is  appointed,  iv,  It 
does  not  follow  from  this,  that,  according  to 
tbe  nature  of  the  case,  let  the  cause  of  action 
arise  where  it  may,  that  a  man  is  not  entitled 
to  give  every  justification  that  ought  to  be  « 
defence  to  4iim.     If  by  the  authority  of  that 
capacity  in  which  he  stood  he  has  done  right, 
he  is  to  lay  that  before  the  Court  by  a  proper 
plea,  and  tbe  Court  will  exercise  their  judgment 
whether  that  is  not  a  sufficient  justification. 
In    this   case,  if  the  justification    had  been 
proved,  perhaps  the  Court  would  have  been  of 
an  opinion  that  it  was  a  sufficient  answer,  and 
he  might  have  moved  in  arrest  of  judgment 
afterwards,  and  taken  the  opinion  of  the  Court ; 
but  the  Court  must  be  of  opinion  that  it  is  a 
sufficient  answer,  and  that  the  raising  a  mutiny 
in  a  garrison,  though  in  time  of  peace,  was  a 
reason  for  tiiat  summary  proceeding,  in  taking 
him  up  and  sending  him  out  of  the  island.     I 
could  conceive  cases  in  time  of,. war,  in  which 
a  governor  would  be  justified,  though  he  acted 
very  arbitrarily,  in  which  he  could  not  be  jus- 
tified in  time  of  |)eace.    Suppose  in  a  siege,  or 
%%heo  the  French  v^eregoinu:  to  invade  Minorca, 
suppose  that  the  governor  should  think  pmper 
10  send  a  hundred  of  the  inhabitants  out  of  the 
island,  and  that  he  did  this  really  acting  for  the 
liest :  or  suppose,  upon  a  general  suspicitm,  he 
should  take  )»eople  up  as  spies:  ^hy,  upon 
proper  circumstances  laid  before  the  Court  for 
their  judgment  and  opinion,  it  would  be  very 
fit  to  see  whether  he  had  acted  as  the  governor 
of  the  garrison  ou^jht,  according  to  the  law  of 
England  and  the  ju!»tice  of  tbe  case.     But  it  is 
said,  if  there  is  u  law  in  the  garrison,  or  if  he 
acts  as  the  Spanish  governor  might  have  done 
before,  bow  is  that  to  lie  known  here?— Uow  f 


fSl] 


U  GEORGE  III. 


Actionjbr  Fake  Impritonment— 


[89C 


M'hy,  there  are  ways  of  knomnar  foreigfn  laws 
as  well  as  our  own,  but  in  a  diflTerent  manner : 
it  must  be  |iro?ed  as  a  fact,  and  in  that  shape 
the  court  must  assist  the  jury  in  finding  oat 
whnt  the  law  really  is.  Suppose  there  is  a 
Frendi  settlement  (there  is  a  case  in  point  of 
the  sort  I  am  stating)  which  depends  upOn  the 
custom  of  Paris ;  why,  we  must  receive  wit- 
nesses with  regard  to  it,  to  shew  what  the 
custom  is,  just  as  you  receive  evidence  of  a 
custom  with  respect  to  trade. 

The  judges  in  the  courts  of  England  do  de- 
termine all  cases  that  arise  in  the  plantations, 
all  ca8<(S  that  arise  in  Gibraltar  or  Minorca,  in 
Jersey  or  Guernsey,  and  they  must  inform 
themselves  by  having  the  law  stated  to  them. 
As  to  suggestions  with  regard  to  witnesses,  the 
plaintifT  must  prove  his  case,  and  the  court 
must  tuke  care  that  the  defendant  is  qot  sur- 
prised, and  that  he  ha^  a  fair  opportunity  of 
bringing  his  evidence,  if  it  is  a  case-proper  in 
other  respects  fur  the  jurisdiction  of  the  court. 
There  may  be  some  cases  arising  abroad, 
which  may  not  be  fit  to  be  tried  here ;  but  that 
cannot  be  the  case  of  a  governor  injuring  a 
man,  contrary  to  the  duty  of  his  oflSce,  and  in 
violation  of  the  trust  reposed  in  him  by  the 
king's  commission.  If  he  wants  to  send  for 
witnesses  to  prove  his  justification,  and  applies 
to  the  court,  they  will  do  what'this  court  did  in 
a  case  of  a  criminal  prosecution  which  arose 
in  Scotland.  This  court  forced  the  prosecutor 
([and  would  have  put  off*  the  trial  from  day  to  day 
if  he  had  not  submitted  to  it)  to  suffer  the  wit- 
nesses to  be  examined  by  a  commission  where 
the  cause  arose,  who  could  not  be  compelled  to 
come  here.  The  court  obliged  them  to  come 
into  these  terms ;  or,  if  they  did  not,  it  is  a 
matter  of  course,  in  aid  of  a  trial  at  law,  to 
apply  upon  a  real  ground,  and  not  upon  a  ficti- 
tious pretence  of  delay,  to  a  court  of  equity  to 
have  a  commission  and  injunction  in  the  mean 
time;  and  the  court  will  certainly  take  care 
that  justice  shall  be  done  to  the  defendant  as 
well  as  to  the  plaintiff,  who  must  come  with 
witnesses  to  prove  his  case :  and  therefore,  in 
oery  light  in  which  I  see  this  matter,  it  holds 
empnaiically  in  the  case  of  a  governor,  if  it  did 
not  hold  in  respect  of  any  other  man  within 
the  colony,  province,  or  garrison.  But  to 
make  questions  u|M>n  matters  of  settled  law, 
where  there  have  been  a  number  of  actions  de- 
termined, which  it  never  entered  into  a  man's 
head  to  dispute — to  lay  down  in  an  English 
court  of  justice  such  monstrous  propositions  as 
that  a  governor,  acting  by  virtue  of  letters  pa- 
tent under  the  great  seal,  can  do  what  he 
pleases;  that  he  is  accountable  only  to  God 
and  his  own  conscience — and  to  maintain  here 
that  every  governor  in  every  place  can  act  ab- 
solutely; that  he  may  spoil,  plunder,  affect 
their  bodies  and  their  liberty,  and  is  accountp 
able  to  nobody — is  a  doctrine  not  to  be  main- 
taiaed;  for  if  he  is  not  aceouotable  in  thii 
court,  he  is  acooontable  no*where.  The  king 
ID  council  bat  no  jurisdidion  of  this  matter ; 
tb^caanotdo  it  ia  aoytbapei  Ibcy  canool 


give  damages,  they  cannot  give  reparation, 
they  cannot  punish,  they  cannot  hold  plea  in 
any  way.  WheiQever  complaints  have  been 
before  the  king  in  council,  it  has  been  with  a 
view  to  remove  the  governor ;  it  has  been  with 
a  view  to  take  the  commission  from  him  which 
he  held  at  the  pleasure  of  the  crown.  Bat 
sappose  be  holds  nothing  of  the  crown,  sup* 
pose  his  government  is  at  an  end,  and  that  lie 
18  in  Enghmd,  they  have  no  jurisdiction  lo 
make  reparation  to  the  party  injured;  they 
have  DO  jurisdiction  to  punish  in  any  shape  tfale 
man  that  has  committed  the  injuij  :  how  cnn 
the  arguments  be  supported,  that,  in  an  empire 
so  extended  as  this,  every  governor  in  every 
colony  and  erery  province  belonging  to  the 
crown  of  Great  Britain,  shall  be  al^lutely  de- 
spotic, and  can  no  more  be  called  in  question 
than  the  king  of  France  P  and  this  after  there 
have  been  multitudes  of  actions  in  all  our  me- 
mories against  governors,  and  nobody  has  been 
ingenious  enough  to  whisper  them,  that  tbey 
were  not  amenable. 

In  a  case  in  Salkeld,  cited  by  Mr.  Peckbaro, 
there  was  a  motion  lor  a  trial  at  bar  in  an  ac- 
tion of  false  imprisonment  against  the  governor 
of  New- York  ;  and  it  was  desired  to  be  a  trial 
at  bar,  because  the  Attorney  General  was  to 
defend  it  on  the  part  of  the  king,  %vlio  had  taken 
up  the  defence  of  the  governor.  That  case 
plainly  shews  that  such  an  action  existed ;  the 
Attorney  General  hnd  no  idea  of  a  governor's 
being  above  the  law.  Justice  Powell  says,  in 
the  case  of  Way  and  Yally,  in  6  >1uflem,  that  an 
action  of  false'im prison II leut  had  been  brought 
here  against  the  governor  of  Jamaica  for  an 
imprisonment  there ;  and  the  laws  of  the 
country  were  given  in  evidence.  The  gover- 
nor of^  Jamaica  in  that  case  never  thought 
that  he  was  not  amenable.  He  defended  him- 
self. He  shewed,  1  suppose,  by  the  laws  of 
the  country,  an  act  of  the  asseinblv  which  j'lsli- 
fied  that  imprisonment ;  and  the  court  received 
it,  to  be  sure,  as  they  ought  to  do.  Whatever 
is  a  justification  in  the  pluce  where  the  thing  is 
done,  ought  to  be  a  justification  where  the  case 
is  tried.  I  remember  (it  was  early  in  my  time; 
I  was  counsel  in  it)  an  action  against  governor 
Sabine,  and  he  was  very  ably  defended.  No- 
body thought  the  action  did  not  lie  against  him. 
He  was  governor  of  Gibraltar,  and  he  baiely 
confirmed  the  sentence  of  a  court-martial, 
which  tried  one  of  the  train  of  artillery  by 
martial  law.  Governor  Sabine  affirmed  the 
sentence.  This  plaintiff  was  a  carpenter  in  the 
train.  It  was  proved  at  the  trial,  that  the 
tradesmen  that  followed  the  train  were  not 
liable  to  martial  law ;  the  court  were  of  that 
opinion ;  and  therefore  the  defendant  was  guilty 
of  a  trespass  in  having  a  share  in  that  sentenco 
which  punished  him  by  whipping.  There  is 
another  case  or  two,  but  they  don't  occur  to 
me  at  present. 

Let  us  see  now  what  tiie  next  objection  », 
with  regard  to  the  matter  arising  abroad ;  and 
that  is  a  general  ol^ection,  that  as  the  matter 
trast  nbnid,  it  cannot  be  tried  hen  in  Bng* 


tff\ 


Fttbrigas  v.  MostytL 


A.  D.  1775. 


[SSI 


had.    There  is  «  formal  distinctioa  tliat  prt- 
fiilt  ID  oar  eourta,  and  ItkewiMe  a  subataotial 
•w  aa  to  the  locality  of  trials.    The  substantial 
dirtiactioa   is,  where   the   proceedingf  is   in 
nm,  and  where  the  effect  of  the  judgment 
cnneC  be  had  if  it  is  laid  in  a  wrong  place. 
His  is  the  ease  of  all  ejectments  where  pos- 
flSBOQ  is  to  he  delivered  by  the  sheriff  of  the 
SMsty  :  and  as  trials  here  are  in  particular 
SMSties,  the  offieeni  are  county  officers;  there- 
kn  the  judgment  could  not  ha?e  effect  if  it 
was  Mit  laid  in  the  proper  place  and  in  the  pro- 
per county.    But  there  likewise  is  a  formal 
fctiutlioD,  where,  perhaps,  complete  justice 
cssM  he  done,  let  it  be  laid  in  what  county  it 
■ight ;  that  is  mere  matter  of  form  as  to  esses 
that  arise  within  the  realm :  but  even  with  re 
fud  to  matters  that  arise  out  of  the  realm,  to 
he  sore  there  is  a  distinction  of  locality  too ; 
kr  there  are  some  cases  that  arise  out  of  the 
icahn,  that  ought  not  to  be  tried  any  where  but 
is  tlie  county  where  thev  arise,  as  the  esse  al- 
loded  to  by  serjeant  Walker.     If  there  is  a  sort 
tf  fighting  in  France  between  two  Frenchmen, 
and  ihey  happen  both  casually  lo  be  here,  and 
aa  action  of  assault  is  brought  by  the  one 
agsiost  the  other,  which  chart^e  a  criminality 
ISO,  that  it  is  dune  against  the  kinar's  peace, 
aad  the  laws  and  customs  of  England ;  in  that 
case  it  nsay  be  a  very  material  question  whe- 
Ihtr  that  could  be  mamtaineil  here:  for  though 
it  is  not  a  criminal  prosecution,  yet  it  has  that 
sort  of  criminality  that,  perhaps,  without  giring 
aa  opinion,  it  ought  to  be  tried  by  the  laws  of 
that  country  where  both  parties  are  subjects; 
it  may  he  a  substantial  obj(*ction  of  locality.    So 
llewise,   if  it  is  concerning  an  estate  in  ^ 
favi^  country,  where  it  is  a  matter  of  title 
md  not  of  damages,  it  roa}^  be  a  substantia) 
teioction.      There  is  likewise  a  question  of 
ftrm,  and  that  arises  upon  the  trial ;  for  trials 
ia  England  being  by  a  Jury,  and  the  kinjj^dom 
hnmg  divided  into  counties,  and  every  county, 
ii  respect  of  trial,  considered  almost  as  if  a 
aepvate  kingdom  or  principality,  it  is  absolute- 
ly necessary  that  there  should  be  some  county 
where  the  action  is  particularly  brought,  that 
there  may  be  a  process  to  the  sheriff  of  that 
coonty,  to  bring  a  jury  from  thence  to  try  it ; 
and  that  is  matter  of  form,  which  goes  to  all 
cases  that  arise  abroad.     But  the  law  makes 
a  distinction  between  transitory  actions  and 
Iscal  actions.      If  the  matter  which  is  the 
caose  of  a  transitory  action  arises  within  the 
realm,  it  may  be  laid  in  any  county ;  the  place 
is  not  material:    and  if  an  imprisonment  in 
Middlesex,  it  may  be  laid  in  Surrey;    and 
though  proved  to  be  done  in  Middlesex,  the 
place  not  being  material,  it  does  not  at  all  pre- 
vent the  plaintiff  recovering  damages :  for  the 
eace  of  transitory  actions  is  never  material. 
ut  where,  by  particular  acts  of  parliament,  it 
is  made  so,  as  in  the  case  of  churchwardens 
and  constables,  and  other  cases  that  require  the 
action  to  be  brought  in  the  county  ;  there,  by 
the  force  of  the  act  of  parliament,  the  objection 
li  fttal:  hot  otherwise  it  mutt  be  laid  in  any 


I 


eonnty  in  England,  let  it  be  done  where  it  will : 
the  parties  bad  an  opportunity  of  applying  to 
the  court  in  time  to  change  the  venue.  But  if 
they  go  to  trial  without  it,  that  is  no  objeo- 
tion ;  and  all  actions  of  a  transitory  natnre  that 
arise  abroad  may  be  laid  as  happening  in  an 
English  county.  But  there  are  occaaions  which 
make  it  absdately  necessary  to  state  in  the  de- 
claration, that  it  really  happened  abroad ;  as  in 
the  case  of  specialties,  where  the  date  must  be 
set  forth.  When  an  action  is  brought  npon  a 
specialty  which  bears  a  date,  if  that  specialty  is 
set  out,  or  if  oyer  is  prayed  of  it,  by  which  the 
place  where  it  was  made  must  appear;  if  the 
declaration  states  it  to  hare  been  made  at  WesI- 
minster,  in  Middlesex,  and  ufNin  producing  the 
deed  it  bears  date  at  Bengal,  ttiere  is  a  variance ' 
between  the  deed  and  the  declaration,  which 
makes  it  appear  to  be  a  different  instrument.  I 
don't  put  lue  case,  though  there  are  some  in  the 
books  that  seem  to  me  to  have  confounded  the 
statute  of  the  6th  of  Richard  the  second,  there- 
fore I  don't  put  the  objection  upon  the  6.th  of 
Richard  the  secoud ;  but  it  goes  singly  u|kmi  this : 
if  yon  don't  state  the  true  date  or  true  description 
of  the  bond,  it  is  a  variance.  W  bat  does  the  law 
in  that  casef  (and  it  has  done  it  for  hundreds 
of  years)  Why,  the  law  invented  a  fiction,  and 
has  said,  **  You  ahall  set  out  the  description 
truly,  and  then  give  a  venue  only  for  form  for 
the  trial;  videlicet ^  in  the  county  of  Middlesex^ 
or  any  other  county  you  please."  Did  any 
judge  ever  think  that  when  the  declaration 
said,  in  fort  St.  George  in  Cheapside,  that  the 
plaintiff  meant  that  it  was  in  Cheapside  ?  No  ; 
It  is  a  fiction  in  form  :  every  country  has  its 
forms :  it  is  for  the  furtherance  of  justice  that 
these  fictions  were  invented  ;  to  i^et  rid  of  for- 
malities ;  to  further  and  advance  justice.  This 
is  a  certain  rule :  you  never  shall  contradict 
the  fiction  so  as  to  defeat  the  end  for  which  it 
was  invented,  but  you  may  contradict  it  for 
every  other  purpose.  Now  this  fiction  is  in- 
vented barely  for  the  mode  of  trial ;  to  every 
other  purpose  you  shall  contradict  it,  but  not 
for  the  purpose  of  saying.  You  shall  uot  try  it. 
It  is  just  like  that  qne»iti<tn  that  was  long  agi- 
tated and  finally  determined  some  years  ago, 
npon  a  fiction  of  the  teste  of  writs  taken  but  in 
the  vacation,  which  bore  date  as  of  the  last  day 
of  the  term.  That  is  a  fiction  of  the  Court. 
You  never  shall  contiadict  that  fiction,  and  go 
into  the  truth  of  the  case,  to  destroy  the  wnt, 
and  shew  it  a  bad  writ.  Why  P  Because  the 
Court  invented  the  fiction  to  make  the  writ 
good,  for  the  furtherance  of  justice,  that  it  may 
appear  right  in  the  form  ;  but  for  every  other 
purpose  in  the  world  you  may  contradict  it.  I 
am  sorry  to  observe  there  are  some  sayings 
which  have  been  alluded  to,  inaccurately  taken 
down.  Perhaps  there  were  short-hand  writers 
in  those  days,  as  there  are  at  present,  who  mis- 
take every  word  they  hear,  and,  being  unable 
to  correct  it,  have  printed  it  improperly  :  but 
to  say,  that  as  meu  they  have  one  way  of  think* 
ing,  and  as  judges  they  have  another,  is  an  ab« 
surdity.    Ko;  they  meant  to  support  the  fio* 


935] 


n  GEORGE  III. 


Action  Jur  Fake  Imprisonment-^ 


[236 


lion.  I  will  meDtion  a  case  or  two  to  shew  that 
is  the  meanings  of  it  There  is  a  case  in  6 
HodeiD,  208,  of  Roberts  aod  Hama||re.    The 

gUuntiff  declares,  that  the  defendant  became 
oond  to  him  at  Fort  St.  Davids  in  the  East 
Indies  at  London,  in  such  a  bond.  Upon  de- 
murrer the  objection  was,  that  the  bond  ap- 
red  to  ha?e  been  sealed  and  delifered  at  fort 
David's  in  the  East  Indies,  and  therefore 
the  date  made  it  local ;  and,  bv  consequence, 
the  declaration  ouf^ht  to  have  Geen  of  a  bond 
poade  at  Fort  St.  David's  in  the  East  Indies, 
▼iz.  at  Islinjg^ton  in  the  county  of  Middlesex,  or 
in  such  a  ward  or  parish  in  Liondon ;  and  of 
that  opinion  was  the  whole  Court.  You  see 
how  this  case  is  stated.  But  1  wilt  state  it  from 
another  book,  where  it  is  reported  more  truly  ^ 
I  mean  in  lord  Raymond,  1042.  There  it  is 
stated  thus.  It  appeared  by  the  declaration, 
that  the  bond  was  made  at  London,  in  the  ward 
of  Cheap.  Uiion  oyer,  the  bond  was  set  out, 
and  it  appeared  on  the  face  of  it  to  be  dated  at 
fort  St.  George  in  the  East  Indies.  The  de- 
fendant pleaded  the  Tariance  in  abatement,  and 
the  plaintiff  demurred,  and  it  was  held  bad; 
but  the  Court  said,  that  it  would  have  been 
good,  if  laid  at  Fort  St.  George  in  the  East 
Indies,  to  wit,  at  London,  in  the  ward  of 
Cheap.  What  was  the  objection  there  ?  Why, 
they  had  laid  it  fulsetv.  They  had  laid  the 
bond  as  made  at  London.  The  bond  is  pro- 
duced, and  appears  to  be  made  at  another 
place :  that  is  a  variance.  You  must  take  the 
iN>nd  as  it  is.  Then  how  do  you  get  to  trial  ? 
Wliy,  introduce,  a  fiction,  and  the  formality 
fi'ifea  you  the  trial  in  that  county  by  the  vide- 
licet ^  and  the  bond  is  truly  described.  A  case 
was  quoted  from  Latch,  and  a  cage  from  Lut- 
wyche,  ou  the  former  argument ;  but  1  will 
mention  a  case  posterior  in  point  of  time,  where 
the  Court  took  it  up  upon  the  true  ground, 
Dvliere  both  these  cases  were  cited,  and  no  re- 
gard at  all  was  paid  to  them  ;  and  that  is  the 
case  of  Parker  and  Crook,  10  Modern  255. 
This  was  an  action  of  covenant  upon  a  deed 
indented.  It  was  objected  to  the  declaration, 
that  the  defendant  is  said  in  the  declaration  to 
continue  at  Fort  St.  George  in  the  East  Indies ; 
and  npon  the  oyer  of  the  deed  it  bears  date  at 
Fort  St.  George ;  and  therefore  the  Court,  as 
was  pretended,  had  no  jurisdiction.  Latch, 
fol.  4.  Lutwyche,  .OG.  Lord  chief  iustice  Par- 
ker said,  that  an  action  will  lie  lu  England 
upon  a  deed  dated  in  foreign  parts,  or  else  the 
party  can  have  no  remedy  ;  but  then,  in  tiic 
declaration,  a  place  in  England  must  be  al- 
ledged,  proJomiA,  Generally  spec^king,  the 
deed,  upon  the  oyer  of  it,  must  be  consistent 
with  the  declaration  ;  but  in  these  cases  prop- 
ter neccssitatemt  if  the  inconsistency  be  as  little 
as  possible,  not  to  be  regarded :  as  here,  the 
contract,  lieing  of  a  voyage  which  was  to  be 
performed  from  Fort  St.  George  to  Great  Bri- 
tain, dors  im|>ort,  that  Fort  St.  George  is  dif- 
ferent from  Great  Britain :  and  atUr  taking 
time  to  consider  of  it,  in  Hilary  term  the  plain- 
iiir  bad  his  judgtncDt^notwitltttaBding  the  ob- 


jection. Why  then,  it  all  amounts  to  this: 
that  where  the  action  is  substantially  such  a 
one  as  the  Court  can  hold  plea  of,  as  the  mod« 
of  trial  is  by  jury,  and  as  they  must  be  called 
together  by  process  directed  to, the  sheriff  of 
the  county,  matter  of  form  is  added  to  the  fic- 
tion, to  say  it  is  in  that  county ;  and  then  the 
whole  of  the  inquiry  is,  whether  it  is  an  action 
that  ought  to  be  maintained.  But  can  it  lie 
doubted,  that  actions  may  be  maintained  beret 
not  only  upon  contracts,  which  follow  the  per- 
sons, bat  for  injuries  done  by  subject  to  subject ; 
especially  for  mjuries  where  the  whole  that  is 
prayed  is  a  reparation  in  damages,  or  satisfac- 
tion  to  be  made  by  process  against  the  persoo 
or  his  effects  within  the  jurisdiction  of  the 
Court?  We  know  it  is  within  every  day's  ex- 
perience. I  was  embarrassed  a  great  while  to 
find  out  whether  it  was  really  meant  to  make 
a  question  of  it.  It  is  so  in  sea- batteries ;  but 
is  It  to  be  supposed  that  the  judge  thought  it 
happened  in  Cheapside,  when  the  partjr  proves 
where  the  place  was?  In  sea-batteries,  the 
plaintiff  of\en  lays  the  injury  to  have  been  done 
\n  Middlesex,  and  then  proves  it  to  be  done  a 
thousand  leagues  distant,  on  the  other  side  of 
the  Atlantic.  There  are  cases  of  offences  on 
the  high  seas,  where  it  is  of  necessity  to  lay 
in  the  declaration,  that  it  was  done  upon 
the  high  seas ;  as  the  taking  of  a  ship  as  a 
prize.  A  case  of  that  sort  occurs  to  my  me- 
mory : — the  reason  1  remember  it  is,  because 
there  was  a  question  about  the  jurisdiction. 
There  likewise  was  an  action  of  that  kind  before 
lord  chief  justice  Lee,  and  another  before  me,  in 
which  I  quoted  that  determination,  to  shew  that 
when  the  lords  commissioners  of  prizes  have, 
given  judgment,  that  is  conclusive  in  the  action  ; 
and  likewise,  when  they  have  given  judgment, 
it  is  concluitive  as  to  the  coNts,  whether  they 
have  given  costs  or  not.  But  how  is  that  actioa 
laid  ?  It  is  necessary  to  be  laid,  that  his  ship  waa 
taken  or  seized  on  the  hiiih  seas,  videlicet^  in 
Cheapside.  Now  is  it  seriously  contended,  that 
the  judge  and  jury,  and  counsel,  who  trieil  the 
cause,  fancied  that  ship  was  sailing  in  Cheap- 
side  ?  No ;  it  is  plain  sense ;  the  sliip  was 
taken  upon  the  high-seas,  for  which  an  actioa 
lies  in  England ;  and  you  say  in  Cheapside, 
which  is  saying  no  more  than  that,  I  pray  this 
action  may  he  tried  in  London ;  it  is  plainly 
understood:  but  if  you  offer  reasons  of  fact 
contrary  to  the  truth  of  the  case,  there  is  no 
end  of  the  embarrassment.  At  the  last  sittings^ 
there  were  two  actions  brought  by  the  Arme- 
iii  Ml  merchants  for  assaults  and  trespass  in  the 
Esbt- Indies,  and  they  are  very  strong  autho- 
rities. >-MJeant  Glynn  said,  that  the  defendant, 
Mr.  Vert  I  St,  was  ably  assisted.  So  he  was; 
and  by  men  who  would  have  taken  the  objec- 
tion, if' they  thuught  it  had  been  maintainable: 
and  that  was  atier  this  case  had  been  argued 
once ;  yet  the  counsel  did  not  think  it  could 
be  su|»ported.  Mr.  Verelst  would  have  been 
glad  to  have  made  the  objection :  he  would  not 
nave  lefi  it  to  a  jury,  if  he  could  have  6to|»prd 
them  short,  and  said^  '<  You  tball  not  try  it  al 


837] 


Tahrigat  r.  Mostt/n. 


A.  D.  177». 


[«8 


•U.''  I  liATe  had  some  actions  before  me,  go- 
isgralber  further  than  these  transitory  actiuns ; 
fut  isy  goiBg  to  caws  which  in  Eugland  would 
It  local  actions :  and  1  remember  one,  I  think 
h  waa  ao  action  brought  against  captain  Gam- 
Vcr,  who  by  order  of  admiral  Boscaweu  bad 
yaUed  down  the  houses  of  some  suttlers  who 
nppUed  the  navy  and.  sailors  with  spirituous 
i|Mrs;  and  whether  the  act  was  right  or 
vroog,  it  was  certainly  done  with  a  good  in- 
teatioD  OD  the  part  of  the  admiral,  for  the  sai- 
lors' health  were  affected  by  it.  They  were 
palled  down.  The  captain  was  inattentiTc 
cBongh  to  bring  the  gentleman  oTcr  in  his  own 
sh*p,  who  would  never  have  got  to  England 
stnerwise ;  and  as  soon  as  he  came  here,  he 
was  admed  that  he  should  bring  an  action 
Minal  him.  He  brought  his  action,  and  one 
SI  the  eounts  in  the  declaration  was  for  pulling 
dawn  the  houses.  The  objection  was  taken  to 
Ibe  eoont  for  pulling  down  the  houses;  and 
the  case  of  8kinner  and  the  East  India  Com- 
pany was  cited  in  support  of  the  objection.  On 
Ibe  other  side,  they  produced,  from  a  manu- 
seript  note,  a  case  before  lord  chief  justice 
Eyre,  where  he  o?er-niled  the  objection  ;  and 
I  ofcr-niled  the  objection  upon  this  principle, 
that  the  reparation  here  was  personal,  and 
Isr  damagea ;  that  there  would  be  a  failure  of 
joslicey  ror  it  was  upon  the  coast  of  No?a 
^  '  I,  where  there  were  no  regular  courts  of 
^  but  if  there  bad  been,  captain  Gambier 
It  nerer  go  there  again  ;  and  that  the  rea- 
ssn  of  locality  in  such  an  action  in  England 
did  not  bold  in  this  case.  I  quoted  a  case  of 
aa  iniory  of  thaiaort  in  the  East- Indies,  where 
eiea  io  a  court  of  equity  lord  Hardwicke  had 
fcecled  aatisfaction  to  be  made  in  damages. 
Thai  case  was  not  fuUy  argued ;  but  this  was 
aigiied,  and  there  were  larcfe  damages  gi?en 
against  Gambier.  I  do  not  quote  it  for  the 
apinioa  1  was  of  there,  because  that  opinion  is 
my  likeiy  to  be  erroneous ;  but  I  quote  it  for 
ibis  reaaoB,  that  there  were  large  damages 
fireo  against  captain  Gambier :  and  though  he 
vaa  not  at  the  ezpence,  for  he  acted  by  the  or- 
dera  of  admiral  Boscaweu,  yet  the  admiral's 
RpresentatiTea  paid  the  ezpence,  therefore  their 
inelination  was  to  hare  got  rid  of  that  verdict  if 
they  eonid  ;  but  there  never  waa  any  motion 
iar  a  new  trial.  1  recollect  anotbt* r  cause  that 
on  before  me :  that  was  the  case  of  ad- 
Pailiser ;  there  the  very  gist  of  the  ac- 
was  local.  It  was  for  destroying  fishing- 
birta  opon  the  liabrador  coast,  it  was  a  nice 
^ucstiuo;    when  the  Canadians  settled,  and 


when  they  had  a  right  to  it.  It  was  a  dispute 
between  them  and  the  fishermen  in  England. 
The  cause  went  on  a  great  way :  the  defendant 
would  have  turned  it  short  at  once,  if  he  could 
have  made  that  objection ;  but  that  objec- 
tion was  not  made.  There  are  no  local  courta 
among  the  Esquimaux  Indians  upon  that  part 
of  the  Labrador-coast.  Whatever  injury  had 
been  done  there  by  any  of  the  king's  officers 
would  have  been  altogether  without  redress,  if 
that  objection  of  locality  would  have  held :  and 
the  consequence  of  that  circumstance  shews, 
that  where  the  reason  fails,  even  in  actions 
which  in  England  would  be  local  actions,  yet 
that  does  not  hold  to  places  beyond  the  seas 
within  the  king's  dominions.  That  of  admiral 
Palliser's  went  off  ufion  a  proposal  of  a  re- 
ference, and  ended  by  an  award.  But  as  to 
tranaitory  actiona,  there  is  not  a  colour  of  doubt 
but  that  every  action  that  is  transitory  may  be 
laid  in  any  county  in  England,  though  the 
matter  arisea  beyond  the  aeas :  and  when  it  is 
absolutely  necessary  to  lay  the  truth  of  the 
case  in  the  declaration,  there  is  a  fiction  of  law 
to  assist  you,  and  you  shall  not  make  use  of  the 
truth  of  the  case  against  that  fiction,  but  you 
oMiy  make  use  of  it  to  every  other  purpose.  I 
am  clearly  of  opinion  not  only  against  the  ob* 
jections  made,  but  that  there  does  not  appear  a 
question  upon  which  the  ohjectiona  could  arise. 

The  other  judges  declared  themselves  of  the 
same  opinion,  and  the  Court  ordered,  **  That 
the  judgment  should  be  affirmed." 

In  consequence  of  the  above  judgement,  on 
Saturday  the  4th  day  of  February  1775,  the 
gentlemen  who  were  bail  for  governor  Mostyn, 
to  prevent  his  being  taken  in  execution  and 
carried  to  prison,  were  obliged  to  pay  to  Mr. 
Fabrigas  the  sum  of  S,000/.  for  his  damages, 
and  159/.  which  the  Court  amerced  the  go- . 
vernor  in  costs. 


I  have  not  ventured  to  alter  the  nonsensical 
passages  in  the  former  report  of  this  case.  The 
case  in  Shower,  which  is  alluded  to  in  p.  115, 
I  suppose  to  be  that  of  sir  Richard  Dutton 
V,  Howell  and  others,  executors  of  Witham« 
p.  24. 

See  the  Case  of  Louisa  Calderon  «.  General 
Pictoo,  B.  R.  A.  D.  1809. 

See,  also,  the  following  Case  of  the  Island  of 
Grenada  (Campbell  v.  Hall),  and  the  Canadian 
Freeholder,  as  therein  cited. 


SS9] 


15  GEORGE  IIL         The  Case  ^f^e  Island  cf  Grenada^         [flO 


550.  The  Case  of  the  Island  of  Grenada;  in  relation  to  the  Payment 
of  Four  and  one-half  in  the  Hundred  of  Goods  exported  there- 
from;« between  Alexander  Campbell^  esq.  Plaintiff,  and 
Wm.  Hall,  esq.  Defendant,  in  the  Court  of  KingVBenchy  be- 
fore Lord  Chief-Justice  Mansfield :  15  George  III.  a.  d.  1774. 


£The  foUowiog  acooont  of  this  Case  is  com- 
piled from  the  Reports  of  Mr.  Lofft  and  Mr. 
Henry  Cowper,  together  with  the  short-band 
writer's  report  of  the  Arguments  of  Mr.  Mac- 
donald  (now  Lord  Chief  Baron  of  the  Ex- 
chequer), and  Mr.  HargraTe.  Both  those 
learned  persons  hare  assented  to  the  publi- 
cation of  this  Manuscript,  which  was  im- 
parted to  roe  by  Mr.  Hargrave,  with  his  ac- 
customed kindness  of  assistance  in  the  im- 
proFement  of  this  Work.] 

This  cause  came  on  to  trial  before  the  right 
honourable  William  lord  Mansfield,  on  Friday 
the  2d  of  July,  at  the  sittings  aRer  Trinity 
term,  for  the  city  of  London,  at  Guildhall,  when 
a  special  Terdict  was  found.  The  proceedings 
in  the  cause  were  as  follows : 

*  Trinity-term,  in  the  Idth  year  of  the  reign  of 

^  king  George  the  third.  « 

*  London  to  wit.    Be  it  remembered,  that 

*  heretofore,  that  is  to  say,  in  Easter-term  last 

*  past,  before  our  lord  the  king  at  Westmins- 
^  ter,  came  Alexander  Campbell,  esq.  by  Ben- 

<  jamin  Uosewell,  his  attorney,  and  brought  in 

*  the  court  of  our  said  lord  the  king  then  there, 

*  his  bill  against  William  Hall,  esq.  being  in 

<  the  custody  of  the  mar&hal  of  the  Marshalsea 

*  of  our  said  lord  the  king,  before  the  king  him- 

<  self,  of  a  plea  of  trespass  on  the  case ;  and 

*  there  are  pledges  for  the  prosecution,  to  wit, 
*John  Doe  and  Richard  Roe.    Which  said 

<  bill  follows  in  these  words,  to  wit,  London,  to 

*  wit,  Alexan«ler  Campbell,  esq.  complains  of 

*  William  Hall,  esq.  being  in  the  custody  of  the 

*  marshal  of  the  Marshalsea  of  our  lord  the 

<  king  himself,  of  a  plea  [of  trespass  on  the 

*  case ;  and  also]  for  that  wtiereas  the  said  Wil- 

<  lism,  on  the  first  clay  of  January,  in  the  year 
^  of  our  Lord  1773,  at  London  aforesaid,  to  wit, 

*  in  the  parish  of  8t.  Mary-le-Bow,  in  the 

<  ward  of  Cheap,   was  indebted  to  the  said 

<  Alexander  in  the  sum  of  20/.  of  lawful  money 

*  of  Great  Britain,  for  the  like  sum  of  money 

*  by  the  said  William  before  that  time  had  and 

*  receif  e<l,  for  and  to  the  use  of  the  said  Alex- 

<  ander :    and  being  so  indebted,  be  the  said 

*  William,  in  consideration  thereof,  afterwards, 

*  to  wit,  on  the  same  day  and  yoar  aforesaid,  at 

*  London  aforesaid,  in  the  parish  and  ward 
« aforesaid,  undertook,  and  to  the  said  Alei- 

*  ander  than  and  there  faitbfnilj  pnHniieditluit 


«  be  the  said  William  wonld  well  and  truly  pay 
'  and  satisfv  the  said  Alexander  the  said  sum  of 

*  money  wnenever  he  the  said  William  should 
*•  be  thereunto  afterwards  required.    Yet  the 

<  said  William,  not  regardinic  his  said  promise 

*  and  undertaking,  but  contriTiog  and  fraudii- 

*  lently  intending  crsAily  and  subtilly  to  de- 

<  ceive  the  said  Alexander  m  this  behalf,  hath  not 

<  paid  the  said  Alexander  the  said  sum  of  money, 

*  or  any  part  thereof,  (althonffh  the  said  Wu- 

*  liam  afterwards,  to  wit,  on  the  same  day  and 

*  year  aforesaid,  and  often  afterwards,  at  Lon- 

*  don  aforesaid,  in  the  parish  and  ward  afore- 
said, was  by  the  said  Alexander  required  so 

*  to  do)  but  to  pay  the  same,  or  any  part  there- 

<  of,  to  the  said  Alexander  he  the  said  William 

<  bath  hitherto  altogether  refused,   and    atUI 

<  doth  refuse,  to  the  damage  of  the  said  Alex- 

*  ander  of  20/.    And  thereof  he  brings  bis 

*  suit,  &c.' 

'*  And  now  on  this  day,  to  wit,  on  Friday 
next  after  the  morrow  of  the  Holy  Trinity,  in 
this  same  term,  (to  which  said  day  the  said 
William  had  leave  to  imparle  to  the  said  bill, 
and  then  to  answer,  &c.)  before  our  lord  the 
king  at  Westminster,  comes  as  well  the  said 
Alexander,  by  his  attorney  aforesaid,  as  the 
said  William,  by  Robert  Want,  his  attorney  ; 
and  the  said  William  defends  the  wrong  and 
injury.  When,  &c.  and  says  he  did  not 
undertake  and  promise  in  manner  and  form  as 
the  said  Alexander  Campbell  above  complains 
against  him.  And  of  this  he  putti  himself  upon 
the  country ;  and  the  said  Alexander  doth  the 
like. 

**  Therefore  let  a  jury  thereupon  come  before 
our  lord  the  king  on  Wednesday  next  after 
three  weeks  of  the  Holy  Trinity,  by  whom  the 
truth  of  the  matter  may  be  better  known,  [and 
who  neither  are  of  kin  to  the  aforesaid  Alex- 
ander nor  to  the  aforesaid  William]  to  reco^ 
nize  the  truth  of  the  issue  between  the  said 
parties,  because  as  well  the  said  Alexander  as 
the  said  William,  between  whom  the  issue  is, 
have  put  themselves  iipun  the  said  jury.  The 
same  day  is  given  tu  the  party  aforessid. 

**  Afterwards  the  process  being  continued 
between  the  parties  aforesaid,  of  the  plea  afore- 
said, by  the  jury  between  them  being  respited 
(before  our  lord  the  king,  at  Westminster,  enlfl 
Saturday  next  after  the  morrow  of  All  8o>* 
then  next  fulk»wing,  aolM  the  *^* 
tmsty  and  weH  bderiw* 
fidd,  hie 


CamphcU  V.  HaU. 

W  Mtie  on  F>  iday  the  lil  dny  or  July 

C  Guililhall  uf  iliR  L'lly  ul'  Ijonilon,  RCcnrd' 

>  lh(t  Torm  of  Ihe  sMtule  in  iticb  ca»e 

kmnd  |ir<»iilc<1)  Tar  dernull  of  jurors,  be- 

^^»  none  of  tbrni  did  appear. 

"  4|  wbich  ilo^,  bvrore  our  Inrd  Ihe  king' 
«  WpatrainsUT,  cRine  (he  aroresatd  Atexaodcr 
CtApfaeH,  by  lh«  saiil  B^nJEimin  Rnipwell,  bis 
flMney  aturMihl,  Arid  tlie  lajd  cbicf  justtce, 
trftn  <*b«nt  iIh  inii>>  wh*  iriid,  smi  liilber  his 
rvenrd  had  in  thoe  words,  lo  wir,  '■  ■  After- 
'  varrfi,  that  n  in  say,  nn  the  itny  *nd  at  (he 
■ftbee    whyn    ronturneil,    beforp    the   righl 

■  liOMWraMe  WiOiani.  lord  M*intiv1<1,  iheebief 
■jadJM  within  written,  John  Way.  suntlemftn, 
'Wn^  naaoUted  unio  hln  according  to  the 
'  bm  or  the  dalnte  In  Ihat  vane  mide  ind  nn>- 
'  tried,  femes  an  wHI  the  wilhin  namei)  Alex- 

■  aaJer  Campbell,  emf.  by  bis  itioroey  within 
'  «wncd,  ■<«  Ihe  wiiliin  named  Willlani  HatI, 
'  et^.  by  his  Dttornry  u-ttbin  menlioned. 

■'  ■  Ami  the  jarors  of  Ihe  jury  within  men- 
'led  hrios  sufflnioneil,  soineol'  ibem,  that 

■  to  «y,  Anthony  Hitrhiiiore.  Peler  Bostock, 
[iifid  ('hsmbere,  JaniPB  L«  Molle,  John 
«rltim-iiii,  Jnshun    Bedshew,  and   Siltanns 

■  fifoi*.  erne,  and  are  sworn  upon  Ihni  jnry; 
'  (oil  lT,->ii«e  ihe  residue  of  the  jiiror«  of  the 
'  Mine  j'l'V  dii  not  Bi'pear,  Iherel'ore  other  per- 

■  wfo^  "t  lli'iie  BtandiriB  liy  ibe  court,  by  the 
'  (hrrifla  of  the  city  anil  cntinty  aforeaaid,  at 
'  Ihcrrqursl  of  ihe  said  Alrxto'li'r,  Bud  by  (he 
'  fDrnmaud  o1'  the  sniil  chid'  justice,  are  now 

■  •^•Ijf  mH  down,  w  hose  names  are  fiW  io  Ihe 
•  ifbm  wriliei)  lunnel,  aeeordini;  to  the  form 


u  thct  f 


«..r  r 


■  .W  WHieh  sbM  jumrs,  so  newly  nel 
<■■•«,  ilml  Is  tn  aay,  Jol>n  Lee,  Willl^im  Ker- 
.,    Cbafin  Huui^ham,  John  G<>riiMt].  and 

'IrHurJ  Hull,  bein;  required,  come,  whn, 
ii;-lher  with  tlie  uidniher  jurors  before  i»n- 

•  ai«(|ed,  anitswnm  to  declare  the  Inrtli  of 

c  wiihin  cootenu,  being  elected,  tried,  and 

'•len,  iipiin  their  oaths  say, 

'  '  ThJiiheialtndorUrenada.inthe  West- 
l--i«».  wa^tn  Ihe  iiosseaeioa  of  ihe  French 
Lirif  until  it  WHS  cnn(iuered  by  ihe  British 
I'-naiM  17*2.     And  timt  during  that  posses- 

■  ••■  lh«r<>  "Vre  certain  CiKtoms  and  impost 


rnrtadi^ 


)  Bndool  n 


nnrted  and  e: 


Nt  MMlMrTly  of  hn  inoit  Christian  majesty. 

•  m£  ihM  in  the  said  yew  iroe,  'be  said  island 
*«»  eo»|wrcd  hy  the  kitte  nf  Great  Brilaln, 
■MaiiA  opM  war  with  the  French  kini{;  and 
•Art ikaMud  kslandoTtirenada  ■un'cndcred  to 
'A*  Bniish  arm*  upon  the  Kame  article* of 
■•■Inilallim  aa  had  be^n  befi>re  i-ranted  to  Ihe 
•wMtanunr  ihe  island  of  MuriioiM,  u|ion 
'lb*  (BrrtBder  ihertof  lo  the    BHliih   arms. 

*  Im*  tbai  in  the  ■nulet  of  capiliitatinD  de< 
■  a—ill  hv  and  rranii'd  tn  the  itihsbltanlf  of 
'ttPMidlaUMlul  Maninico,  upon  iheaurren- 

B  Briihh  arms,   dated  the 
re  Ihe  tbllawing 

tlia!lb«>triot<y 


A.  D.  177*. 


[84* 


'  neuter,  and  shall  nol  be  nliliifeil  to  tale  arma 
'  against  his  most  Christian  mnjesiy ;  nur  even 
'  aflinsl  any  other  power. 

"  '  Answer — They  become  snbjeciK  of  bis 
'  Briton Dtc  majesty,  and  mtlil  take  theoalh  of 
'  allfginnce,  bul  snail  nnl  I'e  obliered  to  tuke 
'  Brma  a^inst  bis  most  Chrialiun  inajesly  until 
'  a  peacb  mat  determine  the  l'«ie  of  the  islnnil. 

•■ '  Article t]le tilth— Thet  shall  pmerrelheir 
'  citil  govermnent.  their  laws,  eustiiiRR,  ond 
'  ordinances ;  justice  kIihII  be  administered  by 
■the same  officers  who  are  now  in  eirploy- 
'  meot ;  and  ihere  shall  be  a  reifiilaiiiin  made 

*  for  the  inleriur  police  between  the  noremur  i>f 
'his   Britannic  msjeslv  end   the  iiihabilnnU: 

*  and  in  ease  that  ul  liie  pearc  Ihe  ii<[niid  sliall 
'  he  ceded  to  Ihe  hinK  of  Great  Britain,  it  shall 
'  be  alluwed  to  the  inlTsbilania  In  prnerre  their 
'  polilical  ^niernnient.  and  lo  accept  that  of 
'  Anii(;uaorf<t.  Chris- 0| .her'*. 

"  '  Answer— TTiey  become  Btiiish  siiljerta, 
'  (as  in  Ihe  inveedini;  article)  but  MbaDcontiniie 

•  tn  be  pirerneil  hy  their  present  laws  unltl  hii 

■  majeity'a  pleasure  be  hnou  n. 

" '  Articlethe  sixth- The  inbabilniils,  as  atsa 
'  (be  re)ii;iou3  orders,  of  bntli  arxes,  thill  be 
'  niaintained   in   Ihe  pr0|rerly  of  I  heir  eftecis, 

■  mofeable  and  iinniOT<-ahte|  of  what  natiir^ 
'  soever,  and  shall  be  preferred  in  their  privi. 
<  le^es,  rights,  hnnuurs,  and  exempliniis ;  Ihei^ 
'  free  neirroes  and  mulatioes  shall  have  the  en- 
'  lire  enjoyment  of  ibeii-  liberty. 

"' Granted,  in  rf[;ard  to  the  rehgions  orders — 
'The  inhahiiants.bein^siitgectsof  Great  Bri- 
'  fain  will  eujny  tbeir  properties,  and  llie  same 
'  jtriTileges  at  in  the  other  bis  majesty's  Lee- 

■  Ward  islands.' 

" '  Anicfe  (he  seienlh— They  shsH  not  pay  tii 

■  bis  majealy  brv  oilier  duties  ttian  those  n  hicli 
'  hove  liecn  paid  bltberin  to  his  moat  Christian 
■majesty;  and  the capilnli'Mi  of  negroes  ujhiii 
'  the  same  roaiini;  it  is  paTd  at  present,  without 
'flwy  oiher  dian^es  or  imposts:  and  the  ex- 

■  fences  of  insiii^e,  peniiuns  in  curates,  and 
'  other  occasional  e»iieocf a,  abill  be  paid  hf 

•  the  domain  of  his  Britannic  majesty,  as  ihey 
'  were  hy  that  of  his  mosi  Obrislian  mtijeily.' 

"  ■  Anawercd  in  the  tixth^artide,  as  to  whil 
regards  Ihe  iohabitants. 

"  '  Article  the  elereolh— No  other  than  iho 
'  inbabitanta  resident  in  ibis  island  shall,  till  the 
'  peace,  pmsess  any  eslBles,  either  by  acquisU 
'  tion,  aRTeement  or  ulherwi-ie :  but  in  case  ai 
'  Ihe  peace  the  connlry  shall  be  eedi-d  lo  (he 

*  king  of  Great  Britain,  then  it  shall  be  per- 
I  milled  10  Ihe  inhabitants,  who  shall  nol  be 
'  willing  to  become  bis  suljects,  to  sell  their 
'  Mtates,  moTratrie  and  immnreable,  in  whom 
>  they  please,  ami  retire  where  they  sbill  ihink 

■  (iriiprr ;  in  which  caie  they  ahail  be  alloweJ 

■  eonveliieni  lime.     [  tnswer]     All  suhjecH  of 

■  Oieat    Britain    may    |Kii«e«s    any    Innils  or 

•  hniiies  by  purchase.     The  remainder  nf  ihis 

■  article  granted,  ptoTided  ihey  sell  to  British 

"  And  the  juron  afnresuid,  n)inn  their  oaiha 
aforesaiil  funher  say— That  iu  ibe  deliutlire 
B 


213] 


15  GEORGE  .III.  The  Case  of  the  Island  of  Grenada-^         [944 


treaty  of  peace  aud  friendship  between  his 
BriUDoic  majesty,  the  most  Christian  king^ 
and  the  kinfi^  of  Spain,  concluded  at  Paris  the 
10th  (lav  of  February  1763,  amongst  others 
are  the  toilowin(f  articles : 

**  *  Article  the  fourth^His  n^ost  Christian 

*  majesty  renounces  all  pretensions  which  he 

*  has  heretofore  formed  or  mi«<;lit  form  to  Nova 

*  Scotia,  or  Acadia,  in  all  its  parts ;  and  gua- 

*  ranties  the  whole  of  it  and  with  all  its  depen- 

*  daiicies  to  the  king  of  Great  Britain :  more- 

*  over  his  most  Christian  majesty  cedes  and 
'  (guaranties  to  his  aaid  Britannic  majesty  in 

*  full  right  Canada,  with  all  its  dependancies, 

*  as  well  as  the  island  of  Cape  Breton,  and  all 

*  the  other  islands  and  coasts  in  the  gulph  and 

*  river  of  St.  Lawrence.    And  in  general  every 

*  thing  that  depends  oa  tlie  said  countries, 

*  lands,  islands  and  coasts,  with  the  sovereignty, 

*  property,  possession,  and  all  rights  acquired 

*  by  treaty  or   otherwise,    which   the    most 

*  Christian  king  and  the  crown  of  France  have 

*  bad  until  now  over  the  said  countries,  islands, 

*  lands,  places,  coasts,  mnd  their  inhabitants : 

*  90  that  the  most  Christian  king  cedes  and 
«  makes  over  the  whole  to  the  said  king  and  to 

*  the  crown  of  Great  Britain  ;  and  that  in  the 

*  most  ample  manner  and  tbnu  without  re- 

*  striction,  and  without  any-  liberty  to  depart 

*  from  the  said  cession  and  guaranty  under 

*  any  pretence,  or  to  disturb  Great  Britain  in 

<  the  possessions  above  mentioned. — His  Bri- 

*  tannic  majesty  on  his  side  agrees  to  grant  the 

<  liberty  of  the  Catholic  religion  to  the  inhabi- 

*  tants  of  Canada :  he  will  consequently  give 

<  the  most  precise^  and  effectual  orders,  that  his 

*  new  Itoman  Catholic  subjects  may  profess  the 

<  worship  of  their  religion,  according  to  the 

*  rights  of  the  Romish  church,  so  far  as  the 

*  laws  of  Great  Britain  can  permit — His  Bri- 

*  tannic  majesty  further  agrees  that  the  French 

*  inhabitants  or  others  who  had  been  subjects 

*  of  the  most  Christian  king  in  Canada,  may 

*  retire  with  all  safety  and  freedom  wherever 

*  they  shall  think  proper,  and  may  sell  their 

*  estates  provided  it  be  to  subjects  of  his  Bri- 

*  tannic  majesty,  and  bring  away  their  effects 

*  as  well  as  their  persons  without  being  re- 

<  strained  in  their  emigration  under  any  pre- 

*  tence,  except  that  of  debts  or  criminal* |>rose- 

*  cations.    The  term  limited  for  this  eroigra- 

*  tion,  shall  be  fixed  to  the  space  of  eighteen 

*  months  to  be  computed  from  the  day  of  the 

<  exchange  of  the  ratifications  of  the  present 

*  treaty.' 

*<  *  Article  the  ninth — ^The  most  Cbristain 

*  king  cedes  and  guaranties  to  his  Britannic 

*  majesty  in  full  right  the  islands  of  Grenada, 

*  with  ihe  same  stipulations  in  favour  of  the  in- 
«  habitants  of  this  colony,  inserted  in  tlie  4th 

*  article  for  those  of  Canada.    And  the  parti- 

*  tion  of  the  islands  called  Neutral  is  agreed 

*  and  fixed ;  ao  that  those  of  St.  Viaoent,  Do- 

*  minica,  and  Tobago,  shall  remain  in  fnll  right 
« to  Great  Britain,  and  that  of  St..  Lncia  shall 


'  be  deiirercd  to  Fr«Mtv  lo 


'  tracting  parties  guaranty  the   partition   so 

*  stipulated.' 

**  And  the  jurors  aforesaid  upon  their  oaths 
aforesaid  further  saVf  that  his  majesty,  by  his 
royal  proclamation  bearing  date  at  Westmin- 
ster the  7th  day  of  Octitber,  1763,  amongst 
other  things  declared  as  follows,  *  And  whereas 

*  it  will  greatly  contribute  to  the  speedy  settling 
*oor  said  new  governments  that  our  loving 

*  subjects  should  be  informed  of  our  paternal 

<  care  for  the  security  of  the  liberties  and  pro- 
'  nerties  of  those  who  are  and  shall  become  in- 

*  habitants  thereof;     we  have  thouifht  fit  t(^ 

*  publish  and  declare,  by  this  our  proclamation, 

*  that  we  have,  in  the  letters  patent  under  onr 

*  great  seal  of  Great  Britain,  by  which  the  said 

<  governments  are  constituted,  given  express 

*  power  and  direction  to  our  governors  of  our 
'  said  colonies  respectively,  that,  so  soon  as  the 

*  state  and  circumstances  of  the  said  colonies 

*  will  admit  thereof,  they  shall,  with  the  advice 

*  and  consent  of  the  members  of  our  council, 
( summon  and  call  general  assemblies  within 

*  the  said  governments  respectively,  in  such 

*  manner  and  form  as  is  used  and  directed  in 

*  those  colonies  and  provinces  in  America, 
(  which  are  under  onr  immediate  goveniment. 

*  — And  we  have  also  given  power  to  the  said 

*  governors,  with  the  consent  of  our  said  coan- 

*  cils  and  the  representatives  of  the  people,  so 

*  to  be  summone<l  as  aforesaid,  to  make  coo- 

*  stitutions  and  ordain  laws,  statutes  and  or- 

*  dinances,  for  the  public  welfare  and  good  go- 

<  vemment  of  our  said  colonies  and  of  the  peo- 
«  pie  aud  inhabitants  thereof,  as  near  as'  may 
«  be,  agreeable  to  the  laws  of  England,  and 

<  under  such  regulations  and  restrictions  as  are 

*  used  in  other  colonies.    And  in  the  mean  time 

*  and  until  such  assemblies  can  be  called  as 

*  aforesaid,  all  persons  inhabiting  in,  or  resort- 

*  ing  to  our  said  colonies,  may  confide  in  our 

*  royal  protection  for  the  enjoyment  of  the  be^ 

*  nefit  of  the  laws  of  our  realm  of  England : 

*  for  which  purpose  we  have  given  power  under 

*  our  great  seal  to  the  governors  of  our  said  co- 

*  lonies  respectively,  to  erect  and  constitute, 

*  with  the  advice  of  our  said  councils  respec- 
'  tively,  courts  of  judicature  and  public  justice 

*  withm  our  said  colonies,  for  the  hearing  and 
'  determining  all  causes  as  well  criminal  as  civil 
'  according  to  law  and  equity,  and  as  near  as 
'  mav  be  agreeable  to  tlie  laws  of  England ; 

*  witli  liberty  to  all  persons  who  may  think 

*  themselves  aggrieved  by  the  sentences  of  such 

*  courts  in  all  civil  causes  to  appeal,  under  tbo 

*  usual  limitations  and  restrictions,  to  us  in  our 
'  privy  council.' 

**  And  the  jurors  aforesaid,  upon  their  oaths 
aforesaid,  further  say — ^That  bis  majesty  by  his 
royal  proclamation  bearing  date  at  Westmin- 
ster, the  <i6th  day  of  Alarch  1764,  amongat 
other   things   did    also    declare    as   folkiws, 

*  Whereas  we  have  taken  into  oar  considers^ 
'  tion  the  great  benefit  that  will  arise  t6  th« 
'  oooiBMivo  of  oar  kingdoms  and  the  interasl 

*  of  o«r  snbfcctt,  froon  the  speedy  aectlemeol 

*  §f  Ihi  isliMs  of  QiiMdai  Iha  flimadimi. 


Campbell  v.  Hall. 

•  Dnaaiaki.  81.  Vincent  aiid  Tobago,  we  in 

ititrefore  ihink   fit.   wilti   ih<?  aitrire  of  riur 

lairy  eauDCJI,  to  iuue  thi«  our  roytX  procln- 

ni^tiua.  In  jinlillBh  aud  declare  to  our  loring 

;.  i  1     ttiat  we  Ijate  wiib  ihr  «dticeor  our 

'  I  e  iiuncil, given  tlienecessBrv  powers 

I    •  riuHs  foran  immediate  tai\ty,»aA 

i  ::,  iiiiu  projier  piriilin  and  diitricti,  of 

'  "'li  of   (he  said  iilanda  aa  liate  not  biiherto 

'««■  noaurrFved  and  diiided  ;  and  for  laying 

nil  Mich  laods  in  the  laid  islands  as  are  in  our 

I'vwer  to  diapose  of,  intn  allotinente  for  pUn- 

tiuoos  of  dilffrent  hixe  und  extent,  according 

'  u  tlw  nature  of  the  lanil  «tiall  be  mnre  or  Iras 

'  adapted  U>  tlie  growth  of  BU|tnr,  culfpe,  cocoa, 

'  oHtoa,   or  oilier  articles  uf  bentAcisl  ciil- 

'  uire ;  TCEertint;  to  as,  our  lieirs  and  BucceaaorB, 

'  iLcti  pans  iif  tlie  said  inlands  as  aliall  be  ne- 

'  'nnry  for  erecting  fortiRcatioos  ilierenn,  and 

<r>r  all   DtliCf  miliiBry  purposes;  for  glebes 

' 'ur  miiiiiteri,  aJlutmeats  tor  eg lionl- masters, 

'ftr  wood-lands,    liigh'rnails,   and   all  other 

^^■^Cn  pnrpnaes;     and   aUo  resemng  such 

^^^■rfi  in  onr  islanila  of    Dominica  and   St. 

^^^^Mitlt  aa  at   llie   lime  of   the  surrendtfr 

^^^■n  rad  atjll  are   in  the  posaession  of  the 

^^^KcmIi,  inbsbitanti   of    ilie    aaid    islands  ; 

^^^■U  hnda  it  is  our  will  and  pleasure  should 

^^^V  cniil«il  to  such  iif  Ihe  asiil  inhuhiiants  as 

■      I^ImII  be  inclined  lo  ucuepl  the  asmc  upon 

'  Wm  for  terms  absohitu,  or  for  renewable 

-rma   npon    certain   cuiidilinns,  and    under 

ii  oprr  resirictiun*.    And  we  do  herehy  farther 

,'ubluih  and  declare,  thai  the  allolmenta  for 

,  iintatioiia  In  cur  inlands  of   Grenada,  Ihe 

' .  madines,  Tobagu  and  St  VinceDl,  shall 

-nlato  IVnm  uoe  himdred  to  three  hundred 

.-res,  with  unine  lew  nllolments  ioeach  island 

.'  fire  buaitred  acres;    ami  that  the  allot- 

fota  in  our  inland  af  Dominica,  whiab  is 

■Tuvamied  to  be  nni  au  well  adapted  lo  ihe 

luiuralion  of   sugar,  anri   which    from  its 

'  Ml— linn  require*  in  policy  to  be  well  peopled 

I'  rtlhtrbilc  lahabitanU,  iliili  lie  in  eeneral  from 
'61^  lomnhandrMl acres.  Thai  each  purchaser 
*tf  lawla  which  hare  been  cleared  and  im- 
'  anitA.  (ball  witliin  ibe  apace  of  three  monlhs 
il  If  of  ihegrani  seltleand  constantly 
<>  liie  Int  iKirchueil  one  white  man 
'lite  womKn,  for  every  hundred 
I  >tn(d  in  the  salU  lot,  and  in  default 
'  itwmf  tball  be  suhject  lo  the  payment  of 
'ML  prr  annnm  f'lr  e\eTy  white  woman,  and 
'  tOi,  |ier  aoaum  fur  vvery  while  idso,  that 
*iWI  iHt  wanliotc  to  complete  the  number. 
'Thtk  Hi*  putchaaerof  itni'lpsrad  lands  shall 
'dHrsoid  culiisali!  iioe  acre  in  etery  twenty 
■laMnh  year,  until  Imif  the  laud  so  purchased 
■  AaB  b*  cImtviI,  and  in  default  thereof  ihaM 
>  pjr  il.  p«r  aBDum  for  erery  acre  not  cleared 
<  patB«aut  lo  Budi  eonditjon.  And  such  pur. 
'  ^tmtt  aliall  alao  1m  iiiili|{ed  lo  settle  and  on- 
'MMljr  ll*^  upon  Uie  lot  so  purchated  on« 

ixiulrBl  aerca  aa  the  same  thall  be  cleareil. 
I  '111  auli  puicb*>«r,  bcaidea  the  purchase 
tj,  abkll  Im  8ub|CGl  to  ibe  payoicut  of  an 


[546 


A.  D.  1774. 
'  anaual  quit-rent  lo  us.our  heirs  ai 
'  of  sixpence  per  acre,  imder  the  penally  of  61. 
'  per  kcre  upnn  non-payment  thrreuf.  Such 
'  quit-renU  iu  Ihe  esse  of  Ihe  purchase  of  ulear- 

■  ed  lauds  tn  commence  from  the  dale  of  the 
'  nTBnt.  anil  the  fimi  |myment  to  be  made  at  the 
'  expiration  of  the  first  year  ;  and  in  caseof  ths 
■purchase  of  the  uncfeared  lands,  auch  qait- 
'  rents  lo  commence  at  the  expiration  of  iweUe- 
'  months  from  ihe  lime  each  acre  is  cleared. 

*  That  in  case  of  failure  in  the  payment  of  Ibe 
'  pa  re  base  money  in  Ihe  manner  above  directed, 
'  the   purchaser  shall  forfeit  all   right  lo  Ibe 

*  lands  purchased.' 

>■  And  Ihe  jurors  aforesaid,  upon  their  oaths 
afuresaid,  further  say,  that  his  majesty  by  bis  let- 
ters patent,  under  his  writ  nf  prity  seal  bearing 
dale, at  Westminster,  the 9th  day  »f  April  1764, 
appointed  Robert  Meicille,  esq.  vapiaio  general 
and  gorerlior  in  chief  in  and  oier  the  wlands  of 
Grenada,  the  Grenadines,  Dominica,  Si.  Vio- 
ceal,  and  Tobago,  in  America ;  and  ofall  other 
islands  and  territories  adjacent  thereto  :  which 
said  letters  pnleot  are  as  follows. — '  Georga 
'  the  third  by  Ihc  i;race  of  God,  of  Great  Bri- 

>  lain,  France  and  Ireland,  king,  delender  of 
'  the  faitb,  &C.  To  our  Irusiy  and  well  be- 
'  lored  Koberl  MelTille,  esq.  greeting ;  whereas 
'  we  did  by  our  letters  patent  under  our  ^reat 
'  seal  of  Great  Britaio,  bearing  dste  al  West- 
'  mioBler,  Ibe  4lh  day  of  April,  in  the  first  jear 
'ofunr  reign,  constitute  and  appoint  Charlea 

*  Pinfold,  esq.  captain- genera  I,  and  governor  in 
'  chief  in  and  over  our  islnnds  of  Barbadoes, 

*  St.  Lucia,  Dominii.'a, Si.  Vincent, Tobagn,  and 
'  the  real  of  onr  islands,  colonies  and  planta- 

■  tioniin  America,  commonly  called  or  known 
'  by  the  naoie  of  our  Carnbee  islands  lying 
'  andbeingtoibe  windward  of  Guadaloupe,  and 

*  which  then  were  or  after  should  be  under  our 

<  sulgectiuD  and  ifovernmetil,  during  our  will 
'  and  [ileasure,  us  by  the  said  recited  letters  pa- 
'  lent,  relation  being  ihereunio  had,  may  mora 

■  fully  and  al  targe  appear:  now  know  you  that 
'  wehaveretoktuland  determined,  and  by  these 

*  present*  do  revoke  and  di'termine,  tucb  part 

*  and  so  much  of  the  said  recited  leiters  patent, 
'  and  every  clause,  article  and  thin^,  (bereia 
'  cnnluined,  as  relates  Iu,  or  muotiniia,  Ibe 
'  island*  of  St.  Lucia,  Dominica,  St.  Vmeeut, 

■  and  Tobago.     And   further  know  you,  ihat 

>  we,  rrposini;  especial  trust  and  counilence  in 

*  Ihe  prudence,  courage  and  loyally,  of  yoa 

<  Ihe  said  itnbert  Melvdie.ofour  ea)iecialgrace. 
'  certain  knoitWge,   suil  mere  molion,  have 

■  tlinught  fit  in  cuiislituW  and  uppoinl,  and  by 

■  Iheae  presenls  do  cnnstitutr  and  appoint,  ynu 

■  Ihe  Baid  Hubert  Melville  lo  be  uur  capUio- 
'  general  and  governor  in  ubief.  in  and  over  one 
'  islands  of  Grenada,  the  Ureaadines,  Uomi- 

■  nica.  Si,  Vincent,  and  Tobago,  in  America, 
'  and  of  all  ulher  islands  and  territories  adja- 

■  cent  thereto,  and  which  now  are,  oi  beretn- 
'lore  have  been,  tle|ieadcnt  thereupon.  And 
'  nc  do  hereby  require  and  command  you  to 

■  do  and  execute  all  ihings  iu  due  msimcr,  Ibat 
'  shall  belong  to  your  taid  coDUOaDd,  and  tha 


247] 


15  GEORGE  III.         The  Case  ^the  Idand  qfGrenadi 


trust  we  have  reposed  iu  you  according  to  the 
several  powers  and  directions  granted  or  ap- 
pointed you  by  tUis  present  coDiniissiou,  and 
the    instruetious   and    authorities    herewith 
giren  to  you,  or  by  suob  further  powers,  in- 
8tru«-tions  and  authorities,  as  shall  at  any 
time  hereafter  l»e  granted  or  appointed  you, 
under  our  signet  and  sign  manual,  or  by  our 
order  in  our  pri?y  council,  and  according  to 
such  reasonable  laws  and  statutes  as  Aail 
hprealter  lie  made  and  agreed  upon  by  you, 
with  the  acWice  and  consent  ot  the  council 
and  assembly  of  ihe  islands  and  plantations 
under  yuur  gofernnnent,  in  such  manuer  and 
form  as  is  hereinafter  expressed.    And  our 
will  and  pleasure  is  that  vou  the  said  Robert 
Mflville,  do,  alUr  the  publication  of  these  oar 
letters  patent,  and  after  the  appointment  of 
our  council  lor  our  sa-d  islands,  m  such  man> 
ner  and  form  as  is  prescribed  in  the  instruc- 
tions which  you  will  herewith  receive,  iu  the 
first  place,  take  the  oaths  appointed  to  be 
taken  by  an  Act  passed  in  ihe  first  year  of  the 
reign  of  king  George  the  first,  entitled.  An 
Act  lor  the  further  security  of  his  majesty's 
person  and  government  and  the  succession 
of  the  crown  in  the  heirs  of  the  late  princess 
feiopbia,  being  Protestants;    and  for  extin- 
guishing the  hopes  of  the  pretended  prince  of 
Wales  and  his  open  and  secret  abettors :  as 
alsu  that  you  make  and  subscribe  the  declara- 
tion mentioned  in  an  act  of  parliament  made 
in  the  35tb  year  of  the  reign  of  king  Charles 
the  second,  intitled  An  Act  for  preventing 
dangers  which  may  happen  Ifrom  Fopish  re- 
cusants.— And  likewise  that  you    take  tlie 
oath  usually  taken  by  governors  iu  the  other 
colonies  for  the  due  execution  of  the  office 
and  trust  of  our  captain-general  and  governor 
in  chief  in  and  over  our  said  islanila,  and  for 
the  due  and  impartial  administration  of  jus- 
tice.— And  farther  that  you  take  the  oath  re- 
quired to  be  taken  by  tiie  governors  of  the  plan- 
tations to  do  their  utmost, that  the  several  laws 
relating  to  trade  and  the  plantations  be  duly 
observed ;    which  said  oaths  and  declaration 
our  council  of  our  said  islands,  or  any  three 
of  the  members  thereof,  have  hereby  full 
power  and  authority,  and  are  required  to  ten- 
der and  administer  to  you:    and  in  your  ab- 
sence to  our  lieutenant  governor  of  the  said 
islands,  and  to  our  lieutenant-governors  of 
eachof  our  said  islands  respectively,  the  said 
oaths  mentioned  in  the  said  act  entitled,  An 
Act  for  the  further  security  of  his  majesty's 
person  and  government,  and  the  succession  of 
the  crown  in  the  heirs  of  the  late  princess 
Hophia,  being  Protestants,  and  for  extinguish- 
ing the  hopes  of  the  pretended  prince  of 
Wales,  and  his  open  and  secret  abettors:    as 
also  cause  them  to  make  and  subscribe  the 
aforesaid  declaration,  and  to  administer  unto 
them  the  usual  oaths  for  the  doe-  execution 
of  I  heir  places  and  trusts.— Aad  ws  do  fiirtiier 
give  and  grant  unto  vou  the  and  RolNKt  Mel- 
ville, full  power  aaa  tutfaorilgr  fi 
time,  and  il  wy  liat  kBMtAi^ 


[S4S 

'  or  by  any  other  to  be  authorized  by  yea  in 

<  this  behalf,  to  administer  and  give  ibm  oaths 

*  mentioned  in  tht  said  act,  for  the  finrtbar  se* 

*  curity  of  his  m^esty 's  iierson  awl  goveniBieat, 

*  and  the  succession  of  the  crown  m  the  keirs 

*  of  the  late  princess  Sophia,  being  Protestants, 
^  and  for  extinguishing  the  hopes  of  Ihe  pre* 

*  tended  prince  of  Wales,  aod  bis  open  aad 
^  secret  abettors,  to  all  and  every  such  persoa 

*  and  persons  as  you  sfaaU  think  it,  u  be  riiaN 
'  at  anv  time  or  times  pass  into  any  of  our  said 
'  islands,  or  shall  be  resident  or  abiding  there. 

**  *  And  we  do  hereby  authorize  and  ioipower 

*  you  to  keep  and  use  the  public  seal,  which 

*  will  be  herewith  delivered  to  you,  or  ahaH 

*  hereafter  be  sent  to  you,  for  sesling  aU  things 

*  whatsoever  that  shall  p4ss  the  great  seal  of 

*  our  said  island. 

*'  *  And  we  do  hereby  give  and  grant  ante 

*  you  the  said  Robert  nelville,  full  power  and 

*  authority,  with  the  advice  and  constant  of  our 

*  said  council  to  be  apiminted  as  aforesaid,  as 

*  soon  as  the  situation  and  circumstances  of  our 
'  islands  under  your  government  will  admit 

*  thereof,  aud>  when  and  as  tdien  as  need  sliaM 

*  require,  to  summon  and  call  general  aawm- 

*  blies  of  the  freeboltiers  and  planters  jointly  or 

<  severally  within  anv  of  the  islapds  under  your 

*  government,  in  such  manuer  as  you  in  your 

*  discretion  shall  judge  most  proper,  or  ac- 
'  cording  to  such  further  powers,  instructions 

*  or  autliorities,  as  shall  be  at  any  tima  here* 

*  after  granted  or  appointed  you   under  our 

*  signet  and  sign  manual,  or  by  our  order  ia 

<  our  privy  council. 

'<  *  And  our  will  and  pleasure  is,  that  the  per- 

*  sons  thereupon  duly  elected  by  the  aiaior 
'  part  of  tlie  freeholders  of  the  respective  pa* 

*  rishes  or  precincts,  and  so  returned,  shall  be- 

*  fore  their  sitting  uke  the  oaths  mentioned  in 
'  the  said  act  entitled.  An  Act  for  the  further 
'  security  of  his  majesty's  person  and  govem- 
'  ment,  and  the  succession  of  the  crown  in  tJie 

*  heirs  of  the  late  princess  ijuphia,  being  Pro- 
'  testants,  and  for  eztinGfuishing  the  hopes  of  the 
'  pretended  prince  of  Wales,  and  his  open  and 
'  secret  abettors :  as  also  make  and  subscribe  the 
'  aforementioned  declaration,  which  oatha  aad 
'  declaration  you  sliall  commisskinate  fit  persons 

*  under  the  public  seal  of  those  our  islands  to 

*  tender  and  administer  unto  them :    and  uutU 

*  the  same  shall  be  so  taken  and  subscribedi  ne 
'  person  shall  be  capable  of  sitting,  tliougli 

*  elected.    And  we  do  hereby  declare,  that  ue 

*  persons  so  elected  aod  qualined  shall  be  called 
'  and  deemed  the  assembly  of  that  ishind  within 
'  which  thev  shall  he  chosen,  or  tlie  assembly 
'  ol'  our  said  islands  in  general.    And  thai  you 

*  the  said  Robert  Melville,  by  and  with  the 

*  advice  and  consent  of  our  said  council  aod 
'  assembly  or  assemblies,  or  the  major  perl  of 
'  them,  snail  have  full  power  and  auUiority.  to 

*  makoycoostitulet  and  ordain  laws,  statntea,  aod 

*  ordinaocca,  for  the  puhlie  peace,  wolfamp  ondl 

*  gnodgoostOBientot  oog  said  islands,  jmstf 


•ee 


•adoTiho 


Campbea  v 


Mali, 


K  MnI  fa  tlie  benffit  of 

Wbicb  nid  lini,  sulotea, 
II  to  be  repti|{>>Biii>  I'ul, 
■  n*])  be,  Ki^reealile  lo  ibr  bws  and 
■  •rihtanur  kingdato  al*Ore«t  Britaia. 
I]  B>l  sudi  lawa,  BlHlittH,  arul  ur- 
wltal  auiire  ar  durttioo  toeicr, 
«  willun  tbm  muDtha  dt  luuDiir  arier  ibe 
'■iiBiir  thereol',  tutitiniUed  lo  us,  uuier  our 
'mti  al  mar  »s'ui  iaiauila.  I'urour  approbalinii  or 
'  I  Mllaw ce  ol  Uie  (ame ;  as  ehu  ilu|ilivBlca 
'maaftty  lb«  next  convcj'ancF. 

■■  ■  Au<l  ia  ras«  any  or  nil  iiC  ihe  sajil  liwa, 
'Mtoles,  auai  orilinauun,  ni>i  U>rure  cnnfirineii 
'kf  M,  shall  at  ■oj'  lime  b«  diva  I  ki  wed,  and 
'M  aypnH K«t.  auU  »o  signifinl  by  ua,  uur 
'ban  utd  succwion,  unikr  ibeir  siifuet  or 
'  mga  tauiual,  M  by  nrJer  of  niir  nr  tlirii'  iiriij' 
■oaocil,  auto  >nu  tkwsaul  Kubtrt  Alrlvillif,  or 
'■tbceuniiMiiiier  ID  cbief  of  ihe  aaiJ  ialandi 

*  !■  ibr  Uiot  beiii^;,  ibcB  lucb  and  so  lUBMy  of 
**e  B*ii)  kws,  siBtuiei,  mnI  oribnancefl,  as 
*«WI  bar  au  iliHaltowed  bimI  nM  apiirovpd,  ihall 
•fc^  ihmcelMlh  cease,  deterutiiie,  and  be- 
*Maw  Blirily  toiJ  and  have  nu  eArct,  anv 
'^mt  ■"  tb«  osolrary  ihcreal'Doiwiibstiitiiliii|r. 

**  *  itnil  It!  Ihe  end  Ihat  nolhinn  luiy  be 
'  ■wrt  in  doue  hy  our  said  council  or  Rssem- 
*liaa  ID  the  prrjiubce  of  ui,  our  heira  and  «ac 
'  n«ui».  we  mil  uikI  onbin  thpl  you.  the  aald 
'  H-Wn  Mrltdre,  bhall  dure  and  enjoy  a  nega- 

*  tn<  mioe  ia  Ibe  inakuif  aud  (laBsinK  ail  laws, 
'  ■*4Bl'«,  and  ordtuaBL-os,  as  aroreKai<l,  And 
'ihal«oij  slioJI  and  may  likewite,  from  litneto 
'Ud*.  ma  yon  >hall  jud|[e  necessary,  adjourn, 
'  rwijue  or  disMtlve,  nil  general  BMenlilie*  as 
'Mmaid.' 

■  Anil   <hc  jnroni  aforeaard,  on  llteir  oallts 

I^hhI,  briber  suy,   Chat  hia  exoelleocy  Itn- 

I  HeKille,  esq.  arriied  in  Grenada  on  tlie 

k«(  Deevinber,  1764,  and  in  conwquence  of 

I  leittra  paient,  took  upon  liini 

Igavetuolenl  of  the  aanie,  and  Ibe  utUer 

'  I  Ihewia  named.      And  that.  In  conee- 

ntioned  lelt«ri  palenl.  a 

J  of  ill  e  governor,  coudcII,  andasaembly 

»  Md  itltnd  of  Grenada  was  beld  there  in 

■■•iMtor  «ad  of  ibe  year  1765. 

"JkmA  lllBl  hit  majeily,  by  his  letters  patent 
vAiv  ibe  i^rest  seal  (rf  Great  Britain,  branny 
*«  at  WeMminsler  Ihe  SOth  day  of  July,  in 
ibe  rnoMh  year  of  bin  reign,  and  m  the  year  of 


I  offr 


lalf 

a  uud  after  Ibe  \ 


fB  oeot.  in  »pvuie  abouli 

exb  <tay  of  MeiHemtiet  then 

Mieil  aail  paiil  lo  bis  heirs  a 

mi  0)100  ajt  dead  uoinmodilies  of  Ibe  yrowlb 

M^pniduoa  of  the  said  islawl  of  Grenada  ilial 

AaaU  be  «b[>ped  •>«  fi-om  the  same,  in  lieu 

rfMciu**nnand   iRi|inet  thiiies  lo  ibat  lime 

htoaaidaatnf  the  said  island,  under  ibe  aulho- 
ttj  mf  ki*  moil  Clirisiiao  majesty.  Wbtch 
■M  Micra  paiMit  are  in  the  words  following: 
third,  by  Ihe  ursce  of  God,  of 
Prance,  xid  Irelaud,  kiug,  <le- 


A.  D.  177*.  [650 

ftiidf  r  of  tbi  failb,  Scu.  To  all  lo  whom  these 
prexeittB  abtll  cMne,  greeiiiit;:  wltereas  a 
oerLBin  imyost  or  cuslum  nf  fiiur  |xiundi 
and  a  balf  in  aprcic  fur  efery  hundred  weiifbl 
of  the  C'lmiuodities  of  t1>e  growth  and  produce 
of  Ihe  ial^Dd  of  Borbadoes,  and  of  ihe  1^. 
ward  Carribbee  islauda  in  America,  shipped 
off  frsm  the  sane,  or  any  of  ibt^iii,  is  paid 
aud  (isyahle  to  as,  our  heira  and  auccsssvra  ; 
and  wltereaa  the  islaud  of  Grenada  was  coti< 
quered  by  us  during  ihe  late  war,  and  bas 
been  ceded  and  secured  to  ua  by  the  lair  ireaiy 
ut  peace  ;  and  whereas  il  is  reaiouable  and 
expniieoi,  and  of  ioiportaoce  lo  our  oiber 
sugar  Ulanda.  that  ilie  lilteduty  sliauld  lake 
plaice  in  nur  aaid  islaad  of  Orenaila ;  we  have 
'  llHiught  (il,  and  our  royal  will  and  pleasure  ia, 
and  we  do  berahy,  by  Tirlna  uf  our  prrroga- 
'  tiie  royal,  order,  direct  aud  appoint,  lliat  an 
'  impost  or  cuatoni  of  fuar  and  a  half  per 
■'  cent,  in  specie  ahull,  from  ftiid  after  ibe  U(Kb 
'  day  of  ijepleniber  oetl  eiiauin)j:  Ibe  date  of 
ibese  preaeals,  he  raised  and  paid  lo  in.  our 
'heirs  and  suceeasnrs,  hr  and  upon  all  dead 

>  coinmnlilies  of  Ibe  ti">"l'<  or  pro'loce  of  nur 
'  naid  island  of  Greonda  tliat  aball  he  abipped 
'  off  from  the  auae ;  in  lieu  of  all  cuatuuia  aod 

>  impost  duties  hiiberlo  L-ulleoted  upon  ^rowlB 
'  imported  and  exported  lolo  and  oiil  uf  the  s«d 
'  ixlaad  under  the  aulUoriiy  of  bis  inuA  Chris- 

>  lian  majesty :  and  that  llie  same  shall  be  col- 

>  lected  paid,  and  leviiMl  in  suck  manner  and 
'  by  such  mcana,  and  under  audi  jMnaliics  and 

■  furleiiures  as  ibe  said  impost  ur  custom  of 
'  tour  and  a  balf  per  cent,  is,  aud  may  now  be 
'  collected,  paid,  atul  li'vied  iu  oar  said  island 
'  of  Barkidoes,  and  our  Mid  Loeward  islands. 

"  '  Aud  we  ilo  hereby  retjuire  and  command 
'  the  prenenl  governor  or  commander  in  chief, 
'  and  Ihe  governor  or  cuminnnder  in  chief  tor 
'  the  lime  bvinic,  and  Llie  oflicei'S  of  our  ciia- 
'  luiiia  in  ibc  aaid  iaianil  "f  Grenaila,  now  and 

<  horealler.  for  the  tinie  being,  anil  all  ulliera 

*  whom  it  tnav  cnncern,  Ibat  they  du  respec- 
'  lively  lake  care  lo  collect,  levy,  and  Iu  reoeivn 
'  the  said  impost  or  ousiom,  according  in  our 
•royal  will  and   pk-astire,  bigniQed  by  these 

"  ■  And  whereas  a  poll-tax  was  levied  and 
'  pnid  by  Ihe  iuhahitanla  nf  oik  si^d  island  of 

■  Gmiiida  whilst  it  was  UQ'ier  subjection  tn  bis 
'  most  Christian  iRq>>siy,  il  is  onr  n>yal  will 

■  and  pleasure  thai  sucb  poll-lax  as  wau  levied, 

•  collei'tnl  and  paid  by  the  inhabitants  of  the 

•  said  island  whilst  il  was  under  subjeclion  to 
'  his  must  Chrtsiian  majesty, shall  becunlinued 
'  lliereiB  duriag  our  Tiiyal  will  and  pleasure; 

■  and  Ibat  Ibe  same  shall  be  cuUeuied,  levieil, 

>  anil  [laid  to  uis  our  heirs  ami  sucvcssiirs,  at 
'  such  limi-Kand  in  such  manlier,  and  liy  such 
'  ways  anil  means,  uml  under  suoli   |H;oBlti«s 

■  and  fartbiiures,  and  upou  such  terms,  anit 
'  with  aoeh  privilevts  and  esemptionB  a':  Ihe 

*  same  wa»  colleeled,  levied,  nod  paid  whilst  Ike 

<  asid  islBHl  was  under  such  aii^Miun  to  bis 
'  nioslCbristiau  majealy,  inasmuch  as  itresaiHS 
'  ar«D»t  cotttrary  to  the  laws  of  Great  Bntatn. 


S51] 


15  GEORGE  IIL  The  Case  of  the  Island  of  Grenada^         [S52 


« *  And  that  the  aooount  and  namber  of  the 

*  inhabitants  and  slaves  therein  shall  be,  from 

*  time  to  time,  kept  and  delivered  iu  by  such 

*  person  and  persons,  and  at  such  time  and 

*  times,  and  ander  such  regulations,  sanctions, 
'  penalties  and  forfeitures  respectively,  as  and 

*  under  which  the  same  were  taken,  kept  and 
'  delivered  in  during^  the  time  the  said  island 

*  was  subject  to  his  most  Chrisiian  majesty,  as 

*  aforesaid,  in  as  much  as  the  same  are  not  con- 

*  trary  to  the  laws  of  Great  Britain. 

**  *  And  we  do  hereby  require  and  command 

*  the  present  g^overnor  or  commander  in  chief, 

*  for  the  time  beiniif,  of  our  said  island  of 

*  Grenada,  and  the  several  officers  of  our  re- 

*  venue,  now,  and  for  the  time  being,  and  all 

*  others  whom  it  may  concern,  that  they  do 

*  respectively  take  care  to  collect,  levy,  and  re- 

*  caj||e  the  money  arisinip  and  to  arise  by  the 

*  said  tax,  and  to  pay  and  account  for  the  same 

*  to  the  receiver  general  and  collector  of  our 

*  casual  revenue  in  our  said  island,  ^br  the  time 

*  being,  according  to  our  royal  will  and  plea- 

*  sure  siu^ified  bv  these  presents.*' 

**  Which  said  letters  patent  were  afler wards 
duly  registered  in  the  said  island,  and  were 

Sublicly  announced  by  his  excellency  Robert 
[elvilie,  esq.  in  the  month  of  Junuary  1766, 
immediately  succeeding  his  arrival  in  the  said 
island  of  Grenada. 

"  And  the  jurors  aforesaid,  upon  their  oaths 
aforesaid,  farther  say,  that  the  said  duty,  of 
four  and  a  half  per  cent,  before  the  making  of 
the  said  last  mentioned  letters  patent,  was  and 
yet  is  paid  in  the  island  of  BarMdoes,  and  the 
Leeward  Caribbee  islands,  in  pursuance  or  by 
virtue  of  acts  of  assembly  passed  in  the  same 
islands  hereinaAer  set  forth. 

*'  And  the  jurors  aforesaid,  upon  their  oaths 
aforesaid,  farther  say,  that  by  an  act  of  as- 
sembly of  the  island  of  Barbadoes,  in  the  West- 
Jndies,  passed  in  the  said  island  on  the  13th 
day  of  September,  1663,  intitied,  '  An  act  for 

*  settling  an  impost  on  the  commodities  of  the 

*  growth  of  that  island,'  it  is  amongst  other 
things  recited  and  enacted  as  follows : 

'  Whereas  our  late  sovereign  lord  Charles 

*  the  first,  of  blessed  memory,  did,  by  his  let- 

<  ters  patent  under  the  great  seal  of  England, 

*  grant  and  convey  unto  James,  earl  of  Car- 
« lisle,  and  his  heirs  for  ever,  the  propriety  of 
'  this  island  of  Barbadoes;  and  his  sacred  ma- 
•jesty  that  now  is   hating  by  purchase  in- 

<  vested  himself  in  all  the  rights  or  the  said  earl 

*  of  Carlisle,  and  in  all  other  rights  which  any 

*  other  person  mayclaim  from  that  patent.or  any 

*  other,  and  thereby  more  immediately  and  par- 

*  ticularly  hath  [having]  taken  this  island  unto 
'  his  royal  protection :  and  his  most  excellent 

*  majesty  having,  by  letters  patent  under  the 

*  great  tteal  of  England,  bearing  date  the  13th  of 
'  June,  in  the  I5th  year  of  his  reign,  appointed 

*  his  excellency  Francis,  lord  Willoughby  of 

*  Parham,  captain  general  a!id  chief  governor 
'  of  Barbiidoes,  and  all  the  Carribbee  isiandb, 

*  with  full  power  and  authority  to  grant,  odd- 
'  firm,  and  assure  to  the  iubabitaDlaMlbe 


'  and  their  heirs  for  ever,  all  lands,  tenements, 

*  and  hereditaments,  under  his  maieaty's  great 

*  seal  appointed  for  Barbadoes  and  the  rest  of 
'  the  Carribbee  islands,  as,  relation  being  there- 

*  unto  had,  may  and  doth  more  at  large  appear. 

**  *  And  whereas,  by  virtue  of  the  said  earl  of 

<  Carlisle's  patent,  divers  governors  and  agents 
'  have  been  sent  over  hither  with  antbority  to 

*  lay  out,  set,  grant,  or  convey  in  parcels  the 

*  land  within  this  island,  to  such  peraons  as 

*  they  should  think  fit,  which  was  by  them,  in 

*  their  respective  times,  as  much  as  in  ibem 
'  lay,  accordingly  performed.     And  whereas 

*  many  have  lost  their  grants,  warrants,  ajid 
'  other  evidences  for  the  said  lands ;  and  others, 
*•  by  reason  of  the  ignorance  of  thoae  timet, 

*  want  sufficient  and  legal  words  to  create  in- 

*  heritances  tothem  and  Uieir  heirs;  and  others 

*  that  never  recorded  their  grants  and  war- 
'  rants ;  and  others  that  can  nmke  no  proof  of 

*  any  grants  or  warrants  they  ever  had  for  their 

<  lauds,  and  yet  have  been  long  and  quiet  pos« 

*  sessors  of  the  same,  and   bestowed   great 

*  charges  thereon.    And  whereas  the  acknow^ 

*  ledgment  of  40  pounds  of  cotton  per  bead, 

*  and  other  taxes  and  compositions  formerly 

*  raised  to  the  earl  of  Carlisle  was  held  very 
'  heavy.    For  a  full  remedy  for  all  the  defects 

*  afore  related,  and  quieting  the  possessions, 

*  and  settling  the  tenures  of  the  inbabitanta  of 

*  this  island,  be  it  enacted  by  his  excellency 

*  Francis,   lord  Willoughby  of  Parham,  and 

*  his  council,  and  gentlemen  of  the  assembly, 

*  and  by  the  authority  of  the  same,  that,  aot- 

*  withstanding  the  defects  afore  related,  all  the 

*  now  rightful  possessors  of  lands,  tenements 

*  and  hereditaments,  within  this  island,  acoord- 

*  ing  to  the  laws  and  customs  thereof,  may  at 
'  all  times  repair  unto  his  excellency  for  the 
'  full  confirmation  of  their  estates  and  tenuref, 

*  and  then  and  there  shall  and  may  receive 

*  such  full  confirmation  and  assurance,  under 

*  his  majesty's  great  seal  for  this  island,  as 

*  they  can  reasonably  advise  or  desire,  accord- 
'  ing  to  the  true  intent  and  meaning  of  this  act. 

**  *  And  be  it  farther  enacted,  by  the  authority 
'  aforesaid,  that  all  and  every  the  payments  of 

*  40  pounds  of  cotton  per  head,  and  all  other 
'  duties,  rents,  and  arreai  s  of  rents,  which  have 

*  or  might  have  lieen  levied,  he  from  henceforth 
'  absolutely  and  fully  released  and  made  void  ; 
'  and  that  the  inhabitants  of  this  island  have 
'  and  hold  their  several  plantations  to  them  end 
'  their  heirs  for  ever,  in  free  and  common  soc- 
'  cage.     Yielding  and  paying,  therefore,  at  the 

*  feast  of  St.  Michael  every  year,  if  the  same 

*  shall  l>e  lawfully  demanded,  one  ear  of  Lidiao 

*  €M>rn,  to  his  majesty,  his  heirs  and  successors 

*  fur  ever,  in  full  and  free  discharge  of  all  rente 

*  and  services  for  the  future,  in  consideration  of 

*  the  release  of  the  said  40  pounds,  end  in  con* 
'  sideration  of  the  confirmatioo  of  ell 
'  this  island,  as  aforesaid,  end  in 
'  meot  of  hie  majesty'e  sreoe  mad  .i^ 
'  sending  to  end  enooiel' 

*  eicelleiieT.  of  v 


Ca>»p6e/l  V.  Halt. 

net.  Ui<I  do  reat  man  nwarH  lliercar 

111  (iiruinuc)i  aa  nnthing^caiiilucelh  more 

«  Bod  pTas|)crity  ol'  >ny  jilBCi-,  nnil 

i<io  of  errrj  txti^Xc  jicrson  lliereio, 

be  public  revenue  tlieteiit*  may  hf 

ieMur«  [iru^rtinned  lo  the  public 

s  aod  expeiu^es ;  and  bIsa  well  wel^ih- 

[be  great  ch»r^;«s  Ihat  lli^re  miisl  be  of 

'  til]'  IB  the  malnliiiniiiif  the  honour  and 

y  of  bit  niaJMly's  aiiilinrity  bere ;  ihe 

le  meeting  i>l  ibe  ivsiiunii ;  tbe  oixfti  at- 

T  ot'thccauucil ;  ibf  re|iarationorihe 

lb«  buililiDff  a  sessionB-  haute  and  a 

1    aad  all  other  public  cbargea  Jnciim- 

'«gA«eriiiiienl;  do,  in  conaideralioD 

ite  and  grant  unto  his  majesly,  hia 

'   dniire    your    excellency   10    accept 
ir  ^rauU :  and  wc  bniiibly  pray  your 

J'  ibal  It  luay  be  enaclnl,  and  he  ll 
J  hia  excellency  Francis,  Inril  VVil- 
J  if  Parham.    captain    eeoeral    and 
rnnr  or  this  island  ol'  Barbndocs, 
^^___  !t  the  Carribbee  ialnnds,  and  by  and 

■  oiah  Ibe  cunieot  of  ibc  council,  and  the  gea- 
■  '-'"«! 'if  ibe  oa*emhly,repr«reiilatiresof'lliig 
iUnd,  and  by  authority  of  the  tame,  that  an 
.>l<Di(  or  cuttom  be,  I'rnm  and  aflcr  publica- 
'  n  herrot',  rained  iipi>n  the  native  comrandi- 
11  uf  ihiti  inland,  alter  Ibe  pro|K>riii>ng  and  iri 
.  -iiiat!!  and  form  as  is  heteuniT  «et  down  nnd 
.^'g>oiotrd,  llialia  loaay,  upi>n  all  dead  oim- 
.xliiiM  of  ibe  ffrowih  nr  produce  of  Ibis 
land,  tbat  (hall  he  Hbipped  nff  ' 


'  |>aid  t 


if  catcreiftn  liird  the  king,  bia 


id  a  half 


I     lj<    inmrs  albreaaid,  upnn  their  oatha 

.iiIkt  My.  that,  hy  on  act  of  aa< 

:   '  iilaod  of  Si.  Christopher,  in  tbe 

I'liaavd  in  tbe  said  island,  in  tbe 

l-uid   1737,  intitled,  <  An  Act  lo 

i;i>ods  and   commodiliea  of  the 

<<  [iiiHluoe  uf  Ihe  late  Frencb  part 

<     ^  <<i'l  fit  Hi.  Climtnpber,  nbirb  ar«  or 

••■;  11-  •liippeil  olT  from  Ihe  snid  island,  lo 

K  iwymanl  of  ihc  four  and  n  half  ]ier  cent. 

M«,  Mit  lu  aaoertain  di  nhat  places  all  ihe 

■to  of  four  and  a  hulf  per  cent,  sbull  be 

*  ll  ia,  BiDangut  other  ihinfft,  recited  and 
idHl  BB  followB ;  ■  tVherena  id  and  hyan  act 
r  ntulc  uf  the  i;eneml  couDcil  and  ^enernl 
■entity  of  ib«  Leeward  Carribbee  islands, 
catlnl  or  known  by  the  names  of 
r  Noil,  Ki.  Chrialnpher.  Antigita, 
1,  msdc!  in  or  about  tbe  var  of 
,  and  entitled.  An  Act  liir  ael- 
m  tbe  cumniudilles  of  tbe 
LcBward  Carribbtc  islands, 
enttoffl  of  four  puunds  and 
i»r»»wy  hntTdrcd  weight  of 


.  ni'lei 


ard« 


A.U.  1774.  [254 

'  snTereiga  lord  Cbarles  Ihe  9d,  then  king  of 
England.  Scotland,  France,  and  Ireland,  and 
to  his  heirs  nnd  succennra  for  erer.  aa  in  and 
by  Ibf  same  act  or  slatule,  relation  being 
Ihereunlo  had,  may  more  fully  and  at  large 
appear.' 
"  <  And  uhrrcaa  aince  the  making  of  tbe  aaid 
'alatuieilowil.  inand  by  ibelatetrtalyorpeace 
'  and  friendship  concluded  at  Utrecht  helfteeo 
'  tbe  two  cronns  of  Great  Britain  and  France, 
'  an  enlire  ceasion  was  made  hy  tbe  moat  Chris- 
tian king  Lewis  tbe  14ih  to  our  Inle  sovereign 
■  lady  Anne,  queen  of  Great  Britain,  France, 
'  and  Ireland,  and  lo  her  crown  for  ever,  of  all 
Ihat  pan  of  the  island  of  St.  Christopher  for- 
merly belonging  In  the  crown  of  France ;  so 
tb  at  I  be  same  late  French  pari  of  tbeaaid  island 
'  of  Nl.Chrisiopber  is  now  become  parcel  of  ibe 
realm  of  Ureal  Britain,  and  is  under  the  anle 
dominion  and  goveramenl  of  tbe  crown  of  the 

'"  Andwherea»somedoubtshaTearisen,whe- 
'  Iher  ibe  said  Inie  French  pari,  so  yielded  np  bb 
'  afbresaiil  lothe  said  crown  of  Great  Britain,  be 
'  subject  in  the  payment  of  ihe  afor^aid  duties 
I  of  four  and  a  haif  per  cent,  so  as  aforeaaid,  in 
and  by  the  said  reciled  act,  given  and  gi-anleil 
'  lo  our  aaid  late  sorereisn  lord  king  Charles 
the  ad.  hia  heirs  and  successors  ;  fur  avoid- 
ing, tlierefure,  all  disputes  and  conlroversiei 
ivbicb  may  for  ihe  future  arise  within  th« 
samo  island,  touching  or  concerning  ilie  pay- 
ment of  the  same  duties,  we,  your  majealy'a 
'  most  dutiful  and  loyal  subjecis  John  Hart, 
'  esr|.  your  majesty's  captain  general,  and  go- 
'  vernnr  in  chief  of  all  your  majesty's  Leeward 
'  Carrjhbce  islands  in  America,  and  Ihe  council 
and  assembly  of  tbe  said  island  of  Si.  Chris- 
lopber,  do  humbly  beseech  your  iDa}esty  that 
it  miy  he  eoacled  and  declared,  and  it  is  here- 
'  by  enacted  and  declared,  by  the  king's  moat 
'  excellent  majesty,  by  aud  with  tbe  advice  anil 
consent  of  the  captain  general  and  gnvernor 
inchit^of  ihesaid  Leeward  Carribbee  island*, 
in  America,  and  the  council  and  assembly  of 
the  said  island  ofSt.Cbrialopber.and  hy  the 
'  suibority  of  the  same,  Ibal  all  and  aingutar 
Ibe  goods  and  commodities  of  the  growth  and 
'  pi-nduce  of  the  said  lale  Frencb  part  of  tba 
said  ialand  of  St.  Christnpber,  and  which  at 
'  ibia  time  are,  or  hereafter  aball  be,  shipped 
'  off  from  tbence,  in  order  to  be  carried  lo  any 
'  Dlbei  port  or  place  whalsoeTer,  ore,  and  for 
'  ever  alttr  shall  be,  subject  and  tiablr,  and  the 
same  goods  and  commodities,  and  every  of 
'  them,  are  hereby  made  auhject  and  liable,  to 
'  Ihe  payment  of  tbe  afnressid  duties  and  cua- 
'  torn 9  uf  lour  pounds  and  half  a  pound  per 
'  cent,  in  specie,  lo  your  most  aacred  niaiesty, 
'  your  heirv  and  successors,  in  such  maimer 
'  and  sort  aa  Ihe  goods  and  commoililiei  of  the 
'  growtli  and  produce  of  Ihat  part  uf  tbe  said 
'  island  known  and  calle<l  hy  tbe  name  of  Ihe 
'  English  part  thereof,  have  beretotiire  and 
'  bilberio  been  subjecleil  and  linhle  unlo  by 
force  and  virtue  of  llie  aliovu  reriled  act  or 


15  GEORGE  III.  The  Case  of  the  Island  of  Grenada^         [S56 

*  pointed  :  that  is  to  my,  Qpwi  all  commodilktf 

*  of  the  growth  or  production  of  this  ialaiid  tbtt 
'  shall  be  shipped  oflTthe  same,  aball  bejpud  to 

<  our  soveretii^n  lord  the  kmgf,  hia  beirt  and 

<  miccessors  for  e? er,  four  and  a  half  in  ipccie 

*  for  every  [fiye]  score.' 
"  And  the  jurors  aforesaid,  upon  their  oaths 

aforesaid,  farther  say,  that  by  an  act  of  at*' 
sembly  of  the  islatMl  of  AMiffoa,  in  the  West 
Indies,  passed  io  the  said  island  on  the  19th 
of  May,  in  the  year  of  our  Lord  1668,  en-' 
titled,  '*  An  Act  for  the  settlement  of  the  cos-' 

*  toDi  or  duty  of  four  aad  a  half  per  eeot,'  it 
is,  anoooKBt  other  things,  recited  and  enacted' 
as  folloivs:  '  Whereas  by  reason  of  the  late 
'  unhappy  war  which  arose  betwixt  bit  royal 

<  nnjesty  Charles  the  second,  king  of  Great 

<  Britain,  Franoe,  and  Ireland,  dec.  and  the 

<  moot  Christian  kioff,  in  Prance,  as  wcM  ai' 
'  the  states  general  of  the  United  NetherlHds«' 

*  sereral  of  his  majesty  of  Great  Britain  hb 
'  territories  on  this  side  the  tropic,  became  mlK 

*  ject  (through  conquest)  unto  the  said  Frencli 

*  king  and  his  sabjects ;   and,  amongst  others, 

*  this  island  of  Antigua  also  waa  so  sohdeeii' 
'  by  Monsieur  de  Labarr,  lieutenant  general  bf 

*  sea  and  laad  to  the  said  French  king,  being  as- 

*  sisted  by  the  Cannibal  Indians ;  by  mcanr 
'  whereof  all  the  lands  within  this  island  be-' 

*  came  forfeited  unto  his  majesty,  &e.  as  bj  an 

*  act  of  this  country,  bearing  date  the  10th 

*  day  of  April  lant  past  (reference  being  there- 

*  onto  had)  may  more  at  large  appear.  Knoir 
*ye,  that  for  and  in  conmderation  of  newgrantr 
'  and  confirmation  of  our  said  Imids,  um&r  tto 

*  groat  seal  appointed  for  Barbadoes,  and  the 

*  rest  of  the  Carribbee  islands  bv  lits  exceHencj 

*  lord  Willoughhy  of  Farham,'(Sec.  we  do  give* 

*  and  grant  to  his  said  majesty,  his  heirs  and 

*  succesBom  for  erer,  and  most  humbly  desire 

*  your  excellency  to  accept  these  our  grants : 
'  and   we  do  humbly  pray  your  excellency 

*  that  it  may  be  enacted,  and  be  it  enacted,  by 

<  his  excellency  lord  Willougliby  of  Farhant' 
'  captain  general  and  chief  eni^mor  of  Bar- 

*  badoes,  and  the  rest  of  the  Carribbee  iaiandi, 

*  and  by  and  with  the  advice  and  cousent  of  the 

*  council,  and  gentlemen  of  the  assembly,  re-' 
'  presentatives  of  this  island,  and  by  tM  an- 

*  tiiority  of  the  same,  that  an  impost  or  enstem 

*  l)e,  from  and  after  the  publication   hereof, 

*  raised  upon  the  native  cooNnodities  of  this 

*  island,  after  the  proportion  and  in  manner 

*  and  fiirm  as  above  set  down,  that  is  to  say i 

*  u|ion  all  commodities  of  the  growth  or  pro- 

*  duction  of  this  island,  that  shall  be  shipped 

*  off  the  same,  shall  be  paid  to  our  sovetviga 

*  lord  the  king  his  heirs  and  successors  rar 

*  ever,  four  and  a  half  in  specie  for  every  five 
*8core.' 

**  And  the  jurors  aforesaid,  upon  their 
aforesaid,   farther  say,  that  a  cuatoB 
was  established  in  the  said  island  of  Ofif" 
and  proper  officers  aptninted  tiiiieiB 

«'  And  the  juren  afai— ^■' 
afofesaid,  fhratrsa-^ 


S55] 

««  And  the  jurors  aforesaid,  upon  their  oatiis 
aforesaid,  farther  say,  thai  by  an  act  of  assem- 
bly of  the  island  of  Nevis,  in  the  West  Indies, 
passed  in  the  said  island  in  the  year  of  our 
Lord  1664,  entitled,  *  An  Act  for  settling  an 

*  impost  on  tlie  commodities  of  the  growth  of 

*  this  island,'  it  ia,  amongst  other  things,  re- 
oited  and  enacted  aa  fbltows: 

<<  •  Wliereaa  our  late  sovcreij§^  lord  Charles 
«  the  1st,  of  blessed  memory,  d^,  by  his  letters 

*  patent  nnder  the  great  seal  of  England,  grant 
«  and  convev  unto  James,  earl  of  Carlisle,  and 

<  bis  heirs  ror  ever,  the  propriety  of  this  isUind 

<  of  Nevis ;  and  his  sacred  majeat^  that  now  is 

*  having  by  pnrchase  invested  himself  in  all 

*  the  rights  of  the  said  carl  of  Carlisle,  and  in 

<  all  other  rigfhta  which  any  other  person  may 

<  clahn  from  that  patent,  or  any  other,  and 
« thereby  more   immediately  hath    [having] 

*  taken  this  island  and  the  rest  of  the  Carribbee 

*  islands  into  his  royal  protection :  and  his  most 

*  excellent  majesty  having,  by  letters  patent 

<  under  the  great  seal  of  Mgland,  bearing  date 

*  the  19th  da^  of  June,  in  the  15th  year  of  hie 

*  reign,  appoinled  his  excellency  Francis,  k>rd 

<  Willoughby  of  Parbam,  captain  general  and 

<  chief  governor  of  Barbadoes,  and  the  rest  of 

<  the  Carribbee  islands,  with  foil  power  and 

*  aothority  to  irrant,  confirm,  and  assure  to  the 

<  inhabitantB  or  the  same,  and  their  h«rs  for 

*  ever,  alt  lands,  tenements,  and  hereditaments, 

*  under  his  majesty's  seal  appointed  for  Barba^- 

<  does,  and  the  rest  of  the  Carribbee  islands,  as, 

*  relatinn  being  thereunto  had,  may  and  doth 
'  more  at  large  appear. 

«*  *  And  whereas,  by  virtue  of  the  said  earl 
^  of  Carlisle's   patent,  divers  governors  and 

<  agents  have  been  sent  over  hither  with  ao- 

<  thority  to  lay  out,  set,  grant,  or  convey  in 

*  parcels  the  land  within  this  island,  to  such 

*  persona  as  they  should  think  fit,  which  was 

*  by  them,  in  thenr  respective  tinnes,  as  much 

<  as  in  tliem  lay,  accordingly  performed.  And 
«  whereas  many  have  loot  their  grants,  war- 
«  rants,  or  other  evidences  for  their  said  lands ; 

<  and  others,  by  reason  of  the  ignorance  of 
« those  timea,  want  sufficient  and  lawful  words 

*  to  create  iehcritanoes  in  them  and  their  heirs; 

<  and  otiiers  that  never  recorded  thehr  grants 

*  and  warrants ;  and  others  that  can  make  no 

<  proof  of  aay  grante  or  warrants  they  ever 

<  bad  for  their  lands,  and  yet  have  been  long 

*  and  quiet  possessors  of  the  same,  and  be- 

*  stowed  great  charv[es  thereon.  And  we  do 
«  humbly  pray  your  excellency  that  it  might 
'  be  enacted,  and  be  it  enacted,  by  his  exwl- 

*  lency  Francis,  lord  Willoughby  of  Parbam, 

*  captain  general  and  chief  governor  of  the 

<  islanil  of  Barbadoes,  and  the  rest  of  tlie  Car- 
«  ribbee  islands,  and  by  and  with  the  advice  and 

*  consent  of  the  council  and  gentlemen  of  the 

<  assembly,  representatives  of  this  island,  and 
«  by  the  authority  of  the  same,  that  an  impost 

<  or  custom  be.  from  and  after  the  publication 
«  hereof,  raised  upon  the  native  commodities  of 

*  tbia  isUnd,  afVer  the  pro|>ortion  and  in  manner 

*  and  form  as  is  hereafter  set  down  and  ap- 


&7] 


Campbell  9.  HidL 


A.  D.  1774. 


[95» 


Bhtaia,  oa  Ibe  third  day  of  March,  1763,  uur- 
chised  «  ccttain  plantaiion  in  the  said  island 
of  Grmada,  of  the  French  iohahitants,  in  pur- 
fuaoee  of  the  said  articles  of  capikulatioo,  and 
•f  the  said  treaty  of  peace,  as  many  other 
BhtUh  subjects  had  then,  and  since  have,  done. 

**  Aod  tlic  jurors  aforesaid,  a|)on  their  oaths 
Araaaid,  farther  say,  that  certain  sugars  of 
ike  phiatilTs,  and  of  the  growth  and  produce 
•f  the  said  island  of  Grenada,  and  made  from 
4*  Ike  itiaintifrs  said  plantation  there,  sulise- 
faeat  to  the  granting  and  registering  of  the 
UkJ  letters  patent  of  the  SOth  of  July,  1764, 
■ere  exported  from  thence.  And  Ithat  the 
■onici  IB  the  declaration  mentioned  to  he  had 
mi  reoeiferi  by  the  defendant  to  the  plaintifTs 
BR,  were  paid  to  and  received  by  the  said 
WiHiam  Hall,  in  the  said  island  of  Grenada, 
IS  afciesaiil,  as  and  fur  the  duly  oFl'our  and 
a  balf  per  cent,  imposed  by  the  said  letters 
ptratoi'  the  30th  of  July,  1764,  he,  the  said 
Williaa  liall,  being  then  aud  there  the  col- 
keior  ol*  the  said  duty,  for  the  use  of  his  ma- 
jcrty.  And  that  the  said  William  Hall  hath 
ist  paid  the  same  over  tu  the  use  of  his  ma- 
JM^  ;  but,  on  notice  ol  this  action  intended  to 
he  mvght,  hmh,  by  and  with  the  consent  of 
bis  tjfsty's  atlui  ney  general,  kept  the  same 
■  bia  bands,  for  the  purpose  of  trying  the 
^nrttisn  arising  upon  the  mcts ;  and  lor  which 
Ibis  action  is  bniusrht. 

**  But  whether  upon  the  whole  matter  afore- 
■ii,  found  by  the  said  jurors,  in  manner  afore- 
Hid,  ibi?  said  impost  or  custom  of  four  and 
•se  hall'  per  cent,  in  s|>ecie,  fur  and  upon  all 
kai  commodities  of  the  growth  or  produce 
rf  ibe  said  island  of  Grenada  shipped  off  for 
AssBine,  was  lawfully  imposed  or  not,  the  said 
jfltia  am  altogether  isnorani,  and  pray  the  ad* 
lise  of  the  Court  in  the  premisses. 

"  And  if,  upon  the  wliole  matter  afurcMid, 
lend  by  the  said  jurors,  in  manner  aforesaid, 
it  Aafl  appear  to  the  Court  here  that  the  said 
JBpaat  or  custom  of  four  and  a  half  per  cent. 
is  ipecie  of  and  upon  all  dead  commodities  of 
tW  growth  or  produce  of  the  said  island  of 
Gienada  shipped  off  from  the  same,  was  not 
bvfoUy  imposed,  then  the  said  jurors,  upon 
Ibeir  oaiha  say,  that  the  said  William  UaU  dkl 
mitttakm  and  promise,  in  nunner  and  form 
M  ibe  said  Alexander  Campbell,  by  his  said 
dsdaraiioo,  baib  declared  agaio*4  bim ;  and 
ibcy  8»eas  the  damages  of  tM  said  Alexander 
•a  that  occasion,  besides  bii  cntu  and  charges 
Isid  omt  b^  hiio  about  bis  suit  in  tKi«  behalf, 
Is  5/.  and  tor  such  c^ts  and  charges  40j. 

**  Bat  if,  uiKMi  the  » tio!e  ma  iter  found  by 
ibe  Mid  jurors,  it  ai^pe'^r  to  ihe  Court  here, 
that  Uie  said  impost  or  coii!orti  f^f  Vmu  and  a 
kaf  per  ceol.  in  specie  of  zui  opoo  all  dead 
of  the  ;;roiiih  or  cr^nltic?  ol  tbe 
of  Grenada,  SMip(*cd  off  from  the 
lawfuil%  imposed,  then  the  said 
tbcir'oaiba,  say,  that  the  said 
dfal  Bol  promise  and  ooderuke 
V  mdhtm  m  in  bis  pica aUcdgad." 


m 


This  came  was  first  argued  for  the  plaintiff 
by  Mr.  Alleyne,  upon  tlie  above  special  verdict, 
in  Easter  term,  1774,  in  substance  nearly  to 
the  effect  following. 

Mr.  dikyni^^My  lords,  if  the  wishes  of  go- 
vemment,  ur  professional  rank,  could  influenco 
the  decisions  of  this  tribunal,  1  should  now, 
considering  the  cause,  and  the  dignity  of  those 
advocalea  who  support  it  against  me,  adopt 
the  example  of  the  Roman  or^itor,  and  begin 
witli  recommending  my  client  to  tbe  grace  and 
protection  of  his  judges ;  but  experience  bar- 
ing taught  me  that  here  the  genuine  merits  of 
a  cause  are  the  judicial  guide,  1  gladly  follo«r 
the  practiee  of  an  English  court,  where  the 
laws  are  heard  by  their  own  recommendation ^ 
and  rise  in  humble  confidence,  of  counsel  witb 
the  nUiotiff,  who,  through  me,  aolicils  }'Ottr 
lordships'  justice  in  hio  behalf. 

This  long  expected  and  truly  interesting 
cause  now  comes  before  the  Court  upon  a  spe- 
cial verdict,  found  at  the  trial  of  the  general 
issue  before  your  lordship,  on  an  action  of 
*  indebitatus  assumpsit;*  nominally,  indeed, 
brought  for  the  recovery  of  an  inconsiderabi* 
sum  of  money ;  but  substantially,  to  take  tbo 
opinioo  of  your  lordships  upon  a  question  of  the 
first  magnitude.  The  verdict,  when  relieved 
from  tbe  embarrasament  of  form,  reaolvea  it- 
self into  tbe  following  case. 

The  conquest  of  the  island  of  Grenada,  in 
the  West  Indies,  was  one  among  the  mwny 
gk»rious  achievemeiita  of  tbe  last  war.  It  wao 
surrendered  to  the  troops  of  bis  Britannic  fDa* 
jesty,  under  general  Moocktoa,  on  tbe  7tb  of 
Pebroary,  1769. 

Tbe  articles  under  which  it  eapitnfaled  ac- 
knowledge the  inhabitants  from  thenceforth  as 
Brilish  subjects ;  require  them  to  uke  the  oath 
of  altegianoe,  as  a  redprocal  doty  resulting 
from  their  adoption  as  sucii ;  secure  to  them 
the  enjoyment  of  their  religion ;  assore  ibi-m 
of  protection,  in  tbe  same  manner  as  the  colo- 
nies receive  it ;  with  whom,  by  this  surrender, 
and  tbe  cenwquent  reception  into  the  privi- 
leges of  British  sulgeds,  they  are  placed  upon 
an  equal  foot  in  the  possession  of  the  common 
libertT ;  and  permit  them  to  dispose  of  their 
own  lands,  provided  it  be  to  Britirii  subjects. 

On  the  general  traaty  of  peace,  signed  at 
Pteis,  Fcbroary  the  lOtb,  1763,  this  island  was 
ceded  by  bis  Christian  nMJesty,  in  full  right, 
to  tbe  crown  of  England,  under  stipulations 
similar  to  those  on  which  tbe  province  of  Ca- 
nada waa  ceded ;  and  in  general  confirmatory 
of  the  articles  of  capitoUtion.  And  in  this 
irsaty  his  majesty  engages,  in  tbe  roost  ample 
manner,  for  the' free  exerdse  of  tbe  Koman 
Catholic  religion ;  aud  giv«s  hi«  French  sub- 
jects liberty  to  sell  their  goods  and  retire. 

On  tbe  7  th  of  October  foUowinir  hi«  majestyp 
to  make  gof^d,  in  the  fullest  manriir,  tiiow;  en- 
gagements, upon  the  faith  of  which  iIm  isUnd 
bad  surrendered,  and  to  p«rf«ir«  at  tbe  same 
liose  tbe  oonditioos  of  tbe  treaty  of  pf  a',  e,  bod 
fanhcr^  with  »  view  to  tbe  better  pesplin;  and 

8 


S59] 


15  GEORGE  IIL  The  Que  of  the  Island  qfGrenadi 


caltiffttingf  of  bis  said  island,  was  pleased  to 
issue  his  royal  proclamation,  inviting  nis  Britiiib 
subjects  to  colonize  in  his  new  acqnired  domi- 
nions, and,  as  an  encouragement,  assuring 
them  and  the  inhabitants  in  general  already 
there,  of  the  benefit  of  the  English  laws  and 
constitution :  and,  for  that  purpose,  declares  to 
this  efiect;  reciting  that  it  will  greatl;^  con- 
tribute to  the  speedF  settling  of  his  said  new 
gOTfrnments,  tnat  his  loving  subjects  should 
be  informed  of  his  paternal  care  tor  the  secu- 
rity of  those  in  their  liberties  and  properties 
who  were  or  should  become  inhabitants  there- 
of ;  and  farther,  for  the  effectuating  of  such 
intent,  **  We  have  thought  fit  to  publish  and 
declare  by  this  our  proclamation,  that  we 
have,  in  our  letters  patent  under  our  great 
seal  of  Great  Britain,  by  which  the  said  go- 
vernments are  constituted,  given  express  power 
and  direction  to  our  governors  of  our  said  co- 
lonies respectively,  that  so  soon  as  the  state 
and  circumstances  of  the  said  colonies  will 
admit,  they  shall,  with  the  advice  and  con- 
sent of  the  members  of  pur  council,  summon 
and  call  general  assemblies  within  the  said 
governments  respectively,  in  such  manner 
and  form  as  in  those  colonies  and  provinces 
in  America  which  are  under  our  immediate 
government'* 

Having  thus  declared  his  resolution  to  exe- 
cute the  engagement  in  their  favour  by  this 
first  step,  as  early  as  possible,  of  calling  as- 
semblies as  in  the  colonies  and  provinces  in 
America,  under  his  particular  protection,  and 
his  inclination  and  desire  to  manifest  his  pater- 
nal care  of  his  subjects ;  he  proceeds  to  shew 
the  extent  and  justness  of  the  accomplishment 
of  his  design,  by  a  full  and  particular  declara- 
tion of  the  nature,  powers  and  design  of  these 
assemblies  when  called,  by  adding :  *<  and  we 
have  also  given  power  to  the  said  governors, 
with  the  consent  of  our  said  councils  and  the 
representatives  of  the  people  so  to  be  sum- 
moned as  aforesaid,  to  make,  constitute  and 
appoint  laws,  statutes  and  ordinances,  for  the 
public  peace,  welfare  and  good  government  of 
our  said  colonies,  and  of  the  people  and  inha- 
bitants tliereof,  as  near  as  may  be  agreeable  to 
the  lawsof  Enghmd.**  Here  tfien  they  saw  the 
full  idea  of  their  becoming  British  subjects 
(which  they  became  at  the  surrender)  by  this 
clear  and  perfect  image  of  the  beauty,  order, 
and  freedom  of  the  British  constitution,  im- 
parted to  them,  and  declared  to  be  the  model 
and  foundation  of  their  own.  ' 

But  as  it  might  happen  that  this  benefit, 
thus  pledged  and  confirmed  to  them,  could  not 
be  immediately  communicated  in  its  full  ex- 
tent ;  his  majesty  provides  thos ;  **  in  the  mean 
time,  and  until  such  assemblies  can  be  called, 
all  persons  inhabiting,  or  resorting  to,  our  said 
colonies,  may  confide  in  our  royal  protection, 
for  the  enjoyment  of  the  benefit  of  the  laws  of 
our  realm  of  England.*'  So  that  the  enjoy- 
ment of  these  laws  was  to  anticipate  even  the 
calling  of  the  assemblies  $  which  was  not  to  be 
a  eoanaencemtat  jpf  Ihur  frtedooy  nor  of  their 


[9B0 

exercise  of  the  ri|^ts  of  Britisb  sokgecta,  nor 
of  their  participation  in  the  British  comtitu- 
tion;  but  one  act,  most  important  and  illus- 
trious indeed,  of  that  freedom,  those  rights, 
and  that  constitution  already  in  their  poi* 
session. 

And  it  is  material  to  conaider  what  is  the  firrt 
step  which  the  governor  is  to  take  upon  his  ar- 
rival in  the  island,  for  the  purpose  before  ex- 
pressed, of  giving  the  inhabitants  the  benefit  of 
the  laws  of  England.  It  follows  iromediatelyy 
'*  We  have  given  power  under  our  great  seal  to 
our  governors  of  our  said  colonies  respectively, 
to  erect  and  constitute,  with  the  advice  of  our 
said  councils  respectively,  courts  of  judicature, 
and  public  justice  within  our  said  colonies,  for 
the  hearing  and  determining  all  causes,  as  well 
criminal  and  civil,  according  to  law  and  equity  | 
and  as  near  as  may  be  agreeable  to  the  laws  of 
EngUnd." 

Here  then  the  laws  of  liberty  and  of  Eng- 
land are  enthroned  in  the  island  as  soon  as  ever 
the  delegate  of  the  executive  powers  arrives 
there,  and  he  is  sent  to  give  them  efled 
amongst  tliose  who  were  already  entitled  to 
them  as  British  subjects,  and  both  in  criminal 
and  civil  causes,  both  in  strict  law  and  liberal 
equity  ;  in  the  whole,  and  in  the  great  mem- 
bers and  distinguishing  distributions,  both  in 
the  objects  and  the  manner  of  spplying  them, 
the  laws  of  our  constitution,  the  laws  of  Eng- 
land are  to  prevail,  and,  as  near  as  may  be  con- 
sistent witli  local  circumstances,  are  to  bo  en- 
joyed as  the  general  privilege  of  British  sub- 
jects, there  as  bere. 

Conformably  to  these  repeated  acts,  and  in 
prosecution  of  the  same  intention,  on  the  S6lh 
of  March  1764,  a  second  proclaoMtion  was  in- 
sued  ;  having  the  same  object,  the  establishment 
of  the  colonies,  and  declaring  the  same  views 
already  wisely  adopted,  and  firmly  engaged  as 
to  the  means  of  attaining  and  perpetuating  that 
establishment ;  and  reciting  the  great  Mnefit 
which  will  arise  to  the  commerce  of  the  king- 
dom, and  to  his  majesty's  subjects  in  general, 
from  a  speedy  settlement  of  the  new  acquired 
islands,  of  which  this  of  Grenada  is  named  the 
first.  It  gives  directions  for  the  survey  of  thn 
lands,  the  distribution  into  districts  and  parisbeiy 
analogous  to  the  English  divisions,  the  cultuin 
of  the  various  produce  of  the  country,  the  ap- 
portionment of  the  ground  into  due  lots  Ibr  thnt 
purpose ;  and  in  general  recognizes  the  inhabi- 
tants as  his  majesty's  loving  subjects,  and  pro* 
vides  such  means  as  were  judged  expedient  for 
their  necessary  support  and  defence,  their  in- 
temal  order,  plenty  and  happiness,  previous  to 
the  completion  of  tbese  by  the  ei\)oyment  of  tho 
laws  of  England,  which,  as  they  bad  in  righ^ 
they  were  to  have  speedily  in  possession. 

In  further  prosecution  of  this  design  OD'IIm 
9th  of  April  1764,  his  majesty  was  pleased  io 
grant  his  royal  letters  patent  to  general  Mel- 
ville, constituting  him  captain-general  and  go- 
vernor of  the  new  islands,  Grenada,  the  Orean- 
dines,  Dominica,  St.  Vincent,  and  Tobago. 

Thii  patent  is  set  forth  verbatim  in  tho  rt^ 


Campbell  v.  Hall. 


»  10  uke  KDi]  BilmLoiiler  (be  oaths  of  allpsi- 
uw  kod  sunivroiicy ;  ^reii  outliority  to  tlie 
fiWBOT,  and  rwjuires  anJ  oomniinds  liiiu  to 
munoti  an  amemtily,  <lMcril>es  the  manlier  of 
teliMi  by   the  freehoUers,   and  Iha9  called 

a>rs  loiit  ur«pre»eniatiT«i;  and  (0);Hher 
lh«  |[«*mior  and  euuntil  lo  be  the  l^ia- 
hnMoflbecDutilfv,  and  lo  make  laws  aa  Dear 
n  poMiUe  to  tlie  [■»i  of  England,  nilh  the 
Mual  (iTOviuoa  lliat  ihey  shall  be  roid  if  nol 
aftawMl  by  hia  Rinjetly  within  a  limited  lime; 
m4  Iiarc4ty  ii  Aoatly  egUblishnl  in  Grenada  a 
I— ililiilioo.  JD  priocipk  and  form,  in  the  de- 
rifn  of  the  wbule,  in  tbe  dUpoaiuon  of  the 
pana,  in  Iheir  reapeclite  runclions  and  joint 
MMMioa*,  on  exact  epilomc  of  (be  Briliah 
Mm  oT  goTemmenl :  yrt  a  conatilxlioa  nol 
pNn  by  Iba  paleiil,  but  uiily  lu  be  put  in  full 

Hitb  ibese  pov/m  bis  excellency  airifed  in 
Grcsada,  and  innantly  took  upon  bimaetf  the 
itoil Jiti  alioD  nf  the  ifovernmenl  ;  and  in  obe- 
fiwM  to  hu  commitaioii  called  an  assetiihty 
mt  opened   the   scene   of   legislatioa  in   tbe 

tin  tbe  .'0th  ofJuly  17U4,  poileriorin  point 
af  dale  lo  thtte  prncruaMlioDB  and  this  patent, 
luaoHjnly  by  bis  letters  pnlenl  under  tbe  g-reat 
wal.  rrcilin|[  an  impnal  of  four  pounds  aud  a 
ball' (II  apecie  fur  every  hundred  wei){ht  of  the 
o^wxlilies  of  tbe  erowth  of  ihe  iatamt  uf  Bar- 
Ui»n.  and  of  the  Leeward  Carribliee  iilaBda. 
ui.l  aail  payable  lo  bis  majeily  and  ilia  siicces- 
'  rt ;  recitinic  tbe  cession  of  (he  island  uf  Gre- 
.li,  bbJ  that  it  is  reasonable  and  rxpedient 
ii  llie  hke  dultea  sbould  take  place  there  as 
Iba  oallfT  suicar  islands,  iberefore  in  lieu  nf 


A.  D.  1774. 


[S6S 


.loutirtbciaidisland  to  the  French,  on  guoda 

■ '  pmtil  and  tmpnried.  imposes  ihe  above  duty 

!  t-itfr  sikI  ■  balf  per  ceul.  and  requires  the 

••niMiT  and  oSicers  nf  the  customs  lo  raise, 

^ett,  a«il  receite  it  to  his  majesty's  use- 

riiaa   trltert  patent   were  July  registered 

lail  publicly  onnonnceil  by  his  excellency  the 

|*>(n«r  in  Jan.   1TA5.     A  rustom-hnuse  was 

mmitAt  officen  appointed  tu  act  ns  colleclora 

rf  lh»  CMloma,  ainou)^!  whom  the  defendant 

flaiiiill  tliaii  li  anil  II  linm  iii  1 1  ml  ofhisma- 
jan*a  M^i>cta,  imlucnt  by  ibe  royal  promises 
»|nfB*Ml]F  inade,  resorted  to  Grenada  and 
Wmw  pnrdiaaeni  of  lands  therein.  Amongat 
•e  firat  vf  whom  was  Alexunder  Campbell, 
praaeol  plaiuiifT;  whose  plonUtions 
,  and  he  wah  about  to  ship  off  his 
hr  islaml  of  Grenada  tu  the  Lon- 
nhrn  he  was  inlerrnpled  by  the 
I*  paymeni  of  tbe  im- 
■laled ;  ihe  jury  lind  he  jiaid  it, 
B  is  (be  money  on  which  the 
:  Ihe  verdict  concludes  ii 
d  liates  to  tlie  Court  i 
laor  Ibe  ca»e  tbe  impoat  be 


[Lord  ManiJiilJ  here  reminded  Mr.  At- 
leyne,  ihal  he  bad  oinitleil  Ihiit  part  of  tbarer- 
ilict  which  linds  (hat  the  money  is  retained  In 
tbe  bands  of  (he  delendani,  by  consent  of  (he 
Attorn ey-Geoernl,  in  order  tu  try  (he  right.  I 
only  menlioo  this,  bei/ause  o(her wise  you  could 
nni  have  had  yuur  action  against  a  custom 
officer  in  (his  form.] 

And  my  professional  duty  now  leads  me  l» 
contend,  (hat  it  was  not  competent  to  the  crown 
on  the  90lh  of  Jul^  1764.  the  day  on  which 
the  patent  fur  raising  (his  imposl  is  daipd,  to 
impiiae  a  periuanenl  tax,  as  this,  on  the  island 
of  Grenada — of  course  that  the  present  sum  in 
question  was  improperly  exacted ;  (he  money 
erroneously  paid,  or  at  leut  witbuni  any  legal 
obligation  to  pay  it ;  and  the  plelntifT  therefore 
entitled  to  yourlordship's  judgment. 

Aa  (bit  claim  is  founded  upon  a  suppositioD 
of  royal  prerogatiTe,  which  ought  (o  Itu  trealed 
with  deference  and  respect,  it  wilt  be  perhaps 
cunTenient-()iefore  1  make  an  essay  which  the 
importance  of  the  point  renders  an  anxious  one 
lo  me  of  discharging  that  duty)  to  delioe  what 
prerogslive  is,  that  1  may  be  understood  not  to 
make  any  exceptions  to  it  in  general ;  nor  to 
nrgue  B(^inst  a  high  and  beneficial  privilege 
of  the  crown,  and  as  1  apprellenil  beiieficisl  to 
the  people  in  wbnl  I  conMive  to  be  its  true  and 
proper  sense.  The  term  is  too  often  received 
wilii  indignant  jealousy  by  an  English  iiudi- 
ence  from  mistaken  notions  of  it,  which  wera 
formerly  entertained,  and  which  have  excited 
prejudices  surviving,  as  is  common,  the  par- 
ticular causes  which  gave  them  rise.  To  aiiti- 
cipele  any  such  misapprehensionf,  I  beg  leave 
to  offer  this  definition  of  prerogative,  in  which, 
I  trust,  I  shall  have  your  lordship's  support : 
Prerogative  is  that  portion  of  political  jiower, 
which  (lie  conslilution  has  iotrusieil  with  the 
crown  fiir  its  Diiii  and  the  publiu  honour  and 

There  are  a  few  facts  in  this  case  which  lire 
introduc(ory  to  the  direct  point  in  argument, 
and   those  tberel<>re  will   merit    a    particular 

First,  the  effect  of  the  proclamalion  of  Ihe 
7th  of  Oclol>er  t7<;3.  Tbe  substance  of  it  is, 
a  recitnl  of  the  benefit  naturally  mulling  lo 
the  Urilish  empire  from  a  system  of  coluniza* 
tioD  In  Grenada ;  and  in  order  to  invite  tbe  na- 
tural Bubjrcis  of  that  country,  on  whom  na- 
turally would  be  Ibe  first  depeodanci',  and  by 
whom  there  was  tbe  fairest  prospect  of  answer. 
ing  Ibis  desirable  end ; — lo  invite  them  to 
settle  there,  il  repeatedly  assures  them  thai  a 
CDOBtiliition  aa  aoon  as  possible  shall  be  fonurd 
in  exact  cuoformily  and  rcproentalioo  of  the 
Kiiglish  government;  whereby  all  powers  of 
slaie  Should  be  duly  distributed,  and  Iwlged  in 
hands  comjwtent  lo  execute  it  lo  tbe  frmloiii 
of  the  subject  and  the  security  of  the  infant 


*  Pneragaliva  eat  jua  regia  bonum  el 

quum,  in  decus  ct  tutamen  rrKoi,  t 

bonas  el  aniiquaa  populi  liberlatcs,  el 
glicaui  lp};es«t  cunsuctudinea. 


fiSSJ 


15  GEORGE  in.  The  Cate  ^ihe  ItUmd  of  Grenada^         [S64 


eolnny,  by  a  full  partici|mtiOD  of  O0r  wise  tnd 
adaiirable  comtatutian.  Then  follows  the  pro- 
claroatioD  of  the  S6th  of  March  J 764,  pottingf 
the  eouDtry  in  order,  and  pre|wrin^  the  face  of 
it  t(»  rejoice  as  it  were  in  the  laws  it  was  to  re- 
ceive :  tbeo  follows  the  patent  to  got emor  MeU 
tille,  with  an  imnediate  execution  of  these  en- 
f^gemenis^  in  part,  by  directinjf  him  to  con* 
stitute  courts  of  judicature,  for  the  administra- 
tion of  the  whole  internal  policy  of  the  country, 
as  near  as  possible  to  the  laws  of  fingiand ; 
and  to  call  assemblies  as  soon  after  as  was  pos- 
sible, in  the  very  effigies  of  the  English  oonsti- 
ttttion,  vith  the  same  powers,  and  to  the  same 
«nds  of  public  freedom,  order  and  happiness, 
and  of  uiaiittaining  a  similitude  between  the 
parent  state  and  the  colony. 

Hovr  wise,  how  politic  the  measure !  for  the 
•rown  st  tliat  time  conqueror  of  Grenade,  the 
eld  inhabitants  subjected  to  the  laws  of  con- 
quest, it  niijrht  naturally  be  presumed  that 
British  subjects  would  be  jealous  of  such  a 
power,  and  disinclined  to  settle  where,  under 
the  circumstances,  not  only  a  change  of  place, 
hut  a  change  of  political  relation  might  ensue. 
To  remove  these  suspicions,  if  any  yet  re- 
aaained — for  his  majesty,  both  by  the  terms 
voder  which  his  general  had  received  the  sur- 
render, and  by  the  stipulations  of  the  treaty  of 
peace,  had  given  assurances  of  better  things  to 
the  old  inhriMtants  themselves,  with  whom  he 
liad  been  at  war ;  and  had  wisely,  and  as  be- 
came the  honour  of  a  king  of  Great  Britain, 
disclaimed  to  govern  in  the  spirit  of  conquest 
when  he  haii  sheathed  the  swonl. — But  to  gure 
the  ftillest  satisfaction  to  the  inhabitanU  in  ge- 
neral, and  to  those  particularly  of  his  own  sub- 
jects who  should  be  inclined  to  settle,  the  pro- 
clamation declares  that  all  the  inhabitants  there, 
er  who  should  in  future  resort  thither,  should 
have  the  fnll  enjoyment  of  the  laws  of  Eng- 
land. This  construction  arises  from  the  true 
meaning  of  the  words,  if  any  words  of  our 
language  admit  a  definite  senne ;  it  appears 
fiwwarded  and  enforced  t^'  the  subsequent  acts 
just  now  slated.  And  the  necessary  effect  of  this 
great  and  solemn  inttnnnent  is  a  waiver  of  the 
rights  of  conquest,  whatever  they  were  betbre. 
"ay  the  proclamation  of  1703,  in  the  most  ex- 
plicit terms  a  recognition  is  made,  of  the  prac- 
Hcability  of  governing  tbis  island  of  Grenada 
by  the  laws  of  England,  and  a  receiving  of  this 
■ometinnc  oonqnest  as  sn  English  colony ;  and, 
until  I  hear  the  contrary,  a  short  argument 
shall  evince  it. 

A  constitution  is  promised ;  but  that  might 
be  a  work  of  time  to  complete  and  execute  in 
actual  operation.  In  the  mean  lime  however, 
oeiiris  of  jiidieatore  are  erected;  they  shall 
administer  justice,  and  the  measure  of  tbis  ju- 
dicial romtuct  shall  be  the  laws  of  England. 
Can  this  be  compatible  with  any  principle  of 
conquest  ?  Can  the  benefit  of  the  laws  of  Eng- 
land be  esjoyed,  without  laying  aside  the  go- 
vernment of  a  conqueror!  Certainly  not.  The 
strong  hand  of  power  enforece  the  lawft  of 
arms ;  the  peaceliil  voice  of  Uw;  secures  tha 
enjoyment  of  the  rightt  of  British  lubjecti. 


The  same  observations  will  bliew  that  the 
crown  held  it  neither  impracticable  nor  dan- 
gerous to  introduce  the  laws  of  England*  and 
ettaUish  freedom  in  this  conquered  country. 

From  the  whole  1  argue,  that  the  inhabitaste 
of  Grenada  were  considered  aa  a  colony  an- 
nexed to  the  crown  vOf  England,  and  not  to  be 
governed  by  the  laws  of  conquest ;  but  on  a 
plan  similar  to  that  which  issues  firom  the  cobb- 
mon  centre,  and  pervades  the  whole  lyatem  of 
oor  American  settlements. 

If  this  be  granted,  and  I  see  not  how  it  eaii 
be  questional,  consistently  with  facts,  I  then 
conclude  by  direct  and  necessary  inferenees 
from  premisses  which  I  think  clear  and  mieaiH 
trovertible,  that  every  constitutional  right  of 
the  British  subject  neeeesarily  belong  to 
them;  they  were  entitled  to  call  upon  the 
crown  to  secure  those  rights,  and  were  compe- 
tent by  every  legal  means  to  defend  tboaa 
rights. 

Of  course  the  crown  could  assome  no  legia* 
lative  power  over  them ;  could  impose  no  pef^ 
manent  tax ;  for  taxation  at  least  requires  wtt 
act  of  legislation.  These  observational  wbiek 
would  allresnlt,  and  I  should  think  irreaistiUy, 
from  the  single  proclamation  of  the  7th  of  Oio- 
tober  1763,  receive  additional  force  from  tha 
second  proclamation,  and  from  the  patent  ta 
Mr.  Melville,  which  shew  the  same  opinkm  ift 
the  royal  mind,  the  same  purpose,  the  saoM 
idea,  and  repeat  the  same  assurancea  to  tha 
subject ;  and,  if  it  were  possible  to  make  thcoi 
clearer  or  more  certain,  they  would  have  that 
effect:  however,  at  least  they  cannot  weafcea 
wfcMit  was  dear  and  certain  betbre ;  they  woald 
strengthen  it,  if  it  bad  need  of  strength. 

From  them  we  get  to  the  exact  point  of  the 
argument,  *'  Whether  the  crown,  on  the  20tk 
of  July  1764,  possessed  a  legislative  authority 
over  the  island  of  Grenada  ?" 

The  technical  learning  of  Westminster- haN 
can  give  but  little  assistance  in  the  investiga- 
tion of  this  question.  The  great  principles  of 
the  law  of  empire  must  determine  it ;  to  which 
the  political  history  of  EngUbd  atfords  particu- 
lar illustrations. 

This  course  I  shall  pursue,  and,  as  I  prqpecd, 
shall  glean  up  the  learning  to  be  found  m  tha 
books;  from  which  progress,  I  trust,  1  shall 
safely  draw  that  conclusion,  which  fomss  the 
ground  whereon  my  client  now  stands  hoping^ 
success,  and  I  trust,  not  hoping  it  in  vain; 
since  1  hope  to  prove  he  has  on  his  behalf  the 
most  powerful  advocate,  and  most  preeailun^ 
in  this  court,  justice  and  right. 

The  principles  of  the  law  of  empire  are 
fbunded  in  the  social  nature  of  man. — As  na»* 
tural  law  is  derived  4rom  natural  coiinectioDS  | 
so  political  law  is  derived  from  social  eonaee^ 
tions.  That  considers  him  as  a  creature  as  ha 
came  from  bis  mother^s  hand ;  this  as  a  mem- 
ber of  society  paying  obedience  to  the  laws  af 
his  community,  and  reciprocally  deriving  pm- 
tectinn  fVon  them. 

Fron  hence  arises  one  inoontestable  princi* 

Kle— -so  long  as  he  pays  due  obedience  le  tha 
tWy  so  long  he  if  entiued  to  ita  eecurity ;  prd^ 


_>CampbeUv.  liaU. 

BMiS  pltce  where  ilie*)i«rci«e 

■elicaliie  ;  iriieiuil  lilo  imliim 

~  ■  liireign  Btnle,  tlie  iniiulcipal 

^^_  -ii  cuUDiiy  being  uot  tb«  mea- 

mMip^^^  cnuiluct  lliere,  |>rulecliuii  Tiir 

0e  M  tiit|icnii«il,  ji  tnlermila  uiilil  liii 

If  l»«  nrtatt  to  a  coitnlry  newly  acqiiireil  b; 
mt,  Lkanqtt  by  biiuwn  slale  i  thvru.  il'  the 
MWMitj  lit  lUtaUie  rvfjuirra  tbaltucli  cntio- 
Vj  ba  irotmird  by  more  ri)[ar<ii>i  mcnni,  be 
■ol  luimit  tu  tbKTii ;  bul  it'  be  reiort  to  a 
MMly  lUKMiereil  cnuDlry  or  coluay  ;  aixl  setlle 
lUra  im^ar  Uw  luapice*  of  the  mollivr  stair, 
ibwathsUwi  oriiis  original  country  still  affbrri 
ibtK  firolcdian,  di  far  n*  amy  be  agreeable  to 
ihiMalcirciinMlincesuf  iliui  country  to  wbicb 
h*  hw  wtireil  ;  anil  Mill  are  the  measure  nl' 
bs  civil  oobiluct:  ibe  >!xecutive  mtKistrate 
Aill  ffaiii*  B  cvnslilution  I'nr  bim  to  secure  bis 
Unb-riglii.  wilberery  atii»enilBgeol'  hisBacienl 


A.  D.  m*. 


[SCO 


TM*  ntcwBrily  Itillows  from  ibe  priociple  1 
fifM  rr«ir°**^!~""'  il  is  lordly  neceasary  10 
MMM  lo  ma  aulhorily  where  reasun  ia  so  clear ; 
jet,  I  am  b«i>py  to  refer  to  Ibe  illuilrious 
■BBS  of  Vailell,  and  fond  of  lhi»  occasion  of 
iBHrtiaiMOK  It  nilh  dewrved  Teneration,  arid  [ 
itft  u  i*  c««uud,  tf  I  ioilutge  Lbe  plessure  of 
•muag  biiD,  with  Bome  rsnity  periiapt,  ivben 
I  liBJmy  nalHin*  i^fraccil  by  his  autburily.  la 
i  I0b«««.  B.  1.  Yoiir  lordship  will  find  bim 
'  ,tnmmt[  biniself  in  thfie  tvnrds,  >■  When  a 
:i^ii  lakn  pntsrsKiun  of  a  distant  country 
1 1  U4lk*  a  cnliuiy  there,  tbat  eciuntry. 
'  "ititb  acparaled  Iroin  (lie  principal  eatablisb- 
--(it  or  mnlU'r  coiiulry,  nBtiirally  beoiiues 
fiaX  of  the  sinic,  equally  with  ita  ancient 
J  —I  isiiim  Wliriieter  llit>relare  tbe  polili- 
id  Uw«,  or  trentirii,  make  no  diitiDClioD 
U*««»  them,  rirtry  ibiiif;  snld  of  the  ter- 
avry  uf  a  oatiun  uiigbl  bIbo  to  extend  to  its 

U  ihmfcre  the  political  laws  areco-exlen< 
■sa«)ibibB  leriilor^nflbe  slate,  buwever  dii' 
iriaad  m  Sf«cv,  aa  this  excellent  anihor  decides 
tiy  an.  Hies  every  MmslilntianBl  right  of  the 
N^satt  of  llial  «(au>  is  cu-eMenBive  with  il« 
tvfiliiry  ;  the  funilainenljil  .laws  of  the  stale 
weCfMlly  SB,  and  personal  liberty  and  private 
ym*HJ  alike  uni*en>Klly  protected. 

TUa  n«r««Brily  r<.ll<iv*g  IVom  his  general 
pailiasi ;  liM,  tliaui^b  I  illnstme  my  ar^n- 
■iHlky  tb»  ifuutaiiun.  1  da  not  vhelier  myself 
miu  aay  IkireiKn  auttiurity  t  oor  merely  iiDiler 
■■baviiy  <•(  whaleier  growth :  I  anpeal  to  tbe 
bubs  of  rvBsun.  llmt  a  cbaD|;e  nl  pince  can 
■star  merrly  as  such  nuerate  a  foriciture  of 
wipmt  Metal  riiibiB.  Truv,  a*  I  bate  befnre 
mi,  H  may  timn  iitnri  ■.i.iienrl  ilir-  enjuymeni 


Let  iisnaw,  la  close  tbis  part  of  the  argu- 
ment, hear  lbe  leifal  suihoriliet  nf  our  own 
country.  We  shall  And  tbe  ([eneral  learDinf 
of  tVeiiiniiiBter<hall  miocide  nitli  tbie  tlirory. 

In  Blankard  and  Guldy.  aSalk.4i1,  lonl 
Holt,  chief  justice  (says  llie  reporter,]  and  lbe 
nhule  court  wilb  him,  held  lliiis  : 

1st,  It)  case  of  an  uniuhubited  coDatry 
newly  found  out  by  Enelish  sulijecls  ;  all  laws 
in  force  in  England  ore  in  force  there. 

8d,    JnmBica    being    cnni tiered,    and    not 

fdeuded  to  be  parcel  of  tbe  kingdom  of  Eog. 
and  i  the  laws  of  Englaud  did  mil  take  place 
there,  until  declared  so  by  lbe  «ouquerar  oc  bit 


Tbe  lirst  |ioint  ekpreialy  maintaius  lite  prepo- 
sition of  Vattelt,  and  his  inijegty  has  |iui  Gre- 
nada in  express  lerma  uimn  the  same  fiioting; 
with  "  tbe  other  colooieaj"  therefore  all  the 
laws  of  EngliLnd  (ao  tar  as  is  aiireeBble  lo  that 
island)  are  in  force  t  lie  re. 

But  further  ai  a  cooquer«d  counirv,  the 
conqueror  has  declared  that  lbe  iuhanilaola 
of  Grenada  sh.ll  enjoy  the  laws  and  cimstitlt- 
lion  of  Euglanil,  which  biiiiga  il  within   the 

Aereeuble  In  tbis  is  h  hat  is  rrporied  by  Ifi* 
RiBBierDrihemtlsina  P.  W.  TS,  ofadetermU 
nation  before  llic  Ling  in  council,  upon  ao  ap- 
ueal  frota  the  forci);ii  plaotatiana,  that  iftber* 
he  a  new  and  uninhabited  country  fnuiid  out  bj 
Enjflish  Bubjeels,  as  lbe  law  is  lbe  blrili-righl 
of  every  aubject,  so  wherever  ihey  i;o  they 
carry  their  law*  tvitli  Ihem ;  and  Iherefore 
such  new  furtned  country  is  lu  be  goverocil  by 
the  laws  nf  England,  then  in  being  wlieo  thej 
first  sen  led. 

As  tn  lbe  second  point,  it  goes  Id  be  sure  on 
too  large  a  gruuml,  in  supposing  cnnqiiesi  giiea 
a  prufietly  to  the  conqueror  iu  lbe  people  coO' 

This  principle  is  liken  up  by  .Mr.  Justice 
BlacksloueinhisCominrnliU'ies.wbuallnwsthe 
doctrine,  and  lbe  exceptions  lo  it  which  ha 
niabes  in  i^oeral  are  such  as  result  from  the 
inconTeiiieneei  which  wuuM  tall  on  the  cutoay, 
from  a  general  adopliuu  of  the  laws  of  the 

Every  day's  experience  before  tbe  council 
warrants  this  principle :  tbe  laws  of  descent 
•nd  nf  all  real  properly  are  current  in  Ireland, 
and  iu  every  plantation ;  in  every  part  of  the 
empire.  By  what  law  ?  By  none  posilive 
there ;  but  as  a  oecessBry  miiseqneaDe  of  ihe 
Guaniry  heiiiir  a  pan  of  the  Briliiib  empire. 

If  ihis  Ik  ho,  what  was  the  sittiBtinii  of  Mr. 
Campliell  and  his  countrymen  nt  and  prior  lo 
the  30lh  of  Joly  17(1*?  Tbej  were  Bntiih 
nib|eetB;  they  wore  aeit led  in  n  new  acqnisi- 
lion  :  the  laws  of  En|j;1and  were  practicable 
amoi)G:al  ihf^m ;  no  peculiar  circiiinstances  of 
policy  required  tbe  suBpension  of  ibeui.  His 
inajeaiy,  ilie  sHprtme  eteoutive  ma^'lsirste  of 
Ihe  slale,  nompeUnl  li  decide  nn  the  propriety 
of  inlrodiicini;  the  Ibwi  of  En{{1and  inio  Gre- 
nada, ba^deolared  Such  propriety  ;  has  intro^ 
duccd  thetii.   Then,  by  ueccMory  c«aiMiu«Dce, 


S67] 


15  GEORGE  ill.  The  Case  of  the  Island  of  Grenada^         [268 


tbey  were  entitled  to  them ;  they  wanted  no 
other  act  to  ffi?e  it  to  them  ;  and  Mr.  Alelville 
was  only  to  hasten  in  the  performance  of  this 
duty,  tu  pat  their  constitution  in  act,  and  se- 
cure their  rig^hts. 

■  By  what  mode  of  reasoniniB^  then  am  I  to 
learn  that  his  majesty  had  at  this  time  a  legis- 
lative authority  o?er  the  island  of  Grenada? 
To  make  temporary  regfulations  on  a  sudden 
UDtil  all  was  finished,  was  the  extent  of  his 
prerogative ;  to  impose  a  permanent  tax  was, 
as  I  submit,  illegal. 

This  argument,  foonded  on  the  evidence  of 
facts,  anticipates,  1  tliiok,  every  objection  that 
the  patent  to  Mr.  Melville  was  executory.  It 
is  agaiost  the  words,  against  the  spirit,  agaiost 
the  great  end  of  the  proclamations  to  suppose 
it  was.  The  Court  will  not  give  such  a  nar- 
row and  forced  construction  to  a  public  grant,* 
founded  on  the  most  liberal  and  wisest  princi- 
ples of  policy,  and  upon  which  numbers  of 
British  subjects  have  fixed  their  settlement,  in 
confidence  of  all  the  rights  of  freedom  in  a 
country  so  remote;  a  construction  ill  adapted 
to  its  terms,  to  its  plain  scope,  and  to  the  ma- 
nifest reason  of  the  thing,  if  it  had  been  a  fprant 
not  to  a  nation  at  large,  not  to  British  subjects, 
to  Englishmen,  invit^  to  settle  for  the  eocrease 
of  commerce,  but  to  a  single  private  individual 
under  any  circumstances.  Will  the  Court  in- 
tend that  it  was  the  design  of  the  crown  that 
British  subjects.  Englishmen,  should  be  called 
to  cross  the  Atlantic  by  tlie  royal  voice  itself 
under  such  assurances,  and  when  they  arrive 
find  their  hopes  dependant  on  a  future  discre- 
tionary possiMe  grant  ?  It  is  sufiicient  for  me 
to  say,  by  the  patent,  and  by  the  proclamation 
of  the  Sdlh  of  October,  nay,  bv  the  verj^  terras 
of  surrender  and  the  general  treaty  of  peace, 
the  inhabitants  are  recognized  as  British  sub- 
jects: the  laws  of  England  are  recognized  as 
practicable  and  beneficial  to  the  island,  those 
who  were  there  and  those  who  should  allerwards 
resort  there  are  promised  the  enjoyment  of 
them.  From  that  admission,  this  mutual  con- 
tract, and  these  acts  of  the  crown,  1  draw  my 
argument,  and  thence  derive  the  rights  of  the 
colony  to  the  full  benefit  of  the  English  laws 
and  constitution. 

And  now,  my  lords,  from  the  consideration 
of  the  case  in  the  general  view  of  political 
theory,  and  from  such  authority  as  eminent 
writers  and  the  decisions  of  our  courts  of  law 
fornish  more  directly  to  the  point,  I  proceed  to 
the  review  of  the  history  of  this  country ;  and 
I  trust,  that  the  account  I  shall  give  your  lord- 
ship of  our  several  acquisitions  by  conquest  or 
colonization  (in  which  latter  conquest  with  us, 
as  with  antient  Rome,  hath  always  terminatetl) 
will  abundantly  prove  the  antiquity  and  uni- 
formity of  my  general  argument. 

*  It  seems  that  in  public  grants,  the  rule  of 
the  civil  law  holds,  which  says—**  Beneficium 
impcratoris  quiLm  plenissiro^  interpreuri  debe- 
mpa,"  thoogn  our  law  adopts  the  OQiitrary  in 
private  grautt. 


I  have  spared  no  pains  to  infomi  myself  of 
the  history  of  these  transactions ;  and,  after  a 
tliligent  research  through  the  writings  of  Dr. 
Leiand  in  his  history  of  Ireland ;  of  sir  Joha 
Davies  in  his  discoveries,  and  the  case  of  Ta- 
nistr^  in  bis  reports;  of  Dr.  Harris  in  his  Hi- 
bemia ;  and  of  Mr.  Molyneux  in  bis  contest 
with  Mr.  Carey ;  and  lastly  of  the  noble  his- 
torian of  the  age  of  H.  3 ;  I  trust  I  am  war- 
ranted in  the  principal  facts  and  conclosioM  I 
have  to  offer  concerning  the  history  of  the  ac- 
quisition of  Ireland. 

1  shall  not  refer  to  the  books  by  pages,  ex- 
cept that  in  sir  John  Davies's  reports,  I  would 
wish  particularly  to  submit  to  your  lordship's 
notice  the  d7th  page  B. 

Ireland,  when  Henry  3  first  ascended  the 
throne  of  this  kingdom,  (1154)  was  divided  into 
many  small  states,  and  was  subject  to  all  thoae 
evils  and  convulsions  which  distract  aavage, 
unpolicied,  and  divided,  countries. 

bermot  king  of  Leinster,  being  driven  from 
the  throne  by  his  rebellious  subjects,  solicited 
the  assistance  of  H.  S,  who,  covering  his  am- 
bition under  the  supposed  sanction  of  the  papal 
autlioritv,*  and  taking  the  conquest  of  Ireland 
to  be  a  desirable  object,  readily  permitted  cer- 
tain of  his  subjects,  with  earl  Strongbow  at 
their  head,  to  land  in  Ireland,  and  to  engage  in 
the  enterfirize  on  behalf  of  Dermot 

Tbe  stipulations  were— in  case  of  victofy 
Dermot  was  to  be  restored ;  and  in  return  a 
grant  of  lands  was  to  be  made  to  the  English 
subjects. 

The  event  was  prosperous ;  the  terms  on  th* 
part  of  Dermot  were  fulfilled. 

King  Henry  went  over,  and  extending  tbo 
conquest  became  possessed  of  a  great  part  of 
the  south-east  of  Ireland. 

The  natives  whom  he  subdued  he  ruled 
with  the  rod  of  empire,  communicating,  as  ho 
thought  fit,  certain  privileges,  and  withholding 
others ;  and  making,  as  he  judged  necsessarj, 
certain  regulations :  but  those  of  his  siitgects 
whom  he  found  settled  there,  he  recognized  as 
such ;  of  tliese  he  demands  tbe  perTormance  of 
the  feodal  services  ;  nnd,  as  a  necessary  conse- 
quence uf  their  being  subject  to  the  obligations 
of  those  laws  of  England  which  were  in  fores 
at  their  becoming  a  colony,  the  laws  of  Eng- 
land diflused  their  protectiou  over  the  colonists ; 
and  he  proceeds  to  sixiire  the  benefits  of  those 
laws  by  perfecting  their  constitution,  and  form* 
ing  their  government  with  every  appendage  of 
English  |)olicy.  We  see  biro  dividing  tho 
country  into  counties,  establishing  sheriff^ 
erectinsf  courts  of  judicature,  corporations  and 
general  assemblies. 

This  account  surely    furnishes  an  antieoi 

*  From  Pope  Adrian  the  4th,  whose  nanno 
before  his  accession  to  the  see  was  Nicholas 
Breakspear,  and  he  himself  was  an  Eiigiiab- 
roan.  The'  letter  authorizing  II.  2  to  conqocr 
Ireland,  and  bring  it  to  the  obedience  of  Ht. 
Peter,  is  a  very  curious  one ;  it  is  dated  1 154t 
and  may  be  seen  in  lovd  Lyttelton's  history. 


CampbfU  V.  Hall. 
iaBUnce  tu  my  general  atgu- 

itlawKOTEDglotiil  arc  romninnicateil  M 
_^_       •iftllie  oomiuerrtl  iiMiveii   liut   result 
■  ike  Engluh  ColimialA  on  ■  iiecHSmry  couse- 

rM;"  lUii  poipl  i(  RiDst  eliburntely  lUicnsseil 
l>r.  UI>D<(,  >lML<l«t  by  -iir  J'lho  Du*iei  in 
ir  ;  and  •doptcil  in  Ihe  manner  I  alale  it 
i  Hale,  Willi  remarks  tbat  the  cnlonits  uf 
naiM,  iilatiled  iu  cunquered  Rauoirie», 
1  the  Itomao  law  ;  anil  Inkei  it  a»  ul' 
r,  not  a««i^^■nt(  any  reasiin  tur  it  or  ex- 
''  ;  llie  reason  ite'mg  initee^l 

i  of  the  Ihintf.  But  lie 
Ipia  large  explanilluni  how  cDii<|iiernl  cuun- 
irin  ■■■;  have  Ui«ir  la»a  clian^eil. 

1  uniu  tlie  s'eat  aiilliority  ot   Iniil  Hale  ilnes 

Mt  ■rem  Id  agree  willi  me  on  llie  wlinle  in  lhi« 

Mcvtinl  III'  the  eslalilishment  of  the  English 

la*  iH  IrtUnit,  in  the  book  jntt  qiioieii ;  anil  I 

am  aware  too  lliat  this  nccaunl  i:<  materinlly 

MercDi  rmm  wtial  lunl  Cake  lays  iluwn  in  his 

111  luliiiiie*  141,  b.  and  in  Caltin'a  case  7 

Ota.  at  if  lliey  were  PaUbliBhed  by  kini,'  Jubn, 

lui  hia  aoD  ilenry  ;),  and,  I'urlher,  Here  lint 

<hr  eBra  nf  rolonivalion. 

Tha*irikini;tliderpnreeiig«i;ei]  metolrare 

.'   •object   minniely ;    anil    la   ihe    learned 

■  -I'fra  whom  I  have  l'>llowe<l,  hnd  accet*  in 

-.  ircbi*es  of  the  city  o(  Dublin,  and  kpent 

I  irh  lime  in  oery  means  of  inlomijIiaD,  1 

^r  la  r«llnw  ihein,  aa  luy  leaders,  in  a  pulnt 

'!i:tHKy  which  they  had  made  itiesuhji'ci  of 

-II  particular  atlcniiou,  rather  than  tlie  ^reat 

Tiie  ttibaeqiteiit  liiilory  is  as  fulliiws— and 
-I,  b^  t.UliDg^,Bbew  bow  lord  Coke  fell  into 
>■  moulie  ;  tbr  tuch  with  delercnce  I  must 
ari  ii ;    aud  such  the  taclB,  I  think,  prnte  it  lo 

1>«  ban  om.  9,  bcin;;  ton  much  negtecled 
i^  ibe  intercourse  lieiween  the  English  eo- 
ktj  attil  tUe  native  Irish,  iho  Utter  obKlinately 
b^  frf  thai  lend  ciHlom,  ns  it  is  valle<J, 
fcBichoci  law.  nr  which  there  is  much  aaiil 
e  (4^  Taniatry  already  cited  :  and  this 
rtititit  icround  in  the  Engtish  eelabliili. 
'"  ""  '  .1  necessary  in  tUff  reign  of 
a  prDcl-tmatiDn,  cnmmandioK 
:  of  Ihe  laws  ol'  England  to 
ibjrcta ;  and  king  John  hiuiself 
r  t«  Ireland  to  infnrce  obedieni-e  lu 
And  king  H.  Ihe  3d,  hix  tnn,  speaking 
•f  ka*  faib«-  aa  havini;  '■  ordiiiied  and  coin- 
is  lord  Coke  Uket  it,  hot  I  think 
iMeally  with  history  ■'  settled  and 
d  Iba  ofaaervance*'  of  ihe  laws  of  Eiig- 
Imd,  (thick  bad  been  already  eslablished.  The 
laur  dl>4  by  loni  Coke,* front  whence  in^ 
ihi  m  )|aMal,  sayi  king  John  reduced  them 
^twnung.snd  at  tbe  Jnatanceof  the  Irish. 
Idrtni  natural  to  aduiil  this,  wilhont  iiiji- 
-vM  *Mber  that  kinij  John  was  the  original 
^Ddnof  titovr  laws  in  Ireland,  or  that  ihey 
•««  MB  Ant  ibcrx  in  GuniiefiuFnce  of  coloniza' 
'  K.  Tbatv  waa  *rry  little  stalulc  law  at  thai 
k;  ami  ilmiglit  be  thaujfhl  aiUisable  by 


A.  D.  im.  Cfipfl 

the  ■dminislralioo  here  nt  that  time  M  divert 
ommon  law  of  England  into  writing,  the 
heller  to  atuid  confonuding  it  with  the  Brehun 
law  ;  and  probably  at  ihe  request  not  only  of 
the  English  coloniats,  but  uf  the  wiser  and 
f  moderale  part  of  ihe  Irish  who  had  per- 
nl  its  excellence.  But  however  fond  kiag 
John  or  his  son  roiglil  lie,  lo  suppose,  that  king 
John  himself  was  the  founder  of  these  laws, 
(though  I  think  it  dues  not  appear  that  either 
have  asserted  so  innob]  ihere  is  no  grounj 
from  facts  lo  deny  this  honour  lo  king  Henry 
llie  seconri ;  but,  I  think,  abundant  to  the  con- 
trary ;  and  at  Ihe  same  lime  I  think  there  is  ihe 
atroDgest  evidence  from  facts  and  reason,  not 
without  support  from  the  express  declaraiiun  of 
great  autboritie*,  lo  prove  that  Ihey  were  ori- 
ginally introduced  not  by  conquesl,  but  aa 
ighiB  attendant  on  British  subjects  settlings 
here  as  a  colooy. 

What  it  staled  to  have  hMo  dune  by  king 
John,  atiil  is  taken  by  lord  Coke  as  llie  iwluU 
geni  act  of  that  king,  commuDicaling  the 
of  England  to  Ihe  Irish,  I  take  il  was  no 
!  than  a  proclamation  enforcing  obedience 
lo  the  laws  already  established  ;  a  prerogative 
'"-e  crnwn  may  exercise  this  day  at  London. 

Indeed  the  seltlement  which  he  restored  wa< 
fnrllier  improved  under  king  John's  reign,  auit 

ilarged  in  point  of  territory. 

The  same  policy  prevailed  in  the  subsequent 
reigns,  and  weflodking  Edwsrd  the  tirsl  sum- 
moning members  10  the  British  parliament  in 
the  third  year  of  bin  reign,  for  the  purpoae  of 
taxing  the  colony.  We  tSnd  wrila  returnable 
into  this  court,  the  Aula  Regis,  and  in  every 
instance  limilar  protection  and  latvs  to  lh« 
English  and  Irish  Bubjecls. 

No  instance  more  similar  lo  the  present  case 
of  Grenada  can  be  cnoceived :  and,  surely,  the 
IMlitius  of  a  crown  infinitely  more  ardent  to  ex- 
ttiiid  its  prerogative  Ihnn  the  presenl  liiues  will 
alluw,shall  not  surpass,  in  alfording  proteclion 
to  Ihe  subjects,  the  laws  of  this  day. 

The  next  instance  we  Rnd  iu  our  political 
history  is  that  of  Wales:  from  it  I  shall  derive 
strong  argument  in  support  of  my  general  pro- 
|ioailion :  and  in  this  1  am  yet  farther  satisQed 
that  1  proceed  upon  solid  ground,  as  1  fiud  Ihe 
result  of  my  enquiries  to  iiuadrale  with  Ihe 
opinion  of  the  Court,  delitered  in  the  case  of 
Ihe  king  aud  Cowle. 

King  Edward  Ibe  first  laid  claim  to  Wales, 
as  bis  leodal  principality.  The  priuce  refusing 
tu  acknnwlodge  bim,  he  treated  him  aa  hia  ^ 
rebellions  vassal,  reduccil  the  country  by  arms, 
caused  the  prince  lo  be  punished  as  a  irsilor, 
and  took  upon   himself  the  immediate  soie- 

He  subjects  them  by  arms;  but,  whaterer 
was  the  real  right,  bavin v  subdued  them,  ha 
recognizes  Ihein  as  his  iu1>je«Ii  (he  could  not, 
indeed,  do  olherwiie  upon  ibe  principle  which 
he  professed,  of  reclaiming  Wales  as  a  feoila- 
lory  Slate,  and  declaring  it,  as  he  dm-i  in  the 
13lh  yfar  of  his  reign,  lo  have  been  bel'ura 
subject  to  hint  of  feudal  right);  '  - 


S71] 


15  GF,ORG£  III.  The  Case  qfthe  Island  of  Grenada^         [278 


eatm  to  tbeni  the  Uvrs  of  Eogland,  and  takes 
every  measure  to  secure  to  them  the  benefit  of 
the  enjoyment  of  those  laws. 

The  hintnry  iiself  of  those  times  (many  va- 
luable collections  of  which  are  to  he  found  in 
Kymer's  Fesdera)  proves  his  conduct  towards 
Wales  not  to  have  been  as  iu  ri^ht  of  a  ecu  • 
queror  indulj^eotly  benefiting  his  subjects,  but 
as  the  act  of  the  feodat  sovereign,  and  at  the 
same  time  supreme  executive  magistrate  of 
Ibis  country,  securing  to  his  subjects  tliat  pro- 
tection which  was  their  due,  in  return  for  their 
feodal  homage  and  services,  and  securing  it 
by  a  communication  of  the  laws  and  consti- 
Uition  of  England,  Gonsi<iering  Wales  as 
ipndcr  the  general  comprehension  of  the  Bri- 
tish empire. 

Pursuing  his  magnanimous  design,  of 
uniting  all  the  adjacent  countries  to  the  realm 
of  England,  he  next  turned  bis  thoughts  to 
Scotland :  and  the  history  of  the  town  of  Ber- 
vick,  80  fully  developed  by  your  lordship  in 
the  case  already  cited,  warrants  the  like  obser- 
^▼ation  as  on  Wales.  He  claimed  Scotland  ex- 
'presaly  as  sovereign  lord  of  the  iief,  and  go- 
verned it  as  a  part  of  the  great  general  fief, 
the  British  empire. 

The  reign  of  Edward  the  third  next  fur- 
aishes  matter  of  a  similar  nature ;  and  the 
ever  memorable  treaty  of  Bretigny  gave  that 
prince  an  opportunity  of  extending  his  empire 
upon  principles  whidi  hail  animated  and  di^ 
rected  his  fore -runners. 

1  have  not  been  less  assiduous  in  examining 
the  springs  of  his  government  over  these  coiu- 
tries  which  were  thus  ceded  to  him. 

I  have  pursued  this  enquiry  chiefly  thrnngfb 
Rymcr's  Foedera,  in  which  are  preserveil  all  the 
stale  papers  from  the  treaty  of  Bretigny,  re- 
specting the  conduct  of  king  Edward  towards 
his  dominions  scquired  from  the  crown  of 
France;  and  from  them  it  appears  most 
strikingly  how  uniform  he  was  in  following 
those  principles  of  government,  which  had 
been  pursued  by  his  predecessors  Henry  the 
SCeoDil  and  Edward  the  first. 

Permit  me,  however,  in  ibis  place,  to  men- 
tion the  sources  from  vhende  1  extract  the 
t»i«iory  f  am  about  to  give.  Besides  Hymer, 
O^E^res Jouruals ;  Notitia Pariiamentarii,  Co. 
4  lust-  title  Calais,  ilie  year  book,  20  U.  6,  1 
R.  3,  and  Rot  Pari.  50 'E.  S. 

Asa  preliminary  observation,  I  would  beg 
of  your  lordship  to  remember,  that  by  much 
t|ie  greater  part  of  the  couoUry,  thus  ceded  to 
l^iog  Edwsnl,  was  dsimal  By  hiss  under  a  very 
4«ff^reBt  title  from  that  of  an  appendage  to  the 
crown  of  England. 

So  much  as  he  claimed  as  in  foreign  right, 
this  be  erected  in|o  a  principality,  and  ooaferred 
it  upon  his  illuslrious  son  Edward  the  black 
prince,  by  the  title  of  prince  of  Aquitaine.  I'o 
this,  which  was  much  the  graater  part,  he 
communicated  a  isonatitution  totally  diffisrent  in 
forvi  end  pdneiple  from  tbe  English  gnvem* 
menl,  allowing  unboundsd  powers  af  sovereign* 
tjr  t9  bis  ipiii  ami  wck  m.Uisl  English  nadon 


could  not  have  borne  :  but  as  these  countries 
were  c'aimed  by  the  king,  as  duke  of  Noi^ 
mandy,  heir  to  tne  house  of  Anjou,  and  lo  the 
crown  of  France,  through  his  mother,*  this 
nation  did  not  concern  itself  what  powers  he 
assumed,  with  regard  to  the  countries  wbieh 
he  did  nut  hold  or  claim  to  hold  as  part  of  tlie 
realm  of  England  ;  as  the  feodal  sovereign  of 
those  he  acted  agreeably  to  their  laws,  and  to 
the  flowers  wliicli  they  allowed  their  prince ; 
the  subjects  of  this  country  had  uo  right  to 
interfere. 

But  wiih  regard  to  Calais  the  case  was  dif- 
ferent: Calais  he  had  conquered  as  king  of 
England ;  and,  having  turned  the  former  in* 
habitants  out  of  their  possession,  be  invites  his 
own  subjects  of  England  to  colonize  therein. 

Herein  we  find  every  principle  of  lair 
adopted  ;  the  inhabitants  participating  in  every 
security  the  English  constitution  afibrds :  writs 
of  error  returnable  into  this  court ;  members 
representing  the  people  of  Calais  in  the  Eng- 
lish parliament. 

How  striking  is  this  distinciion !  Over  coun- 
tries obtained  by  conquest,  and  claimed  by  a 
diflferent  title  from  that  of  king  of  England,  he 
exercises  an  authority  according  lo  the  title  he 
claimed,  very  different  from  the  authority  of  a 
king  of  England :  over  the  countries  acquired  to 
the  crown  of  England,  and  inhabited  by  English 
subjects,  be  claims  to  himself  no  utbt-r  power 
than  the  lawful  prerogative  of  a  king  of  Eng- 
land. 

This  lively  distinction,  first  adopted  by  H« 
9,  and  continued  by  H.  3,  at  this  time  prevails 
between  any  American  plantation  and  the  elec- 
torate of  Hanover.  T»  the  furiner  all  preroga- 
tive writs  will  run,  as  to  the  counties  palatine 
of  Chester  and  Durham  ;  over  the  latter  what 
power  has  your  lordship,  the  great  seal,  or  the 
|)arliament? 

The  history  of  this  country,  then,  as  to  the 
political  government  of  the  lands  ceded  by  the 
treaty  of  Bretigny,  joined  with  the  last  obser- 
vation res|iecting  Hanover,  furnishes  additional 
iiroof  to  those  of  Ireland,  Wales,  and  Scot- 
land, already  mentioned,  and  encrejises  the 
weight  of  evidence  from  the  experience  of  the 
nation  corroborating  this  argument  in  a  series 
of  ages. 

Hitherto,  my  lord,  I  have  endeavoured  to  pe- 
netrate pretty  far  ^o  the  ancient  history  of 
En(rland,to  wbksh  ffi  nature  of  the  question  di- 
rected me,  as  it  depends  on  the  law  of  empire, 
evidenced  by  historical  facts  ;  and  as  uo  evi- 
deucc  of  this  occurred  to  me  so  pro|ier  and 
unexceptionable  on  this  oocabion  as  the  history 
of  our  nation,  in  which  I  purjiose  to  advance  a 
step  farther  yet :  tind  here  a  modern  edifice 
presents  itKcIf  to  view,  murh  worthy  of  obser- 
vatk>o,  not  only  for  the  beauty  and  order  of  its 

*  Who  was  sister  to  Charies  le  Beau,  and 
upon  Edward's  construction  of  the  Salique  law, 
as  excluding  females,  hut  not  the  descendants  eT 
femsles,  be  wss  entitled  by  descent  thr 
his  SMlher  Isabel  to  the  crown  of  Franoe. 


Campita  «. ;/»». 


A.  D.  1774. 


[27* 


>,  mi  the  RtiRlDE;  of  it 
nujoflic  fsbrie  ol'  our  own  aoclei 
hot  iMrticulacI;  ujiod 


■  Oirae  (o  the 
It  constitution, 
nnn ;  becaune 
FsrifctK  an  «xiininntion  of  it  trill 
(Mirilmte  moch,  iri  am  not  Jeceived,  to  a  clear 
AMranienl  of  (liemmli'irilie  preaent  Cbqbc: 
OcgbiMt  (o  which  I  atn  alluding  is  the  Ame- 


re  totally 

Utrent  from  nliat  i?  meant  by  llie  same 
wida  wlim  apiilird  lo  Bnnlanil,  the  JurainioD 
rflhe  Kn»a.  The  Americans  have  been  cou- 
"ifcrnil  *»  a  penple  of  a  itiffeTent  |>olilica1  !i[ie- 
dn  rmcn  fW  Eu^li«h  ;  an<l  have  been  calteil 
malsrea  of  tlie  hing.  Their  rights  have  been 
Mid  (■  baTc  been  derifeit  from  their  cliuripi-s ; 
•od  H  ia  pruluble  the  misapprehension  of  this 
(•nicitlar  has  produced  this*ery  cause.  Since 
it  IS  the  tnt  in  which  the  principles  of  colony 
Iwr  bate  been  integtigTiieil,  it  is  my  duty  to 
NMe  Iboae  priDoiplea  tery  minutely,  ami  en- 
tatwM  lo  rescue  them  from  ni' 


Tu  4o  ihia  I  n 


t  beg  leate  tu  draw  your 
0  one  great  leading  con- 
»)•)  principle.     The  crnno  by  ita   prc- 
'^;«m  may  execute  any  plan  whereby   the 
b»»  wf  tbe  country  mny  be  prumulgated  ,or 
—c .     luicated    or  tecured    to    the 


t  only  may,  bnt  it  is  a 
InMh  of  Ihe  cxecntlre  trust. 

pMnded  on  this  principle,  Ihe  right  of  i*- 
•SH^;  pfiidamstiuns,  of  incur poratine  bodies 
•■"Oic,  fflr  the  purposes  of  municipal  jiiriidlC' 
'  J,  neciinit  tribunals,  and  constiiulhig-coun- 

1  palatine,  may  strike  your  laidshijia ;  and 
•-uinlj,  UD  ihli  principle,  Ihe  Ainerican  con- 
MaUuiM  hate  been  tetlled. 

There  ia  not  a  single  clause  in  any  charter 
HkA  oan  itnpugn  ihia  idea ;  bui  etery  part  of 
Ihn  bold*  out  Ihe  most  conclusive  etideiice  of 
Mr  hmofc  legvl  acis  of  (irero^atite,  for  ihe 
WKfrnm  Dt  wcnrin^  conaiiiuiiiinst  ri);hls  lo  our 
tahwmfajeeuintlistanlpartsor  the  empire. 

n*  diarten  do  not  define  richla,  nor  esia- 
Uhk  tarn,  nor  gite  any  other  direcliona  than 
— ilj  for  the  formal  estalliahment  of  an  in- 
knm\  l«|[i«lature  and  tfuveroment. 

Why,  ibcD.  shall  il  he  argiiol  that  Ihe  rights 
•T  liie  ndooiea  are  emanatiuns  of  Ihe  royal 
hwnly?  Nol  a  aiogle  constitutiMinl  riKhlia 
piDMd  by  charier;  andyeleTfryconslitutionat 
dfbl  ■■  B4(ftiii«d  to  be  the  birth-right  of  the 
AOMvieaiM.  Tbe  idea  of  the  contrary  is  ion 
fcitolaaa  to  be  arracd  in  this  place ;  and  jwr- 
kapa  lay  c«nteQ<iiiig  against  it  was  therefore 


bi  gcnrral  I  coocluile,  and  propose  it  ai  a 
pW  coDMiHtttDDal  truth,  that  (he  American 
Aartera  aail  paleitti  are  accommodated  to  pro- 
■SM  Ibe  aMmuT  rjghia  of  tbe  colnnisls,  and 
sat  u  cwnrey  ll)u>e  rights,  as  dependent  on 
"  "  ♦»,  and  drn*ati*«  from  them. 
rMoica  in  America,  il  i«  wHI  honnn, 
r  a  Ihivafold  description  ;  firal,  pi'o- 
-^ — f  n  i:*i:aiis>lTaiiii>  aad  Mary 


lani);  aeconil,  charter  goternments,  oi  the 
Massachosers  hay  ;  third,  provincial  ealabliiih- 
menls,  as  Carolina  and  most  olUera.  In  ori- 
ginnl  principle  the  government  is  in  nil  the 
same,  though  somewhat  different  in  exlemal 

The  first  sort  nay  bs  assimilated  to  coun- 
ties jialaiiue,  the  second  lo  muoicipal  corpora- 
tions, the  ihird  sort  are  a  speclrs  by  theintclves, 
as  10  their  external  conalitnlion  ;  nil,  however, 
flnw  from  Ihe  principle  I  stateil ;  all  u:nd  to 
secure  lo  the  Biihjecl  the  eDJoymenl  of  the 
laws  of  Ensland  ;  all,  in  the  very  nattire  of 
their  estahlishinents,  shew  that  the  rights  of 
the  culonim  (;re  inherent  and  innate,  uot  deii- 
fative,  or  communicated  bv  charter. 

But  here  I  expect  I  shall  be  told  that  the 
clearest  a rif  omen t  uosaiblc  will  rebut  me.  The 
objection,  if  it  shall  be  made,  has  ilie  sound  of 
something  material,  and  therefore,  rather  than 
to  be  thought  either  to  have  overlooked  it,  or 
to  hare  leaml  ii  more  than  I  can  persuade  my- 
self I  ought,  I  will  now  oficr  to  meet  it. 

It  is  certain  thotin  the  early  charters  grant- 
ed to  America  tbe  king  re«erTes  to  himself  nn 
appeal  to  him  in  council,  in  the  Inst  resort; 
and  frnra  hence  the  ultimate  judicature  haa 
been  usually  understood  to  be  in  the  king  per- 
sonally, anil  not  as  in  right  of  the  crown  of 
England,  nor  through  bia  courts,  as  to  Brilith 
subjects.  From  tins  circumstance,  I  suppose, 
it  will  he  contended  that  the  king  is  sovereign 
uf  America,  not  as  king  of  England,  but  per- 
sonally ;  and  ihe  colonies  are  nut  governeit  hy 
taws  like  Ireland,  Wales,  and  Berwick,  derived 
to  the  inhabilanls  In  consequencs  of  their  being 
subjects  of  Ihe  British  empire;  hut  are  like 
to  Jersey  and  Guerosey,  which  belong  to  ihe 
king,  and  not  to  the  crown.  Uence  the  ar- 
gument would  be,  that  all  the  colonies  of  Ame- 
rica are  dependent  on  the  king,  not  as  bead  of 
the  general  coustUiition,  but  la  ■  very  diAerent 
relation,  and  my  general  principle  would  ba 
EDO  eh  a  fleeted. 

To  obviate  all  Ibis,  I  need  only  desire  it  la 
be  remembered  tbnt  such  a  circumstance  can- 
not alter  cnnstitulional  law,  or  the  priodplfa  of 
the  law  of  empire  ;  not  even  if  it  stood  clear 
and  unimpeaoliMl  by  that  which  I  coni^eiTs 
will  most  completely  reprobate  it,  the  extreme 
art  with  which  it  was  introduced  into  Ibe 
charters,  aud  the  pretajliog  [Htlicy  uf  Ihe  limea 
when  it  waafiral  conceived;  I  mean  ibepolicy 
ofkiog  James  the  first. 

The  first  charter  was  granted  In  tbe  Vir- 
ginian advenlurera,  in  which  this  reservation 
does  unt  appear.  In  nil  ihe  other  chartvrs  it 
certainly  does;  andihisis»wing,  I  apprehend, 
to  ibe  extreme  anxiety  of  Jainea,  wliose  fa- 
vourite idea  it  was,  from  tlie  Brat  moment  in 
whieb  he  ascended  the  Ihmne,  lo  consider  every 
part  of  tlie  British  empire,  not  immediately 
within  Ihe  Bctual  limits  nf  England  in  respect 
of  local  rituation,  ao  holden  of  biinielf.  and  nut 
a*  coiuponeot  meinliers  of  otie  great  enipire,  at 
Ihe  head  of  which  he  stood  as  Novereigo,  in 
light  of  tbe  crown  uf  England,  therein  directly 


B75J 


15  GEORGE  III.  The  Coie  of  the  Island  of  Grenada—         [S76 


invertinijf  the  priociples  and  practice  of  H.  8', 
E<l.  1,  £tl.  3,  and  other  princes,  bis  prede- 
cesKors. 

To  prove  this  there  we  many  remarkahle 
passag^es  in  the  history  of  those  tinies.  The 
iirst  is  mentioned  by  lord  Vaughan,  as  being 
communicated  to  him  by  the  f^at  Mr.  Selden. 

Kinf(  James  asked  Mr.  Selden,  whether  Ire- 
land {mi  that  time,  as  your  lordships  know,  the 
subject  of  much  political  speculatbn)  might  not 
be  considered  as  belonging  to  him  personally, 
as  the  heir  of  the  conqueror  thereof;  that  the 
lauds  therein  might  be  taken  to  be  his  own, 
and  the  Irish  themselves  as  subjugated  to  the 
laws  of  conquest,  and  of  course  not  entitled  to 
the  rights  of  Englishmen,  nor  to  be  considered 
as  mennbers  of  the  same  community,  but  de> 
pendent  on  his  will,  and  beliolden  to  his  in- 
dulgence? 

filr.  Selden's  opinioD  will  be  mentioned  by- 
and-by:  it  is  not  reported  in  Vaughan,  but 
that  learned  judge  himself  there  decides 
against  the  king ;  **  That  it  cannot  be  reasona- 
ble to  make  the  superiority  only  of  the  king 
and  not  of  the  crown  of  England."  In  the 
case  of  process  into  Wales  my  lord  Vaughan 
uses  this  expression ;  and  adds,  the  practice 
has  always  been  accordingly,  as,  says  he,  is 
familiarly  known  by  reversal  or  affirmance  of 
judgments  given  in  the  King's -bench  in  Ireland 
m  the  King's  bench  here ;  which,  he  con- 
tinues, is  enough  to  prove  the  law  to  be  so  ia 
other  subordinate  dommions. 

And  in  the  case  of  Craw  and  Ramsay,  it  is 
decided  that  Ireland  and  the  plantations  are 
holden  of  the  crown  as  the  sovereign  of  the 
British  empire ;  and  the  like  distinction  which 
I  took  before  between  Anjou  and  Calais  is  made 
by  the  lord  chief  justice.  The  same  case  is 
reported  io  Ventrts. 

But,  to  return  to  kin^  James :  another  re- 
markable anecdote  of  his  notions  of  govern- 
ment, to  the  same  point,  is  to  be  found  in  the 
Journals  of  the  House  of  Commons.  It  occurs 
ID  many  places,  but  particularly  in  the  Journal 
oftheS5th  of  April  1621. 

A  bill  was  brought  into  parliament  for  the 
liberty  of  a  free  fishery  on  the  banks  of  Ame- 
rica, at  that  time  in  general  called  Newfound- 
iand. 

Government  seemed  extremely  unwilling  to 
sufler  parliament  to  meddle.  Says  Mr.  Secre- 
tary—I  take  it  from  the  Journals—"  What 
ha? e  we  to  do  with  America  ?  They  are  planta- 
tions ;  they  belong  to  the  king.''  But  good 
old  sir  Edward  Coke,  Mr.  Selden,  Mr.  Brooke, 
and  other  great  men,  reply  indignantly.  What ! 
when  the  king  grants  letters  patent  to  them 
under  the  great  seal,  arc  they  not  part  of  the 
empire,  and  shall  not  we  intrrfere  ? 

These  observations  shew  the  prevailing 
policy  of  those  times.  And  are  we,  then,  to 
wonder  that  the  right  of  ultimate  judicature 
shoohl  be  claimed  by  the  king,  and  that  he 
should  artfully  introduce  into  charters  a  reser- 
vation of  it.  A  reservation  indeed  superfluous, 
if  there  bad  been  such  a  right  ia  the  king  per- 


sonally ;  and  of  no  effect,  if  there  was  no  such 
right ;  for  then  the  reservation  could  not  create 
it,  contrary  to  the  princi files  of  the  constitu- 
tion. '  Heservatio,  ut  et  protestatio,  non  facit 
<ju8sed  tuetur/  We  see  what  Mr.  Selden, 
what  the  parliament  at  that  time  thought  of  it; 
what  lord  Vaughan  afterwards ;  what  the  prac- 
tice of  some  of  the  greatest  antecedent  kings ; 
what  the  doctrine  of  the  books ;  what  the  ex- 
perience of  nations;  what  the  testimony  of 
ages  ;  what  reason  itself  speaks ;  all  concur* 
ring  that  all  the  parts  of  the  British  empire  are 
under  one  constitution,  and  have  all  the  rights 
and  immunities  which  result  from  that  consti- 
tution. The  intri^es,  therefore,  of  king 
James  must  not  weigh  against  natural  reason, 
political  theory,  legal  auuiority,  and  the  prin- 
ciples of  the  constitution.  *  Nemini  licet  quod 
*  non  per  leges  licet.'  The  gentlemen  who 
first  went  to  the  American  settlements,  in  ages 
when  the  principles  of  political  theory  were 
scarcely  known  to  the  most  refined,  might  not 
foresee  the  tendency  of,  and  therefore  might 
unwittingly  submit  to,  this  claim  of  king  James. 
But  on  any  consideration,  knowingly  or  nn- 
knowingly,  they  could  make  no  concession  to 
the  prejudice  not  only  of  their  own  constitution^ 
but  withitof  oura. 

If  ever  that  question,  of  the  relevancy  of  a 
writ  of  error  from  any  settlement  of  the  western 
world,  shall  come  iuto  litigation  in  this  coart, 
and  it  should  fall  to  my  lot  to  argue  it,  I  hope  1 
shall  then  know  my  duty,  and  what  to  say 
upon  it  I  hope  I  shall  prove  that  the  juris* 
diction  of  the  king  in  council,  as  the  ultimate 
judicature,  is  unconstitutional  and  void ;  but  if 
the  experience  of  a  century  and  a  half  shall 
be  then  held  to  outweigh  arguments  founded  ia 
principle,  your  lordships  will  say,  **  The  expe* 
rience  supports  though  the  principle  denies  it,'* 
and  will  take  care  that  neither  iheu  nor  now  it 
shall  be  carried  farther,  and  argue  from  a  peca- 
liar  judicial  authority,  upon  whatever  ground, 
supported  however  by  precedent  if  supported, 
to  a  legislative  authority  supported  by  no  pre- 
cedents ;  and,  i  beg  leave  to  submit,  not  war- 
ranted by  the  principles  of  the  constitution. 
To  meet,  however,  the  conclusion  which  might 
be  attempted  to  be  drawn  from  this  claim  of 
ultimate  judicature  in  council,  I  have  been 
drawn  insensibly  into  this  length  of  discus- 
sion— The  occasion  must  l>e  my  apology. 

I  return  now  to  conclude  with  the  immediate 
point  before  the  Court.  And  in  this,  on  what- 
ever ground  I  consider  this  cause,  whether  in 
the  general  view  of  reason  and  experience,  tba 
opinion  of  eminent  writers  of  foreign  nations  ; 
the  learning  of  our  books;  the  principles  of  the 
law  of  empire ;  the  history  and  experience  of 
this  country  for  ages ;  \i  ht-ther  as  to  this  par- 
ticular islaud  of  GrcnaUft,  on  the  terms  ot^be 
surrender,  the  treaty  of  pt>ace,  or  more  especi- 
ally the  proclamations  and  patenU;  whethar 
on  thegnpat  principles  of  our  constitution,  or 
the  principles  of  natural  justice  and  equity  ; 
on  all,  on  any,  on  every  ground  I  draw  tnia 
condustODf  that  on  the  30th  of  July,  1764,  bit 


CampheU  f.  HaU. 

*«•  »ae  cotitlEd,  by  Ihe  prero- 
n  uf  Eugland,  to  impute  llie 
■  liatf  per  cent,  in  inanner 
I  in  the  decUralion,  ailmitted 
>  pica,  anJ  tiiuiid  liy  ihe  *er- 
h  bdag  an  acl  of  IrgnlalioD,  and  re- 
it  10  Ihe  nrinciplea  nl'  tiial  pjTernmcni  to 
li  tUe  inb*trilaiiu  or  iliat  islaad  vtm  ai 
ime  entitled,  aud  wbicb  heloozed  parti- 
Mlariy  tu  Mr.  CampttFll,  llie  plaintiff,  a  nalii- 
ni  bnrn  «ul>i«et  of  llie  crown  at  Grral  Britain, 
bead  *»  and  dticlared  by  Ibe  verdict,  and  was 
hi  by  nerj  rigbt,  secured  to  biin  by  every 

AdJ  while  1  have  ibas  ciatended  for,  and,  1 
In^,  eaiahtiiiliwl  my  ulient'»  interest,  I  further 
tria  lliat  Ibis  Eeneral  revien.  of  oof  coi 
tiMi.aatlprihcliiitary  uf  ourroiinlry,  en 
bj  Ihe  riecixiun  of  Ihis  court,  will  n-arra 
m  Myli>e  "^  Britatn  what  tbe  Itoman 
.1—  of  Rome:    ■  AIi>b  natit 

Ml;  pnpali  [tumuDi  propria libertas.' 
"^lip,  Ota. 

for  the  dEfendant.— Tlie  ques- 

•pecial  verdict  is,  whether  the  I m- 

n  of  lour  and  a  half  upon  the  ex- 

kland,  in  the  luanner  found  by  ttie 

was,  noder  the  circumsTiinces  in  which 

Wand  thmatuod,  at  the  nine  of  the  impost, 

iDtl  legally  imposed  by  the  crown,   or 

Mr,  Alley na  not  hniio^  f^one  intotbe  dispute 
Jlbcauthorily  and  pieroualive  of  the  crown 
ti  any  lime  to  niake  procUuiatioDR,  but  exa- 
■raioit  ■!>«  natare  of  this,  and  contending'  that, 
■teUtver  mi^hl  be  the  atate  of  the  liland  before 
feN  period,  it  wai  iocoinpeleiit  to  the  king 
^^  thai  time  to  give  any  laws  whatever  to 
4r  aUifl  of  Grenada,  (for  if  any,  there  ii  no 
<>«bt  of  lasalioo)  this  has  relieved  me  from 
hjM)r  brfore  your  lordihipa  the  righu  of  a 
W(  of  ihia  country  over  a  cuuquered  country. 

What  ilt'ne  righti  are  is  a  principle  nnl  only 
if  lb*  law  of  natioiia,  hut  has  been  recDgiiized 
vtatcvrr  it  came  under  consideration,  even  by 
tkc  joilii«>  of  ihia  country  ;  by  acts  of  slate, 
•n4  biBiiDriao* ;  and,  in  one  great  inttance,  de- 
fiari  by  all  the  judges.  In  Calvin's  cnse  it  is 
rnaifalxed  that  the  rights  of  conquest  do  be- 
)<«K  t"  'ti*  ('■"K-  *"''  t''^  rights  of  con- 
^otal  arr  in  titat  casu  extended  farther  than  I 
»i>h  they  sliuuld  be  iioderslood ;  but  thus 
much,  1  like  II,  they  neceuarily  give,  a  legis- 
liL:!!' authiHily.      It  is   ool  now  as   formerly, 

""  !:ain  oiptives  and  •la*ei, 

..."II,  but  now  the  conqueror 

>ii,  under  due  reslrictinns. 

■■  ■.'■■<  .•.'•  hfl  acquires  subjects.  Not 
>  ^i^riTij.  '>  111  i^'hmIs,  but  an  authority,  as 
■'a  BMO,  (uaMMiftbie  and  still  IVre. 

Tbt  «Ai^  of  ib«  l«Uen  patent  is  not  to  alter 
ik*  <ifliMnm  of  Ibe  iaiasd :  it  is  only  (n  raise 
iTlaiB  4utir«  laiavd  tbera  by  Ibe  French  king, 
•lAataA  lo  iba  kin)^  of  Enfflsnil  by  the  island 
•I  Baibajoea  mai  iba  other  Lesward  iilaDds ; 
*a  dw  w^  tbn^;  u,  ihu  ii  dune  July,  ItM, 


fSTS 


Lord  Munififld.  It  vtat  oiler  the  proclai 
matiun  nnd  l^Dmr^i«sian  ;  fur,  I  Ihink,  the  pfrti 
claination  was  in UcUiber,  l;G3;  llie  cnmmis- 
sioi)  in  Ajiril,  1764  }  aud  this  is  iu  July :  ao  it 
is  after  Uith. 

Mr.  Wallace  continued— The  patent  is  r, 
ritd  not  by  the  governor.  At  the  time  lie  take* 
upon  him  ihe  office  of  garenior  he  promuiges 
ibis  lax :  hi*  tirst  uffice  as  governor  is  lu  p 
mulge  it.  Now  the  question  is,  whether  tha 
liiniCi  bylhis]iroclaiiiaii<m.  niGnnt  immediBiely 
In  waive  llie  ri|/hls  he  had  as  conqueror  of  the 
island,  or  nt  a  lulurc  perioil,  when  Ihe  flute  r— * 
circumstances  uf  Ihe  iiland  would  admit  o 
legislature:  when  that  would  be  was  very  i 
cerlaia.  In  fact,  it  does  not  appear  that  tb« 
tirst  assembly  met  earlier  than  Ihe  latter  end 
of  Ihe  year  1763,  (about  a  year  and  a  half 
from  the  date  uf  llie  letters  paieni)  nor  does 
the  rerdicl  find  that  nn  asstiuhly  could  hav* 
met  sooner. 

The  proclamation  begins  with  a  general  di- 
rection lo  his  majnty's  four  governments,  hy    ' 
nameofauebec.  Enst  Fbrida.  West  Florida, 
and  Grenada.     Then  the  assvmhiy  of  Greuada, 
as  10  that  part  of  the  pniclamaliiin  upon  wbicU 
this  case  turns,  is  to  meet  "  as  soon  ns  the  Nlata 
of  the  island  will  admit," 
ible  Ihut  in  tilt!  mean  while  ihff 
king  meant  to  divest  bimself  of  his  right  of 
tegislalinof  There  is  no  such  denlaraiion;  ills 
'  nposiible  there  can  be  such  a  constructtun. 
If  the  king  hnd    not  coiilinued  a  right  of 
laking  laws  before  the  period  of  their  having 
legislature  of  ibeir  owu,  who  was  the  legis- 
lator i*     Here  is  no  relinquishmeni  on  ibe  part 
of  the  crown  in  the  mean  while ;  but  when  ua 
assembly  meels,  the  crown,  will  bnud  orcr  iha 
iwers  of  legislation  to  that  assembly. 
It  is  necessary  in  these  disiinci  countries  lo 
provide  legislative  constitutions  within  them- 
'  when  circumsiances  will  aduiit;  ihey 

be  govemeil  by  ordinances 'iir  acts  of 
ent  made  fur  all  cases  and  inslances 
whatever.  The  best  judges  wbal  laws  ara 
nrcestary  and  proper  for  the  peave,  tranquJU 
lily,  and  gnoil  order  of  the  island,  are  the  jiep. 
sons  locally  resident  (  thereliire  it  is  necessary 
some  legislature  uf  this  kind  should  be  exta- 
■"  '  A:  hot  till  II  be,  of  necessity,  every  order 
king  must  be  observed  by  the  governor 
aud  ihe  jieuple. 

But  Mr.  Alleyne  has  said  the  king  hns  wairei) 
the  right  of  iwioquesi.  by  inlroducmg  court*  of 
Judicature  ;  ami  that  it  is  a  part  nl  the  benefit 
uf  Ihe  ihtroduclioDoflhe  laws  of  England,  ihnt 
all  the  laws  of  the  country  not  agreeable  lit 
these  ninsi  he  abro^aleil. 

It  IS  ool  nsual  in  these  times  in  lake  con- 
quered natiuns  under  protection  njmn  Iheis 
terms:  and  as  U  is  unusual,  su  I  Hnd,  iu  ihtf 
opinion  of  Grntius,  it  would  lathvv  l>r  hnrsW' 
anil  rigorous  than  indulgent.  Yuur  lordship) 
vrill  teinemhti  that  be  sayfe  it  la  iwnal  to  auttti 


279J 


15  GEOBGE  IlL  The  Case  of  the  Island  of  Grenada-^        [880 


the  ID  habitants  of  a  country  conquered  to  pos- 
sess their  own  laws,  unless  they  are  abaoluiely 
necessary  to  be  abrogated,  for  the  security  of 
the  conquering  state.  And  similar  is  the  opi- 
Dio«  of  Puffendorff. 

Would  it  be  for  the  security  of  the  conquer- 
ing Slate  to  introduce  so  dangerous,  so  total,  so 
unnecessary  a  change;  to  alter  the  whole 
course  of  their  law  of  property,  by  introducing 
the  law  of  England  to  theuo,  a  peculiar  Uw  of 
descent,  differing  from  all  other ;  intricate  and 
complex  modes  of  eoufcyance;  a  new  foreign 
unknown  law  ;  its  ?ery  language  unknown  to 
them ;  by  which  those  rights  which  have  been 
the  subject  of  contract  roust  be  devested; 
owners  under  a  fair  title  dispossessed  of  their 
^tates;  settlements  in  consideration  of  mar- 
riage overthrown,  for  want  of  the  forms  eaaen- 
tially  required  in  our  law. 

I  conceive  nothing  more  can  be  meant  than 
that  civil  and  criminal  justice  according  to  the 
laws  of  England  were  to  be  introduced,  for  the 
punishment  of  public  offences,  and  the  redress 
of  private  wrongs ;  and  as  far  as  might  be  for 
the  prevention  of  both,  in  which  the  mode  of 
trial,  of  conviction,  and  the  whole  legal  pro- 
cess, is  the  common  benefit  to  all.  '  Lex  An- 
glia)  est  lex  misericordiss.' 

The  lenity  and  excellence  of  our  criminal 
laws  is  known  throughout  the  world:  mora 
bad  been  burthensome ;  these  wera  expedient 
and  necessary. 

Mr.  AUeyue  has  compared  the  situation  of 
this  country  with  the  other  dependencies  of 
the  crown,  particularly  with  Irdand. 

It  is  true  my  lord  Coke  held  an  idea  of  the 
laws  of  Ireland  being  established  there  by  an 
Irish  parliament ;  but  in  this  he  was  singular ; 
nor  do  I  think  the  idea  of  their  having  been 
established  there  through  the  medium  of  an 
English  colony  is  Less  uncommon,  or  promises 
more  success. 

In  Calvin's  case,  before  the  chancellor,  and 
all  the  judges,  the  case  of  Ireland  is  put  as  one 
of  the  conquered  countries,  and  tlie  title  of 
Henry  tlie  second  was  accordingly  king  of 
England,  and  lord  of  Ireland,  4cc.  cfistinguisb- 
ing  between  the  title  by  right  of  conquest  and 
his  title  as  king  of  England.  And  king  John 
irave  them  laws  as  a  conqueror,  and  not  by  act 
of  parliament,  and  this  plainly  appears  in  Ven- 
tris,  in  the  case  cited  by  Mr.  Alleyne,  where  it 
is  expressly  laid  down,  on  the  authority  of  three 
of  the  judges,  that  Ireland  was  a  conquered 
country,  and  in  king  Henry's  time  remained 
governed  by  its  own  laws,  and  so  continued  till 
his  successor,  king  John,  in  the  ISth  year  of 
his  reign,  by  charier,  and  not  by  act  of^^parlia* 
ment,  introduced  the  English  laws. 

But,  if  your  lordship  had  found  that  eren  by 
act  of  parliament  the  laws  of  England  had  been 
introduced  into  Ireland,  would  the  least  in- 
ference have  followed  tliat  the  king  alone,  by 
his  legislative  authority  over  a  conquered  coun* 
trvy  could  not  have  introduced  iheio,  or  otberii 
iflie  had  seen  expedient  P 
IiTeitber  Wales  nor  Berwick-mpMi-Tireed  do^ 


as  I  conceive,  apply  to  the  preeent  qneatioo. 
They  were  not  pretended  to  be  holden  in  right 
of  conquest,  but  as  immediate  fieA  under  the 
crown  of  England,  on  the  terow  of  the  same 
feodtfl  protection  and  obedience  by  which  Eng- 
land itself  was  then  held,  and  as  roemben  re- 
united to  the  entire  original  fief;  for  that  waa 
the  claim,  whatever  was  the  fkct.  Nothing 
like  this  can  be  dreamed  concerning  Grenada; 
no  dependence  on  England  or  Great-Britain 
till  the  late  conquest  And  by  all  the  diflTereuoe 
between  what  is  claimed  as  a  re- union  an4 
what  can  only  be  claimed  as  a  new  acquisition, 
by  right  of  arms,  the  cases  difier. 
■  Indeed,  not  relying  on  this,  it  has  been 
thought  necessary  to  endeavour  a  comparison 
between  the  case  of  thil  island  of  Grenada  an4 
the  American  colonies,  of  which,  in  general, 
the  rise  is  known  to  have  been  from  new  dia- 
coveries  of  uninhabited  countries,  in  which  tha 
discoverers  were  encouraged  to  settle  by  cbartar 
from  the  crown.  No  pretence  of  conquests 
thev  could  not  live  without  laws ;  they  couU 
find  no  laws  in  an  uninhabited  country  ;  what 
laws  shouki  they  have  then,  but  the  lawa  of 
England  ? 

But  is  this  the  case  of  a  country  already  set- 
tled, where  they  find  a  people  and  laws?  Will 
the  laws  of  England  expel  those  laws  ahneady 
established,  fitted  to  the  cireurostances  of  tnn 
place,  known  and  familiar  to  the  inhabitanta,  m 
pass  themselves  into  a  country  where  fhey  will 
beatrangers,  and  for  which  they  are  not  locally 
adapted? 

Is  it  possible  that  British  subjects,  coming 
into  a  country  where  there  are  other  lawii 
should  carry  the  British  laws  with  them  tbU 
ther,  and  not  be  governed  by  the  laws  of  thn 
country  to  which  they  are  gone  ?  Can  it  bn 
supposed  of  a  British  subject  going  to  Han- 
over, for  instance  ? 

As  to  the  cireumstance  of  an  appeal  to  thn 
king  in  council,  as  I  do  not  think  it  neceosarj 
to  lay  any  particular  stress  upon  it,  it  maj 
suffice  to  say,  when  the  crown  granted  tlin 
charters  under  which  the  settlements  were 
made,  it  was  competent  to  the  crown  to  pre- 
scribe  the  mode  of  appeal,  which,  in  some  rona 
or  other,  by  the  royal  prerogative,  and  for  tbn 
benefit  of  tne  subject,  necessarily  lay  in  all  thn 
variety  of  disputes  concerning  the  rights  of  thn 
colonies.  Narrowly  as  prerogative  has  been 
kM>ked  into,  never  has  this  branch  been  qnnn- 
tioned,  as  not  legal  and  constitutional. 

When  a  writ  of  error  shall  be  brought  ha« 
fore  this  Court,  to  reverse  a  judgment  given  in 
the  colonies,  or  a  re- hearing  moved,  or,  bj 
what  name  shall  I  call  it,  to  examine  in  thia 
court  a  decree  in  council,  then  will  be  the  pro- 
per time  for  this  question ;  but  I  believe  that 
time  will  never  arrive.  They  will  look  lo  that 
jurisdiction  as  they  always  have  done:  thejr 
will  find  that  redress  which  never  vet  has  '  " 


them.  It  would  be  a  oonsiderabie  aoquisitian 
tQ  the  business  of  this  court  if  your  lordship 
were  to  sit  here  to  exercise  that  appellant  jnria* 
diction  ufon  wnt  of  error  finm  the  ptotntnm^ 


Campbell  v.  Hall. 

r  fnrm  ;  for  llie  practice  is  nn- 

|VB  U  Mir  tMoba  as  murli  u  the  theory  ivas 

■e  lill  ibii  dair,  in  whirh  lo  raucli  iDgenuil; 

ntgnintal  hiii  been  emplnyeri  lo  raise  it. 

•I  kfli«  I  mmol  belp  aWrvint;.  that  it  ii 

t  diMige  in  llie  tanging  of  Ameriu  to 

!■  Ihr*  h«*e  iloiie.  rdiI  iIo,  iliil  llie  |uir- 

A  of  Entland  has  no  riplit  to  titx  tnem, 

, il  tbcy  den**  their  coniiitutioa  IVmn  the 

bsoiiljr ;  aod  now  to  uy,  in  this  oanse,  tlint 
M>  nng  li*i  no  poner  orer  tbein  hut  as  the 
^ai  >t  ihe  Briliili  c«nsliturion. 

Bat  is  lhi«  caie,  if  the  klu^  by  conqaest  bad 
Ihfirilaiiie  authnritv  over  UrenittU  lill  the  ds- 
■Bakly  ounVI  b«  calleil,  he  hns  waited  it.  It 
koMMiJ  be  has  parteil  wiili  i(,  (Ibrhnw could 
it,  ■h«n  there  was  nobody  to  lake  it)  but  he 
tat  wajved  the  ri|;ht. 

1  ««D,  fay  wliat  I  (.-an  unJersiand  of  the 
tatki,  I  have  no  idea  of  the  possibiliiy  of  ihe 
enim'a  inii*iD)t  a  ri|{hl.  It  must  be  more  or 
miImk  ;  il  miist  be  iraniil'erreil  lo  snmehody 
fhc.  Of  ii  remaioi  In  Ihe  crnuii;  for  in  Ihe 
tntm  there  is  nn  luchei,  no  DF{i[li|t'ent  abandon- 
■vni,  feant  of  all  in  »uch  «  point  as  this,  so  ei- 
-si«l  to  order  and  good  goYemmtM. 
But,  not  rxoeptini!  lo  the  mere  temi.  at  nhat 
[I  J,  lo  whnai  f  Tn  tbeaMt^mblv,  if  (o  any 
L-v;  1  f K  that  is  Ihe  condition  nf  the  eranl, 
IM,  when  ihe  stale  and  circumataiM'es  of  the 
iimt  Uiall  ailmit  ihe  cathnf;  ol'  aii  asiembly, 
Ibrahall  be  called,  and  fb all  meet  and  mate 
*""  '    wbicll    te|(i«lati 


milted  to  them  by  the  c 


aad 


ri);hl  of  taKin^  tltcm  by  hii  rale 

•^i^aii'e  'ilhoHl  an   aMeniMy.      B«l  this 

drably  diil  not  meet  till  after  (be  patent  In 

^ —     __  ._  .  -   -jgiu^iiiiBinififflit;  they  were, 

the  impost ;  and  il  wt.%  esla- 

y  Ui*  pra|wr  and  only  aulhuriiy  then 

|!  before  the  iMembly  did,  or 

I  littit.  ibrrefon,  the  Coart  «ill  think,  from 

ftiDnplai  of  reann  and  justice,  thai  the 

^liMaitnn  fur  calhog  an  aatembly  was,  boih 

'  F  wiwda  and  iniml  of  it,  and  in  the  ne- 

7  of  ihelhin^,  enecatiiry  ;  ihal  Ihe  duly 

_._  ._  ■  ^  jijji  pj,  j^j,)   „.,j  not  eseculory, 

lie,  and  liy  leeal  autburiiy,  by  lir- 

r  lli«  paleul.     And  that  it  could  not  be 

that  Uir  nUinfc  of  the  assembly,  under 

ihority  and  by  IheTolonury  eram  of  ihe 

I.  abonld  dehsl  the  doty  first  lefrally  ini- 

*-  -  -*  -  ame  auibority,  and  lliercfore  tliat 

«  nut  rntilbsi). 

H  to  be  won- 

;    I  ■bouU    ^are   expressed   myself 

Mit  (o  I  centinly  must,  since  I 

»  much  miwuidcrBtoad  by  Mr. 

■  I  the  ahnle  tenor  of  whose  artpiment 

'    ilat*d  lo  meet  a  <iippa«ed  idea  of 

Uoaof  En^and  were  introduced 

k  anielv  by  llie    prodamallon   of 

"~  t  Dy  no  mcuu  tbe  object  of 


A.  D.  177«n 

I  ODUlended  that  the  ))ro:lai 
cngnitioo  of  the  rif{hl  of  the  i: 
Grenada,  as  British  nubjecu,  to  be  CDVerued 
by  Ihe  laws  sod  conslilutian  of  Eiii;lanil ;  of 
the  praclicsbDity  of  rcdticina  that  ng^H  !• 
practice,  and  the  retolutioii  ot  hrin^iug  in  all 
its  parts  into  actual  eKeivlioti  ii  sunn  as  pom- 
ble :  tlierefore  I  cited  the  case  of  Ireland,  and 
iipuQ  auihorilies.  I  hope,  of  more  weigbl  at 
this  day,  Ihao  Calvin's  case :  and  I  did  infer 
that  British  subjects,  settling  in  a  conaueied 
country,  conquered  by  Ibe  arms  of  a  king  of 
Gieat  Britain,  carried  with  them  iheir  owd 
tana  and  pririU^es ;  and  that  the  moment  tbe 
crown  rece^nizea  a  colony  of  British  suhjecta 
to  have  been  settled,  from  that  instant  ii  en- 
gages its  aulliiirily  for  securing  to  tbeui  all  the 
rights  and  exemptions  belotigingiothat  cbarao' 
ler.  And  I  thought  1  bad  proved  that  ibe 
practice  of  tbe  crown  had  been  conformable  to 
this  principle. 

But,  to  meet  Mr.  Wallace  upon  bis  own 
Crounil,  who  asked,  supposing  Ibe  crown  en- 
titled to  exercise  taxation  over  Ihe  inhabitants 
of  Grenada,  who  were  there,  or  should  resort 
thither,  indiicriinioBtely,  by  tighX  of  cowjuesi, 
how  the  cruwn  had  parted  with  this  right,  1 
ackuowleilge  not  properly  waiveil  il  ?  I  an> 
swer,  let  us  suppose  for  a  moment  that,  ante- 
rior to  the  proclamation,  llie  cruwn.  is  con- 
qiieroi',  had  a  power  to  raise  a  permanent  las 
un  Ihe  then  and  future  iohabilanla  uf  Grenada  ; 
and  had  (be  xiila  nccitgue  poleitai,  the  legisla- 
tive authority  in  the  fullest  tense,  when  the 
crown  declares  ibey  sbsll  have  a  Icgialattoii  of 
their  OM-n,  and  in  Ibe  mean  while  be  governed 
by  tbe  laws  at'  England,  I  contend  from  that 
(iioraeDl  the  king  bad  parted  with  Ibe  right, 
supposing  be  hxd  that  right  till  ihen  of  impoi- 
■Dg  upon  them  himself,  by  bis  sole  aulboriiy,  a 
permanent  lax.  And  1  contend  that  the  pa- 
lent  to  gnvernor  Alelville  repealed  and  enforced 
the  grant,  taking  it  as  Huch  for  ibe  present,  in 
the  most  solemn  manner. 

In  vain  would  it  be  argued  thai  these  grants 
«f  ihe  laws  of  England  were  execuiory,  and 
therefore  might  be  suspended  :  proclamaliocB 
and  patents  such  as  iheie  are  not  of  soch  a 
flimsy  nature,  lo  be  susjieDded,  that  ia,  fir- 
tuallv  repealed,  to  be  granted  lo-day,  and  re- 
■umed  lo-niorrow.  And  if  this  cinnnt  be  de- 
nied, then  Ihe  English  laws  were  the  laws  of 
Grenada,  either  by  prior  right,  or,  as  I  have 
been  willing  to  argue,  since  Mr.  Wallace  haa 
laid  io  much  stress  upon  Ihe  executory  natura 
of  ihe  pnwlamatinn,  by  actual  immeiliale  grant. 
And  there  iH  no  one  priadple  of  Enghth  lair 
more  decidedly  clear  than  that  the  crown  ean- 
nol.  by  its  sole  prerogalive,  enact  a  law. 

It  win  next  argued,  that  principle*  of  equity 
require  this  duty  to  be  imputed  :  because  il  la 
recited  in  the  patent  of  Ibe  SOIb  of  July  that 
the  Leeward  Carribhet:  ialsodx  pay  it. 

To  this  there  is  finil  one  (general  ami  eoarlu- 
aite  answer — whatever  equity,  wisilom,  or  ex- 
pedience there  may  be  in  ibe  mcuura,  it  must 
be  eMcalcd  by  legal  neani.    The  propriety  of 


983] 


15  GEOBGE  lU.  The  Cate  o/the  Ulando/GrenaJa—         [SM 


th«  olgect  nn  never,  in  a  legal  *iev,  uoclif^' 
the  meaiu  taken.  '  Nil  cuiquam  expcdit  qnod 
■  DOD  per  lege*  lioel.  Nil  utile  ant  lioneitum 
*qnMl  tepboa  contimrium.'  But  a  pailiciilar 
UMwer  ii  likewise  ready. 

The  lint  place  in  whicfa  ttiit  UZ  wat  erei 
tlioii([bt  of  waa  the  island  of  Birbadota ;  bul 
there  it  was  not  inpoaed  under  claim  of  prero- 
gative,  bat  hy  a  national  act  of  Ibeir  own  in  ■ 
lemal  legislature :  and  it  waa  a  grant  for  ipe- 
dal  purposes  esprewed,  of  buildiug  theii 
priKM,  tbeir  courts  of  jiMtic«,  tbeir  fortreasM, 
•od  lusBping  ibem  Air  (be  fnttire  in  repair.  And 
fartfaer,  in  conaide  ration  of  the  onfirmation  of 
tbiir  tidea  which  had  been  leat,  or  were  become 
obacnre  in  eooaaqueoee  of  the  confoaion  of  the 
iaiaiid  during  the  troubles  of  the  preceding  reigu 
of  Charles  Uie  first. 

1  moal  be  particnlar  in  slating  Ibis.  The 
iirti  srant  ofBarbadoea  was  to  the  earl  ofCar- 
lislnTrom  Charte*  the  6r«t:  he  dirided  the 
lands  by  aabinfeadation  amongst  raiioua  pur- 
chasers. 

During  the  troubles  lord  Carlisle  abandoned 
4h*  island;  the  protector,  Cromwell,  took  pos- 
MHioD,  and  made  aeTcral  grants  of  different 
pari*  of  it  i  on  the  realoratino  the  king  made  a 
new  grant  to  lord  Wiltougbby  of  Parbam. 
In  conKquenceofthesasereral  changes  of  pro- 
perty, and  the  tiolenl  and  sudden  rerolntion  of 
■Hairs  >in  the  island,  mncU  confusion  aroae. 
Tbe  creditors  of  lord  Carlide  anerled  their 
claim;  the  grantees  of  Cromwell  held  by  very 
uncertain  claims ;  and  lord  Carlisle's  creditors 
aneeeedinp  would  necessarily  hare  defeated  Ihe 
f[nntees  of  lord  Willou(;hby.  To  settle  these 
dispute*  the  crown  agreed  to  purchase  the 
whole ;  and  for  tbe  purpose  of  raising  a  fond  to 
discharge  lord  Carlisle's  debts,  and  the  other 
purposes  already  mentioned,  this  duty  was 
granted  by  ihe  assembly  of  Barbadoes. 

Your  lordship  will  find  tbeiie  particular*  in 
the  act  set  forth  on  the  record,  but  more  fully 
in  lord  Clarendon's  answer  to  tlie  seventh  arti- 
cle of  his  impeachment,  which  is  in  the  con- 
tinnation  of  his  history,  lately  Dubliahed. 

I  dare  aay  Mr.  Wallace  will  find  the  princi- 
ples of  equity  not  Terr  cogent  on  Granada,  in  a 
comparison  with  BaiMdoea  in  this  particular. 

As  to  Nevis,  Alontserrat,  and  Antig-ua,  with 
the  English  part  of  St.  Chriatopber'a,  the  ssme 
obserrationa,  iu  great  measure,  will  occur. 
The  grants  of  four  and  a  half  per  ccnL  in  these 
iaianus  were  likewise  on  S|ieaal  purpoaes,  and 

A*  to  tbe  part  of  tiU  Christopher's  conquered 
from  the  French,  and  ceded  by  the  traaty  i^ 
llticcht,  tbe  very  same  claim  was  made  in  the 
reign  of  queen  Anne,  aaanted  by  an  act  of 
privy  conncil,  and  exemplified  under  the  great 
■aal,  the  same  which  is  now  made  upon  Gre- 
nada, of  imposing  this  duty  by  prerogative. 
Tbe  Mt  waa  withdrawn  ;  the  duty  never  eol- 
lected  ;  the  people  warmly  opposed  ^  admi- 
^smtiaa  yielded,  atHl  oonaenled  to  take  it  by 
ad  of  aaaamU  J ;  «  circunutanM  inorediUe,  if 
Ikej  hid  Dgt  ben  oMnDood  Ihu  tlw  ncMun 


was  unwsrrsnted  by  law,  and  the  opposiliaa 
jnsl.  And  when  Ihe  duty  was  finally  granted 
to  the  orown  it  waa  nut  only  by  aasemUy,  bnl 
under  terms. 

So  much,  Ibercfore,  fbr  an  argument  bnill 
on  the  principles  of  equity,  comparing  Ibe  im- 
position  of  llii*  duty  by  act  of  prerontiTe  ia 
Grenada  with  tbe  same  duty  in  tbe  otoer  Lee- 
ward islands,  by  act  of  their  own  assemblies. 

Mr.  Wallace  observed  the  duty  waa  iKb 
posed  in  1703. 

Lord  Manifield  said  it  could  not  vary  tbia 
question  an  iota :  that  the  cause  was  put  on  ill 
proper  footing ;  tiial  he  took  it  as  admitted  th« 
duty  was  laid  on  in  1703,  and  added,  it  waa 
raited  long  before  tbe  act,  which  ws*  in  1737. 

Mr.  I^atiare  said  the  whole  duty  in  IhattiiM 
amounted  lu  but  iot.  Hr.  Alleyne  obaencd 
on  this  that  M.  raised  in  94  yenra  waa  « 
Strang  argument  that  hardly  any  planter,  M 
least  any  coneidcrsbte  planter,  bad  aubmilltd 
to  pay. 

Mr.  All^e  continued. — But  farther,  u 
to  equality,  beaides  the  reasun*  given,  commM 
observation  will  shew  in  wliat  manner  Ibea* 
new  settlement*  in  tbe  inland  have  been  made. 
Large  interest  on  loans  payable  yearly  out  ef 
their  estates.  So  far  from  additional  bnrtlMa, 
it  might  have  been  hoped  from  governDCnt 
that  Ihey  would  have  assisted  ibis  inftn) 
colony,  alwaya  much  below  tbe  other  setlt^ 
mcnls  when  in  the  hand*  of  its  former  posses 
Bors  ;  and  now,  if  this  impost  should  prevail, 
miserably  below  indeed. 

Bul,  not  to  want  an  argument,  which  can- 
not readily  baitpen  tn  the  ingenuity^  of  Iha 
learned  coonsci  who  sapports  the  defendanfa 
cause,  ir  it  be  true  that  the  proclsmaiioa  !■ 
words  appeara  fiilly  either  a  conveyance  nr 
recognition  of  all  the  righta  of  Britialt  aulgeein 
to  the  inhabitant*  who  were  in  Grenada,  «v 
should  resort  thither ;  and  that  the  iiland  ii 
not  under  circumstances  which  should  make  k 
consLruction  to  aup|iort  the  impost  faioorable  ia 
equity,  independent  of  higher  conslilerationa 
still  against  such  a  construciion  ;  yel  Mr.  Wal- 
lace argues  that  it  must  mean  tliia,  that  lber« 
should  be  such  an  impost ;  because  if  there  in 
not,  the  enjoyment  of  tile  laws  of  England  ia 
secured  to  the  inhabitants,  which  will  be  an 
unwise  and  cruel  construclian.  I  believe  Hr. 
Wallace  is  the  first  politician  who  ever  tbou^t 
that  waiving  the  claim  of  conquest,  and  in~  ~ 
to  Ibe  conquered  the  blessing*  of  a  free  g 
meni,  was  cruel.  And  how  would  ii  nav* 
aitonithed  Ihe  wisdom  of  imperial  Rome  ts 
bear  that  it  was  unwise ! 

Nor  doour  own  writersomltloadmirelhep^ 
licy  nt'  king  Edward  the  third,  in  planting  a  etb 
lony  in  Cafai*,  and  of  course  communicating  (s 
that  place  the  wi*e  and  beneficial  law*  of  En|f» 
land,  to  firm  asupport  of  public  order ;  su  pro- 
ductive of  security  and  happiness  to  every  indU 
viduil  living  under  them. 

I  have  the  aathorit*  of  the  great  and  ezcd- 
Itot  air  UaUbaw  Hale,  affirming  thii  to  hav* 


Campbell  V.  Hall. 

fectn  btv  pncliee  in  liia  other  conquests,  as  I 
We  ktready  utMerrecl,  both  in  ScotUnil  anil 
WaiB«,  BBil  ipiilauiljn);  it  highly.  At  least  this 
■k^iun  may  be  rc«erve<J  tiH  Ihe  inbtbltaols  ol' 
GimimU  l^iak  this  benclit  k burthen,  tind  com- 

Kat  it  »  Kucb.    Mr.  Campbell,  certainly, 
b  MTt,  tItHw  unt  fMmplHiD,  fur  he  comes  to 
din  ine  beDelil  of  thote  laws,  as  bis  ilearesi 
Ivtb-riftbl:  anil  il  will  bo  siuffular  if  it  ihall 
bppen  lh«l  Boy  eloquence  sliall  persuaile  any 
Miiilnat  vf  GretiBila  ttiat  il  is  a  reproach  to 
th  C40(|itere4  to  jiartike  e(|iially  in  those  laws 
iD<l  conttitution  nhich  are  ibe  glory  anil  hap- 
(lacnof  ihecooqueron,  and  the  admiration  of 
nsabiiid  ;    the   English   Inws :    and   il'  Ibey 
(liwiM   rattier  cbiiose  lu  sink   again  iota   the 
,>.,.  ..t   ..  |.eo|>!e  under  Ibe  hioJ  of  conquest 
tlini equal  liberty  Hhich  abohshea 
.li^tinciiuns  betwiuMi  llie  cotiquernrs 
^■■il. 
,  .    ^.  ,  ;h  iiliircruelty,  boweter,  which  Mr. 
tlTaltacc  »ii(rg%9ts  ia  llits  ;    estates  buve  lieen 
tttiti,   coniracls  mode,  and  things  dune  wiih 
atit«  lotbcregulalioni  of  the  law  Iben  pre. 
WBH.  toaller  ibis  by  the  proclamation  would 
hutm  muil  dinppoioi  tbe  parties,   and  aiiaul 

Slathing  can  be  more  fallacious  ttion  this ; 
fair  at  any  lime  poalerior  to  the  proclauialinn 
^  tleeO,  conlracl,  setlietui-nl,  or  any  olher 
Mm  of  law  had  been  brought  into  litigation, 
tat  appeared  to  have  been  tranncted  in  con- 
ftnmy  lu  liie  French  law*,  previous  to  Ibe 
Baclamalioii,  and  while  tbe  laws  ol  France 
"K  yd  in  tbe  island,  thune  laws  would  bare 
"U  aii»]ile<l,  and  tbe  iuatrumenl  would  bavc 
'  i  its  iaietided  effect  according  lo  iliem ;  and 
~  Uw  of  Euf  land  would  have  lakeu  iiolice  of 
"•v.aa  it  does  of  all  foreign  laws,  where  con- 
''^'•ttr*  Dkode  nuder  ilie  authority  of  those 
IT];  rxactly  a>  in  cases  which  fiace  hap- 
-vi  ID  Chancery  and  in  Ibis  court. — All 
■veanliie  cunlracis  haie  Ibis  eH'ccl ;  and  so  it 
isollMred,  ■■  a  settled  rule  of  Uw,  iu  the  case 
ri  Pwawatril  and  Oediie.  The  line,  therefore, 
is  ■sIlLiiiitlj  brood,  and,  at  Ibe  same  time  «uf- 
Umly  clear  and  dcfliied :  from  ibe  pruclnma- 
Wt  Um  Engliib  Khali  prevail  as  to  all  subse- 

CUwiMCiiana  1    tdl  the  proclamation  the 

Dot  iM  Birpporl  of  his  general  proposition, 
MMonutiK  the  nalore  of  Ibe  rights  ot  a  cou- 
«nd  people.  Mr.  Wallace  bos  cited  two 
MtioiM  ■am**,  (Grotius  and  TulTeudorA') 
BMaa  wbicli  I  aholl  ever  menliou  with  the 
PMlaot  rcfarFnec.  Yet  I  have  ever  wisbeil  lo 
Ufaefnrai  tbeseulimeiitaof  writers  who  bate 
Mmoaukd  prvjudicv),  and  reasoned  bbeially, 
Mt  4«*Mni«  iiiyMrIf  to  Ibe  greuteit  name  with 
MOAlitDttJ  atlacb'iwnt.  (ircat  and  extensive 
■  Uwir  groia:  iheir  leamliig,  tbeir  apphcalion 
wm.  It  n  >rtl  Lnowii  in  Ihosc  who  lire  conver- 
■wis  lb*>rwriliiig>,  that  they  have  adopted  in 
MM.  ploers  ilic  iiusiuvr  constiln lions  of  tbe 
l^pfMl  kw.  a*  BbiiraGt  gtiicral  Iriilhs  of  iia- 
■awi  better  iD  i<in*i  4>laccs  their  rcasnoing  is 
jWjMh|yui  ffloB lied  fetibiE  lUiverHJity  of 


A.  D.  177*. 


[SSfl 


the  subject,  and  in  many  liable  to  exceptions. 
Far  be  il  from  rue,  howeier.  to  speak  irre*e- 
renlly  of  them  ;  Ibey  have  broken  the  grnuod. 
(hougli  tliey  discovered  not  all  the  treasures  of 
the  soil ;  and  though  tbey  migbl  in  some  in- 
stances  be  mistaken  in  the  true  quality  of  the 
soil  itself!  And  to  their  great  lalioors  the  re- 
finement of  public  law  is  originally  owing. 

Willi  respect  to  the  instances  of  prerogalira 
intended  to  have  been  adduced  to  justify  this,  1 
find  only  one  mentioned,  which,  surely,  caoDOt 
be  supposed  to  support  it  by  tbe  comparison  ; 
the  sriiure  of  Ibo  Massacbuset's  cliarter  in 
1Q83,  in  tbe  reign  of  James  ibe  second.  No 
man  will  wonder  at  the  violence  ;  tbe  imprison- 
menl  of  Ibe  bishops ;  tbe  campaign  of  Jeffe- 
ries ;  the  seizure  of  etery  cliarler  \e(t  by  bis 
brother ;  were  then  as  acts  of  ordinary  Justice 
at  home.  And,  when  Ibe  city  itself  was  not 
sale,  we  shall  nut  wonder  Ibe  Musachuiet't 
bay  was  iuiaded. 

Mr.  Wallace  has  not  chosen  lo  argue  Ibe 
right  of  ultimate  judicature  in  Ibis  courl  and 
in  ibe  House  of  Lords.  He  leaves  me,  there- 
fore, at  large,  with  Ibe  observations  I  made  on 
that  point  ;  and  wiib  a  concession  ibiis  far  at 
least,  that  there  is  no  argument  from  ei[pe> 
rience  lo  the  contrary. 

The  last  stress,  on  tbe  close  of  the  argn- 
menl,  was  placed  od  tbe  expedience  and  neces- 
sily  of  the  power  of  legislation  continuing  in 
the  i;rawn  till  tbe  legislaturu  of  lb«  island  »c- 

Tbis  argument  wonld  go  far  indeed ;  it 
would  ultimately  prove  tbal  ia  tbe  r^ess  of 
parliament  the  crown  is  arbitrary  legislator  of 
this  empire,  and  may  imposes  permanent  Iitx 
on  Great  Britain  itself. 

But  the  constitution  has  happily  provided  a 
power  in  ibe  crown,  by  which  it  i*  enabled  to 
ohiiaie  luddcD  emergencies;  or  in  cases  not 
provided,  bills  of  indemnity  have  always  con- 
firmed by  an  act  of  state,  what  was  required  as 
an  exertion  of  extraordinary  power.  *  Salua 
pupuli  suprema  lex  esto.  fie  quid  delrimeuli 
caperet  respublica ;'  affirming  and  strengthen- 
ing Ibti  generol  rule  by  the  very  means  used 
lo  protect  the  necessary  deriation,  and  wbiob 
notbing  less  than  sncb  a  solemn  judgment  of 
the  cuUeclive  body  of  Ibe  slate  allowing  its  ne- 
cessity can  protect. 

iia  in  Grenada,  from  tbe  first  proclama- 
lion  in  October,  lrC3,  lo  tbe  session  of  ihe  as- 
sembly in  i16i,  the  crown  bud  slmdar  power* 
(or  Dbviating  sudden  emergencies,  amongst 
tbe  number  of  wbicb  powers  a  permanent  tax 
cannot  be  esteemed. 

i  have  now  had  tbe  honour  of  submitting  lo 
your  lordsbips  wbat  considerations  occurred  ta 
me  in  reply  lo  Mr.  Wallace's  argument,  oi* 
which  it  would  ill  become  me  to  «|ie>k  wilb 
disrespect ;  1  shiill  only  say  ihal  il  apjieant 
fiiirly  answerable  in  tbe  luaoucr  I  havu  sub- 

And  now  I  trust,  I  may  take  leave  of  Ibis 
subject  by  congratulating  uiy  client  (for  if  belter 
argiiinnts  were  to  haw  beeu  fouud,  Mr,  Wa|< 


S87] 


15  GEORGE  III.  The  Case  of  ike  Island  of  Grenada-^         [888 


laoe  would  htva  discovered  them)  with  beioflf 
MCiire,  and  tUndiog^  on  a  unround  which  wiU 
warrant  my  application  to  the  Court  for  judg- 
ment for  t£le  plaintiff. 

Curia  ulterius  advisere  mlt, 

[Note,  After  the  argument  lord  Hanalleld 
•aid ;  The  cause  has  been  Tory  well  argued. 
There  is  one  thing,  bowe? er,  which  neither  of 
Tou  have  defined  prediely.  Have  you  any 
idea  a  colou]^  can  be  settled  by  British  subjects 
without  the  intervention  of  the  crown  ? 

Mr.  AlUune,  If  subjects  settle  on  an  island 
wninbabited,  for  instance  a  shipwrecked  crew, 
they  cultivate,  they  inhabit.  Jf  the  crown 
clmuns  Uiis  island  as  a  settlement  by  its  own 
■ttlyects,  they  have  a  right  to  say  give  us 
a  constitution,  govern  iis  by  the  laws  of  Eng- 
land or  not  at  all.  Jf  it  demands  a  tax  they 
have  a  right  to  say,  No :  till  it  be  demanded 
leplly  in  a  constitutional  mode. 

Lord  Mansfield,  All  colonies  have  been  es- 
tablished by  grants  from  the  crown.  I  do  not 
mean  it  as  material  to  this  question,  but  that  it 
should  be  understood  no  colony  can  be  settled 
without  authority  from  thecn»wn.  As  to  the 
doctrine  of  those  cases  In  Salkeld,  1  do  not 
think  much  of  it ;  it  is  very  loose. 

Mr.  AUeyne,  To  meet  the  whole  argument 
in  the  cause,  I  at  first  stated,  that  this  colony 
was  settled  by  authority  of  the  crown. 

Lord  Mansfield,  1  understood  you  so ;  let  It 
staod  for  another  argument] 


Afterwards  in  the  same  term  on  the  5th  of 
May  1775,  it  was  argued  by  Mr.  Macdonald 
fbr  the  plaintiff,  and  Mr.  Hargrave  fur  the  de- 
fendant, nearly  to  the  effect  following : 

Mr.  Macdonald.  This  is  an  action  brought 
•gainst  a  custom-house  officer  in  the  islanfl  of 
Grenada  for  money  had  and  received.  The 
object  is  to  recover  a  sum  of  money  levied  by 
the  defendant  as  a  duty,  and  paid  by  the  plain- 
tiff; but  paid,  he  contends,  without  legal  con- 
sideration. 

There  is  a  special  verdict,  which,  after  what 
has  been  argued  so  fully  and  with  so  much 
perspicuity,  it  will  be  only  necessary  for  me 
in  point  ot  form  to  state  very  shortly. 

The  iury  find  the  island  of  Grenada  in  the 
West  Indies,  was  in  the  possession  of  the 
French  king,  and  conquered  by  the  British 
•rms ;  that  there  were  several  customs  paid  and 
payable  to  the  French  monarch,  upon  goods  ex- 
ported and  imported  from  and  into  the  island. 
They  find  the  surrender  of  the  island  to  the 
kmg  of  Great  Britain,  in  February  1762  ;  in 
the  articles  of  which  the  inhabitants  are  re- 
coKuixed  as  British  subjects,  and  the  same 
protection  and  privileges  granted  as  to  the 
ether  ooloniee  of  America.  Ami  that  they 
•hoald  not  be  obliged  to  bear  arms  against  his 
moat  Christian  majesty,  while  the  then  war 
continued,  and  the  Ate  of  the  island  remained 
undatenniDed  ;  that  tliey  should  take  the  oaih 
of  uUcgiMicf ;  that  they  should  be  governed 


by  their  own  laws,  until  his  majesty's  jileasuro 
should  be  further  known. 

They  find  the  treaty  of  the  10th  of  Febma- 
rv  1763,  by  which  the  French  king  renounoea 
Nova  Scoua,  Canada,  aiNl  other  oguntries  to 
the  king  of  Great  Britain;  and  in  October 
1763,  the  king  of  Great  Britain,  by  his  pro- 
clamation, assuring  the  inhabitants  of  his  new 
conquests,  and  amongst  them  Grenada,  of  his 
paternal  care ;  and  that  he  has  given  order  to 
his  governors  that,  so  soon  as  may  be,  they 
shall  call  assemblies,  vrith  power  to  the  go« 
vernor,  with  consent  of  the  council  and  repre- 
sentatives so  assembled,  to  make  laws  as  near 
as  may  be  conformable  to  the  laws  of  Great 
Britain:  in  the  mean  time  all  persons  may 
confide  in  his  majesty |s  royal  protection,  and 
the  benefit  and  enjoyment  of  tlie  laws  of  Eng» 
land.  Then  the  proclamation  proceeils,  and 
constitutes  a  council  to  determine  all  civil  and 
criminal  causes  according  to  the  laws  of  Great 
Britain  ;  the  jury  find  a  second  proclamatioii 
in  March  1764,  reciting  the  benefit  of  a  speedy 
settlement  of  the  island  of  Grenada  and  the 
other  islands ;  directing  a  snrvey  of  lands,  and 
a  certain  number  of  men  and  women  to  be 
maintained  on  the  landif  under  penalties ;  they 
further  find  that  his  majesty,  by  hi^  letters  pa^ 
tent  in  April  1764,  made  Robert  Melville,  esq. 
his  governor  in  the  island,  in  the  room  of  go« 
vernor  Pinfold,  to  act  under  instructions  given 
and  to  lie  after  given,  ordering  him,  as  soon  •■ 
situation  and  circumstances  will  admit,  to  call 
assemblies,  with  full  |M>wer  to  make  andor* 
dain  laws,  statutes  and  ordinances,  for  the 
welfare  and  good  government  of  the  people 
of  the  island  of  Grenada. 

Afterwards  by  letters  patent  the  20th  of 
July,  1764,  they  find  a  ux  imposed  by  claim 
of  prerogative  in  the  same  manner  as  in  the 
island  of  Jiarbadoes  the  20th  of  July  1764,  of 
four  and  a  half  per  cent,  on  commodities  ez- 
p<»rted  ;  they  find  the  defendant  levied  the  tax, 
and  plaintiff  paid  it. 

The  verdict  farther  finds  the  action  brought 
by  consent  of  the  attorney -general. 

I  am  humbly  to  con  tend  before  your  lord- 
ships,  first,  that  no  such  tax  could  be  imposed 
by  prerogative. 

And  secondly,  that,  admitting  the  crown  by 
prerogative  was  entitled  to  have  imposed  such 
a  tax,  his  majesty  by  his  proclamation  of  Oo- 
tol)er  1763,  prior  to  the  instrument  for  raialog 
such  tax,  has  waived  that  rif^ht. 

Your  lordship  finds  by  the  special  verdict 
that  the  island  of  Grenada  was  conquered  by 
the  British  arms  in  February  1763,  and  bj 
treaty  siirretidnred. 

1  take  it  to  be  clear  that  the  sovereign  of  the 
state  conquers  not  for  himself  personally,  but  ' 
for  the  state :    and  according  to  this  I  have  m 
great  authority,  which  1  shall  beg  leave  to  die 
to  your  lordship. 

Vattel— He  save,  it  is  asked  to  whom  the 
conqfie»t  belongs,  the  prince  or  state?  This 
question  ought  never  to  have  been  asked* 
Whose  are  the  arms  ;  whose  the  expenoe  T   If 

4 


8S9J 


CamjMl  V.  Hall, 


A.  D.  1774. 


[390 


be  coni|iiereil  tt  his  own,  yet  whose  blood  is 
shed .'  If  he  use<f  mercenary  troops,  dofs  not 
be  expose  his  slate  to  the  reserjti;:ent  of  the 
esHny  ? 

I  collect  from  the  same  author,  tvho  lays  it 
down  as  a  princiiile  of  \\\o.  Inw  of  imtion«,*i!iat 
ifau  uu  in  habited  country  \w  plnnti'd  hy  British 
laitjects',  all  the  Eu<rlish  laws  (which  nro  the 
lirtii  ris;lil  of  evary  subject)  are  there  in;- 
Bti'iately  ;  hut,  W  it  be  a  conquered  8tate 
vbich  has  laws  i«f  its  own,  those  laws  rouiain 
ibcre  until  uttiersare  provided. 

liord  Mamjicid,  Does  he  quote  any  autho- 
ritifs? 

BIr.  MacJo'iuld  continued.  After  a  country 
is  become  part  of  the  state,.|ie  seems  to  take 
it,  as  a  principle,  that  it  partakes  of  its  consti- 
Ihtiun  ;  and  Ihcrcfure  not  to  think  autiuirities 
necessary. 

Lurd  Coke.*s  Reports— Calvin's  case — that 
tke  kio^  uuky  a!t(  r  or  c!inn;;o  the  laws  of  a 
ciinqucreil  cou^itry^  but  till  he  doth,  thr  foinief 
laws  remain.  This  can  only  menu  Jlugrmtle 
i>r/Aitbat  he  may  do  it ;  or  in  countrich  whvi'C' 
ia  the  whole  Ir^rislation  is  in  the  kin*^. 

S«tk..411,  the  dinWcnce  of  the  fac-i.s  in  that 
faie,  preveDlJi  my  i|U0tin(;  to  your  lordship 
Ihc  derision  itself;  hut  upon  the  t^eneral  prin- 
ciple nliat  the  Coint  laid  down  ua^  (hiiK:  Jn 
tbiecase  of  ;in  uninhabited  country,  oil  laws  in 
fiiree  in  £nji;lanti  are  in  force  there  ;  hut,  Ja- 
■aica  bavint;  been  a  conipiered  counliy,  and 
am  found  pared  of  the  |}riti<«h  domiiiiouN,  the 
bws  of  Jamaica  stand  in  power  till  otli^TS  are 
ipiminied. 

rijord  MansQeld  said  upon  this,  the  opiuiiMis 
Vie  tery  IfMise,  ami  with  a  total  i|;*nuraucr  of 
facts:  Jamaica  uas  conquered  by  Oliver 
Croiuwcll ;  I  (>elieie  none  of  the  iMiiupiered 
ubjects  remaincil.  It  is  ahsi'ird,  that  in  the 
rui'inies  liiey  should  curry  all  the  laus  of 
Eogluml  with  ihi>m;  thi'V  carry  only  ^uch 
ai  are  applicable  to  thrtr  siiuation  :  I  re- 
BCQiber  It  lias  been  determined  in  the  i'(>iin- 
Qi :  there  was  a  (piestion  whether  the  sia- 
toie  of  cliaritalile  uses  operated  on  the  i^ldini  of 
.\e%ii:  it  was  determined  it  did  nut;  ami  no 
laiikbut  such  as  w^re  applicable  to  their  condi- 
iioD,  unless  expre^isly  enacted.] 

I  would  farthfr  rcmaik.  that  where  the  words 
**  kitii^or  M)verei;(ii'*  in  treatises  of  ircneral  law 
are  introduced,  I  would  understand  them  ac- 
cordin«r  to  the  naiure  of  the  state  of  which 
tliey  are  spoken,  or  to  whirh  to  be  applied. 
Those  wonls  of  (Jrotios,  *'  Rex  el  re^^nuiii," 
tnll^late  tliiiu  into  iJntch,  I  should  call  the 
AkiKi  general  the  kiii«r  or  sovereiirn  ;  and  if 
iiii'i  En^rlish  *^  kiu<;  and  parliament."  I  don't 
eoiitfnil  that  lli«'  furiiial  part  of  the  law  of 
Eiiif-and,  hut  that  the  iei^islative  part,  goes  thi- 
llier.  1 1  I  am  ri«rbt  in  my  idea  of  the  law  of 
bstiwfis,  it  confines  the  power  of  the  con- 
quprrir,  merely  within  the  time  of  contiict,  and 
whiUt  I  lie  sword  is  the  only  law  to  which 
tither  aide  can  resort ;  but,  wheu  a  couhtry 

Vt>L.  XX. 


surrendrrs  to  the  British  arms,  when  militarj 
<l^')vernment  erases,  what  can  come  in  hut  the 
law  which  ^otcriis  every  particular  sutijt'Ct ; 
the  h'G^islaiioii  of  (iSreat  Britain l*  When  the 
sword  is  once  s^crithed,  I  cannot  conceive  of 
tlie  cxistenr.e  ol  any  other  power  but  the  legis* 
lative  prwcr.  ttip  cunsutntiona!  law,  or  c^overn* 
mint.  Tiie  fprnis  of  their  constitution  may 
an>l  must  reniriin  tilT the  executive  |iower  dif- 
fuses ti:o'<e  wh'i'h  ohtnin  in  his  other  domi« 
iiioiis.  1  take  it  that  layi'-ic  on  imposts  with* 
out  constant  ot'pnr'inment  was  one  of  the  f^reat 
points  on  which  the  Kevolution  turned ;  and 
Huother  revo!uti'>n  much  earlier;  and  MajTna 
Charta, and  almost  innumernble statutes.  When 
we  talk  ujron  this  sul.ject,  the  present  state  of 
thinirs  is  a!wa\s  out  of  the  question  :  1  shall 
therefitre  discuss  the  topic  freely. 

Lord  Coke  in  his  treatise  on  the  statute  of 
taMin^e  i<nys,  no  subject  shall  have  money  le- 
vied on  him  without  consent  of  parliament ; 
and  after  i^oes  farther  and  says,  no  man,  thai 
is,  I  conceive,  who  can  call  hiuisclf  a  Hritish 
sid»jert,  !hoti<;h  in  another  country ^  shall  be 
taxed  without  his  representatives. 

Here  upon  the  principle  of  the  law  of  cod- 
qui  St,  hy  what  reason  can  the  power  extend 
over  the  conquering  people  them>e|ves;  shall 
those  who  conquered  wiih  him  share  the  fate 
of  the  conqncrt'd?  It  would  be  repu>^naiit  to 
every  principle  of  reason,  and  to  every  writer 
upon  ttie  law  of  nations.  ' 

Vattr!,  pa'j:e  02,  lays  it  down  as  a  principle 
of  the  law  of  nutioos,  that  wherever  a  nation 
Settles  and  establishes  a  colony,  that  colony 
ht'coniirs  a  part  of  tlic  dominion,  and  all  that  ta 
said  of  tilt  parriit  state  applies  to  the  colony. 

(■  rutin  {  >:iys,  that  subjects  settled  in  a  coun- 
try larry  the  same  privileges  they  left  behind 
them. 

^V hat  is  thr  difTerciice  between  settling  in  a 
country  unii.habiied  or  inhahiii'd  ?  As  lo  the 
evrcolivi-  pnivf'V  it  is  this  :  they  must  wait  the 
directions  ofihat  power  ;  as  to  tlu*  legislative, 
the  iaw  is  \\\f  same  to  them  as  that  whi'jh  go- 
verns nic.  ;iiul  rvery  man  who  hears  me. 

1(321,  >rtich  irlii,  26th,  a  hill  hrouuht  into 
C'iuncil. — It  was  that  which  restrained  the 
fishery. 

The  journal  of  the  House  says — The  se* 
cretary  said  this  i<;  a  conquered  country,  it  ia 
the  kint^*s ;  }ou  have  nothing  to  do  with  it: 
the  pailiament  held  they  were  part  of  the  do- 
minions of  the  state  ;  they  say  the  nenalties  and 
forfeitures  are  void,  as  not  t>eing  by  authority 
uf  parliiment. 

Sir  K.  Coke  said,  how !  not  subject  to  par- 
liament !  why  they  pass  by  the  king's  Utters 
patent  ? 

To  be  sure  it  is  true  the  king  cannot  (cr.int 
penalties  and  forfeitures;  for  that  would  be 
imposing  a  tax  under  colour  ;  and  it  is  proved 
demonstrably  the  prerogative  of  the  crown  had 
not  that  power  over  them. 

[Lord  Mantfield,    I  take  it  those  penaUica 
were  recoverable  here.] 
U 


*91] 


15  GEORGE  HI.  The  Case  of  the  Island  of  Grenada^  [293 


The  coDfiemipnce  in  the  ?ery  next  charter 
WM  a  f^rant  or  a  free  fishery. 

In  the  charter  {^ranted  to  Mr.  Penn  there  is 
this  remarkable  clinse,  that  no  imtiosiuon  shall 
be  le?ie(l  on  the  colony  without  consent  of  the 
proprietor  and  assembfy,  but  by  act  of  parlia- 
ment in  England.    Calais  was  a  colony. 

[Lord  Mantfield,  Was  Calais  a  colony  ?  It 
Vras  ceded  by  the  treaty  of  Bretig^uy.] 

Lonl  Vaoghan,  290,  states  writs  of  Non  Mo- 
lestando,  issuini;  out  of  Chancery  to  the  mayor 
of  Calais,  and  di?era  writs  of  error. 

With  regard  to  the  other  parts  not  colonized, 
airnaandatory  writs  issued  hence  as  they  might 
do  to  any  part  of  the  kiug'a  dominions.  Lord 
Faughan,  but  without  pr^edent,  says,  writs  of 
error  might  issue  to  Ireland  ;  I  don't  find 
however  that  remedial  writs  ever  issued^  but 
mandatory  writs. 

The  conquest  of  Wales,  by  Edward  the  first, 
hat  already  been  very  fully  considered,  and  I 
find  no  reason  to  depart  from  the  ground  then 
taken.  The  language  of  that  king  was  that 
every  part  of  his  dominions  not  in  his  possession 
was  teudatory  to  him, '  quia  in  propnetatis  do- 

*  minium  totaliter  conversa  et  tanquam  para 

*  corpori  annexa  et  unita.' 

From  the  conquest  no  instance  of  any  but 
the  legal  authority  exercised. 

The  conquest  of  Ireland  is  the  next.  Co.  4th 
Inst,  aavs  that  H.  2  ordered  the  laws  kept  in 
England  to  be  observed  in  Ireland,  and  that 
he  sent  a  transcript.  Leland  considered  this  as 
merely  declaratory  of  the  necessary  conse- 
quences of  the  laws  already  received. 

In  Harris's  Hibemia,  from  the  records,  a 
mnt  to  Felix  Stephens,  with  the  wanlships : 
tnis  could  not  have  been  constituted  without 
manner  of  recovering  according  to  the  laws  of 
Eiigland. 

£ord  Holt  says,  (which  cdncurs  with  this  ar- 
gument,)  it  was  not  the  mere  conquest,  but  the 
subsequent  settling,  which  let  them  into  the 
tame  rights  with  the  other  subjects. 

In  Mr.  Petit,  80,  to  shew  the  Commons  of 
England  sat  separate  before  the  S7  H.  S,  a  re- 
gister is  cited. 

In  the  S8th  of  Henry  the  third,  by  the  queen 
regent  to  the  archbishops,  bishops,  &c.  of  Ire- 
land, to  assemble.  Therefore  Ireland,  Wales, 
Scotland,  all  partook  of  the  constitution ;  all 
were  and  are  exempt  from  taxation  by  prero- 
gatire.  I  have  spoken  already  of  Pensylvania ; 
the  same  argument  will  apply  to  the  other 
colonies ;  the  same  to  Grenada. 

But  secondly,  even  if  the  colonies  are  not 
exempt  from  such  taxation  by  prerogative,  ex- 
cept the  king  waive  and  renounce  it,  has  not 
the  king  barred  his  right  ? 

The  capitulation  req'iires  liberty  of  selling 
lands.  They  are  allowed  to  sell  them  to  Bri- 
tish subjects. 

They  desire  the  laws  of  Antigua  and  St. 
Christopher's,  which,  except  a  few  local  ordi- 
nances, are  the  same  as  in  £nglan«l,  and  they 
are  promiied  in  answtf  thai  they  sbaU  be  con- 
iidered  ai  Biitiah  soljeq^. 


October  7,  1763.  That  all  persons  paay  rely 
on  the  royal  favour  of  Great  Britain  till  the  as- 
sembly can  be  gut  together,  courts  of  jostice 
are  to  be  erected,  with  authority  over  eaasee 
criminal  and  civil,  as  near  as  may  he  to  the 
laws  of  England. 

Then  in  March  it  is  taken  for  granted  that 
they  have  relied  on  the  encouragement  and  as- 
surances of  the  former  proclamation,  and  a  sur^ 
vey  and  distribution  of  lands  is  ordered. 

Then  by  the  patent  creating  Mr.  Melville 
^vernor  of  Grenada  and  the  other  islands,  he 
18  ordered  to  call  an  assembly  as  soon  aa  poe- 
sible,  for  the  purpose  of  making  laws.  1  can 
see  nothing  stronger  than  the  language  of  the 
proclamation. 

That  proclamation  was  said  to  be  executoty* 
«  The  calling  an  assembly  is  merely  discrer 
tionary  in  the  governor."  Shall  the  eflfect  of 
the  proclamation  he  suspended  on  that  event? 
Must  we  construe,  "  J  give  the  law  of  En{p« 
land  until  you  have  an  assembly"  to  this, 
<*  You  shall  not  have  the  laws  of  England  till 
you  have  an  assembly  ?'* 

The  legislature  of  the  colonies  might  make 
such  addition  of  local  ordinances  as  they  sboold 
think  fit. 

One  of  the  benefits  is  this  proclamation. 

On  what  authority  was  the  proclamation  f 
The  king  had  no  right  to  levy  the  tax  80th 
July  1764,  unless  under  the  patent  in  April. 
We  need  only  compare  the  dates. 

But  it  is  said  there  is  no  law  at  all.  If  the 
kin|f  has  not,  who  has  ?  I  answer,  the  supreme 
legislative  power  of  the  state.  The  stamp- act 
prevailed  at  that  time. 

It  is  a  principle  in  contracts  between  politi- 
cal bodies  contracting,  still  mora  necessary 
than  between  private  persons,  that  the  grant 
once  made,  can  never  be  recalled,  and  cannot 
be  released  till  the  conditions  of  the  contract  are 
broken  by  the  one  or  the  other. 

This  compact  is  what  every  speculative 
writer  requires  in  his  closet ;  what  practice  re- 
quires in  all  ages  between  nations;  and  which, 
mutually  and  irreversibly  bound  both  partiea. 

As  to  the  island  of  St.  Christopher's,  the  opi- 
nion of  lord  Ilardwicke  and  sir  £.  Northey  it 
observable. 

They  certify  they  have  prepared  a  draught 
of  several  laws  of  iour  and  a  half  per  cent,  oa 
the  conquered  pari  of  St.  Christopher's,  as  Au*  aa 
they  thought  the  condition  wonld  permit,  coo* 
formably  to  the  proclamation  1703,  which  wat 
in  the  time  of  the  war. 

Sir  Philip  Yorke,  in  the  year  17S9,  and  rir 
Clement  Worge,  attorney  and  solicitor-gene* 
rals,  were  asked  how  far  the  king  could,  by  hie 
prerogative,  levy  a  tax  on  the  island  of  Ja« 
niaica.  They  answered,  that  if  Jamaica  ii 
still  to  be  considered  as  a  conquered  country, 
the  king  has  that  right ;  but  if  it  be  in  theaituft- 
tion  of  the  other  islands  the  tax  cannot  be  leviedl, 
unless  by  act  of  assembly,  or  of  Kngliih 
parliament. 


[Lord  Mmi^field^^l  belie?e  your  report 
wnnig*] 


Cam}ibdl  V.  llaU. 

t  was  ex|ie<]ieai.     II'  it  is 
It  thai  it  Ti  ex|iedienl  lo  them  \a  li«ve  llieii' 
_->  l^ro  from  lliein  (Iml  I  rkDool  conceive 
>  ihal  (buulJ  be)  tlie  tax  i>  tery  i-ip«>lient: 
I  I  liat*  uu  iliiiilil  ihe  Cniirl  will  cooKJtler 
U  ii  Uwl'ul,  ami   upon  ihul   ground 
1  giHHl  ex|>eGlalion,  llie  cauie  of  ihe 

■^  ManififJi—Thej  «llow  the  laliilily 
_to  hUrri  poleiit  of  1764,  iii  fitr  a»  Ihry  an- 
Bibe  poll  4uly  ;  (his  come!*  in  lieu  or  it. 

t*'tg  uetti  paid  niter  the 
was  au  iDierial  of  two 


Mr.  llargraM.  My  lord ;  when  I  caii<tider 
lit  great  imporuncu  orthei|iie«tioas  arisiDg  in 
llm  now,  Koil  tiow  ably  aail  Icnrnetlly  Uiey 
lM*a  biwn  ari;u?<I  by  ihe  gtrDtlemun  oq  Ihe 
uhfT  aide,  I  find  inyiflf  unilrr  extreme  dilH- 
nltics;  and  I  wi»h,  that  llie  Isak  of  auswei'iaK 
Nch  Irtrueil  arffitmenti  bud  Tallen  upsn  aome 
p«i«Da  more  capable  ol  acquitting  biniself  of  it 
than  I  am. 

TwnquFttidiiihaTelweD  made  io  thiacauae; 
n»r  II  a  genenil  (jUMlioD,  Whether  the  king 
ly  liin  |<rer<if^iite  haa  a  rii^bl  to  tax  a  cod- 
ipttvi  iiiiinlry  T — The  other  u  a  more  uarli- 
tularqui-ition ;  and  thai  ia,  Wbelhi>r  the  ulaiul 
■"'(■■riiads  at  the  lime  of  impnsiui;  Ihe  djiy  of 
'^uran<l  M  hall' |ier  cent,  naa  to  be  conaideied 
>i  1  ci>oi|iivrvd  coiiiilry  ? 

11  jr  (ard  ;  it  is  not  necessary  to  debute  geiie- 
rilly,  utiat  ia  the  tlfect  ofcomiuest,  or  what 
r^ii«  thecontfuerur  hi*  over  ibe  iieajdetoo- 
'  i-red.  Tu  dralioy,  to  kill.  In  deijioil  aud  np- 
■rrt,  are  pcelension^  I  should  be  ibiicked  lo 
i-Eue  in  favour  of.  Butlbrre  are  some  righb 
■dicit  nluBt  be  allowed  lo  (he  conqueror;  and 
(■  liai,  as  1  apprehend,  a  rl^ht  of  making  lawi 
Li  gaterti  a  Conquered  (leopte.  If,  indeed,  he 
rmiMiit*  to  aiifiulatioiia  ia  their  favour,  Itiey 
smtmttl  ibe  l*iti*Ulire|)aweraf  the  raoqueror; 
:>d  ouubl  la  Im  rigidly  obaerved.  Bui  if  ihere 
'  I  lUAmiiuoo  williout  any  particular  lermi, 
itK-B  tiie  full  aoverei^niy  vetu  in  the  canquerur ; 
U'l  br  haa  llic  IpKnUtite  power  without  any 
uW  rules  In  ilirect  him  io  Ihe  exercise,  than 
ibocr  wliicli  natural  justice  and  equity  pre- 
KcihF.  Kuril  is  Ihe  i^eDcral  doctrine  in  respect 
\i  I  rfinijiiFred  coiinirv ;  and  under  the  quali- 
ar.iHJi>.  I  haie  alalei]  llie  ritjhis  of  Ihe  coa- 
'j'lrii.r  I.I  rii.i,  1  appreheuil  my  learned  friend 

Kill  ic4ii't'  iliiuk  projicr  lo  deny  Ibeni. Bui 

ibi'ii.'li  Uic  Keoenl  prnpoaitiun  maybe  true, 
uilMitilf  cHn  b«  mfrrred  from  it  to  explain, 
•  Il.i  !>'.'>  r.h  aiiil  what  iireioiiati'es  tlie  kinjc  of 
(('••I  lliii.iin  ia  roliilcit  In  eierciiie  oter  iha 
rmii.iri.  V  111'  iiblaina  by  eonqiieat.    The  Keiieral 

|> 'y  iilii-m,  ihni  ihe  cmquerrd  coun- 

■  ■  I .  'iilijipi  In  ihediimini'inuf  the  iie"- 
i"'iii|;:  hut  huw  tu<  h  dominion  ia  to 
V-  ■,  Mi>ril.  in  what  iirrwin*  the  |>ower*  of 
r  tealail,  ilepandu  upon  ihrir  uwn 
■I  cuitnma,  and  the  I'onti  of  ll^eir  own 
'  «#od  (OMruaMOt. 


A.  D.  1774. 


[90^ 


If  Ihe  king  of  France  make*  s  coni]UNt,  lh» 
aoyereiKn  ufcourKe,  as  KOun  ai  the  conquest  ia 
DDBde,  unsnmes  the  sole  l^iiUtion  of  the  peo- 
ple conquered, 

In  the  case  of  a  mixed  g^rerDmenl  like  aurf , 
tl)e  lesiElmire  power  over  a  conquereil  counlry 
may  be  in  the  kini;  only,  or  in  the  king  and 
llie  two  Houses  of  Parliament,  ll  might  be  a 
nueslion  of  some  difficully  (o  decide,  in  whom 
the  lettialalive  power  ought  to  reside  in  such 
caseaccoi'iling  to  our  conslilulion,  if  there  were 
no  precedents  of  law  lo  f^ulde  and  direct  ui. 
But  unless  1  am  greatly  deaeited  the  point  haa 
already  been  determined:  and  all  the  aulbo- 
riliea  which  are  to  be  ni^l  with  upon  the  sub- 
ject, uniformly  concur  in  Ihe  doctrine,  Ihat 
the  power  of  imposing  laws  upon  a  conquered 
country  belongs  to  tue  king  as  a  part  of  his 
I>rerO};alI«e.  It  has  been  ohjeclcd  by  your  tord^ 
ship,  thai  the  cases  which  were  died  upon  the 
former  argument,  as  well  as  those  now  cited 
by  my  leuned  friend,  were  so  full  of  i(iaccurK- 
Gies,  that  they  were  not  mucii  lo  be  depended 
upon.  So  far  as  regards  historical  fact^,  I 
agree,  that  the  ubservaUon  is  just:  f>|il  ^ill^ 
respect  lo  ibe  principle  of  taw,  the  cfises  ar^ 
clear,  strong,  and  uniforni,  ami  all  of  llieni 
ascribe  to  Uie  king  ihe  urerngaliie  of  imposing 
laws  upon  a  coiiqueTed  couDlry  iu  leritis  lbs 
most  explicit.  What  countries  fall  under  Iha^ 
description,  whether  Ireland,  Wales,  or  uther 
countries  which  have  been  mentioned  fall  under 
it,  Ihe  authorities  differ  abuul  '■  but  in  respec^ 
lo  Ibe  dDctrine  uf  law  there  is  nut  the  jeaal  dis- 
agreement. 

The  earliest  case,  in  which  1  find  any  thinir 
upon  ihe  suliiect,  is  Culriii's  case  ;  and  I  will 
slate  In  Ihe  Court  so  much  out  of  that  case  as 
is  applicable  to  the  present  lubjeet.  Lord  Cnk« 
raenliuna  ia  Caliin's  case,  thitl  a  disiinclion  had 
been  taken  between  countries  vested  in  tha 
king  by  conquest  and  couiilries  coming  to  him 
by  descent.  This  ifave  uccusiun  lo  an  enquiry, 
whether  Ihe  king  bad  greater  powers  over  ihe 
former  ihan  over  the  latter ;  and  it  was  atjreed 
by  ibe  judites,  ibat  he  bad;  and  that 


to  i 


y  obtained  by  conquest  he  had  authority 
i  laws,     In   reporting  this    doclri 


lord  Coke  mixes  with  il  another  diatinclion  be- 
tween Infidel  and  Christian  louotries,  which  ia 
now  Juhtly  exploded.  But  ibis  ought  not  to 
prejudice  the  other  pari  of  ihe  doctrine,  wbick 

is  nul  liable  to  I  lie  same  objection 


Mr.  Uargrave.  My  lord,  I  cite  the  case,  not 
nn  account  ol  Ihe  dislini;lion  between  Infidel* 
and  Christians,  but  lor  Ibe  doctrine  assenied  l« 


Terence  derived  from  the  rrligiuti  i 
try  may  he  absurd  and  unreaMmnble,  mill  ihrra 
may  be  other  parts  of  the  rase  nol  liable  lo  ub- 
jectiun  I^rdt'oke,  dnu'ribiiiu the  kii-u's  power 
over  a  cuoqoeced  cnunlfv.snyii,  "  lie  may  at 
^euura   alur  and  diauge  ibe  iaw«  ef  ihf 


295] 


15  GEORGE  III.  The  Case  nfthe  Island  of  Grenada—  [296 


ku)«;(lom  :  hut  till  lie  does  make  an  alteration 
ttie  undent  laws  remain."  So  that  accordintr 
to  the  opinion  in  this  case,  the  kinji;  has  the 
cou)|)lKe  power  of  chann^ini^  the  laws  of  the 
conqu.'red  people,  as  he  thinks  proper  and 
OMivenient.  He  may  give  them  the  laws  of 
£nt;laud  or  any  other  laws:  hut  if  the  En;i:lish 
laws  are  once  f^iven,  from  that  time  the  kin<;'8 
preroirative  of  imposinti^  laws  ceases;  and  lord 
Coke  au^rees,  that  then  their  laws  can  only  be 
<^an;;cd  by  act  of  parliament.  This  doctrine 
from  Calvin's  case  is  of  impoitanre:  tvir  it  is 
the  0|)iuion  of  all  the  judj^es,  and  not  altogether 
extrajudicial,  being  an  observation  on  a  dis- 
tinction, which  had  been  made  by  the  counsel 
against  Calvin;  who  distinguished  between 
countries  acquired  by  conquest,  and  kingdoms 
coming  to  the  king  by  descent;  and  assorted, 
that  countries  of  conquest  arc  parcel  of  £ng 
land,  because  acquired  by  the  arms  and  treasure 
of  England,  and  that  such  countries  imme- 
diately become  subject  to  the  law  of  £ngland. 

But  this  is  not  merely  the  doctrine  of  lord 
Coke's  time,  the  same  prerogative  has  been  at- 
tributed to  the  crown  in  all  cases,  in  which  it 
was  necessary  to  consider  the  subject  both  be- 
fore and  since  the  Revolution.  Indeed  no  case 
has  arisen,  which  required  a  judicial  opinion  ; 
but  there  have  been  several  cases,  in  the  argu- 
ment of  which  the  doctrine  in  Calvin's  case  has 
been  mcnf  ionod  and  observed  upon ;  and  in  all 
of  them  it  has  been  asserted  botli  by  the  judges 
and  counsel  as  law. 

The  first  case  I  shall  mention  is  Dutton  and' 
Howell,  Hill.  3  James  3,  in  the  King's-bench, 
and  afterwards  in  parliament.  It  is  in  3  Mod. 
159,  and  in  Shower's  Parliamenury  Cases  1^4. 
This  cAse  was  an  action  brought  against  the 
jgfOvemor  of  T5arbadoes  for  false  imprisonment ; 
and  the  counsel  for  the  plaintiff  agreed,  that, 
according  to  Calviirs  case,  the  king  may  im- 
pose laws  upon  a  eouquered  country,  but  de~ 
tiied  that  Darba<loe«  was  u  conquest.  The 
counsel  for  the  plaintiff,  whose  interest  required, 
that  the  doctrine  should  he  controverted,  if 
there  was  a  chance  of  doing  it  with  suc- 
cess, assents  to  it  without  hesitation.  The 
words  of  Shower  are,  **  It  was  a^^rced  that 
according  to  Calvin's  case,  upon  the  conquest 
of  an  infidel  country,  all  the  old  laws  are  abro- 
gated CO  intfantc^  and  the  king  imposes  what 
laws  he  pleases ;  and  in  the  case  of  the  conquest 
of  a  Christian  country  he  may  change  tbem 
At  pleasure  and  appoint  such  as*  he  thinks  fit." 
The  rejiorter  goes  on  and  sa\  s,  **  though  Coke 
quotes  no  authority  for  it"  (wl)irh  is  a  mistake 
of  the  reporter,  for  lord  Coke  cites  the  case  of 
Ireland  and  other  instances  in  which  the  crown 
bad  exercised  such  a  povier)  **  this  may  be 
consonant  to  reason.  But  it  was  denied  that 
Barbadocs  was  a  conquest.  1 1  wa^  a  colony  or 
plantatioii,  and  that  imports  the  contrary,  and  by 
such  uanies  these  plantations  ha%e  always  gone 
in  letters  pratentj  proclamations  and  acts  of  par- 
ItaroeDt."  The  book  then  cites  some  autliori* 
ties  to  prof e,  that  Barbadoes  was  a  plantation  or 
litdcneot  of  EngliiluiieQ  wiui  tb«  king** 


consent.  Here  your  lordships  will  observe, 
that  the  sole  question  was,  whether  Barbadoes 
should  be  deemed  a  colony  or  a  coiiqnest ;  and 
it  seems  to  have  been  agreed  by  all,  that  if  it 
was  a  conqurred  country  the  king  hati  authn- 
rity  to  impose  laws.  But  this  case  was  before 
the  Revolution. 

Bianchard  and  Galdy,  which  has  been  so 
frequently  mentione<l  to  your  lordship,  is  the 
next  case.  It  was  after  the  Revolution,  and  h 
in  Comberbatch  238,  and  4  ^lod.  215.  and  3 
8alkeld411.  The  question  in  that  case  Mas, 
whether  selling  the  ofiice  of  deputy  provost 
marshal  in  Jatnaica  was  within  the  statute  of 
Edw.  6,  and  tiie  Court  held  that  it  did  nut  ex* 
tend  tu  Jamaica,  because  it  being  a  conquered 
country,  the  laws  of  England  did  not  extend  to 
it  till  'introduced  by  the  conqueror  or  his  suc- 
cessors, meaning  dearly,  the  king,  for  the  word 
'  successors'  will  not  apply  to  parliament.  I 
will  not  repeat  to  your  lordship  the  words  of 
the  report  in  Salkeld,  as  they  have  been  al* 
ready  state<l  more  than  once. 

Another  case  since  the  Revolution,  in  which 
the  doctrine  is  mentioned,  is  in  2  Feere  \\\U 
liams  76,  and  there,  my  lonl,  it  was  said  by  the 
master  of  the  Rolls  to  be  determineil  by  fbe 
lords  of  the  privy  council,  that  if  there  be  a 
new  uninhabited  country  found  out  by  English- 
men, as  the  law  of  England  is  the  birthright  of 
every  subject,  so  wherever  they  go  they  carry 
their  laws  with  them ;  but  where  the  king  of 
England  conquers  a  country  it  is  a  different 
consideration,  for  there  the  conqueror  by , saving 
the  lives  of  the  people  gains  a  rii^ht  and  pro- 
perty in  the  people,  in  consequence  of  which 
lie  may  impose  upon  them  what  laws  ha 
pleases. 

Lord  Mansfield.  It  is  ill  expressed  in  the 
report ;  1  take  it  the  master  of  tlie  Rolls  did 
not  express  himself  so. 

Mr.  Harpravc.  My  lord,  the^  are  (he  only 
cases,  in  which  I  find,  that  the  general  doc- 
trine in  respect  to  the  king's  prerogative  over  a 
conquered  country  has  come  into  question. 

But  there  are  instances  in  \%  hich  the  kin^ 
has  artually  exerted  this  prerogative  of  giving 
laws  to  a  ctMiquered  country. 

The  first  instance  is  that  of  Ireland.  My 
lord,  authois  differ  very  much  in  their  opinions 
about  the  manner,  in  \s  hieh  the  laws  of  Eng- 
land were  introduced  into  Ireland.  Lord  Cuke 
in  Calvin's  case  considers  king  John  as  having 
given  the  !aws  of  Envrland  to  Ireland.  The 
words  are — **  If  a  king  has  a  Christian  kingp- 
dom  by  conquest,  as  kinif  Henry  the  2d  bad 
Ireland,  after  king  John  had  given  unto  them, 
l>eiiig  under  his  obedience  and  subjection,  the 
laws  of  Kiigland  for  the  government  of  that 
country,  no  succeeding  king  could  alter  the 
same  without  parliament."  Calvin's  case,  T 
Co.  176.  Here  lord  Coke  treats  Ireland  as  a 
conquered  country,  and  king  John  as  giving 
laws  as  a  conquei^r.  But  in  the  4th  Institute 
king  Hvnry  the  2d  is  said  to  have  partly  io- 
trodnoMi  tbam  before;  and  there  lortl  Colit 


897]  Campbell  v.  Hall. 

rifps  several  reconis  of  the  reififn  of  Henry  3, 
in  which  kin|;^  John  is  said  to  have  ordained, 
that  the  laws  of  England  shonld  be  obtierved  id 
Irdaod.     But  one  of  them  expretisefi,  that  he 
ntrodnced  them  with  the  common  consent  of 
dill  Ireland.    The  words  of  the  record  are, 
^consuetudines  et  lei^fes  re^rni  nostri  Angliie 
^■as  bonae  memorise  Juhanne<$  rex  pater  noster 
it  coram uni  omninm  de  HLberni^  consensu 
ineri  statuit  in  terru  ilia,"  4  Inst.  349.     From 
dw  record  and  other  circumstances  attcndiuji^f 
tkeennqueitt  of  Ireland,  Mr.  Molyneux  in  his 
areuraent  ani^ainst  the  authority  of  the  Eni^listb 
parliament  to  hind  Ireland  by  statutes,  has  in- 
ferred, that  the  laws  of  England  were  not  im- 
posed upon  the  Irish  as  a  conquered  people, 
wt  were  extended  to  them  at  their  own  desire 
lad  with  tbcir  own  consent.      But  sir  John 
Darib's    account  of  the    introduction  of   the 
Ea^liali   laws   into   Ireland    seema  the  most 
a^^reeabie  lo  history  ;    and  according*  to  him 
ihiey  were  not  established    *  bimul  et  semeP 
over  the  whole  country,  but  pfradually,  first 
aver  so  muc4i  of  the  country  as  was  possessed  by 
the  Eof^lish  colonists  in  Ireland,  and  at  lencftb 
orer  the  other  parts  of  the  island,  as  the  kinsj^ 
from  time  to  time  thou$(ht  proper  tp  extend  the 
protection  of  the  Enij^lisb  laws,  which  was  not 
uaitersally  till  the  Sd  year  of  James  1,  who  by 
prochunation  declared,  that  he  received  all  the 
aativca  under  his  royal  protection.    Sir  John 
Dario'i  Reports,  101  to  108,  and  bis  book  on 
the  causes  why  Ireland  was  not  aubdued  ^till 
the  bei^inning  of  the  reign  of  James  the  Ist. 
Tbe  further  particulars  on  the  subject  will  be 
fiNwd  in  Pryn  on  4  Inst.,  sir  Matthew  Hale'i 
lirtory  of  the  Common  Law,  tbe  1st  vol.  of 
Ubnd's  History  of  Ireland,  Nicholson's  Irish 
fliflorical  Library,  and  two  controversial  tracts 
« the  Eneliah  parliaiueut's  power  of  making 
]im%  tor  Ireland  in  Harris's  Hibernica.     Tbe 
two  tracts  were  nritten  about  the  year  1641, 
ibotti^h  not  pulilishedtill  within  these  few  years. 
Tbe  occasion  of  tlie  rontrovertiv  was  the  Act  of 
Adventurers  made  iti  the  17th  of  Charles  1, 
vhich  declared  mauy  Irish  persons  to  be  rebels, 
lad  disposed  of  their  lands  to  oihers.      The 
tract  against  tbe  right  of  the  Eni^lish  parlia- 
neatis  said  to  have  been  written  by  sir  Rich- 
ard Bolton,  or  as  Mr.  Hairis  rather  thinks,  by 
Mr.  Patrick  D'Arcy,  an  eminent  lawyer  of 
Ikaae  times ;  and  the  tract  for  the  right  was 
written  by  sir  Samuel  May  art,  Serjeant  at  law. 
&  much  for  the  time  and  manner  of  introduo- 
iag  the  English  laws  into  Ireland;  and  it  is 
ffvmirkable,  that  however  the  several  writers 
differ  in  explaining  tbe  mode  of  establishing 
tbe  English  laws,  there  is  not  one  who  denies 
tbe  right  of  the  kintj;  of  England  to  impose 
laiva  on  a  conouered  country  by  prerogative, 
eieept  Mr.  Molyneux,  whose  arguments,  it 
nnst  be  coiitesoed,  have  a  tendency  that  way. 
tbme  actually  attribute  the  introduction  of  the 
EoKlisb  laws  to  an  exertion  of  the  royal  pre- 
toyative,  and  tiie  assertion  aeems  well  founded 
ja  napcci  to  such  parts  of  IrelaiMl  as  were  not 
Sogliah  •oloBiet.  Butirbatef  er  the  fact  might , 


A.  D.  1774. 


[SgB 


be  in  respect  to  Ireland,  all,  except  Mr.  Molj* 
neux,  agree,  that  the  constitution  invested  th« 
king  with  such  an  authority  over  a  conquered 
country,  lu  the  treatises  by  D'Arcy  and 
Mayan,  Calvin's  case  is  particularly  0010^ 
mented  upon  ;  and  both  writers  concur  in  th« 
principle  there  laid  doHu  as  to  conquered  coun- 
tries ;  and  both  recognize  it  to  be  the  law  of 
England ;  the  only  difterence  between  them  in 
this  particular  being,  that  Mr.  D'Arcy  lop- 
poses  king  John  to  have  introduced  the  lawi  of 
England,  and  that  serjeant  Mayart  aupposei 
tliein  to  have  been  introduced  by  kinir  UenrT 
tbe  2d.  J       B  J 

My  lord,  Wales  is  another  instance  in  whick 
the  prerogative  of  imposing  laws  either  hma 
been,  or  as  all  the  books  agree,  might  have 
lieen  exerted.  When  Edward  the  first  had 
conquered  Wales,  some  of  its  ancient  lawi 
were  changed,  and  made  conformable  to  tbe 
laws  of  England,  though  the  greatest  part  of 
them  remained  in  force  till  the  S7tb  of  Henrj 
8.  But  it  ia  not  clear,  whether  tbe  19tb  of 
Edward  1,  sometimes  called  Statutum  Wallita 
and  aometimea  the  statute  of  Rothland,  by 
which  the  alteration  was  first  effected,  was  an 
act  of  parliament  or  merely  a  royal  cbarteTit 
It  ia  printed  among  our  statutes,  and  lord  Coke 
and  lord  Hale  call  it  a  statute,  and  it  ia  so  called 
in  Plowden;  but  sir  John  Davia  calla  it  a 
charter.  Lord  chief  justice  Vaugban  aeeoM 
doubtful  what  it  is,  and  Mr.  Barrington  in  bie 
Observations  on  ancient  .Statutes  ia  of  opinion, 
that  it  ia  not  a  statute.  4  Inst.  239 ;  Hale'a 
Hiitory  of  Common  Law  182  ;  Plowden  126;  ^ 
Davis'a  Reports  114 ;  Vaugban  S99.  and  Bar- 
rington, 2nd  edit.  p.  84.  But  whatever  was 
tbe  mode  of  first  abrogating  the  Welch  laws 
and  aubstitutingthe  Uwa  of  England,  lord  chief 
juatice  Vaugban  allows  the  authority  of  king 
Edward  to  make  the  alteration  without  an  act  . 
of  parliament.  In  speaking  of  Wales,  and  of 
the  12th  of  Edward  1,  hia  words  are,  **  80  at 
from  this  time  it  being  of  tbe  dominions  of 
the  English,  the  parliament  of  England 
might  make  laws  to  bind  it :  but  it  waa  net 
immediately  necessary  it  should ;  but  iti 
former  lawa  (excepting  in  point  of  aove- 
reignty)  ibight  atitl  obtain,  or  such  other  as 
Edward  tbe  1st  should  constitute,  to  whom 
they  had  submitted,  and  accordingly  their 
laws  after  their  submission  were  partly  their 
old  laws,  and  partly  new  ordained  by  him," 
p.  400. 

Lord  Manificld,  Edward  the  1st  considered 
Wales  as  an  aotient  fief  of  the  crown  of  Eng- 
land.   The  statute  so  represents  it. 

Mr.  Hargrove,  My  lord,  so  far  aa  lord 
Vaugban  goes  the  authority  is  the  same  ;  be- 
cause he  treats  it  as  a  conquered  country,  and 
doea  not  found  himself  on  Walea  being  a  fief 
of  the  king  of  England.  He  considers  Wales 
aa  having  auhmitted  to  Edward  the  first  aa  a 
conqueror ;  and  therefore  attributes  to  him  a 
power  of  imposing  laws  ;  though  he  ia  doubt- 
ful whether  lie  exerciied  it,  or  wbetlMr  theal* 


9S9] 


15  GEORGE  III.  The  Case  of  the  Island  ofGrenadt 


tirttioD  of  the  Welch  laws  was  made  by  the 
Aathority  of  parliament. 

I  am  now  come,  my  lord,  to  America ;  and 
thall  ftata  bow  the  |irerogatiTe  has  been  exer- 
cited  there.  One  ffeneral  obser? ation  may  be 
CLBplied  to  our  colonies  in  America  and  the 
It  eat  Indies,  which  is,  that  all  of  them,  except 
•ome  of  the  few  ceded  to  us  by  foreign  states, 
whose  constitutions  bate  not  wen  yet  Taried, 
derite  the  whole  frame  of  their  gofernment 
from  an  exercise  of  the  royal  prerogati?e. 
Their  sroTernors,  their  councils,  their  assem- 
blies; uietr  courts  of  justice ;  all  orifpnate  from 
giAs  of  the  crown.  Their  legisiatife  powers, 
•fen  their  powers  of  taxation,  flow  from  the 
came  source.  The  more  early  charters  from 
the  crown,  those  antecedent  to  the  reign  of 
James  the  1st,  were  mere  grants  of  the  soil  of 
newly  disco? ered  countries  without  fixing  any 
form  of  g^eramcnt.  The  first  charter  for 
erecting  the  government  of  an  American 
colony  bears  date  the  10th  of  April  1606,  and 
was  to  the  two  Virginia  companies.  It  is  wor- 
thy of  notice,  that  by  this  charter  the  king  ?ests 
the  powers  of  government  and  legislation  in 
Mich  as  should  be  appointed  by  a  council  of 
wersons  resident  in  London,  tknd  abo  imposes  a 
my  of  two  and  a  half  per  cent,  on  merchan- 
dise bought  and  sold  within  the  colony.  But 
this  was  before  the  Revolution,  in  times  when 
the  prerogative  was  too  oflen  carried  beyond  its 
d«e  and  constitutional  limits;  and  therefore 
much  cannot  be  inferred  from  exertions  of  the 
fMPerogative  during  such  a  period.  However, 
even  since  the  Revolution,  there  have  been 
great  law^ren,  who  have  attributed  to  the  king 
a  prerogative  of  taxing  such  of  our  American 
•ml  West  India  possessions  as  are  countries  of 
eoM|uest.  The  case  of  Blanchard  and  Galdy, 
in  which  lord  chief  justice  Holt  and  the  other 
judges  of  the  King's- bench  recognised  the 
doctnne  in  Calvin's  case  as  to  the  king's  gene- 
tal  powers  of  imposing  laws  on  a  conquered 
country,  and  the  case  from  Peere  Williams,  in 
which  the  same  doctiioe  was  laid  down  as 
law,  have  been  already  stated  as  a  confirma- 
^n  of  the  same  principle  of  law. 

The  instances,  in  which  the  king's  particu- 
lar power  of  imposing  taxes  on  a  conquered 
country  has  been  exercised  or  come  into  ques- 
tion with  respeot  to  America,  shall  now  be 
mentioned. 

In  1686,  the  government  of  New  England 
being  seized  into  the  hands  of  the  crown  under 
a  jii«lgment  in  a  Cluo  Warranto,  kinflf  James  2, 
appointed  a  governor  and  council  with  power 
to  continue  the  former  taxes,  till  they  should 
■ettle  other  taxes  under  this  commission.  The 
ffovernor  and  council  nasned  an  art  continuing 
-me  fonner  taxes,  and  in  the  year  after  the  Re- 
volution (and  it  is  u|M>n  that  account  1  s|)eak  of 
'the  case,  for  I  should  be  ashamed  to  mention  a 
preceflent  of  the  time  of  James  the  3nd  upon 
4he  sul^ct  of  prerogative,  unless  it  was  sup- 
porteil  by  the  opinion  of  theme  lawyers,  who 
lived  after  the  Revolution,)  loni  8omm«^«  and 
«r  Geoife  Tkeby,  upon  being  ceosiilMd  io  the 


[90( 

case  of  one  Usher,  gave  their  opinion,  that  thi 
ofiicers  of  the  revenue  who  collected  aucl 
taxes  were  not  liable  to  auy  action  for  • 
doing — 

Lord  Mansfield.  The  king  appointed  tb 
governor  and  council.  What  were  the  power 
given  them  ? 

Mr.  Hargrove,  A  power  to  collect  forme 
taxes  till  they  should  settle  other  taxes ;  aw 
under  this  commission  the  governor  and  coon 
cil  passed  an  act  continuing  the  former  taxes. 

Lord  Mansfield,  That  appointment  reapeol 
ing  the  collection  of  taxes  was  temporary. 

Nr.  Hargrave,  It  was  the  year  after  tiK 
Revolution  that  lord  Sommers  and  sir  Geoigt 
Treby  gave  their  opinions.  Lord  Sommer 
and  sir  George  Treby  were  consulted  upon  tb 
legality  of  such  taxes  in  1689. 

Lord  Mansfield.  They  were  attorney  and  n 
licitor  general,  I  believe. 

Mr.  Hargrave,  Their  opinion  iieing  givai 
so  soon  after  the  Revolution  becomes  a  vtr 
strong  authority,'  unless  a  difierenoe  can  i 
established  between  a  tax  revived  and  a  nai 
Ux. 

Lord  Mansfield,  How  do  von  autbentiaite  it 

Mr.  HttTfrave,  I  have  the  case  in  my  kam 
with  the  opinions  upon  it. 

Lord  Mansfield.  Is  it  official  P 

Mr.  Hargrave.  I  believe  it  is  an  oflicial  can 

Lord  Mansfield,  Is  it  referred  to  them  as  sf 
ficers  of  the  crown  ? 

Mr.  Hargrave,  It  don't  appear  in  whm 
name  they  were  consulted  ;  but  most  probaMj 
it  was  by  the  directipn  of  the  crown.  [Hai 
Air.  Hargrave  stated  the  words  of  lord  8o» 
mers's  opinion.] 

Lord  Mamfield.  They  considered  the  cbarlR 
being  vacated  as  if  it  never  had  existed,  asi 
the  charter  was  out  of  the  way,  and  they  hid 
no  particular  constitution  given  them  by  thi 
crown,  and  so  it  went  from  the  RevofuliM 
down  to  1694  or  95  till  the  4th  of  king  Willias^ 
their  present  charter  was  given  them  in  the  4lh 
of  king  William. 

[Here  Mr.  Hargrave  stated  sir  George  1W 
by's  opinion,  which  was  much  to  the  ism 
effect  with  that  of  lord  Sommers.] 

Mr.  Hargrave,  I  don't  however  msaa  ti 
extend  the  doctrine  as  far  as  lord  Soomers  sii 
sir  G.  Treby  extend  it.  They  seem  to  nslit 
no  difference  between  a  conquered  oomriifi 
and  a  colony  without  a  government. 

Lord  Mansfield.  You  mistake  it,  the  ehailV 
being  totally  void,  they  could  have  no  sortrf 
government  but  that  which  the  ooloaies  ihit 
are  called  provinces  have.  They  are  govcraii 
not  by  any  charter,  not  as  proprietory  gevsia* 
nients  are  by  any  grant  or  patent,  but  hf  ibi 
king's  commission,  and  instructions  added  tl 
I  hat  commission  ;  and  in  procem  of  timetbtf 
had  an  assembly  given  them  by  the  kingV 
commis«ion,  but  had  no  charter.  The  IwojiV 
tiemen  meant  the  charter  was  vaGated|.and  tf 
he  gave  a  new  charter  it  miial  bo  getamidljf 
the  Jung's  osmmiasion. 


Cimpbrll  V.  f/«ff. 

.  Tlitre  Bre  Mill  more  recent 
jiia  mp«rt  In  our  Arncriunposseisioiis. 
■  1709  tb«  Eiif^lisli  coniiuereil  (lie  FfEDL-li 
'  lleislinil  of  Si.  Christopher's;  aiid 
r  ifr  Gdwlril  Nnrlhcy,  then  allorney 
I,  M  a  rrference  lo  him  by  ihe  pi'ivy 
ipidion,  thai  the 
[hi  by  Icllrre  pnletit  im|iasc  b  iluly 
■  exporttd  from  the  conquered  [larl, 
n  li«  gave  was,  "  ihu  Ihe  i]iieen 
tcfO||fative  GOuM  make  Uvn  in  bind 
'■iOFil  by  MrKjiiest  «nd  all  thnt  inhnhit 
Aecurdini^y  a  duly  uf  four  ami  a 
a  cm.  was  imiimeU  by  the  queen,  thni 
t  it)ty  as  WB«  pnyaUe  io  the 
k  part  nt'  (he  island  under  an  aut  of  as- 
Thii  iluty  on  the  French  part  was 
1  till  Ihe  peace  of  UtrechI,  when  the 
a  of  Ihe  whule  iahiid  was  confirmed 
1  Britain,  anon  after  which  aii  act  of 
i  pBised  exlendinc  this  duty  of 
J*  half  per  cent,  lo  the  French  part  of 

Bol  tbne  is  a  more  recent  case.  In  the 
B  of  ihe  late  king  the  aa^i^iiibly  of  Jnraajca 
^~'d  tlie  Bcual  ijrnnlB ;  and  this  K>Te  oc- 
>  the  crown's  consulting  sir  Clement 
d  Ibe  lale  lord  llardwicke,  then  at- 
d  Mlicitor  eenerBl,  to  know,  whether 
f  bad  out  a  right  by  his  iirerogBtire  lo 
,  I  laxea  Jti  that  island.  Their  answer 
n,  "  Thai  if  Jamaica  was  still  to  be  con«i- 
1  conquered  island,  the  liiog  bad  such 
'11  if  it  was  to  be  considered  in  the 
<  r  -Mill  Ihe  other  colonies,  no  tax  could 
11  Ibe  inhabitanls,  but  by  the  as- 
1 1'.'  island  or  by  act  of  parliament." 
>  'K1  lourge  Bgminsl  these  aulhuril let, 
■  !  in  (irral  Britain,  in  Ireland,  and  such  of 
I  ir  iM>luDin  as  were  originally  settled  by  emi- 
rninia  frum  ihisoonnlry,  Ibe  le^islaliTe  [mwer 
inaleatrUBledtuUiecmwn.  It  might  perhaps 
-<  iMf*  codformable  lo  Ihe  general  nature  of 
I'l-  couatitution,  and  It  mi){bt  be  more  coD*e- 
'  -nt.  il  certainly  would  be  mare  uniform,  if 
■"r  tinttta  of  tlie  king's  preroijatiie  were  as 
(MCHiBMiribed  in  a  conquered  country  as  in  ibe 
■sla  ef  Great  Britain.  But  the  queatinn  tn 
bt^euled  here  ia  iiol,  what  would  l>e  the  best 
taawitiilifin,  but  what  Ihe  conslitulion  actually 
h;  nut  what  bounds  ought  lo  be  set  to  the 
lodg'a  (imoiCBliTe,  but  what  ila  liinita  really 
arc.  If  the  rvyal  prerogalire  ii  in  tliia  iustanre 
^v»[>er,  iocoareiiienl,  and  dailgeraos,  it  is  the 
^inCM  of  Ihe  British  parliament  to  correct 
<-;4  rafonn  it,  and  lu  reduce  it  wiibin  Darrower 
'-  -adai  but  Ihe  buainesa  of  thia  court  ia  of 
!■  miliar  kind. 

l^onl  Mniufield.  You  did  tint  state  ilrBil- 
>  I'd  Norihcy's  opinion  follv  1  his  opinion,  1 
•■  I  md  il,  ><  Ifaia  :  ■•  The  law  extended  ori- 
.  <*II*  la  nidi  part  of  8t.  Christopher's  as  be- 
^  to  Ibe  cfown  of  England.  Wheo  thai 
"  waa  made,  by  virtue  of  that  Inw  ibey 
•Id  nM  r«l«e  Ibe  duty  upon  Ihe  conquered 
\  yat  iMr  majeaty  niuy  if  she  lo  pleases 
'U  mi  01'  finglaiul  direct  aud 


^upsn  I 


A.  D.  m*.         rso* 

command  the  like  duly  lo  be  lef  ied  ti|»n  fnnih 
lobe  eicportad  I'mm  ihe  conquered  pari,  ami 
such  comioand)!  are  law  there,  hpr  majeaty 
bj'  prer^Blive  being  enabled  lo  make  laws  tn 
bind  |ilnce>  obtaineil  by  conquest,  and  alt  that 
iliall  inhiibit  IherHo." 

Mr.  Har/iravf,  If,  my  lord,  I  have  suc- 
ceeded in  ebtahlishiiig  the  Hml  poitft,  thai  (fa« 
kio^  hna  a  righl  hy  prerogatiiw  to  tax  a  «m- 
i|uered  cuunlrj,  the  only  remaintrtg  vaniidenl- 
liun  is,  whether  at  tlie  lime  of  iin|Ki«ing  the 
dutj  of  fonr  and  a  half  per  cent.  Ihe  ialanil  of 
Grenada  answered  lo  that  description.  Ii  is 
stilled  in  the  apecial  irerdid,  thai  the  island  of 
Grenada  was  conquered  during  (be  late  war  ; 
and  there  ianothingin  the  terms  of  capitnlstion 
which  giies  a  right  to  the  inhuhiianis  of  thai 
islund  to  the  laviB  of  England.  By  Ihe  Sifa  and 
[ith  articles  the  inhabiiRnta  lequire,  ttiat  they 
should  preserve  their  ciril  government,  their 
laws  and  ordinances  with  reapect  lo  Ibe  admi- 
nislralion  of  justice,  and  that  there  should  be 
regiiloljons  made  between  the  governor*  of  liis 
Briianuic  majesty  and  them  for  ihsi  purpose; 
and  in  ca«e  at  the  pence  the  island  should  be 
ceded  lo  Ihe  bingof  Cireat  Itriiam,  H  aliouMbe 
alloived  lo  the  inhabitants  lo  preserve  Iheir  own 
form  of  government  or  accept  tliat  of  St.  Chria- 
topher's.  This  was  what  was  demanded  un  the 
part  of  the  island,  but  the  demand  was  niA 
complied  with.  The  answer  was,  that  liiey 
would  become  British  snlneets,  but  should  lie 
conlinued  to  be  governed  by  their  present  law* 
till  liis  majesiy'a  pleasure  should  be  known. 
Ho  that  tlie  articles  of  capitulation  neilber  ati- 
iiulate  a  constitution  nor  lawa  for  the  island; 
but  leave  Ibe  tovbI  prerogative  ai  free  and  un- 
restrained, as  it  there  had  been  a  aohmissinn 
without  any  terms.  But  the  great  difficulty  in 
the  cause  arises  from  the  lirst  proclamaliuo,  by 
which  a  prorincial  legislature  and  Ihe  laws  of 
England  ere  promised  to  the  island  of  Grenada, 
and  the  commission  lo  governor  Melville,  by 
which  be  is  auLliorixed  lo  carry  thai  promiae 
into  effect.  It  is  saiil.  that  these  iustrumenta 
were  an  immediate  gift  of  llie  Briliab  consti- 
tution and  liberties,  and  of  Ibe  English  laws ; 
and  being  antecedent  to  Ihe  letters  patent  tor 
imposing  the  duly  of  four  and  a  half  [ler  cent, 
were  a  waiverofthe  prerogative  of  taiing.  Il 
is  true,  ihal  an  admin tslrDtitiu  of  ju<itice  accord- 
ing l»  Ihe  laws  of  England  was  lo  lake  effect 
Immedialelv,  but  both  Ibe  proclamation  and 
governor  Iflclville's  commission  suspend  the 
calling  of  a  general  assembly,  till  the  cii- 
eumstances  of  the  island  slioutd  admit  of  a 
clianile  so  important.  It  was  left  entirely  to 
the  discretion  of  the  trovernor  and  liis  «nnn<il 
in  decide,  when  it  should  be  proper  lo  eaeeuta 
that  part  of  his  cammla^inn :  anil  in  fact  it  was 
not  executed,  an  aasrinbly  was  nut  called,  till 
afler  imposing  the  duty.  Before  tlie  first  pro- 
clamation, the  king  was  the  lawgiver  of  the 
island;  but  he  thought  fit  to  promise  a  tegis- 
lalure  more  conformable  to  the  general  frame 
ul'  uiir  govenimeul,  and  he  comiiiissions  hi« 
KoverDOr  to  lUlfil  thu  promise  when  ibe  slate 


303] 


15  GEORGE  III.  The  Caunfthe  Island  ijf  Grenada—  [304 


of  ibe  iBltnd  should  permit.  Till  Ifaat  timp 
came,  1  aubpiit,  tlialilie  prerogative cnolmupil. 
1  aubmil,  lh>t  (he  kin^^'B  Icgislalire  powen  iliil 
notcette  till  llie  UMinbl]'  tn  nhicb  he  (ira. 
niied  to  IraDafer  them  was  nailed.  At  a  sea- 
annable  lime  a  aem  IrKi^'^'i'^  |)Ower  nat  to  Im 
constituted  :  Luttill  ibal  lime  arrived,  the  old 
one,  howerer  arbitrary,  remaiueil  ;  and  it  wu 
not  the  king'a  intention  tu  diTestliimieH'of  liit 
prero^tire  ■ooiier.  Tu  my  otherwise  ii  sup- 
posing, that  the  kin^  mniDl  to  leaie  the  island 
Ibr  a  lime  without  any  N'Eiklalure,  and  to  quil 
bii  legislalire  poners  befiire  the  aweinbly,  in 
which   he  proioised  tu  vest  Ibeni,  was  calkci 


Lord  Manifitld.  There  are  three  inslni- 
■nenta.  There  is  the  iiTuclamalii)n,  ihesurvev 
ip  March,  and  the  conimisBioii  to  the  governor, 

nir.  Harfrevt.  I  did  not  mention  ibe  ae- 
COnd  proclainaliOD,  because  it  Keeraa  merely  tu 
concern  the  surrey  of  the  inland,  and  the  maii- 
DCT  olgraiitinK  crown  laads  to  new  settlers. 

Lord  Manifield.  Il  recites  ibe  terms  of  the 
proc  lama  lion,  auil  invites  selllers  upoa  those 

.  ftlr.  Eargra-ee.  But  then  1  answer,  it  was 
not  a  pan  of  those  terms  lo  ivtive  the  kini;'s 
prerogalive  of  making  lans,  till  a  uev  legisla- 
Inre  was  constituted  under  governor  Melville's 
commissioD.  k  promise  waa  made  to  call  an 
.  uaembly  (vhen  the  circumsiances  of  Ibe  island 
■hould  nerrail ;  and  il  would  have  been  dis- 

Ceful  not  to  have  performed  Uiat  promise, 
it  was  performed.  All  I  contend  for  is, 
thai  till  actually  executed,  and  till  the  legis- 
lature tvas  eslablisbed  by  caJliog  an  assembly 
jo  order  to  succeed  lo  the  legislative  power  of 
the  crown,  the  kini;'s  prerogative  remsined  the 
uroe  as  before.  Notbing  further  occurs  to 
me;  and  I  am  the  less  unwilling  to  trust  to 
the  few  observations  I  have  made  in  the  latter 
part  of  the  cause,  because  it  iras  ilie  priiici[ial 
subject  of  tbe  former  argument. 

Mr.  Macdonald  in  reply.  My  Inrd,  as  1  have 
alrdaily  troubled  your Inrdahiptoa  mucb  greater 
length  ihan  1  am  warranted  in  duing,  and  as  1 
conceive  1  have  nlrearty  anticipated  niusl  of  ihe 
arguments  and  inttancea  inentioned  by  Mr. 
Hsrgrave,  I  slmM  be  very  short  bj  way  of 
reply. — I  shall  only  bring  back  In  your  lord- 
■hifis  recollection,  that   I  endeavnured  to  ei- 

Iilain  lo  the  best  of  my  uuderstanding,  Ihat  the 
ing  caoaot  extend  hia  prerogative  power  of 
imposin^T  laxtsbejond  llie  lime  that  a  country 
becomra  a  regular  settled  part  of  the  slate — by 
Ihe  ti^rms  of  pruclamaliun  ia  question,  he  ex-  , 
pressly  irattKfers  to  Ibe  island  of  Grenada,  tbe 
taws  of  Eoglsud.  And  lo  impose  a  lax  H.iiliout 
the  concurrence  of  any  other  body,  is  to  retract 
Ihal  gill :  but  Mr.  llari;rate  bus  said  there  are 
precedeuts,  ihongh  not  very  strong,  which 
■hew  tbe  kin^  has  such  power  of  excrciiiog  a 
prerogative  ot  taxation  over  a  conquered  coun- 
try. One  he  mentions  in  Jnniea  Ibe  Ist's  lime, 
■ud  at  tbe  same  lime  he  aayn  he  is  ashamed  to 
neotion  uottaer  id  Junea  ifac  9d.    JanKi  ifaa 


first  governed  all  his  dominions  according  (o 
hi]  own  idin  of  prei'ogaiive,  conceiving  this 
empire  hi  be  made  upolso  many  small  parcels, 
looking  up  III  him  fur  suppori,  atid  when  he 
drew  a  cumparisou  of  hiisubjects  nmlersiandii^ 
with  bis  own,  be  held  that  Ibey  were  in  pro- 
piirliiQ  to  his,  as  a  platter  is  In  the  sun  in  Ihe 
lirmnment,  or  as  Ibt:  hraH  nails  in  the  pommel 
of  a  saddle  to  ibe  slars  in  Die  heavens.— Hy 
lord,  it  is  most  iodispulably  true  in  the  general 
terms  in  which  the  proposition  is  laiii  down, 
Ibal  the  king  may  tax  a  conquered  country.  1 
have  admilird  that  he  niay  iluiing  the  war,  ImI 
then  and  ilii'ii  only,  aodl  bnielit^ard  no  answer 
to  Ibe  avgumrnts  by  which  I  eimfioed  it  tit  that 
periiMl  ;  ul  least,  though  tlie  kiug  inigbl  have 
a  power  l<i  lay  vn  u  tax  betiire  the  proclniaalion, 
sosoonasthalpmclamaliua  WHS  made,  be  Mailed 
that  rijjlit,  nud  by  virtue  of  it  allowed  lliein  a 
'  cuosliuilioii,  wblcb  was  eslHlilishcd  uuuipletelj' 
I  the  year  afirr.  aiid  1  nidimil,  lltliat  proclama- 
,  lion  is  uver-rnlud,  il  will  be  worse  iban  if  it  Inid 
ni-ver  oxisied.  It  is  h-mA  with  rrsnect  lo  tlio 
charters  of  Nutr  Kn^lund,  and  utber  plitres 
at  ihe  time  wlien  they  "ere  resumed  into  ibe 
king's  hands,  thai  grtf Jt  lawyers  soon  afier  the 
Hevolution  gave  it  an  Ibeir  opinions,  that  those 
placi's  nrre  considered  as  conquered  couulries, 
and  ill  ibe  same  situation  as  if  those  charters 
bad  never  exisieil:  1  conceive  no  preceilcnt 
whatsoever  can  warrant  such  opinion,  hut  as  la 
all  tbe  cases  quoted  by  Sir.  llar^rave  aud  mc, 
ibey  are  very  loose,  and  neither  can  avail  our- 
selves very  much  of  iheio  ;  but  still  with  re- 
sped  to  those  opinions,  they  talk  of  a  coiiqueredi 
country  without  saying  what  it  is  oris  nut,  aud 
I  hope  i  have  shewn  lo  your  lordship  lltnt  it 
can  only  be  a  country,   held   by  tbe  awoid 

Iioril  Martffietd.  Wbat  he  says  of  the 
American  insisoovs  is  this,  there  are  cuii- 
qnered  countries  amongst  them — New  York 
in  iwrliciilar  was  cotiijiiered  from  the  Dutch, 
they  have  tlieir  whole  couslitulion  from  Ihe 
cron  n— ibat  is  what  he  says,  but  alwaya  that 
argument  xupposes  Ibis  power  of  giving  a  con- 
sliiulion  exeroixed  by  the  king  is  nut  exclusive 
of  parliament,  there  ciiunnt  exist  any  |Hnver  io 
Ihe  kiugexclusive  of  parliament. 

Mr.  Macdonald.  Mr.  Hnrgrave  at  llie  same 
time  says  the  king's  jiroclamation  is  nut  only 
execulnry,  but  he  has  ibe  iniermediaie  power 
of  imuosiug  taxes  until  llie  sssembly  can  sil — • 
now  if  Ibat  proclamation  was  nol  capable  nf 
giving  these  people  a  (»inslilulion,  which  il 
does  inasniuch  aa  it  givc.'i  them  the  laws  of 
England  lo  all  eternity,  they  must  remnia  aa 
a  conquered  country,  and  the  crown  has  not 
the  power  of  ihnng  that  act  which  can  give 
them  tbe  liencfit  ol  a  If  gihinturc  which  every 
other  colony  has;  if  ibis  proclamation  docs  Dot 
give  it',  wbai  is  the  consequence  of  that — wliat 
your  lordship  says  undoubtedly  luu^l  be  true— 
Ibe  parliament  can  never  be  excludeil,  but  then 
there  will  be  a  double  legisUlive  authority  over 
thii  country,  ud  pariiamcot  nay  do  one  way, 


Campbell  v.  Hall. 

W^aag  uiother,  inil  Ihey  will  be  subjecl  to 
' ""(iof  a  double  govern irienl. 

t.W\llei.  IsoDlittUecase  with  thPtn 
— wbeo  ■  legulaliTe  piiwer  is  c<*en  then 
V  >re*ab{Mi  lo  this  parlitmeDt  hTho, 
Ir.  Maei)tmald.  True,  roy  lord,  but  I  mean 
Arreix  adoDblesDiierioT  (^nr  eminent  orerthetn: 
«  u)  Iheir  own  lubontiniite  lei^alatiire,  I  dun'l 
i  be  so  Tery  mnterial  >■  lo  be 
•i  with  the  otbers.  namely.  iIie  km£  alnne, 
■intlj'  wilh  bit  parliament,' and  mui'.li  of  the 
'-f  of  double  and  conaenaenlly 
will    Biilt  remain.— I 


i  fMi&meni  having  ii,  there 
*  of  thit.  With  rei^d  to  the  opinions  of 
ra  and  ait  George  Treby,  they  were 
b  on  cirouiuiiincea  an  very  particular  that 
nliot  iKDtibly  apply  io  ibis  case,  in 
D  avch  circumaiaiices  are  to  be  found  ; 
oilb  r««pect  toair  Edward  Northey,  I  must 
fcmind  y»ur  lordship  thai  bespenka  ot*aeoun- 
Iry  bpld  by  force  of  arms,  and  his  opinion  was 
lul  il  inii;ht  then  be  subject  to  the  king'*  pre- 
NftliTp  Duly  ;  hut  when  it  becomes  a  colony, 
lbtii*,aaaoon  aslbelei^lBInre  waseslablishnl, 
ikai  preroffatire  ii  not  to  be  enforced. 

If  the  acaie  of  ihc  purliatncnl  was  wanting, 
litm  waa  a  bit!  brouLrbt  in,  in  March  1749, 
ia  iirdm-  tu  make  tke  kiDi;'s  order  law  in  the 
toloiiie",  That  «««  peliijotied  against  by  every 
rar  ortbecoloniM,  and  thrown  out. 

The  words  of  the  Declaratory  Act  of  0  of 
'•i-u.  3,  6.  IS,  are  aa  slronif'  aa  posaibty  words 
III  b4-.  derlartng  the  power  if  l^slslinn  and 
.  ulinn  over  Ihe  coluiiies  to  be  in  the  kins:  and 
irliamenl,  wiihiiut  any  leferenne  to  the  kintt's 
■I*  prcnit(atJ*e.  I  need  not  ^  over  Ihe  ground 
.-iiii,  for  braudc  lite  crude  iaeM  which  1  have 
iinitlEil  In  the  Court,  the  learned  ((enlleman 
■  .1.  «f«al  before  me  hnB  aufficiently  answered 
cry  objeclinn  In  the  fint  argument  1  where- 
■-»T  iriBiing  more  to  bis  ingenuity  and  Ipnrn- 
:  ihM  my  own,  |  hcipc  the  judgment  of  the 
'  >un  willbeforthe  plainllfT. 

l.or4  Mani/fU.  If  neither  aide  desire  a  fiir- 
rr  aicunirnt,  I  am  ready  lotfifc  my  opinion. 
Mr.  Hargratr.  ny  loni,  I  anl  desired  Io 
i'"t\  I    l(irlb#r  nr^umenf,  and  when  I  con- 

'ti  inibiliiy,  I  hope  yuar  lordship 

II  iiher  ariinment. 

t-.nald,  I  *m  instructed  to  repre- 
!  lordstiip  thai  this  is  a  rivenue 
.'  an  imnicliale  dcierminalioM,  and 
.1  -.'  sbnuld  be  glad  of  the  judgment 
'.  Ill  so<ni  na  possible. 
'...aifidd.    It  has  been  argued  very 

Mi-  lUrgravt-  M  v  lord,  it  is  the  wish  of 
Hi.  Atunwy  (leneral  to  have  an  opportunity 
«f  srvviNiir  Ii.  tbe  i-Jiuse  ia  of  great  importance, 
^Ibrrr  '•  iireat  nofclly  in  it. 

I   -WfcU.    I  haressid,  if  ellber  side 
'  r  nrifument  I  will  not  rcl'ise  it. 

*      B  not  pMitiva  whether 


A.  D.  1774-. 


[306 

Mr.  Altoraey  General  autborixed  me  to  say  ihat 
be  de.sired  another  argument.  But  I  linder- 
sland  from  him  in  conversation,  that  he  meant 
lu  ar^ue  il  Ihe  Ihird  time,  which  is  one  reason 
for  luy  preseni  applicBiioi). 

Lord  Matu)ield.  Let  it  stand  onrfor  a  ibird 
argument. 

Oil  Monday  ibe  6ili  of  June  It  was  moted 
for  farther  arifument.  Stood  over  till  the 
Tuesday  se'enntijbt. 

Tuaday,  June  li. 

It   was  entrealed  it   might   stand  orcf   till 

l»rd  Manifictd. — I  don't  see  any  inconve- 
nience in  going  over  lill  next  term.  Il  is  your 
own  delay.  It  ia  absotulely  impouiblelogive 
judgment  ihis  term.  Suppose  vte  were  all 
agreed,  many  mallcra  are  thrown  out  in  argu- 
nnent  which  are  not  absolutely  neceasary  in  the 
dHciaioit,  bui  nl'  wliich  il  would  be  necesaary  to 
Ibe  Court  to  take  notjoe. 

What  thu  value  oi  the  French  duties  may 
be,  I  don't  know :  il  does  not  appeal'  in  ihe 
cane.  Suppose  Ihe  Court  should  be  against  the 
impuiiilioo  of  ihuse  duties  which  are  impoced 
in  lieu  of  Ibe  French,  ibere  would  arise  « 
■question  conceraiuf,'  those  duties. 

Can  yuu  have  auv  doubt  upou  Ihe  most  ma- 
lerial  argument  of  nil  f 

The  first  queslion  made  in  the  second  ai^u- 
meni  by  Mr.  Mac-lonald,  I  think,  is  one  of  ibe 
greatest  conitituiiotiiil  uueslioaa  that,  perhaps, 
ever  came  before  Ibis  Court.  Aa  my  brollier 
Aston  is  absent,  I  wish,  principally  upon  (hnt 
BCCDUUt.  thai  il  may  stand  over.  It  is  Impos- 
sible it  should  ever  ba  passed  over  in  ailence. 

Mr.  Campbell  moved  that  judgment  might 
be  given  ujion  Ibe  former  argumeoi,  but  lord 
Mansfitild  reminded  him  that  be  cnuld  gel  co 
fsrlhpr,  because  il  muai  necessarily  come  into 
the  Exchequer ;  and,  even  if  thai  were  not 
the  case,  jndgment  could  not  have  been  given 
in  the  term,  holb  on  the  account  of  the  absence 
of  lUr.  Justice  Aston,  and  as  tbe  last  day  would 
be  a  Wedne<day. 

JiovrmhcrJ,  17T4. 

Tlie  Grenada  cause  came  on  for  the  tbiril 
argument  by  Mr.  Attorney  General  nn  Ihe  part 
of  the  crown,  and  Mr.  Serjeant  Glynn  for  tb* 
pisinliff. 

Mr.  Serjeant  G/ynn.— This  case,  one  of  the 
most  inipnrlant  in  lit  principles,  and  In  the  cnn- 
sequences  dependent  on  the  decision,  that  was 
ever  argued, comes  before  Ihet'oort  on  n  special 
verdict,  slating  that  tbe  island  of  Grenada  wai 
'    the  possession  of  ibe  rreni-ii  king,  and  cuu- 


laiidi^,  to  the  subjects  of  Great  Ilritain  only,  by 
Ibe  aniclcfi  of  eapilulalion  in  1703. 

I'ruclamation,  reoiling  llie  benefili  from  ■ 
regular  colonization  :    promising  thai  UMID- 


307] 


15  GEORGE  III.  The  Case  of  the  Idand  of  Grenada^         [808 


blifs  shall  be  called,  iritb  power  to  make  laws: 
in  the  mean  while  the  subjectt  to  coofide  they 
shall  be  governed  by  the  laws  of  Englaod. 

ProFision  maile  of  le^slation  to  be  executed 
by  the  ^orernor  9tb  of  May,  1764.  Patent  to 
the  governor  to  call  an  assembly  as  soon  as 
convenience  shall  admit. 

Proclamation  COth  of  Juhr  1764,  for  levying 
an  impost  of  four  «nd  a  half  per  cent. 

Stated — assembly  called  about  the  end  of  the 
year  1765. 

Stale  of  eastern  of  the  other  islands.  The 
lm|ioft  by  assembly. 

State  of  St.  Christopher'a,  only  where  there 
Is  a  difference  of  collection ;  part  having  been 
subject  to  the  king  of  France. 

They  find  the  impost  levied  on  the  plaintiff 
by  the  defendant ;  and  that  it  is  upon  the  im- 
post so  levied  this  action  is  brought.  And  on 
the  whole  matter,  if  the  money  legaltjr  col- 
lected, then  thev  find  for  the  defendant ;  if  not, 
then  they  find  ror  the  plaintiff. 

The  question  is — whether  the  king  has  a 
power,  without  acts  of  assembly  or  parlia- 
mentary regulation,  to  impose  any  tax  upon 
the  inhabitants  of  the  island  of  Grenada  P 

The  provision  for  peopling  the  island,  the 
commission  to  governor  Melville  for  the  well 
governing  of  the  bland,  are  both  material 

I  cannot  help  taking  notice  of  the  principle, 
on  which  the  claim  of  the  king  is  founded,  to 
the  raising  of  this  imposition,  which  is,  that 
the  king  bas  a  right  to  exercise  a  despotic 
power  OTer  a  conquered  country,  annexed  to 
the  dominion  of  Great  Britain ;  and  that  this 
power  is  legally,  permanenti v  and  uncontrola- 
bly  in  him.  1  think,  though  not  necessary  to 
this  decision,  it  will  throw  light  upon  many 
points  contained  in  it. 

If  it  could  be  shewn  that  the  law  had  asserted 
thu,  and  no  contrary  decisions  had  denied  it ; 
that  the  coarse  of  history  proved  it ;  that  it 
had  ever  been  asserted ;  that  there  were  no 
times  in  which  the  exercise  of  it  had  been  db- 
puted,  or,  if  there  were,  that  it  had  never  been 
judicially  contradicted ;  and  that  the.  king  had 
•Iways  exercised  it :  however  uoagreeiug  with 
oor  principles  it  might  appear,  and  however 
dangerous  to  the  constitution  that  the  king 
should  have  independent  dominion  ;  yet,  if  it 
"were  so  upon  the  authorities  as  stated,  J  should 
bold  it  a  ?ery  formidable  argament.  But  I 
hold  that  the  opinions  have  been  silent ;  that 
there  have  been  no  decisions  ;  that  the  course 
of  our  history  has  no  vestiges  of  it ;  that  it 
never  has  been  exercised  ;  and  that  every  hint 
of  it  has  been  rejected  with  dbgust. 

That  of  Calvin  was  a  question,  whether  a 
post-natus  of  Scotland  was  a  natural  bom  sub- 
ject of  the  king  of  England,  after  the  Union  ; 
it  was  held  he  was,  because  the  centre  of  unity 
was  in  the  person  of  the  king.  No  necessity 
of  entering  into  the  discussion  whether  it  be 
lord  Coke's  opinion,  or  of  the  judges. 

The  general  definition  is— of  a  kinsf  of  a  con- 
quered people,  and  a  proposition  b  laid  down 
geneiftlly. 


'<  If  the  Idng  make  a  conquest  of  a  Chris- 
tian country,  Sieir  laws  remain  till  he  gives 
them  others ;  but,  if  he  makes  a  conqoest  of 
an  infidel  country  ..they  are  presumed  m  have 
no  laws;  he  may  give  them  what  law  be 
pleases;  but  guided  by  natural  justice  and 
equity."  I  quote  tbb  not  for  the  sake  of  any 
thing  but  the  use  I  shall  make  of  it  by  and  by, 
shewing,  that  a  subsequent  antbority  went  to 
that  only  :  and  thb  was  an  idea  whksh  was  not 
received  by  your  lordship  the  last  term,  bat 
rnected  with  a  declaration,  that  for  the  honoor 
of  lord  Coke  it  ought  not  to  be  spoken  of ;  at 
I  hope  it  never  will. 

He  is  speaking  of  a  king,  not  particulariy  of 
the  kin^  of  this  country  ;  if  it  were  to  be  un- 
derstood to  belong  to  any  king,  it  would  be 
evidently  wrong  as  to  Poland,  or  as  to  the  then 
constitution  of  Sweden.  If  a  conquest  be  Daade 
by  a  king  of  Poland  by  a  Polish  army,  it  b 
nuule  not  to  the  king  personally,  but  to  -tha 
king  and  senate  of  Poland ;  and  so  of  Swedea 
at  that  time. 

A  Tery  respectable  anther  was  cited  to  year 
lordship,  by  Mr.  MacdonaM,  who  very  ably, 
argued  from  hb  book,  that  all  acqubitioos  by 
conquest  are  made  for  the  state ;  and  are  there* 
Aire  at  the  dbposal  of  thoae  who  make  themv 
that  b  to  say,  the  state  according  to  its  several 
constitutions,  and  different  distributions  of  le- 
gislative power. 

In  agreement  with  this  author,  who  stales 
the  doctrine  in  a  decisive  manner,  I  think  it 
clear  that  the  conquest  made  by  the  state  is  lor 
the  benefit  of  the  state.  Execution  and  admi* 
nistration  of  all  bws  in  England  b  in  tha 
crown ;  the  power  of  making  bws,  according 
to  the  constitution  of  the  state  which  be  go- 
verns here,  is  in  the  crown  with  the  two  otner 
parts  of  the  legislature.  When  lord  Coke  gives 
bis  opinion,  he  most  hav6  taken  it  from  writers 
of  general  law,  and  those  for  the  most  part  of 
absolute  monarchies;  and  he  took  tlie  word 
*  king '  as  a  general  word,  which,  in  their 
sense  of  it,ooropreliend8  the  whole  constitution. 

Objected,  that  lord  Coke's  authority  must  be 
taken  otherwise,  because  it  has  been  nnder- 
stood  in  other  cases  to  belong  to  the  sole  power 
of  the  king ;  and  it  was  taken  on  this  autbo« 
rity,  tbe  king  had  the  right  uf  making  inde- 
pendant  laws  over  a  conquered  country  ;  and 
that  a  king  was  in  the  same  state  even  as  to  a 
colony,  unless  otherwise  provided  by  charter. 

It  18  said  that  in  P.  W.  the  same  point  ^as 
determined.  But  P* J^V.,  instead  of  speaking 
of  the  bare  power  of  the  king,  spoke  of  tha 
power  of  a  conqneror. 

Tble  concession  said  to  be  made  by  sir  B- 
Shower;  and  that  it  was  of  consequence  to 
them  to  have  denied  the  position,  if  capable  of 
being  denied  ;  was  in  the  case  uf  an  island  not 
inhabited  when  first  passed  by  patent ;  ao  if  a 
conquest  gave  any  right,  he  said  it  must  be 
over  the  persons  of  the  conquered  people,  oot 
over  the  country. 

Upon  a  state  of  the  history  of  Jamaica,  sop- 
posibOB  of  (act  being  mistakeoi  the  aiigameiit 


WE 


Campbell  V.  Hall. 

('■!lt.    TliRt  pmiiioD,  M  JoBily 
ia  Calvin'i  caie,  is  tbe  point  at- 

Thr  opininn  conleoded  to  be  settled  in  tliai 

I!  or  Blincliaril  and  GMy,  is  IbuDited  qd 
lord  Uoke'iUkiii^  them,  wiilinut  civil  pn- 
,  lo  be  K<i*erneil  arbitrnrily,  accnrdiiti;  *° 
triauun  nf  Die  kmg,  mi  he  should  lliink 
ty  and  juitice ;  ir  the  concession  be  any 
I  il  is  lo  be  appUed  lo  ihtt  pnint ;  wliidi 
11  HOI  to  be  nanicid  in  a  court  of  Jaiticc. 
I  M  the  [H-incipal  ffrnund  sFo  c*K  wliich, 
I  iia  inieciiracy,  ^Ined  so  lillle  weight 
I  >our  litrdahip  upon  tlie  last  arguLiieal ;  \t 
Ikera  hail  been  others,  ilie  induilry  ol'  Ihe 
Inmcd  ^fotletuen  who  msde  Ihe  best  nr  the 
IM  v^menl  for  the  del'endant,  noiild  hate 
pnidoced  ihcin.  Taking:  ''>e  expression  from 
%  public  writer,  1  a|>prel)eni]  my  lord  Coke 
HMnt  niertly  to  slate  the  principle,  not  applied 
la  taj  particular  country ;  and  then  the  king, 
when  atiplieil  In  Englanit,  means  not  the  king 
icMy,  but  IliF  king  and  psrliamenl.  Il  is  the 
MM  Dstural  and  rational  construction,  and  is 
neb,  I  think,  as  llie  argument  admits. 

I  Ihink  it  cin  never  escape  your  lorJship, 
Uiu  my  lord  Coke,  writing  wilhont  precedents 
»r  luttiiirify,  roast  necessarily  reler  to  the 
"'iHm  "t  [mblio  law.  Mr.  BlacUonald  has  well 
tkcrred,  ibo«e  wrilera  generally  used  the  itord 
fn^cron'r  king  asan  arbilrary  power  includ- 
.■  tbe  nhole.  It  lord  Coke  Is  supposed  lo 
'  -It  laid  down  the  point,  tl  must  bare  been 
'u  Ibe  httlory  of  his  country,  and  thai  the 
.  ••x  Iroffl  the  earliest  time  exercised  this  pre- 
;iit»e.  ThoDgh  I  should  not  have  laid  great 
Fn  npoa  Kuthuriliea  deduced  from  dark  and 
iritlnl  timet;  nor  from  uur  Henrys,  or  eren 
'r  Edwards,  1u  prote,  from  ihe  exercise  of  aa 

■  ■-  M  power,  liie  legabty  of  the  claim  ;  (when 
'  '1  m  ihit  reign,  wlien  llie  (;reat  charter  was 

i^,  Ibrre  wvre  so  many  TJtilatlooi  of  it,  and 
many  afterwards,  anj  so  tnany  coiilirma- 
tn  mlirrwiM^  not  necesiary.)      Though  for 

■  "  rraaoni.  I  cannot  allow  moeh  weight  lo 
i'l  ia  ehiiiii  of  ■  prerogative  In  those  reigns, 

'  -e  i(  na  instance  ol'  an  ahsulule  authority  by 

iiii-r  a  coni[Uered  iwuntrv.     I  don't 

lip  Ihe  beoelit  of  what  bis  been  bo 

:ivi;oed,  wilh  respect  lo  Ihe  Jnlro- 

'      I    i3»s  into  Ireland  by  Ihe  charier; 

>,  •  iKiiik   Mr.   Mardonald  lias  produced  an 

4>iiiKui  in  proof,  that  the  laws  of  EngUnd 

■  I  ■ird  before  that  linie,  as  it  refers  in  Ibem. 

I  tlhak,  lliererore,  an   Englinh  conslitulioo 

I  paaat-d  ;  and  In  general  that  it  is  part  of 

11'  -tuly  of  the  kiag  lo  proTide,  that  the  Bng- 

I]  conatilution  shall  be  exeroised  every  whtre 
' "  ail  tbe  aahjecls  of  Hnghind.  however  eon- 

•tMl,  bowevtr  acijuirvd,  or  wherever  Ih^r 
iL^atiM. 

tlw  power  of  promulgation  nf  laws,  iaau lug 
I  iawt,  tbe  making  preparalions  and   proper 

.tilawna,  tor  Ihe  iDlroduelion  and  esecatton 
'  i!>ii«  l>w«  in  a  cnmilry  a<i  talely  receiving 

■  -m,  ia  tbe  prculisi'  prerogalire.  Though 
■ni*  aaanlecedcm  titltby  birth  or  lilua- 


A.  D.  I??*. 


[310 


tion,  it  can  only  be  exercised  hy  means  of  tb« 
trust  rtposed  ia  llie  cmwn,  ao'as  lohe applied 
10  the  benelil  of  llie  public. 

The  enquiry  is  nut  what  is  ex|iedieiil  for  the 
peculiar  good  of  mankind  »o  much  as  what  is 
necessarv  or  capable  of  beiu^  admitted.  Wliere 
new  laws  hare  been  ID  lie  iniruduced,  or  -AA 
ones  lo  he  allered,  it  b»*  always  been  by  llie 
act  of  the  supreme  legislalioa  upenly,  either 
here  or  over  the  stales  lo  Ireland.  If  ihe  pro- 
viding for  the  exeriUion  of  au  aniient  right  b« 
called  legislation,  we  will  readily  allow  this  le- 

S'slnllon  In  liave  always  exitited  in  the  king. 
lit  it  is  necessary,  in  order  to  prove  Ihe  au- 
Iborily  claimed  ia  the  present  case,  lo  sheir 
thai  the  king  has  abrogated,  allrred  or  intro- 
duced laws.  This  has  tiol  been  dune,  ibe  king 
has  never  exercised  such  au  aulhuniy  ;  ana 
the  very  expression  of  au  idea  of  such  a  right 
has  been  rejrcleil  with  resenlment  and  iudigua- 
lionas  against  the  cnnstiiuiiou. 

Audio  say,  if  allowed,  ihai  the  king  legisla- 
lively  inlroduced  law*  in  Ireland,  hy  providing 
for  liieir  being  received  aud  eseculed,  is  lu  say 
thai  be  uerformeil  this  executive  trust;  which 
we  aH  allow ;  and  if  this  be  meant  by  the  l^ia- 
lalion  ascribed  lo  him,  il  is  a  salutary  and  ue-  "^ 
cestary  legislalion.  I  know  if  it  be,  il  hanily 
will   be  10    inlerpreleit  as  belonging  to    that 

Wilh  rpyard  lo  Wales,  (I  presome  many 
other  instances  ivill  nut  he  found  of  cnn<|uered 
countries,)  the  Elalutc  has  always  been  consi- 
dered as  an  act  uf  parliameui. 

Tbe  peculiar  nutborily  given  lo  king  Edward, 
which  could  have  been  by  no  meaua  pecessary, 
if  there  bad  been  a  legislative  power  aluoluieiy 
and  iudependenlly  in  him  (and  which  puwer 
was  never  exerciied,  and  was  lield  by  the  judges 
so  ill  ai;reeing  with  the  conslitulioo,  as  to  ba 
oonlinedlo  Ihe  person  of  king  Edwafd  1.)  gives       \ 

iforaslrong  inference  thai  the  regulalion 

nut  originally  and  properly  in  hiiu,  as  of 
wn  iudrpcndant right,  buiderivaiively  from 
Ihe  pnrliament ;  and  that  in  such  a  manner  m 
at  least  conlined  tu  himself,  and  nul  ex- 
lend  lo  his  successors. 

The  king  would  never  have  furnishad  such 

I  arguinenl  agaihsl  the  exercise  of  legislalivo 
Buihnriiy,  had  iliat  power  then  resided  in  him. 

All  tbecBseKi  huve  lieen  the  ohjecia  of  parlia- 
nteniary  regulations.  It'  he  had  undrrslood  it 
to  be  of  his  right  in  give  laws  over  those  coun- 
tries arbilrarily,  and  parliament  bad  reco^niseU 
:his  claim  ;  the  power  of  making  and  altering. 
tlie  power  of  *brngalin<.'  woidd  have  breu  in 
him,  and  we  shouM  not  have  had  Ihe  interpo- 
aitinu  of  parliament. 

From  the  aulbor  cileil  by  Vlt.  Macdonahl,  I 

Tlial  all  cmiquesls  are  made  for  Ihe  benefit 
of  Ihe  coniinering  stale;  and  wherever  llie 
people  Br«  com|iused  and  pay  allegianre,  in- 
•lead  of  constrained  submission,  then  ibey  are 
subjecu ;  and  owe  obedience  to  the  laws  urihu 
conijuering  ilate,  aud  hold  their  prot>ciiy  frau^ 
I  hem. 


Sll] 


15  G£ORGE  III.         The  Case  rfthe  Island  tf  Grenada^         [312 


When  this  conquest  was  madef  from  that 
bonr  when  the  kiu^*ri  right  was  recognized  and 
a  rom|)(»<iiiion  made,  it  was  for  the  benefit  of 
the  i^euple  of  this  country.  Here  particularly, 
its  conquest  beint;^  made  with  a  Ticw  lo  coloni- 
sation, it  is  establisheil  bv  the  best  authority, 
that  of  lord  VHUi^han,  on  the  question,  whether 
a  nuturalizatiou  in  Ireland  made  a  iDan  a  na- 
tural-txtrn  bubject  of  Great  Britain  ? 

Lord  Vnughan — A  conquest  is  not  solely 
for  ihebeot'fit  of  tlie  conqueror,  but  of  the  sub* 
jecis ;  and  those  who  come  to  reside  there  have 
a  ri^ht  to  acquire  |>ro|)ertv ;  lands  by  purchase ; 
•—and  be  proierted  in  all  those  particulars,  by 
tlie  laws  of  1  heir  mother  country. 

The  inhabitauts  then  of  Grenada,  are  the 
objects  of  all  those  urovisions. 

They  may  a«-quire  property,  with  the  right 
of  residence  anil  purchase ;  and  hare  the  otoer 
rights  or  British  subjects. 

As  to  expcdif  oce  ur  value,  we  are  not  speak- 


ing u>  the  equality  but  the  legalitv ;  and  what 
over  p4»wer  has  taken  a  part  has 


the  nine 


claim  to  half  or  the  whole. 

The  authority  here  contended  fbrb  inoon- 
■istent  with  that  right  which  Mr.  Campbell 
had  as  a  resident,  if  nothing  else  was  afecWi 
by  it. 

It  will  be  incumbent,  by  new  trgnmenta,  to 
prove  a  power  in  the  crown  of  disposal  of  these 
acquisitions,  without  the  coucnrrence  of  the 
constitution. 

Will  this  right  bear  the  examination  of  the 
laws  of  England  ? 

Ordinances  of  necessity,  on  instant  emer-i 
gencies,  provisions  for  the  administration  of 
constitutional  rights — I  shall  not  presume  to 
•ay  how  fur  these  may  be  maintained:  but 
they  must  expire  with  that  necessity,  and  be 
occasional  and  temporary  only. 

In  the  present  case,  no  pretence  of  a  ne- 
cessity. 

A  conquest  of  the  people,  and  not  of  the 
lands,  niusit  mean  a  power  most  extensively 
taken  in  the  times  of  barbarism,  but  qualified 
in  these  times. 

Both  in  the  case  of  the  conquered  and  con- 
quering people,  the  laws  of  the  general  govern- 
ment are  upon  the  conquest  conveyed  thither, 
as  a  common  right  of  all  the  subjects :  but  they 
rejiaire  to  be  actually  carried  into  effect,  main- 
tained and  executed  by  that  power  in  which  the 
execution  of  the  laws  is  lodged,  which,  with  us, 
is  the  king.  The  title  is  there  before  the  en- 
joyment; i-'hen  the  king  has  executed  that 
trust,  then  is  the  enjoyment. 

The  colonies  cannot  have  the  power  of 
enforcinof  those  laws:  they  have  the  right, 
though  the  trust  b  reposed  in  the  king  to  ef- 
fectuate them. 

The  king  has  given  assurance  that  they  shall 
be  protected  in  all  their  rights,  honours  and 
possessions,  and  the  free  exercise  of  the  Roman 
Catholic  religion — this  to  the  conquered  ;  shall 
the  conquerors  be  in  a  worse  state  ? 

The  king  has  pro? ided,  that,  as  immutable 
laws  may  become  inconrenient,  therefore  there 


shall  be  a  local  one,  subject  to  alteration  bj 
their  own  legislature. 

A  distinction  is  taken  between  Grenada  and 
the  other  Inlands;  I  answer,  the  grant  is  not 
a  matter  of  grace  and  favour^  bat  tne  discharge 
of  a  trust.  If  it  be  a  gift,  it  is  not  revocaUey 
but  an  irrevocable  ri^ht;  what  distinction  then 
is  there  between  this  and  the  other  ialands^ 
whose  rights  the  king  has  recognized  by  re- 
ceiving the  imposts  as  a  benevolence? 

What  power  antecedent  to  the  patent  bad 
existed  in  the  king,  is  annihilated  then.  Even 
considering  .them  as  subject  before  to  the  sole 
law  of  the  conqueror,  and  iH)t  as  subject  to  the 
legislative  power  of  the  state,  the  king  baa 
waived  the  power  of  taxation  if  it  wars  ad- 
mitted he  had  it  before,  by  granting  them  a«- 
semblies  to  tax  themselves. 

The  construction  cannot  be  that  the  inha- 
bitants are  not  to  reap  the  benefit  till  a  futurr 
time :  this  is  so  inconsistent  with  the  end,  with 
the  conBtructkm  in  which  the  grants  of  the 
king  are  always  received,  and  the  benefit  de» 
signed,  that  it  will  find  no  weight  with  your 
loraship. 

Takmg  it  by  way  of  aigument  that  the  con* 
quest  has  annihilated  their  ancient  law,  their 
law  cannot  hate  been  annihilated  and  none 
given  them  m  their  plaee. 

If  their  ancient  oonatitution  is  gone,  the  laws 
of  K"gl*"f*  by  their  proper  force  introduce 
themselves. 

It  ii  A  fbtnre  grant,  it  ii  said-r-wben  the 
power  ia  given  them  to  call  assemUiee,  thej 
htf  e  a  provision  for  a  legialature :  1  don't  nseat 
to  derogate  from  the  supreme  legislature. 

The  assembly  is  to  be  called  when  circum* 
stances  will  admit  and  convenience  shall  re- 
qnire :  so  it  is  here ;  hot  yet  it  is  the  unalter* 
able  privilege  of  this  country. 

The  people  who  should  come,  in  confidence 
of  the  promise  of  the  rights  of  British  suhjectii 
wtmld,  according  to  this  construction,  come,  and 
find  themselves  without  one  of  the  most  re- 
markable of  those  rights,  and  that  which  securet 
all  the  rest.  They  would,  on  coming  to  reaidei 
find  themselves  sul^ect  to  an  arbitrary  dis- 
posal of  their  property,  and  might  have  iIm 
whole  taken  away  without  their  own  consent. 

My  lord,  on  the  whole  of  the  case  I  presume, 
whetner  as  a  conquered  people  ur  as  colonies, 
they  had  a  right  to  tax  themselves,  and  weri 
not  subject  to  imposts  under  any  claim  of  pre- 
rogative,  without  their  own  consent. 

Secondly,  If  they  had  been  subject  to  taxei 
by  iNrerogative,  that  the  king,  by  bis  procla* 
mation,  has  concluded  himself  from  this  right 

Mr.  Thurlov  (Attorney  General).  I  havi 
erer  looked  on  this  aa  one  necessary  ground  ol 
argument  to  a  doubtful  question,  that  we  shook 
see  and  attend  to  the  nature  of  the  claim,  iti 
fitness  and  expediency  ;  and  not  confound  tin 
idea  of  it  by  substituting,  in  its  place,  some- 
thing of  a  very  different  nature,  and  auppoeing 
that  to  be  the  right  whiob  is  inaiited  on  mid  in^ 
tended  to  be  pro? ed. 


CampidlvHuU. 

ad  for  an  ahiAlule  in- 

puwer  in  liis  iDBJeBly.  I 

1  ihat  tiica  lit  iiuihoriti«^.  or  u(  lUe  Ju- 

;  proTcwiuiiiliiiii  I  cuulil  bxve  eoaagr<l 

ithv  twk  (il'»ii|>(iortin^  it.   Nur  snnnlrl 

-  pUCF,  ruuuK  IrHia  «courlofj>Mii.t!. 
utUkiDU  Uidtlvr  lu^  (jroiyid,^  idckli 
L  Ihu  bis  iQ^CHijr.  I'l  mi  BtUcle  ol'  exe- 
'iB*  >n  dinliurity,  l«pisl<Ui>e  iu 
mbordiuatt  Ut  (lie  Buprcme  le* 
lit  ol  iui|iQsiii^  lam,  aaci  im- 
:  odicra  tu  iiDiwse  ihem. 
sliiU  relet  la  corporalions  in  £ng- 
':  I'l  iBT«Meil  *Uh  (>o»eri  lo  praviJe  laws  uter 
.:'.  of  itie  iJoniinioni*  at  ihs  king  of  Eujflaoil, 
•  m  ivhicli  tlunr  were  ilUtnut.  btuI  not  nulivps 
I  ^iMbiunls,  I  abill  tliink  myself  eiitilleJ  to 
rwiend  ilial  a  power  wbicli  be  cau  ikkjEralc  be 
riH  cmrci»e  iu  bit  owu  iieraanal  aulborily. 

A  nMib'id  has  been  ItJiea  irbicli  requires  the 
r^  hi  III  be  coiuidered  in  r>lber  ■  dilTiereat  view, 
ij.<l  exauiineil  in  ■  iliflert-at  tnoile. 
I  ibink  ii  bat  beea  endeavoured  In  be  iasi- 
i>i«l,  or  rallier  dtdaieij,  ihat  in  llie  artii^le 
>!  ru(»|Ut!it  ibu  Uvr*  of  Bni^laitd  inslvolly  lake 
>lMain  lbs  cmN|iured  counlrv.  and  theuun- 
[■iWH  prople  varrv  ibe  Eii^lisli  laws  wiib 
•■B.  Al  lb«  aauiH  limr  tUai  ibia  puiul  baf 
Im  M«leadc(l.  it  bai  bfeu  aigueJ  Ihal  the 
Uifi  by  kit  kxecmite  pov 


;  Mua  to  esiablisb 


as  beinir 

•Nk  lubonliiiatr  with  r^rd  to  tlie  dominions 
MiefiJ  U>  lb'  kiiiK.  a«  wnb  regard  lo  tbe  aiale 
HjinBMicau  of  (lie  lUle  herr),  (be  king  re- 
Wblra  lb*  farerunieai,  aud  tequirei  impoila 
mm  i1m  oovolrj/,   in  aucb  manner  as  he  seei 

ilul  it  M  Mr4  "  oiil^  particular  necettjty  jus- 
:n  ihM  cldim,  and  it  inuu  be  nnly  uccaakinal 
'aJ  MntMirBi}' :  <*  ben  the  loTereign  itutboriiy 
Msbuoil  it  rxiKilienl  lo  yife  laws  fnr  pa)li- 
(A*  local  nMeiMiiy,  errry  iudividual  cairies 
■ak  b>ni  >|l  Ibv  Uwa  el'  &i||Uuil ."  tbai  is.  il  ' 
m;  f(r^u«ill«  bapiwo,  laws  siilivprsiie  ol  ilie  ' 
'•1  i{iim.  TUf  imiividual  Ibeo  will  bave  a  ' 
•  cr  drwnl  lt>  thr  tiUtereien.  I 

I  hate  the  autboriiv  ut*  Ibe  same  celelirsleil 
...tiuT  (iioaled  no  lb>  uibrr  aide)  ibat  (here  i*  i 
rf<lifa*«»ra  l>eltTeei)  acoiiiitry  cunquercd  by 
iW  arsM  ol'  anotber,  and  diacnrcrtU.  Vat,  a,  i 
S»~flU.  I 

ilwaw  iiUtcd  in  ibe  lail  arKumenl,  in  nrder  ' 
*  Am  Nlwrevrr  a  i-uunlry  ia  e.tnqiipreil  il  lie-  i 
"ii»»  (wrt  (if  lbs  c<>iHju«rin|[  people,  ami  their  ) 
'•  are  ititrodiiDrd  wiib  (he  cuuqueal>  (bat  in 
-i>ui'i  COM  Itata  poial  had  been  decided.  The 
,>^IMa  iitvr*  wa>.  wbetbar  (be  dntnioiau  of 
I  MeoDqvmif  or  utily  lb»  realm  in  included. 
1  Tkatawaof  Ibe  couquered  remain  (ill  altered. 
I  IWy  ti><v  liem  acciiatimied  tn  them  aa  model 
1  <la||«lBtlnv  ■oil  diiposing  jirnperly.  They 
I  *>■■  M  Mkti:  if  tliere  be  belter,  aud  more 
.  .  they  are  aatiaO«d 
litry  kaie  been  accuatgna^ 


n  all  Dcca- 
ejijuy  under  (Item  all  the  btesKinga 
and  uainfur(a  Ibey  have  enjoyed. 

The  i]iieslion  is,  wbelher  by  ibe  laiaa  of 
Great  Britain,  which  are  Ibe  only  rule  here^ 
tbe  kin|T  bna  beeu  adiised  jnsdy,  and  acied 
nilliio  the  rouitiaas  of  Ibona  btws ;  or  whether 
those  lawa  are  exuaeded?  This  ia  merely  ibe 
^iieiiioii. 

My  reaMii  for  slsliug  tbat  dumiiiioa  aai 
pru|ierty  were  acquired  by  iwnqoett  was,  be- 
enuse  I  shall  infer  lliat  Ibe  consulutiai)  baa  ia- 
triuied  the  bio^;  <vitb  the  disposition  of  the  pro* 
perty,  aod  with  ibe  ordering  of  ibai  dnmioion 
conquered  ;  tubjecl  to  ibc  legislation  of  tbe 
couDtry. 

The  king,  bntb  io  conqiieaU  and  calnniea, 
has  hod  ibis  right:  there  nas  not  been  ati  in- 
stance in  which  llie  king  has  not  eaerciijed  the 
disposilion  of  the  laws  and  property  uf  (he  cnn- 
qiiered  country. 

He  has  graoted  by  bis  charter  tbe  island  of 
Si.  John. 

Tbe  kin{  may  exercise  the  ri^bt  of  disposing 
the  lands  fonqiiered.  With  respect  to  tbe  laws, 
if  we  shnuld  lie  carried  back  (o  tbe  eunqueat  of 
Ireland,  (wbicb,  I  think,  reraaiiis  In  p^eat 
doobi,  wbetber  by  Edward  or  king  Jobo,  or 
whether  indeed  L'omjilelely  till  Ibe  reign  of 
E.'izahetb,  at  any  period)  (be  ^reai  bjsa  uf  the 
records  of  Ireland  baa  made  it  iinpnshible  logo 
into  an  accurale  discnasioD.  Lord  Cuke  is  of 
opinion  tbsl,  in  point  uf  fact,  Heury  the  sccood 
did  give  ihe  laws  of  England  to  Ireland.  King^ 
Jidin  was  not,  in  trulb,  Ihesuvere^gn  uf  Ire* 
Isiiil;  tbe  actual  sovereign  was  IJeury  Ihe 
third.  Il  was  not  (ill  after  two  desixuts  bad 
been  cast  ilisl  king  Henry  the  third  grautadl 
(be  English  laus. 

8iippuBiDg  king  John  ^*e  tbein  ibose  laws, 
or  that  ibey  were  exiabh^bed  ibere  before.  Ii 
iscouleuded  this  was  a  mere  act  of  executive 
power.  I(  will  appear  lo  what  extent  this 
power,  called  executise,  was  carried. 

On  Ibe  snbjecl  of  the  ^nglisb  laws  another 
ambiguity  runs :  tbat  i(  la  not  only  the  laws  of 
prupci'ty  anil  |iitnishmea(  of  ctiroea,  but  Um 
political  lau  a  and  ciinltitution  of  the  country. 

Kupimse  ibe  king  could  ool  make,  nor  aiubo> 
rize  oibns  lo  moke  taus  occaaioually,  the  au- 
iburity  of  parliameol  would  be  neceasary  to 
(iiake  ilie  change 

Willi  respect  lu  Scotland,  whenever  (bey  did 
call  a  parliament,  il  was  by  Ibe  bing'a  com- 
mand and  instance,  as  at  Newark ;  and  it  m 
lou  much  lo  say  that  tbe  king,  in  tbe  cha- 
racter of  an  exei-'Utiie  inagistraie,  baa  a  right 
nol  only  lo  create  aaaembliea,  but  to  appoial 
Ibeir  meeliog  ;  and  bIbu  thai  b«  carries  witji 
him,  a'  a  pari  of  merely  executive  power,  the 
power  lo  niter  laws. 

Wiib  reapect  to  VVales,  thotigh  I  believe  in 
luy  connrieDce  it  was  in  liict  obtained  by  no 
better  pretence  Iban  that  ut  (be  sword,  yet  Eil- 
»ard  did  iint  consider  i(  as  such. 

Plowden,  186.  Tliero  ia  no  pretence  Ibal 
Ibe  ordiDBDce  tbau  made  was  by  kiug,  lords, 


IS  GEORGE  III.  The  Case  of  the  Island  of  Grenada^         [316 

bectuse  by  the  treaty  of  peace  the  kin|?  of 
France  says  he  cedes  all  his  right  to  the  kiog 
and  crown  of  Great  Britain  P  What  dovs  the 
treaty  more  than  affirm  the  right  of  Great  Bri- 
tain, "by  ceding  all  right  or  pretensions  of  ri^ht. 
If  his'  majesty  thought  fit,  alter  hating  im- 
poseif  one  sort  of  lavrs,  to  give  another  repag- 
naot  sort  of  laws,  or  the  parliament  were  to  do 
this,  it  would  be  by  an  authority  acting  in  sbS^ 
version  -of  the  first. 

This  drives  on  to  another  incousisteDcy  upoD 
the  claim  of  political  liberty. 

The  king  by  his  conquest  acquired  t  power 
to  provide  laws  for  his  subjects,  a  power  which 
has  been  so  repeatedly  and  extensively  exer- 
cised in  other  instances. 

Has  the  king  sufierseded  that  rigb|P  The 
proclamation,  it  is  said,  gives  the  English  lar^t 
to  all  the  subjects.  It  was  said  that  it  pre- 
sumed the  laws  of  England  prevailed  in  the 
country,  and  that  it  made  a  provision  in  the 
commission  to  be  given  to  the  judges.  What, 
that  they  should  bring  those  laws  which,  by 
this  hypothesis,  were  inere  before ! 

The  proclamation  might  convey  the  Eng- 
lish laws,  but  not  the  jioUtical  and  conatitn- 
tional  system  in  general  m  this  kingdom. 

The  promise  is  said  to  be  the  same  which 
the  king  gives  here.  I  don't  know  by  what 
record  it  appears  that  the  king  has  engaged 
himself  to  his  subjects  of  this  country,  that, 
when  couvenience  shall  permit,  or  occaaite 
shall  require,  be  will  permit  a  pariiament  to  be 
called. 

The  king,  by  his  commission,  empowers  the 
governor  to  call  an  assembly  when  be  shaN 
think  convenient,  or  receive  mstnictions :  and 
his  authority  was  so  much  executory,  that  he 
might  have  established  assemblies  either  of  the 
five  islands  together,  or  in  Grenada  apart  and 
severally. 

It  would  be  of  the  utmost  danger  to  this  con- 
stitution to  say,  till  the  king  or  parliament 
gives  them  a  constitution,  he  might  act  in  full 
power,  without  any  laws  to  decide. 

The  commission  to  call  assemblies  was  not 
executed  till  above  a  year  after  the  patent  im- 
posing the  duty. 

In  the  case  of  chartered  governments  the 
argument  would,  undoubtedly,  take  a  different 
turn.  It  might  be  said  a  charter  is  a  grant  of 
an  interest  to  persons  named  in  the  grant ;  but 
in  this  nothing  could  pass,  but  the  constitutioB 
existing  till  some  new  grant. 

The  special  verdict  has  not  found  the  time 
in  which  ihe  commission  passed  the  great  seal. 
The  patent  passed  for  raising  the  tax  in  July ; 
the  governor  did  not  go  over  till  October ;  both 
cante  together.  The  king,  therefore,  had  in- 
troduced his  claim  to  the  imp<»st  on  the  country 
prior  to  the  time  in  which  any  assembly  couA 
be  called ;  for  his  right  was  introduced  the  very 
instant  of  the  governor's  landing:  and  the 
elder  right,  in  the  king  especially,  will  be  pre- 
ferred above  all,  when  it  appears  the  procln- 
mation  coald  not  be  intended  to  waive  the  im- 
'pott 


315] 

and  commons :  the  king  considered  it  as  a  fief 
under  his  own  personal  dominion. 

With  regard  to  many  places  in  France, 
taken  certainly  by  right  of  conquest,  and  ceded 
by  the  treaty  of  Bretigny,  my  doubt  is,  whe- 
ther the  English  laws  came  thither. 

With  respect  to  the  market  of  Calais,  the 
resort  of  English  introduced  the  laws  there, 
for  convenience,  but  not  in  the  castle,  nor  in 
the  town  of  Calais. 

With  respect  to  Minorca,  the  laws  of  Eng- 
land do  not  take  place  there. 

lu  the  year  1713  they  were  referred  to  cer- 
tain of  the  council,  the  archbishop  of  Canter- 
bury, and  others ;  in  the  3'ear  17S7  somewhat 
was  done;  in  the  year  1740  a  little  more:  in 
1752  the  privy  council  sent  over  a  great  mul- 
titude of  laws,  but  the  war  interfered. 

[liord  Jlfan{/!€/(/.— This,  I  think,  was  after 
Ihe  complaint  against  governor  Melville.] 

1606.  King  James  grants  a  charter,  with  a 
power  of  making  laws,  and  an  exclusive 
fishery,  from  84  to  95  degrees  of  latitude,  to 
-the  corporation  of  Plymouth. 

It  is  said  this  charter  came  into  parliament. 
They  came  because  an  exclusive  fishery  had 
been  granted  to  a  corporation  residing  at  Ply- 
mouth, with  a  power  of  imposing  penalties. 

The  objection  was,  that  at  the  time  the  cor- 
poration of  Plymouth  had  not  sent  colonies. 

Charter  of'Massachuset's  bay,  with  power 
to  call  assemblies,  granted  by  the  king ;  va- 
cated and  granted  anew  after  the  revolution 
by  king  Wuliara. 

I  observe,  when  a  passage  has  been  cited 
from  the  history  of  former  times,  it  is  the  cus- 
tom to  say  they  were  bad  times.  Where  are 
we  to  look  for  the  history  of  this  country  but  in 
those  times,  separating  the  bad  from  the  good  ? 

In  the  case  of  St.  Christopher's  there  were 
given  by  eminent  lawyers  very  distinct  opi- 
nions, in  favour  of  the  right  in  the  crown  to 
impose  duties.  I  don't  recollect  there  was  any 
evidence  of  want  of  exercise  of  that  right ; 
yet  it  was  contended  against  because  an  act  of 
assembly  twenty- five  yean  after  granted  the 
duties. 

Yet,  if  one  was  to  infer  from  every  act  that 
has  been  made  in  any  of  the  political  constitu- 
tions of  this  country  that  there  was  no  law 
before  that  act  was  made,  it  would  subvert 
most  of  the  most  important  laws  of  this  country. 

It  was  said  the  king  might  have  enacted  a 
law,  but  only  before  the  time  of  the  actual  sur- 
render ;  but  that,  after  it  surrendered  to  the  so- 
vereignty, it  becomes  part  of  the  conquering 
state  in  a  different  right ;  and  the  ordinances 
roust  he  only  temporary  till  the  king  and  par- 
liament provides  others. 

From  the  moment  the  conquest  has  esta- 
blished itself,  from  the  instant  in  which  he  has 
compelled  the  inhabitants  to  give  up  their 
arms,— there  is  not  any  hour  in  which  the 
parliament  cannot  bind  -it. 

Suppoee  this  ordinance  had  been  before  the 
tapituulion  and  cesHOOi  would  it  have  ceased 


Campiell  c.  Hall. 

'C/ynn,  io  rctilv.    Berore  I  go  into 

I  quanioti  I  ihall  apeak  upon  Iwo 

rUpt  poinu,  llioiigjh  »u  eoi)  is  msne  ol  the 

wid  till  ohjecl  isIiHlicif  to  the  plainliff  liy 


tt<  g«iw^  quenioti  I 
tiD|rarUpt  poinu,  llioiigjh 


tbedi 

mt  importaiil  an  one  in  the  ^eu 

in  llist   I   «tn   persiiailed  your  lordship  will 

Wp««  o»»!riii  judgment. 

Tlie  ux  ia  contendeil  to  be  legally  letieil, 
ifDo  •  claim  ul'  which  the  fery  slating  of  ihe 
oar  prore*  the  il  leg*  lily. 

My  learned  I'riend  has  set  out  with  disaron-- 

iDi;  thf  cUini  of  an  abaolule  indepeodeut  sn- 

iiitbecrowD;    but  lie  boa 

riitdt,  and  wais  obliged  It 

.'.-II  ia  a  subordinate  legislature.  A 
(■orflinaie  legislature,  in  this  aeuse  at  least, 
a^fficolt  to  be  conceived  to  ihoie  who  know 
Mbaw  to  wake  dependence  consist  with  in- 
:  but  llie  stale  or  Grenada  Jiatin- 
jr.  It  i»  a  tax  imposed  by  an  act 
sfltntuire  power,  which  includes  the  entire 
kg^^f  ereigniy ;  but  it  is  not  m  unconirouled 
laAorily,  Ifecauie  Ihe  king,  <rilh  consent  of 
prfaamcDt,  nay  depart  from  Ibis  claim,  so  as 
IS  Mail  lii«  aiiccnaors  :  the  supreme  legifila< 
(Ma  may  repeal  it.  The  king  makes  up  es- 
■Nlwl  fMrt  of  that  legislnlure.  Is  it  a  mark 
rf  >  limited,  «ubutUinat«,  authority,  llial  he 
eu  iinptwe  without  ihem  wbai  they  canaol 
l^a  inray  without  him  ?  And  that  he  may 
iqun  Trocn  this  is  what  any  man  may  do  io 
lay  mitaace  of  the  must  unconirouled  legisla- 
Ml  auUiqrily. 

My  |*4innl  frieud  saya  it  is  a  sulionlinale  act 
tf  bjfialatioD ;  on  act  of  eneculion,  not  of  le- 
^riaUDd.  It  docs  nol  depeod  up'in  the  king 
•MuT  ihv  laws  n|'  England  iiilmluce  tbem- 
wtris,  hccaaiw  the  parliament  may  alter  or 
IfHlnl  laws.  The  king  may  lety  taxes  by  his 
W  ainhority,  which  shall  staoil  in  force  lill 
1     fBliBinenl   repeals  lliem,  which  they  canuot 

I  bclieTo  my  learneil  Iriend  will  hardly  prote 

■  j>nw«r  Te«led  in  the  person  of  Ibe  king.     It 

•iittia  great  point  our  Hampden  contended, 

iiW  00  t»x  can  be  imposed  by  the  aulhnnty 
•(  like  king.  It  must,  therefore,  depend  aale- 
^  mM  ili«  iiueHiiou,  whether  the  king  has  un 
BMOU  ii»d«iicudeul  legislation  i  or  whether 
It"   |iown   uf  the   cruwi)    ia  not  truly   exe- 

Tlie  profiiulgating  and  inlrnilueing  the  ad- 

M'Mraliua  uf  Ihe  lawa  uf  Engliiiirl  we  ad- 

:  IO  be  in  ihe  king,  s«  his  peciili^irand  oe- 

■ittry  l>u«l,  Iha  piaking,  altering,  or  suspeud- 

</  nl  ihooe  Uw«,  WB  deny- 

VritwillMSMidliig  the  ohMrralion  on  the  go- 

"<saM>>i  Af  Hcotlund,  ihesiatft  were  convened 

,  I     I*  lb«  flrU   intunce  of  Kdward'a  claim :    and 

,       d  W  claiasnl  it  a>  n   fieli  and  obtained  as  a 

f       nwHrar,  abll  be  gnvrmrd  it  as  a  king   of 

E^M»d,   with   exrcuiive  and   not  legislalire 

aaliwiij. 

Aato  llie  claim  uf  ■  feudal  duehy  in  Wales, 
<>b«BMBpp(«t  that  the  king  tier  introduced 


A.  D.  1774.  [318 

■ny  fant  but  the  laws  of  EngloDd :  and  when 
be  t'oiisidera  il  expressly,  as  intimately  aod 
vitally  couoecied  with  England,  as  a  part  i a 
the  body,  iu  one  entire  ilominion,  eta  it  be 
doubled  whether  he  underalood  Ibat  he  was  to 
govern  ll  by  the  laws  of  England  T 

Whether  lord  Coke  is  righl  in  supposing 
king  Jolwior  aoji  other  prince,  introduced  tli« 
laws  of  England  iolo  Ireland,  1  don't  think  ia 
material;  unless  it  appears  some  prince,  bv 
his  authority,  made  laws  and  regulaliona  there, 
without  the  concurrence  of  Ihe  Englisb   pat . 

The  king  has  tbe  power,  because  it  has  been 
delegated.  Thu  case  was  not  that  ihe  king, 
in  tbe  grant  In  tbe  corporation,  made  laws  ta 
bind  others  without  their  consenl ;  bul  be  em- 
powered them  to  make  laws  which  should  hind 
themselves.  The  case  is  so  fir  from  proving  a 
power  to  make  laws  coulradictory  to  the  laws 
of  England,  that  it  only  proves  ibe  pitwer  of 
the  king  to  convey  ibe  laws  of  England. 

Aod  because  the  king  can  erect  a  corporation 
which  shall  make  bye-lawi  obligatory  upon 
Ihe  particular  community,  Iherefure  ihe  ki^og, 
il  is  inferred,  can  make  laws  which  shall  bind 
those  who  never  gave  their  consent  to  them. 

The  strooaest  authorities,  ooilbrm  expe- 
rience, as  well  as  the  principles  of  the  consli- 
tuliun.  and  rules  of  law,  ate  against  il. 

Setdcu's  opinion  ia  agaiost  it,  and  those  of  the 
other  great  lawyers.  It  has  the  testimony  of 
the  best  co  nsli  lull  una  1  lawyers,  of  wbicb  no 
age  was  ever  more  fruitful  than  that  of  Jsmea 
the  Isl,  to  negative  it.  It  ought  to  have  beeu 
not  unsupponeil  l>^  precedeots.  Tbe  character 
ofihe  prince  who  is  made  the  example  of  iht 
claim,  ought  to  have  been  other  Ihun  il  was; 
he  ought  to  have  been  a  prince  who  haled  pre- 
rogative; who  was  desiroua  of  keeping  llie 
right  of  Ihe  crown  within  its  con  slit  uiional 
limits,  and  hy  no  meona  of  extending  it  beyond 

The  next  are  mere  private  opinions  given 
by  great  lawyers,  but  in  private.  Though 
tney  will  have  great  weight,  as  far  a*  extra- 
iiulicial  opinions  in  courts  of  law,  they^re  not 
leading  principle*  of  decision:  indiliad  any 
private  opinion  been  decisive.  Ibis  cause  bad 
never  beeo  nnw  before  the  court.  No  man  re- 
veres opinions  of  men  of  great  abilities  mors 
ihno  1  da :  but  there  is  nni  the  opinion  of  any 
man  which  standing  simply  on  the  l<>oling  of 
authority',  I  aball  not  think  myself  at  liberty 
to  question  ;  aod  even  Ihe  greatest  have  been 
hei'Btolbrc  queslioned  successfully.  I  never 
could  be  drierred  by  great  opinions,  when  I 
cousidrred  by  what  aulhorilies  the  liberty  of 
Ihe  press  hss  been  op|)Osed ;  by  what  autho- 
rilies  the  claim  of  ship-money  wns  supported  ; 
and  what  the  event  was  upon  both  those  que8> 

What  was  done  upon  the  forfeiture  of  lb* 
charter,  belbre  <be  Itevoluilon,  is  do  authority ; 
bul  rather  an  argument  of  error.  After  ibe 
Revolution  some  law)  en  gave  their  apinioit 
fur  collecting  tbe  revenues  a*  ibey  used  to  b« 


310]  15  GEORGE  III.  The 

Gollecttd ;   Ail  ww  done  mil;  in  tbe  hitRTal 

oTiuipwiioii  of  lesiilitum. 

A  qnetliob  oT  tbii  mlnre,  a  power  of  ■  midq 
fihe  will  i*  not  to  bf  gathnrd  from  idcIi  aniho- 
ittiM  mnd  circnmitiiicei  ■■  thoK  which  have 
bwD  itated.     Mr.  Attoraeji  GcnenI  wu  snp- 

n'Bg  an  iniUnt  Bliro^tMO  of  all  farmer  Uwi. 
id  not  aay  to  whea  it  wai  a  tooqiiMt. 
There  are  Mme  aoallenble  lawi  In  coatioue. 
Aa  lb  the  ol^eclioa  made  o/S  claiming  of  pro- 

Cfty,  tbe  former  mode  mutt  remam  till  the 
Dg  appoioti  BDUther  by  hU  euciiliTe  power. 

Hy  tord  Vaoghan  uyi  Ihe  inbjecU  don't 
Acqaire  »  properly  io  the  ioil.  If  the  inhahit- 
wu  had  been  turned  out  of  il,  it  would  have 
been  in  tbe  king.  In  the  idea  of  tlii«  coanlry 
tbb  property  ot  all  Inndi  wai  oriffinBtly  in  tlie 
Wag.  If  Mr.  Attorney  General  hod  been  con- 
teilding  for  Hii»  aa  ■  feotlal  right,  tlie  irgurarnl 
would  hare  had  weiifht ;  bol  we  are  not  argu- 
hifffor  the  property  of  the  inil. 

The  aabjecU  of  En^and  liive  a  right  to  the 
Engliah  lawi :  tliey  hare  a  riglrt  «o  aisf  mble : 
■urtbe  reason  why  the  king  nerer  wiys  to 
them,  "  that  ha  will  call  aueroblioi  aa  noun  aa 
COnTenience  pecmita  and  occaaion  alialj  re- 
quire," ia,  becajie  io  thia  coanlry  conrenience 
alwaya  permitt.  and  occaaion  require*.  But 
alill  the  trust  of  calling  them  ia  itpoaed  in  the 

Mr.  Attorney Oeiieral,aflerha»ingJi»cn«ied 
(be  point  of  aorereigniy  in  the  caae  of  Ireland, 
«ah  rcapect  t«  Ibar  aaMoblieii,  haa  said,  this 
ia  in  exeealioo  of  authority  iu  the  king;  ifao, 
then  the  lawa  were  there  before,  and  aiieDiblies 
called  npoa  the  aame  tenna  aa  in  England. 
And  thai  the  acta  concerning  them  were  by 
kaihority  of  ptrUameiit.  \ 

Willi  reapect  to  the  power  nf  the  (ting  to 
nakelawa. 

He  can  make  no  other  lawa  than  what  ghall 
hafa  been  made  by  the  cnnttitiitiand  aaaemUiei : 
lie  can  repeal  none ;  nor  alter  without  them. 

Hr.  Atlorney  General  aays  that  by  his  pro-  | 
damalion  the  tini;  promiaea  thai  he  will  grant  J 
them  the  privilegea  of  Britiah  avtyeeiai  |iul  | 
then  thi«  promiae  cannot  lake  effect  befbrt  the  i 
geternor  landt,  and  an  avembly  i*  called,  an^  ' 
immnl lately  on  his  landing,  and  before  an  aa- 
senibly  can  be  called,  he  hai  a  right  Io  ley 
imiKiaia. 

1  lake  the  coniitruclinn  to  be,  that  tbe  pro- 
mke  taket  placn  from  the  lime  nf  iituingit; 
A  canstitnlinn  likei  place  immediately.  We 
■re  not  le»«  gnverned  hy  the  lawa  of  ihiacoun- 
try  because  a  parliamenl  la  not  cautantly  ail- 
tiw- 

Thii  cannot  l)e  diatinifuiibed  from  the  ca*e 
of  any  olher  colony  ;  and  if  tbe  power  claimed 
|>e  in  this  ca»e  diulluwed,  the  colnniea  in  gene- 


Cate  nfthe  Ttlaiid  ofGrtnada —  [J 
Lord  Mati^eld.  I  dnn'l  remember  Ha  b( 
argued  in  thia  caie  on  the  queatioD  whel 
ibere  ia  any  aulhoniy  which  cnrnidera  i 
luiny  a*  a  part  of  tbe  dominiona  of  the  en 
of  England.  Aquitaina  and  ^leloa  ho  hd 
heir  to  tbe  home  of  Anjon. 

The  jiariB  aeparated  from  the  crown, 
comidered  aa  feodal,  were  governed  by  a 
apolic  authority.  Il  appeara  that  Calaia 
Ihe  proceaa  and  judicial  writs  of  thu  go 
Writ!  of  error  returnable  to  lliii  court. 
How  do  you  nodetaland  the  capilnlation 


il  not  neceaaary  for  (he  right.      J 

haa  been  Ceded,  I  t>rliev«,  inthii  hnnr. 

How  do  you  undtrstand  the  capitnlati 
There  ii  an  artirle  that  they  (hall  pay  nooi 
dutiea  but  what  lliey  paid  to  tbe  king-  of  Frai 

Mr.  Jutt.  Alton.— ¥inX  of  all  in  thi*  ape 
Tenlict  the  ariiclei  of  capitulation,  tomt 
Ihem  are  alaled.  I  ilon'i  iinderitaoil  bow 
capitulation  and  treaty  of  peace  agree,  fii 
am  to  judge  uj>un  the  verdict. 


ral  vrill  ilipii  att  all  of  them  with  the 
peodence  on  the  supreme  l^alalure,  ai>it  tbe 
fame  conformity  in  the  priuciplet  of  tb^  B'iliib 
Coaitilu^oB.  (fotherwite,  there  will  beUriiiih 
autgecta  under  the  aaroe  name,  and  with  tbe 
aama  noninal  righia,  aome  free  and  olheia  io 
Kiic«i«iluti«iial  aubjeatioD. 


Judgment  of  the  Court  wai  Ihis  day  gi 
by  lord  Mansfield,  asfnUows; 

Lord  Mantfitld.  In  this  cauieof  Aleni 
Campbell  agiinat  William  Hall  ; 

This  il  an  action  liruught  by  the  plain 
who  is  a  natural -burn  sutijcct  nt  Great  Brii 
and  who,  uuon  the  third  uf  Muy,  1763,  ] 
chased  lands  in  Ihe  iijaud  nf  Grenada,  i 
it  il  brought  against  the  ilefendaot,  Willi 
Hall,  who  was  collector  fur  bit  matesty  at 
time  of  lerying  the  impost,  and  of  the  >e 
brought,  of  a  duty  of  four  and  a  half  per  o 
upon  goods  exporteil  fiom  the  i&lautl  uf  G 
Dnda.  And  il  is  to  recover  a  sum  if  mo 
which  Has  levied  by  the  defendant  and  paid 
the  plaintiir,  as  for  this  <luty  nf  four  and  a  I 
per  cent,  for  sagara  whirh  Here  expoiteil  fi 
tbe  island  of  Grenada,  from  the  estate  and 
the  cnnti^nment  of  the  plaint<lF. 

And  tlie  case  ia  laid  upon  ruoncy  had  and 
eetved  ;  and  plainliff,  as  fur  niuney  paid  wl 
out  consiili-ritiiin,  the  dutiea  hating  been  i 
posed  without  sufficient  nr  lawful  autlioritj 
warrant  the  same,  demands  Jud^'ment  to 
cover  the  same  aKsiusI  tlie  defendaiil. 

And  it  it  kUted  in  ihe  snecisi  verdict  that 
money  it  not  |wid  over,  but  continues  in 
defeDilant'a  hands,  by  consent  of  llie  aituro 
general,  fur  bia  m<je«ly,  in  order  that  llie  qi 
linn  may  be  liied. 

The  special  verdict  atales  Grenada  to  h 
been  uouijuf^red  by  tbe  Brilisb  am  is  from 
Freiicli  king  on  the  71):  of  l''e>'ruary,  I7i 
and  ihit  the  iiland  uf  G'lnada  was  crded 
cipiiulatiou ;  and  that  ihe  capiiululion  u 
which  th*y  Burreiid.  reil,  was  bj  referenct 
the  raiiilulation  upon  nhidi  ihe  ialaod 
Murtinicti  had  been  aiirrenUcred. 

Tbe  special  vcrdn'i  then  slaleii  tome  artii 
of  ihat  capitiilaiion,  pdrtiruUr'y  the  H' 
which  grauit  that  Matiioico  ihaH  be  gorer. 


»l] 


Campbdl  v.  HalL 


A.  D.  1774k 


[SM 


bj  it*  OWD  lawt  till  luB  iqajefty's  pleaiure  be 
known. 

Cootiotuuice  of  property,  relif^on,  honoars, 
pnTilegei,  aad  exemptions,  »  demanded. 
Thejf  are  referred  to  the  article  last  stated  for 
•oswer,  which  is,  that  the  inhabitants,  being 
iilflecti  of  Great  Britain,  will  enjoy  their  nro- 

Ey  and  the  same  prifi leges,  derived  from 
r  aol^ectioDy  as   id   his  majesty's   other 


Eiglilh  article*  that  they  shall  be  subject 
Miy  to  the  capitation  tax  imposed  by  his  ma> 
ynty  the  king  of  France,  expences  of  justice 
UM  puhlic  government  to  be  paid  out  of  the 
kiac's  domain. 

Referred  to  the  7th  article,  which  states  the 
rafe— and  refers  to  the  duties  paid  by  the  inba- 
hitaats  of  the  Leeward  islands. 
.  The  next  instrument  is  the  treaty  of  peace 
Ae  lOth  of  February  1763,  wbicli  states  the 
ecaioQ,  and  other  articles  not  material. 

The  next  and  material  instrument  which 

ar  slate  is  a  proclamation  un(i«ir  the  great 
,  the  7th  of  October  17G3,  reciting  thus : 
*  Whereas  it  will  greatly  contribute  to  the 
'  Mtliog  of  our  said  islands,  of  which  Grenada 

*  if  one,  that  they  be  informed  of  our  love  and 
'paternal  care  for  the  liberties  and  rights  of 
'  Ibose  who  are  or  shall  be  inhabitants  thereof; 
<  we  have  thought  (it  to  publish  and  declare  by 

*  this  our  proclamation,  that  we  have  by  our  let- 
'  Ins  patent  under  our  great  seal  of  Great  Bri- 
'  In,  whereby  our  said  governments  are  con- 
'  i(6Medf  given  express  power  and  direction  to 
'  iv  goremora  of  our  said  colonies  respectively, 
'iMt,  so  lOon  as-  the  state  and  circumstances 
*af  the  mid  colonies  will  admit  thereof,  they 
■Aally  with  the  advice  and  consent  of  our  said 
f  canncilv  call  and  summon  general  assemblies, 
*Ib  snch  manner  and  form  as  is  used  iii  the 
'  slhcr  ooloniea  ander  our  immediate  gpvern- 
f  Meat.  And  we  haTe  also  given  power  to  the 
'mii  governorsy  with  the  advice  and  coQsent 
'afonr  said  council  and  assenobly  of  repreaen- 
'tMives  as  aforesaid,  to  make,  constitute  and 

*  ordain  laws,  statutea  and  ordinances  for  the 
'  IfMc  peace,  welfare  and  ^ood  government  of 
'•arsaiu  colonies  and  the  inhabitants  thereof, 
'  IS  sear  as  may  be  agreeable  to  this  laws  of 
'  Eagland,  and  under  such  regulations  and  re- 
■  Mrictioos  as  are  used  in  our  other  colonies.' 

Then  follow  letters  patent  under  the  great 
ml,  or  rather  a  pniclamation  of  the  26tb  of 
karch  1764,  whereby  the  king  recites,  that  he 
M  ordered  a  survey  and  division  of  the  ceded 
iriaads,  as  an  invitation  to  all  purchasers  to 
csmeaod  purchase  upon  certain  terms  and  con- 
AioDS  specified  in  the  proclamation. 

The  next  instrument  stated  in  the  verdict, 
htters  iMtent  on  the  9th  of  April  1764,  gives 
MounissioD  and  authority  to  Robert  Melville, 
<^.  appointed  governor  of  this  island  of  Ore- 
ia4a,  to  summon  assemblies  as  soon  as  the 
titaaiion  and  circumstances  of  the  island  would 
idniit ;  and  to  make  laws  in  all  the  usual  forms, 
■itb  reference  to  the  other  plantations  where 
aMembUes  are  established. 


The  governor  arrived  in  Grenada  the  14tbL 
of  December  1764;  before  the  end  of  1765, 
particular  day  not  stated,  the  assemblies  actu* 
ally  met :  but  before  the  arrival  of  the  governor 
in  Grenada,  indeed  before  his  commission,  and 
before  bis  departure  from  London,  there  is  an* 
other  Instrument  upon  the  validity  of  which  tha 
whole  turns. 

Letters  patent  under  the  great  seal,  hearing 
date  the  SOth  of  July  1764,  reciting  that  ii^ 
Barbadoes,  and  all  other  of  the  British  Lee^ 
ward  islands,  a  duty  of  four  and  a  half  pei^ 
c^nt.  is  paid  upou  goods  exported ;  and  re- 
citinir  farther : 

'  Whereas  it  is  convenient  and  expedient, 
'  and  of  great  importance  to  our  other  sugar 

*  colonies,  that  the  like  dufies  should  taka 

*  place  in  Grenada ;  we  do  Tiereby ,  by  virtue  of 

*  our  authority  and  prerogative  royal,  ordaiq 

*  that  an  impost  of  four  and  a  half  per  eenC 

*  in  specie  shall,  from  and  after  the  29tb  day  of 

*  September  next,  be  raised  and  paid  to  us,  our 

*  heirs  and  successors,  for  and  upon  all  dead 

*  commodities  of  the  growth  or  produce  of  our 
'  said  island  of  Grenada  that  shall  be  shipped 

<  off  from  the  same,  in  lieu  of  all  customs  an(| 

<  impost  duties  hitherto  collected  upon  goods 

*  imported  and  exported  into  and  out  of  the  said 
'  island,  under  the  autj^prity  of  his  most  Chris* 

*  tian  majesty,  and  that  the  same  shall  be  col* 

*  lected :'  then  it  goes  on  with  reference  to  the 
island  of  Barbacu^es  and  the  other  Leeifard 
islands. 

The  jury  find  that  ip  fact  such  duty  of  fot||p 
and  a  half  per  cent,  is  paid  tp  Lis  majesty  in 
all  the  British  Leeward  ulands. 

And  they  find  several  ^is  of  assembW  whjch 
are  relative  to  ttie  state  of  tUe  'seyeraiisla^dsy 
and  which  I  shall  not  state,  a^'  tl)ey  are 
public,  and  ev^ry  gentlenuui  may '  have*  acf^s^ 
to  them. 

These  letters  patent  of  the  SOth  of  July 
1764,  with  what  1  stated  in  the  opening,  ara 
all  that  is  material  in  this  special  ve)r({ict. 

Upon  the  whole  of  the  case  tliis  general 
question  arjses,  beipg  the  substance  of  what  is 
submitted  to  the  Oo^rt  by  the  verdict :  <*  Whe- 
ther these  letters  patent  of  the  30th  of  July 
1764,  are  good  and  valid  to  abrogate  the  Frencn 
duties,  and  in  lieu  thereof  to  impose  this  duty 
of  four  and  a  half  per  cent."  which  is  paid  by 
all  the  Leeward  islands  subject  to  bis  majesty. 

That  the  letters  are  void  lias  been  contended 
at  the  bar,  upon  two  points. 

1st,  That  although  they  had  been  made 
before  the  prociaiiation,  the  kin^  by  his  pre- 
rogative could  not  have  imposed  them. 

!2dly.  That,  although  the  king  had  sufficient 
authority  Mure  the  20tli  of  July  1764,  he  had 
divested  himself  of  thatauthority  by  the  procla- 
mation. 

A  great  deal  has  been  said  and  authorities 
cited — relative  to  propositions  in  whicli  both 
sides  exactly  agree,  or  which  are  too  clear  to 
be  denied.  The  stating  of  these  will  lead  us 
to  the  solution  of  the  first  point. 

1st,   A  country  contjuered  by  tlie  British 


15  GEORGE  III. 


The 


883] 

arms  becomes  a  domiDion  of  the  kinff'toright 
of  hit  crown,  and  therefore  necessartly  inbject 
to  the  legislatWe  power  of  the  parliament  of 
Great  Britain. 

Sdiv,  The  conqucreil  inhabitants  once  re- 
ceived into  the  conqiieror'i  protection  become 
tnbjects ;  and  are  universally  to  be  considered 
in  that  light,  not  as  enemies  or  aliens. 

Sdly,  Articles  of  capitolation  u|H)n  which  the 
conquest  is  surrendered,  and  treaties  of  peace 
by  which  it  is  ceded,  are  sacred  and  inviolable, 
according  to  their  true  intent. 

4thly,  The  law  and  legislation  of  every  do- 
minion equally  aflTects  all  persons  and  pro|ierty 
within  the  limits  thereof,  and  is  the  true  rufe 
for  the  decisiuu  of  all  questions  which  arise 
there :  whoever  purchases,  toes  or  lives  there, 
puts  himself  under  the  laws  of  the  place,  and 
in  the  situation  of  its  inhabitants.  An  English- 
man in  Minorca  or  the  isle  of  Man,  or  the 
plantations,  has  no  distinct  right  from  the  i»- 
tives  while  he  continues  there. 

5thly,  Laws  of  a  conquered  country  con- 
tinue until  they  are  alteretl  by  the  cor.qaeror. 
The  justice  and  antiquity  of  this  maxim  is  un- 
convertible ;  and  the  absuni  exception  as  to 
pagans,  in  Calvin's  case,  shews  the  universa* 
lity  of  the  maxim.  The  exception  could*  not 
exist  before  the  Christian  sra,  and  in  all  pro- 
bability arose  from  the  mad  enthusiasm  of  the 
crusades. — In  the  present  case  the  capitulation 
expressly  provides  and  agrees,  that  they  shall 
continue  to  be  governed  by  their  present  laws, 
until  bia  majesty's  pleasure  be  further  known. 

6thly,  If  the  kin|^  has  power  (and,  when  I  say 
the  king,  I  mean  in  this  case  to  be  understood 
**  vrithont  concurrence  of  parliament*')  to  make 
new  laws  for  a  conquered  country,  this  beiug  a 
power  subordinate  to  his  own  authority,  as  a 

£art  of  the  supreme  legislature  in  parliament, 
e  can  make  none  which  are  contrary  to  fun- 
damental principles  ;  none  excepting  from  the 
laws  of  trade  or  authority  of  parliament,  cr 
privileges  exclusive  of  his  other  subjects. 

The  present  proclamation  is  an  act  of  this 
tobordinate  legislative  power :  if  made  before 
the  11th  October  1763,  it  would  have  been 
made  on  the  most  reasonable  and  equitable 
grounds;  putting  the  island  of  Grenada  on  the 
aame  footing  as  the  other  islands. 

If  -Grenada  paid  more  duties,  the  injury 
would  have  been  to  her ;  if  less,  to  the  other 
islands. 

It  would  bare  been  carrying  the  capitulation 
into  execution,  which  gave  ho|ies,  if  any  new 
duties  more  were  laid  on,  their  comiiiion  would 
be  I  he  same  as  that  of  the  other  Leeward 
islands. 

The  only  question  which  remains  then  is, 
whether  the  king  had  power  nfier  ihe  4ih  of 
Fehniary  ITdS,  of  himself,  to  impose  ihi«  duty. 

Taking  these  propositions  to  be  grantetl,  he 
has  a  legislative  power  over  a  conquered  coun- 
try, limited  to  him  by  the  constitution,  and 
■ohiordinate  to  the  conatituiton  and  parliament ; 
and  a  power  lo  grant  or  refuse  capitulation. 

if  Im  rfefuM,  and  pun  lo  tin  aaord  or  extii^ 


Case  of  the  Island  ofGretiada'^         [S24 

Ktes  the  inhabitants  of  a  coontry,  obtaiDing  it 
^  conquest,  the  lands  are  his ;  and  if  be  plaota 
a''  colony,  the  new  settlers  share  the  land  be* 
tween  them,  subject  to  the  prerogative  of  the 
,  conqueror.*    If  he  receives  them  into  obedi* 
ence  and  grants  them  property,  be  has  power 
to  fix  a  tax.    He  is  intrusted  with  the  terms  of 
making  |)eace  at  his  discretion ;  and  be  maj 
retain  the  conquest  or  yield  it  up,  on  such  con- 
dition as  he  shall  think  fit  to  agree. 
This  is  not  a  matter  of  disputed  richt;^  it 
!  has  hitherto  been  uncontroverted  that  the  king 

-  may  change  part  or  all  of  the  political  ibrm  of 
government  over  a  conqoered  dominion. 

To  go  into  the  history  of  conquests  made  by 

j  the  crown  of  England.    The  alteration  of  tba 

I  laws  of  Ireland,  has  been  much  discosaed  by 

the  Uwyers  and  writers  of  great  fame,    ffo 

,  man  ever  said  the  change  was  made  by  the 

{larliament ;  no  man,  unless  perhaps  BIr.  Mo« 
yneux,  ever  said  the  king  could  not  do  it. 

The  fact,  in  truth,  after  all  the  researchct 
that  could  be  made,  comes  out  clearly  lo  be  at 
laid  down  by  lord  chief  justice  Vaugbao. 

**•  Ireland  received  the  laws  of  England  by 
the  charters  and  command  of  H.  3,  king  JohOi 
H.  3,  and  he  adds,  &c.  to  take  in  Edward,  and 
the  successors  of  the  princes  named.  Tliat 
the  charter  12  king  John,  was  by  aaaent  of 
parliament  in  Ireland,  be  shews  clearly  to  be 
a  mistake.  Whenever  a  pariiament  was  called 
in  Ireland,  that  change  in  their  oonstitotioa 
I  was  without  an  act  of  pariiament  in  Englandp 
I  and  therefore  must  have  been  derived  from 
the  king." 

Mr.  Barrington  is  well  warranted.  Tba 
12tb  of  Edward  1st,  called  the  statute  of  Waled^ 
is  certainty  no  more  than  a  regulation  made  by 
the  king  as  conqueror,  for  the  government 'oi 
the  country,  which,  the  preamble  snj's,  wm 
then  totally  subdued;  aua,  however  for  par- 
poses  of  policy  he  might  think  fit  to  claim  it  ai 
a  fief,  appertaining  to  the  realm  of  Englandlf 
he  could  never  think  himself  entitled  to  make 
laws  without  assent  of  parliament,  to  bind  tbc 
subjects  of  any  part  of  the  realm.  TherefiMf^ 
as  he  did  make  laws  for  Wales  without  assent 
of  parliament,  the  clear  consequence  is,  ht 
governed  it  as  a  conquest :  which  was  his  title 
in  fact,  and  the  feodal  right  but  a  fiction. 

Berwick,  after  the  conquest  of  it,  was  go» 
vemed  by  charters  from  the  crown,  till  the 
reign  of  James  the  1st,  without  interposition  ef 
parliament. 

Whatever  chanj^es  vere  made  in  the  lawi  of 
Gasconv,  Guyenr.e  and  Calais,  must  have  beca 

-  under  tbe  kind's  authoiity  ;  it*  by  act  of  par* 

*  '*  Those  u  ords  seem  to  mean,  that  Ibt 
kiiiv:*f«  irtrislauvo  auilioritv  "ver  these  new  aet* 
tiers,  is  derived  tVoin  tlie  circumstance  of  hit 
having  granted  tin^m  their  lands ;  though,  still« 
>  the  last  wonis  *  suhject  to  the  prerogative  of  tba 
conqueror*  seem  very  obscure,  since  the  wbola 
matter  in  question  is  to  know  what  is  the  prc^ 
rontive  of  the  cooqueror."  8  Canadian  Fn^ 
holidcra  51. 


_    tlimenl  thrre  btk  commercial      ^ 
TttiliTC  lo  »'acli   uf   the    canqu»ts    wliich    I 
bue  nameil ;    iinne    making-  any    cbaugi 
ih«ir  cDOEtiluii'in  anil  laws. 

Vc|  ••  to  Calais,  there  was  a  great  change 
made  in  llieir  coii'liluljoo :  Tur  ihey  nereaiini' 
aoocd  bj  nril  lu  irni  hurgesset  lit  Ihe  Eai;li»h 
Mdiamenl ;  Bod.  ai  this  waa  nnt  by  act  of  par- 
liitncDt,  ii  muat  ba*e  been  by  the  eole  act  or 
liif  kiug. 

tt  ilfa  re^rd  10  tlie  inbahitanli,  llieir  properly 
i:i<l  trtile,  at  Gibraltar,  the  king,  elet  diice 
lui  cunqiml,  has  Tram  time  to  tiroe  made 
wdara  and  rrgulaliona  cuilable  lo  the  conililion 
M  ibosQ  a  ho  lire,  trade,  or  enjoy  properly  la  a 
prriaiiD  lonto. 

Mr.  AUorney  General  has  alludeil  to  a  *a- 
Mljr  of  iiuiaace«,  several  wilhiu  theie  twenty 
fW*!  in  which  the  king  has  exerciied  legisls' 
<tm  ortt  Blinorca.  Id  Minorca  il  has  ap- 
fmwd  Ulely,  thai  there  are  and  have  been  lor 
JIM*  b*ck  a  great  manv  iahabitaDle  or  trortti, 
■i  ■  OTMI  trade  carried  ud. 

If  ■£>  king  doet  it  there  aa  coming  in  the 
paM  vt  ihe  king  uC  Spain,  because  Ibeir  old 


continues  (which  by  Ihe  by  it 

tm  pfOof  that  Ihe  coDstilution  of  England  does 
HI  ■cecMarlly  follow  a  conqueM  by  the  king- 
it  Ewhiid)  llie  same  argument  applies  here  ; 
irUSre  the  Tlh  of  Oclober,  1763,  the  consli- 
Mi«tt  ef  Grenada  conlinueU,  and  Ihe  kiug  slirad 
■  Ihe  place  of  their  lurmer  aorereign. 

After  the  conquest  of  New  York,  in  which 
Ml  of  Ihe  oM  Dulcb  inhnbltnnU  remained, 
img  Chariea  the  'id  changed  iheir  conFiilulion 
wd  palilicsl  fnrm  of  govemmeot,  and  granted 
M  M  Ifae  ttukc  of  York,  to  hohl  from  bii  crawn 
aaderall  ilie  r^ulatiuna  coulaiued  in  the  let- 

II  is  no*  10  be  wondered  ihat  an  adjudged 
MM  in  |inint  ti  out  to  he  found  ;  no  dispute 
ft  wa«  Rtarlvd  before  opon  Ihe  king's  legii- 
Ittnr  ritftal  over  ■  couqiieei :  ii  never  was  de- 
aiiri  ui  ■  ciiut  of  Uw  or  equity  iu  Weslmin- 
Mct-b*l).  tieter  waa  questioned  in  parliameiil. 

LiwJ  Cokv'c  report  of  ihe  argumenU  and 

rHOlationa  at  the  judges  in  Caldn's  esse  lays 

tl^aim  as  clear.      (Aiul  ihat  strange  enirnju- 

4iaai  upftion,  as  loa  uonqueal  from  a  pagan 

CMMlrjr,  Mill  not  make  reason  not  lo  be  reasOD. 

■arf  taw  aot  to  be  law,  as  to  the  rest.)     And  ihe 

tfohaa^,  that  if  aking~~l  omil  the  dislino- 

■ian  belw*«B  a  Christian  and  infidel  kingdom, 

•WU  M  10  Ibis  pur|Hise  ia  wholly  groundless, 

mi  DMI  dcMnredly  exploilcd—"  If  a  king 

Dana  Ut  a  biogdom  by  cooqnesi,  he  may,  at 

*-  ^  pIcNWirv,  alter  and  change  the  laws  of  lliat 

L'dofD  i  bot,  until  he  doUi  make  an  allera- 

'-.  lim  lactnit  laws  of  that  kingdom  remuin  : 

'   fa  kioc  bath  a  kingdom  by  deaceni,  there, 

'!>:<  by  iKc  Iswi  of  iho  kingdom  he  doth  in* 

i:  lb*  kJHgdom,  lie  caanol  change  the  laws 

liinwilf   nitbaat   couaeat  of   padiameui. 


king  JdIih  bad  given  In  them,  being  under  hia 
obedience  and  aubjecliun,  the  laws  of  England 
for  lbs  government  of  iheir  native  couulry,  no 
succeeding  kinu  could  alter  Ibe  same  without 
parliament.  Which  is  ver^  jusi,  and  it  ne- 
cesiBi'jIy  includes  that  king  John  himself 
could  not  alter  the  grant  of  the  lawa  of  Etig- 

Besidea  this,  the  authorily  of  two  great 
uames  has  been  cited,  who  took  the  propvsitiun 
for  granted.  Anil  though  opioiooB  of  counsel, 
whether  acting  officially  in  a  public  charge  or 
ID  private,  are  not  properly  aulhority  to  found 
n  decision,  yet  I  cilelliemi — not  to  eslablisb 
so  clear  a  point,  but  to  sbew  that  when  il  has 
been  matter  of  legal  enquiry  Ihe  answer  it  ha* 
received,  by  gentlemen  of  eminent  fcbarsoler 
and  abilities  in  llie  profession,  has  been  imme' 
diate  and  without  hesilation,  aod  coaformabla 
t»  these  principles. 

Id  179!,  the  assembly  of  Jamaica  refusing 
the  nsnal  supplies,  it  was  referred  to  sir  Philip 
Yorke  and  sir  Clement  Wearg,  what  was  to 
be  done  if  ihey  shouhl  persist  in  their  refusal. 

Their  answer  is — '•  thai,  if  Jamaica  wassljll 
to  be  considered  as  a  conquered  country,  Iha 
king  had  a  right  to  lay  laxvs  upon  the  iiiliahi* 
;  but,  if  it  was  to  be  considered  in  Iba 
I  light  as  the  oiber  colonies,  no  lax  could 
iposed  upon  ihe  inhahiUuis,  but  by  an  as- 
aeniblv  of  the  island,  or  by  an  jicl  of  parlia- 

Tbe  dislinctioD  in  law  between  a  conquered 
country  and  a  colony  tliey  held  to  be  clear  and 
indisputable ;  whether,  as  to  the  case  bcfor* 
lliem  of  Jamaica,  lliat  island  reinamed  a  con- 
quest or  was  made  a  colony,  ibey  had  not 
examined. 

I  have,  upon  former  occasions,  traced  iha 
constitution  of  Jamaica  as  far  as  there  ara' 
honks  or  papers  in  Ihe  offices:  I  cannot  find 
that  any  Spaniard  remained  upon  the  islaud  ao 
late  a*  the  Bestoralion ;  if  any,  they  were  fevr, 

A  gentleman,  lo  wlmm  1  put  the  question  oq 
one  of  the  aigunieols  in  tills  cause,  said  ha 
knew  uf  no  Spanish  slave  of  the  while  iuhabl- 
tanlB  of  Jamaica;  but  there  were  amunfa^ttha 
negroes.* 

The  king,  I  mean  Charles  ihe  second,  afler 
Ihe  Itesliiration  invited  settlers  by  pruclaraation, 
promising  them  his  protection.  He  appointed 
at  first  a  goiemor  and  council  only  ;  nfier- 
wsrds  he  granted  a  couimiisiun  to  the  governor 
to  callan  assembly. 

The  cunstitulion  of  every  province  imme< 
dialely  under  the  king  has  arisen  in  the  aama 
manner ;  not  by  the  graoii,  but  by  Ibe  com- 
mission  subsequent  to  call  an  assembly.  And 
Iherelore,   all  the  Spaniards   huTing   lei)  Lba 

Upon  this  subject  see  Edwards's  History 
of  the  We«t  Indies,  book  !.  chap.  S,  nift./n. 
chap.  3,Tol.  1,  pp.  US,  159,  l6S. 


927] 


li  GEORGE  111.  The  Case  of  the  hlani  nf  Grenada^         [flSB 


isUnd,  of  hfcrin^  Been  killed  or  driren  out  of 
it,  the  first  settHpgf  was  by  an  Enj^lidh  colouy, 
who  iiAiler  the  authority  of  the  kirig;^  planted  a 
Vacant  island,  belonging  to  him  in  right  of  his 
crown. 

The  like  is  the  case  of  tbie  islands  of  St. 
Helena  and  St.  John,  mentioned  by  Mr. 
Attoniey-Oeneral. 

A  maxim  of  constitdtional  law  with  all  the 
jndres  in  Cal fin's  case,  and  two  such  men  in 
modem  times  as  sir  Philip  Yorke  and  sir  Cle- 
ment Wearg,*  1  take  it  for  granted,  will  aconire 
tome  anthoritv,  even  if  there  were  any  thing 
which  otherwise  made  it  doubtFul ;  but  on  the 
isbhtrary  no  book,  no  saying  of  a  judge,  no  not 
even  an  opinion  of  any  counsel  publiic  of  pri- 
vate, has  been  cited  ;  no  instance  is  to  be  found 
■  ■      ■  r 

*  **  Frenchman,  The  opinion  of  sir  Philip 
Yorke  and  sir  Clement  Wearg,  must  indeed  be 
allowed  \n  be  an  authority  in  point  to  the  ques- 
tion; because  those  two  learned  gentlemen 
•eem  to  bare  meanj^  ascribe  to  tlie  crown  the 
same  perfect  and  permanent  sort  of  legislali? ie 
authority  over  Jamaica,  in  case  it  was  still  to 
be  conNideripd  as  a  conquered  country,  as  lord 
HansBeld  has  ascribed  to  it  with  respect  to  the 

^island  of  Grenada  before  the  proclamation  of 
October,  17*63 :  but  yet  1  cannot  think  it  a  ? ery 
inespectable  authority,  notwithstanding  the 
threat  learning  and  eminence  of  those  gentle- 
men ;  partly,  because  it  seems  to  hare  been 
rather  a  hasty  oniniun,  upon  which  the}'  had 
iiestowed  very  little  consideration,  since  they 
did  not  take  the  pains  to  enquire  whether  Ja- 
maica was  to  he  still  considered  as  a  conquered 
country,  or  u  hether,  by  events  subsequent  to 
the  conquest  of  it,  it  was  become  a  colony ;  and 
partly,  because  it  may  well  be  supposed  that 
persons  who  serve  the  crown  in  the  offices  of 
attorney  and  solicitor  general,  have,  in  all 
doubtful  matters  relating  to  the  royal  preroga- 
tive, a  bias  on  their  minds  in  favour  of  it. 

**  Englishman,  Persons  in  their  then  situa- 
tions must  always  be  liable  to  the  suspicion  of 
inclining  a  little  to  favour  the  prerogative  of 
the  crown:  and,  as  you  well  observed,  this 
opinion  of  theirs  seems  to  have  been  given  very 
hastily  and  with  very  little  attention  to  the  sub- 
ject, since  they  did  not  take  care  to  inform 
themMves  concerning  the  then  present  condi- 
tion of  Jamaica,  so  as  tu  determine  whether  it 
bught  to  be  considered  as  a  conquest  or  a 
colony,  though  this  was  absolutely  necessary 
to  make  their  opinion  of  any  use  to  the  minis- 
ters of  state  who  had  consulted  them.  It  must, 
however,  be  confessed  that,  crude  and  hasty  as 
this  opinion  seems  to  have  been,  it  sdrves  to 
ghew  that  those  two  great  lawyers  bad  a  gene- 
ral, loose,  floating,  idea  of  the  king's  being  the 
absolute  legislator  of  all  countries  acquired  by 

'  cotaquest,  which,  (as  1  observed  to  you  in  the 
beginning  of  our  conversation,)  was  an  opinion 
ihat  had  been  adopted  by  a  grelit  many  private 
Uwyers,  though  1  never  could  see  aby  fonnda- 
tM>ft  fbr  It."  CauiditB  Frteholdcr,  DM.  f, 
p.  297|  et  Iff. 


in  any  period  of  oar  history  where  it  waa  ^cr 
questioned. 

The  counsel  for  the  plaintiff  ondoubtedly  Ik- 
beared  this  point  from  a  diffidence  what  migllt 
he  our  opinion  on  the  second. 

but  U|K>n  full  consideration  we  are  all  df 
opinion  tnat  before  the  SOtb  of  July,  1764,  the 
king  had  precluded  himself  from  an  exerciM 
of  the  legislative  aothoritv  by  rirtueof  his  bre- 
roptive,  which  he  had  before  over  tbe  islairtl 
ofGrenada. 

The  first  and  material  instrnnient  is  the  pro- 
clamation of  the  7th  of  October  1763.  8m 
what  it  is  that  the  king  says,  and  with  wbit 
view  be  says  it ;  bow  and  to  what  he  lengigei 
himnself  and  pledges  his  word.  **  WhereAi  H 
t^ill  greatly  contribote  to  the  speedy  aettliAg 
our  said  new  governments,  that  our  loving  «lC 
jects  should  he  informed  of  our  paternal  cart 
for  the  security  of  tlie  liberties  and  propertiai 
df  those  who  are  and  shall  become  inhamtanti 
thereof;  we  hate  thought  fit  to  pablftb  «bS 
declare  by  this  our  proclamation,  that  we  bati 
in  the  letters  patent  nnder  our  great  teil  taH 
Greal  Britain,  by  which  tiie  said  gdvemmMili 
are  constitnted,  given  express  power  and  dirii6 
tion  to  our  governors  of  our  said  coldniei  r^ 
spectively,  that,  so  soon  as  the  state  and  bir 
cunfistances  of  our  said  cotonies  will  ndtaril 
thereof,  they  shall,  with  the  advice  and  edb'< 
sent  of  the  members  of  oar  council,  aamnKMI 
and  call  Mieral  atoembliea"  (and  then  folibi 
the  directions  for  that  purpose.)  And  to  wM 
end  P  •*  To  make,  confetitnte  and  ordaia  bM 
statotes,  and  onlinaneet,  for  the  public  peafl0 
welfare  and  good  of  our  said  colonies  (of  wbid 
this  of  Grenada  is  one)  and  of  the  people  ani 
inhabitants  thereof,  as  near  as  may  be  agredk 
ble  to  the  laws  of  England.** 

With  what  view  is  the  promise  reciting^  tH 
commission  actually  given  P  To  invite  setUiets 
to  invite  subjects.  Why?  The  reason  I 
given.  Tliey  may  think  their  liberties  aai 
properties  more  secure  when  they  have  a  legii 
lative  assembly.  The  governor  and  coand 
depending  on  the  king  he  can  recall  them  i 
pleasure,  and  give  a  new  frame  to  tbe  cotM 
tution  ;  but  not  so  of  the  other  which  haa  a  rie 
gative  on  those  parts  of  the  legislature  wbid 
depend  on  the  king. 

Therefore  that  assurance  is  given  them  fc 
the  security  of  their  liberties  and  properticj 
and  with  a  view  to  invite  them  to  go  and  setll 
there  after  this  proclaniation  that  assured  tlM^ 
of  tbie  constitntiod  under  which  they  were  I 
five. 

The  next  act  is  of  the  €6th  of  March  tttA 
which,  the  constitution  having  been  estaMiab^ 
by  proclamation,  invites  further,  such  as  atM 
be  disposed  to  cOlme  and  purchase,  to  live  iillctt 
the  constitation.  It  states  certain  terms  ail 
conditions  on  which  the  allotments  were  to  I 
taken,  cstabliabed  with  a  view  to  permaoitft 
colonization  and  the  encrease  and  caltlvfctiod  i 
th6  new  ftettlement 

In  farthier  confinttatiMi,  on  the  Sfth  tof  Aj^ 
1764^  tiH^  ttODdM  Mbre  tflte  f mpM  ft  qud 


Campbell  v.  HaU. 

fTibiweiiiQ  Bctual  coTniiil«> 

Mi^lviltr,  lu  <Mi1l  in  issi!<i>hlv 

kle  mil  cirFiiiii.tantts  nl'  (lie 

aUmii. — Vow  will  oWrvp  in  the 

llierE  ia  no  t^itltture  rea^rreJ  to 

bj  th«  ktni>;  or  by  ihe  governor 

uihln  hJ!i  aulhorily,  or  iu  anj  niher 

ttiktioer  uniil  ilieaRjemblyihould  be 

pr0nti«c  iitlttmis  rlie  contnry ;  Tor 

niuttucilon  is  tu    be  put  uiMn   il, 

iii|is  it  may  be  somewliat  oilHeult 

R  (liruii(>h  bII  ilie  csacs  to  nhieh   il 

r  Kpjilleii)  il  ap|iarenlly  cnniidera  Iiiivi 

KJHK  IB  llle  iiHiiad,  arxt  to  li«  ailmilii^- 

*  c<tart«  iX  juilicp;  nai  an  ialei'|l(»ition 

natin  aiiihuritj  brtwMD  the  lime  of  the 

and  of  fallioj,'  ilie  asBCntbly, 

I  iHtt  appear  IVom  Die  appcitl  terilict 

1  Hrd  auembly  was  i^allFil ;  it  mnst 

n  in  ■bout  a  year  at  t'artlieiit  from  (he 

'•  krrital.  Tor  Ilie  Jury  tiiid  lie  arrired 

rr  1764.  anil  ibat  an  aiMmbly  was 

I  Ihe  latter  end  ol  the  year  1765, 

e  been  nolbiny;  in 

WUItl  olrc-.imalaucM  ot'lhe  i'^land  to  prc- 

Sllhl^  an  uicmbly. 

flitorvfore  think  by  Ihelwn  pMclainationa 
fl  IMAInlikiion  tu  gotemor  Metrilte,  (be 
d  iiDmedfalely  and  irrcTiicahly  graoted 
m  did  Or  ahould  inUthii.  ur  who  bad  or 
U  hnVe  properly  in  the  isliad  of  Grenada 

rerftl  to  all  whom  il  ahould  roneern — 
soiiordiflaie  legialatiuo  oier  Ihe  iatand 
aaulil  be  exercited  by  ibeaasembly  with  Ibe 
.ad  ruuiiri'.  in  like  luaQDer  as  in  the 
'ir>-4 under  ibpbing. 
<  Inre,  IhouKli  the  rlgbl  of  Ihe  king 
.  lEcl  taxe*  on  ■  conquered  cnliniry, 
l»iii  in  ri^t  of  liii  rruwii,  wat  (rood, 
Lltia  duty  reaaoiiahle,  equitable  and  etpe- 
^  aiMl  acrordins  lo  the  nodinK  of  ih^  rer- 
'i  \m  BarOadoei,  and  til  ihe  other  Lee- 
;  yet  by  thr  inadierlenry  of  Ihe 
tiafi'a  vrrTanIa  ill  the  urder  lii   whteh  lb 
Tit  iMiramfnti  paiseil  ibeuffipe,  (rorlbi 
;  -I  of  the  toib  of  July  1764.  lor  taJaing  the 
1  r,!  .liiie.l,  sboolil  hVve  lie»n  firsi)  Ihe  ordei 
'    niid  the  bsl  ne  Ibliik  contrary  lo 
Ij-.iuq  of  the  first;   and  therefore 


A.  D.  1774. 


[330 


^^^iim  UUer*  patent  lin|>osinii  ihe  diUv  of 

^^^~~*^-1f  pet  cent,  were  publiahed  in  July 

''~mtimiaaie«of  goTemor  MeNille 

Vtral  and  ^vernnr  in  chief  of 

'  V  Amniif;  other  ihineu  he  nan 

'  11  in  UMemhty  nf  ihefree- 

I  It),  hud  pMsed  the  ^eal 

:    inonlh  of  April  of*  the 

i:  Ihe  lirst  asaerubly  nf  ih« 

nn\    intrt   till  abont  Detemhei 

liH  near  a  year  and  a  half  after 

I  (he  letlera  patent,  thai  impiraed 

of  fiiir  and  k  half  per  cent,  and 

I  limyearaDfierthRpnlilicatlon  of  Ihe 

Hon    Of   October     UtX,    which    prO- 

i'^mI  Uw  pM>pl«  of  Grenada  » jjof  eruBaem  by 


How  proper  toerer  the  thing  iftij  be  rea- 

peeiinic  Ibe  object  of  the»e  letteotpaiint,  il  ran 
..nlv  no»  be  done  (to  Osfc  the  rtordsuf  air  Philip 
Yorke  and  lir  Clement  Wrtre)  ■•  by  an  act  of 
assemblv  uf  (beiilami,  or  by  ihe  oaHiiuiint  of 
Great  griiaio." 

TbecoDaequenceitJiidgineolfor  ibePlaiatifT. 

fNule.  I  have  here  u^aiii  the  pleasnre  of  re* 
lutniog  my  thanlo  to  Mr.  Alleyne,  by  whom  1 
have  been  thionred  with  ihe  copy  of  t|ie  Special 
Verdict  in  this  remarkable  cau»e.  1  have  ilti> 
u^  some  material  a  I  argelv  with  which  I  bare 
been  obli^eil  in  the  first  Jay'a  argument;  tbi 
crowd  being  then  ao  great  tbal  1  wai  hindered 
in  taking  notes  of  ray  unn;  and  for  the  same 
reason  I  have  used  the  liherly  in  ihe  judgment 
of  supplying  what  I  found  imperfect  or  mia. 
laken  in  my  own  nolea  io  leveral  placet,  I'rntn 
a  printed  note  of  It  wbicb  ilas  been  publiiihed ; 
and  correclinir  that  iu  some  placet  where  t 
(bund  it  uiialaken.] 

[Here  cnrfl  the  Caii  at  rqtarted  ty  L^.'j 


In  llie  report  of  Rex  v,  Samuel  Taughant 
4  Burr.  9494,  Upon  a  queaiiou  wlielher  the 
slatutei  13  R.  3,  c.  -2,  and  5  and  0  Edw.  $,  c. 
16,  extended  to  Jamaioa,  lord  Manifield  taya, 

"  If  Jaitiaica  was  considered  as  a  conqueitf 
they  would  retain  tbelf  old  lawa,  lit)  the  con- 
queror hail  ihonght  fii  Io  alter  Ihcm.  If  H  U 
cousiileVed  as  i  colony,  (wliicli  il  oosht  to  be, 
Ihe  oht  inhabitants  hating  lelt  Ibe  itiatid)  then 
(hese  ainiutes  art  |H)iotT>eret;ulaiiona  uf  policfe, 
nut  adapleil  to  the  cii-eiim«TancFs  of  a  new  co- 
lony ;  and  Iberefore  no  part  of  that  law  of 
Rngland,  which  every  ci^ony  fro-n  neeeMilV 
ia  Supposed  to  carry  whh  iheoi  at  their  ftrii 
!>"'"'■!''"■" 

an  assembly,  not  immMialely,  but  at  loon  ia 
the  siluatiun  and  i'ircunMlani.-es  of  the  aaid 
new  governmeniB  ivunld  admit  thereof.  HetCj 
therefore,  was  an  inlertal  of  mnr6  than  lAo 
years  after  the  pOblicHrion  of  the  proeltnn- 
lion  ofOctOber  1T63,  before  Ibe  «swi»My  of 
Grenada  met;  during  whk-h,  according  In  yoDt 
way  of  reagonirig,  the  king  was  not  precluded 
by  hisprnclnmaiion  of  Ooiober  1769,  front  tx- 
erciJing  bial^i«1alifeaulboritv  in  ihe  islani)  of 
Grenaila,  in  the  same  manner  as  hefor*  Ihe  said 
nroclamation  wai  made,  aupposing  he  had  be- 
fore that  act  been  legstly  possm-ed  of  such  an- 
thnrily;  abd  in  Ihe  former  hairofihis  inltrfaf,- 
nimely  in  July  i761,  histlmjesly  did  HercM 
tbi«  legislalire  aulhorily  by  iMning  ihnM  Itt* 
fer*  patent  which  Imposed  Ihe  said  duly  of 
four  and  a  half  per  cent.  These  kiit-ra  psteM 
therefore,  arrording  lo  yoor  doctrine,  miisl  have 
been  legal  when  ihey  were  ivsned  if  (hrr  would 
have  been  so  lief<ire  die  Ktid  prodiimitioh  of 
October  1793."  J  C»M9d.  FreehuldW,  p.  !H. 
Hm  bIm  Ihe  pasiBgM  iUmUflMTy  iRMMnJl; 
JiBd  fullDlHtig  thi*. 


531] 


15  GEORGE  lU.  The  Case  of  the  bland  of  Grenada^        [S89 


Mr.  Edwards  (Hist,  of  the  West  Indies,  book 
S,  chap.  2,)  gives  a  brief  account  of  this  case 
of  Campbell  v.  Hall,  to  which  he  subjoins  ani- 
madrersioos  on  some  of  the  most  important 
passaf(es  in  lord  Mansfield's  argument.  In 
nis  introduction  to  those  animadversions,  he 
■ays,  *^  It  is  impossible,  I  think,  not  to  per- 
ceire,  througfhout  these  and  other  parts  of  the 
learned  judge's  argument,  a  certam  degree  of 
Iwas  arising  from  the  unhappy  dissentions, 
which  about  that  period  broke  out  into  a  civil 
war  between  Great  Britain  and  her  colonies : 
ID  the  progress  of  which,  it  is  believed  this  noble 
person  distinguished  himself  as  an  active  par- 
tizan,  and  a  powerful  advocate  for  the  uncon- 
ditional supremacy  of  the  mother  country." 

In  the  second  edition  of  his  work  he  inserted 
at  the  end  of  that  chapter  the  following 

Postscript  to  the  History  of  Grenada. 

**  The  first  edition  of  this  work  having  fallen 
into  the  hands  of  a  gentleman  of  distinguished 
abilities  and  learning,  (one  of  his  majesty's 
aeijeant's  at  law)  he  was  pleased,  at  the  au- 
thor's request,  to  communicate  his  thoughts 
in  writing  on  the  doctrine  maintained  by  lord 
MtiDsfield,  concerning  the  legal  authority  of 
the  crown  over  conquered  countries,  as  stated 
in  page  S68  of  this  volume,  which  I  have  great 
pkai ure  in  presenting  to  the  reader,  in  the  pre- 
cise words  in  which  tiiey  were  given  : 

''  The  ground  upon  which  the  Court  rested 
their  judgment  in  the  case  of  Grenada,  wu 
clearly  sufficient  to  warrant  that  judgment, 
even  admitting  the  doctrine  laid  down  by 
lord  Mansfield  on  the  other  point  to  be  well 
founded  ;  but  nothing  can  be  more  unfounded 
than  that  doctrine :— every  proposition  upon 
which  it  is  made  to  rest,  is  a  fallacy.  I  deny 
that  the  king  (at  least  since  the  constitution 
has  had  its  present  form)  can  *•  arbitrarily 
grant  or  refuse  a  capitulation.'  The  power 
of  granting  or  refusing  a  capitulation^  in  the 
case  of  a  siege  or  invasion,  is  certainly  vested 
in  him ;  but  it  is  vested  in  him,  hke  every 
other  power  with  which  he  is  entrusted  by  the 
British  constitution,  to  be  exercbed  according 
to  the  usage  which  has  prevailed  in  like  cases. 
If  that  power  should  be  abused,  his  officers  and 
ministers  must  answer  to  the  public  for  their 
misconduct. 

'*  For  the  same  reason  I  deny  that  <  the 
king  can  put  the  inhabitants  of  a  conquered 
country  to  the  sword,  or  otherwise  exterminate 
Ihem,'  unless  such  severity  be  fully  justified 
by  the  laws  of  war,  as  they  are  imderstood 
amongst  civilized  nations. 

*'  But,  supposing  that  a  case  should  hsppen 
wherein  sucn  severity  would  be  justifiable,  I 
deny  that,  upon  the  extermination  of  the 
enemy,  the  lands  would  belong  to  the  king 
bimsdf :  I  say  they  would  belong  to  the  state ; 
mod  that  they  would  be  subject  not  merely  to 
the  king,  but  to  the  sovereign  power  which  go« 
verna  the  British  dominions.  If  the  king  re- 
oiirti  the  inhabitmtf  ander  bit  protactkm,  and 


grants  them  their  property,  1  deny  that  he  has 
power  to  fix  such  terms  sind  conditions  as  be 
thinks  proper ;  for  be  cannot  reserve  to  bimadf, 
in  his  individual  capacity,  legislative  power 
over  them :  that  would  be  to  exclude  tlie  an* 
thority  of  the  British  legislature  from  the  ^ 
vemment  of  a  country  subdued  by  Brilish 
forces,  and  would  be  an  attempt  to  erect  unpe- 
rium  in  imperio.  One  consequence  of  this 
would  be,  that  such  conquered  territory  might 
descend  to  an  heir  of  the  king  not  qualimd, 
according  to  the  act  of  settlement,  to  succeed  to 
the  crown  of  Great  Britain.  The  king[  might 
give  it  to  a  younger  son,  or  bestow  it  on  « 
stranger.  A  thousand  other  absurd  conae- 
quences  might  be  pointed  out,  ai  resulting  from 
such  incongruity. 

<«  1  admit  that  the  khig  (subject  to  the  re- 
sponsibility of  his  ministers,)  may  yield  up  a 
conquest  or  retain  it  as  be  sees  best,  but  1  day 
for  the  reasons  above  hinted  at,  that  be  can 
impose  what  terms  he  pleases,  or  that  he  can 
arbitrarily  change  the  law  or  political  form  of 
its  government.    I  think  he  may  agree  opon 
the  capitulation,  that  the  conquered  people  aball 
continue  to  enjoy  their  ancient  religion  and 
laws,  and  even  this  must  be  tub  modo  ;   but  t 
deny  that  he  could,  by  his  own  authority,  grant 
these  things  after  the  capitulation  ;   for  thai 
would  amount  to  an  exercise  of  independent 
sovereignty.     The  fallacy  of  lord  MansfieM'a 
argument,  proceeds  from  an  endeavour  to  coor 
found  the  king's  civil  and  military  characterSy 
and  to  perpetuate  in  the  chief  executive  aia« 
gistrate,  the  vast  powers  with  which  it  is  neoes« 
sary  to  invest  the  generalissimo  of^thearmieii 
during  the  continuance  of  military  operations. 
The  moment  these  operations  cease,  he  re* 
sumes  his  civil  character,  and  in  that  charactec . 
no  man  will  venture  to  assert  that,  as  king  of  ^ 
Great  Britain,  he  has  the  prerogative  of  bang 
a  despot  io  any  part  of  his  dominions.    WKb 
respect  to  the  cases  of  Ireland,  Wales,  and 
Berwick,  even  taking  them  precisely  as  lord 
Mansfield  puts  them,  1  think  they  do  not  weigh 
a  feather  in  the  argument.    Those  cases  hap- 
pened long  before  the  English  constitution  had 
reduced  itself  to  its  present  form,  consequently » 
before  the  rights  of  the  people  were  ascertained 
and  defined  as  they  exist  at  present.     If  a  few 
instances  of  the  exercise  of  arbitrary  power  by 
the  ancient  kings  of  England,  are  to  be  received 
as  decisive  cases,  to  shew  what  are  the  powera 
of  the  crown  at  this  day,  I  think  it  would  be 
no  very  difficult  task  to  find  authorities,*  even 
as  low  down  as  the  reigns  of  the  Plantagenet& 
and  Stuarts,  to  prove  that  the  British  govern^ 
ment  ought  to  be  a  pure  despotism !" 


But  the  most  valuable  investigation  which  I 
have  seen  of  the  case  of  Campbell  and  Hail,  and 

*  See  Burke's  Speech  in  the  Hooae  eff 
Commons  February  tne  11th,  1780,  as  quoted 
in  8  State  Trials,  p.  79,  and  the  precedug 


CaiophtUv-HaU. 

ic  jad^ettt  pronDDncBil  upon  it  by  lord 
■fletit,  IB  conUinefliulh««eciiDil  ilialugue  in 
rmetk  of  my  learneil  and  excellent  tVifnil 
Baron  Huerei,  eiiiilleil  "  Tlie  Canadian 
re  every  Important  position 
vtriFh  tnni  MaDitield  IriirMBrEunientlaiililowo, 
ii  inratig-Ucil  wiilimucli  cupiouinets,  parlicu- 
kiily,    and    elabnralinn ;    tbe    aulborities   on 

■  bicfa  he  relied,  are  fully  and  accumtely  cited, 
ud  conndcreil  with  abundant  care  and  jud^- 
Bwol;  hiarcBsoDiQ^.boibibstract&Dd  lechai- 
rt  arv  itoled  with  the  most  scrupulous  eiact- 

,  and  discuiwd  with  g^eai  learning  *nd 
„  mty  ;  the  bistorical  transactions  lo  nhich 
ktnfetTcdtre  luminously  defeloped,  and  cri- 
faHy  Inced  through  all  their  known  rimilica- 
te>;  and  the  whole  merits  of  Ibe  important 
Mtian*  which  were  agiiated  in  the  course  uf 
maM,are  exhibiteil  with  the  moat  ioitruc- 
iwtad  Mliaractory  illustration.  lu  ihe  fol- 
"^"f  puvagetbecourst;  orinTeiligaliou  pur- 
B  tbe  work  is  recap!  lulated : 

*'  Emglisdman, — Fhemcbman. 
"  £. — 1  believe  we  have  gone  through  all  the 
ebn  of  lord  Msnstietd's  argument  in  sup- 
i>nrt  of  Ihe  snle  legislative  authority  of  the 
irown  overconqueredcoiinirieB,  and  hare  given 
liitm  ■  very  full  and  lair  examination  :  which 
II  til   I  proposed  to  do  upon  the  subject.     For, 

tula  my  own  opinion  upon  It  before  that  de- 
AiM«r  lord  HansReld,  1  bare  already  men- 
imti  il  to  you  in  the  beginning  of  our  cnn- 
•foatiun.  together  willi  the  reasons  upon  which 
.'i  >1  ri.  and  hsd  the  latisfaelioo  of  find- 
II  eniirely  agreed  with  me  in  loih, 
iioipated  some  of  Ihe  latter.    What 
.     ii>ete  inihoriiy  of  lord  Manslield, 

, ^  ...   iiiit  judicial  capacity,  a*  chief  justice 

.      gl~  tUc  Cauft  of  King's-bencb,  and  delivering  a 

Mntnfy  opinion,  but  grounding  it  on  reasons 

'      All  we  think  weak  anrl  unconclutire,  ought  la 

bar*  npnn  our  mind*,  I  nil!  not  pretend  to  de- 

.  -rmine.     Bui  il  is  hard  to  give  up  one's  rea- 

■  Q  Ui  itjere  authority. 

■'  F.— So  haril  that  I  shall  not  do  it,  This  is 

.•'icDiMittanlapoinlto  be  settled  by  a  single  de- 

-.oB  uf  a  court  ofjustice,  or.  perhaps  I  ought 

,i!k«  to  Bay,  by  (he  opinion  of  a  single  judi;e. 

I  <ir,  \tj   what  jnu  (laled  Ui  me  of  that  Judg- 

varal  in  tiie  rase  uf  Cnropbcll  and  Hall,  it  doFS 

otM  apfpar   to  be  i^mie    tvrtaiu    that  all   Ihe 

JttJgvB  of  the  court  of  King's- bench  concurred 

*iih  li>r>l    M*n>field  in  opiniou  upon  lliat  first 

enl  cf  Ibr  cause.      For,  since,  as  lord  Mans- 
d  triprnalv  dfclared,  Ibey  all  agreed    that 
tb*  plaioOir  CampWII  was  entitled  in  Ihe  judg- 
tneal  <>f  the CouK  upon  tbesecnnd  point,  In  wil, 
tbii  till'  I'll'/.  <l  bt  lind  bad  the  sole  legislative 
.  ...UifGrenadairomediale- 
i>  of  tbe  treaty  of  Paris 
<i  ncrertbelesB  preclndeil 
"iislion  of  October,  1763, 
r>  cii-'--t.iiiLi  ■!  ii"i"  that  lime  fi.rwaiil, and 
>.)  ibrrsby  Iraiwlrrrcil  the  laid   power  lo  the 

I'-rira  g»*«fnar*,  councili,  and  anemblies  uf 


A.  D.  177*. 


[SSk 


ihe  said  istaud ;  I  say,  since  all  the  jadgea 
agreed  with  lord  Maosneld  in  Ibe  opinion  Ibal 
the  plainlilF  Campbell  ought  lo  have  jodgmenl 
ujMn  this  second  ground,  it  is  possible  that  they 
might  not  concur  with  him  In  his  opinion  upon 
the  first  point,  cnnceroing  the  king's  nrigioal 
legislalive  authority  over  llial  island  before  the 
said  proolamalion  of  October,  1.03.  Unlesa, 
therefore,  it  was  expressly  declared  by  lord 
Manilield  (who  seems  to  have  been  Ihe  ooly 
Judge  that  spoke  upon  that  occasion)  that  Ilia 
olber  judges  concurred  with  him  in  that  opi< 
nion  upon  the  first  point,  1  do  not  think  we  are 
bound  to  consider  it  ns  being'  their  opinion.  I 
therefore  should  be  glad  to  know  whether  lord 
MnasBeld  expressly  declared  that  Ibe  other 
three  judges  of  the  court  did  concur  with  him 
in  that  opinion. 

"  £- — ]  do  nol  find  that  be  did  make  such  a 
declaration,  though,  with  respect  to  tbe  second 
poiul,  he  expressed  himself  in  these  posiljva 
words;  '  Uul,  alier  full  consideration,  we  are 
'  of  opiniou,  that  before  tbe  aoih  ofJuly,  I7li4, 
'  Ihe  king  had  precluded  himself  from  ihe  ex- 
'  crcise  of  a  legislsliie  authority  over  the  island 
'  of  Grenada.'  There  is  therefore  a  possibi- 
Uly  that  vour  surmise  may  be  true,  that  Ihe 
other  judges  did  nut  agree  with  bim  in  opinion 
upon  the  said  lirsl  poiuL  Vet  their  silence  on 
the  occasion  seems  lo  imply  an  assent  lo  what 
he  delivered.  So  that  ]  don't  know  what  lo 
conclude  concerning  Ihat  matter.      All  that  ia 


io  Ibis  opinion. 

"  F,— Well,  belhatasltmay:  whetlierlfaej 
did,  ordid  not,  concur  with  lord  Alnn^field  in  that 
opinion,  I  confess  1  cannot  bring  iDyself  to  ac- 
cede to  il,  alUr  having  seen  the  wenkness  of  lh« 
reason!  which  have  been  alledged  in  support 
of  it  by  so  very  able  a  delender  uf  il  as  loi4 
Mansfield.  Fur,  if  thai  opinion  could  have 
been  rendered  plausible  and  probable  by  any 
man,  I  presume  il  would  have  been  so  by  brd 
niansfieid.  And  yet  we  have  seen  how  re- 
markably be  has  failed  on  this  occasion,  bolb 
io  his  reasonings  and  in  biii  facts  ;  1  must 
therefore  adhere  to  my  firsl  opiuion  till  tome 
better  arguments  are  produced  to  make  raa 
change  it. — But,  as  this  enquiry  has  run  into 
great  length,  in  consequence  of  ibe  full  and 
particular  manner  in  which  you  have  examln> 
ed  ibe  several  historical  examples  adduced  by 
lord  Mansiield  in  support  of  his  opinion,  and 
likewise  uf  some  digrvssions  lu  other  subjecia 
which  you  have  made  to  gratily  my  cuiiokily, 
I  must  desire  you  lo  resume  tbe  subject  for  ■ 
little  while  longer,  and  repeat  the  principal 
conclusions  we  have  agreed  UDon  in  answer  lo 
the  several  brandies  of  lord  MansfieUt's  argu- 
ment, and  to  stale  them  in  as  compact  and 
summary  a  manner  as  vou  can,  to  the  end  that 
1  may  be  the  belter  able  to  arrange  and  retain 
Ihem  ID  my  memory. 

"  £.— I  think  Ibis  vrill  indeed  be  very  pfoptr, 


385] 


15  GEORGE  III.  The  Case  qfthe  Island  qf  Grenada^        [8S6 


fpr  both  our  takes ;  and  therefore  I  will  endea- 
yofir  to  do  it  with  as  much  brevity  as  shall  be 
oopyUteDt  with  a  full  enumeratioo  of'fhe several 
eoDclusioDs,  (relative  to  the  main  subjecl,)  upon 
frbich  we  have  agreed ;  but  without  an^  men- 
lioD  of  the  collateral  aqd  incidental  subjects  to 
which  we  have  digressed.  But  even  this  will 
fi|k^  up  many  words. 

«  \Ve  have  agreed,  then,  in  the  first  place, 
that  lord  Mansfield  has  reasoned  very  inconclu- 

Cely  in  the  first  part  of  bis  argument,  in  which 
endeavours  to  establish  the  king's  sole  le- 
gislative authority  over  conquered  countries 
ppott  general  principles  of  law  and  reason  ; — 
^^t  bo  has  therein  confounded  the  power  of 
inaking  waf ,  and  the  summary  and  arbitrary 
l^utbprity  necessarily  attenclaut  upon  jt,  (which 
confessedly  belong  to  the  crown  alone,)  with 
the  |)Ower  of  governing  conquered  countries 
in  time  of  peace,  after  they  have  been  finally 
ceded  by  their  former  sovereigns  to  the  crown  : 
!— and  tnat  he  has  likewise  confounded  this 
latter  power  of  governing  a  country,  and  ezer- 
citintf  legifclative  authority  over  it,  after  it  is 
«eded,  with  the  power  of  making  peace,  or  of 
•ither  accepting  the  cession  of  the  conquered 
•ountry  from  ita  former  sovereign,  or  restoring 
the  country  back  to  him : — and,  lastly,  that  he 
bu  endeavoured  to  deduce  a  right  of  making 
laws  for  a  conquered  country  from  the  right  of 
granting  away  the  vacant  lands  of  it,  that  is, 
from  a  right  of  ownership  \  which,  if  it  were 
to  be  admitted  in  other  cases  to  be  sufficient 
fn  this  purpose,  would  prove  every  land-owner 
to  be  an  absolute  monarch,  or  legislator,  over 
the  persons  who  rented,  or  took  grants  of,  his 
land.  These,  I  think,  are  the  remarks  we  con- 
curred in  making  upon  the  first  part  of  lord 
Blausfidd's  argument,  in  which  he  endeavour- 
ed to  establish  this  sole  legislative  (lower  of  the 
crown  upon  principles  oflaw  and  reason. 

*<  1  come  now  to  his  precedents  from  his- 
tory, which  are  the  cases  of  Ireland,  Wales, 
Berwick  upon  Tweed,  Gascony,  Calais,  New- 
York,  Jamaica,  Gibraltar,  and  Slinorca. 

<*  VVith  respect  to  Ireland  we  observed,  that 
he  argued,  from  king  John's  having,  by  his 
fole  authority,  introduced  the  laws  of  England 
into  Ireland,  that  he  therefore  was  the  sole 
legislator  of  it ;  which  we  agreed  to  be  by  no 
means  a  just  conclusion,  there  being  a  manifest 
difference  between  a  power  in  the  conquering 
king  to  introduce  once  for  all,  immediately 
after  the  conquest,  into  the  conquered  country 
the  laws  of  the  conquering  country,  and  the 
regular,  permanent,  legislative  authority  by 
which  the  laws  of  the  cont|uored  country  may, 
at  any  time  after,  be  changed  at  the  pleasure 
of  the  legislators,  (whoever  they  are,)  not  only 
by  introducing  into  it  the  laws  of  the  conquer- 
ing nation,  but  any  other  laws  whatsoever,  and 
tins  as  often,  and  m  as  great  a  degree,  as  the 
legislators  shall  think  fit.  And  we  further  oh- 
aervcd,  that  lord  Coke,  in  the  passage  quoted 
from  this  report  of  Calvin's  case,  has  expressly 
declared  that  the  kings  of  Englan^l  were  not 
poynnrd  of  this  pcmiaoeat  IqpaUtive  f  uiho- 


rity  over  Ireland,  not  having  a  right  to  alt^r 
the  laws  of  Eosland,  (when  once  iotrodaccd 
there  by  |ciog  Jonn,)  without  consent  of  pi^r- 
liament ;  and  that  lord  Mapsfield  has  adopted 
this  opinion  of  lord  Coke,  though  it  clashi^  with 
the  conclusion  which  he  laboured  to  draw  froui 
this  case  of  Ireland  in  favour  of  the  king's  sole 
legislative  p<iwer  in  the  island  of  Grenada. 
And  we  further  observed  that,  for  sonie  cen- 
turies past,  at  least,  the  laws  whic{i  have  been 
made  for  the  governipent  of  Ireland  have  beei| 
made  either  with  the  consent  of  the  parliament 
of  England,  or  with  that  of  the  parliament  of 
Ireland.  So  that,  upon  the  whole  matter, 
Ireland  appears  to  be  a  very  unfit  example  of 
the  exercise  of  such  a  sole  legislative  authority 
in  the  crown  over  a  conquere<l  country  as  iora 
Mansfield  asserted  to  have  belonged  to  it  in  the 
case  of  the  isUind  of  Grenada  before  the  publi? 
cation  of  the  royal  proclamation  of  Octob^f 
1763.  These,  1  think,  are  the  principal  re- 
marks we  agreed  upon  concerning  Ireland. 

'*  With  respect  to  Wales  it  oppeareil  to  os 
that  lord  Mansfield    had   mistaken  two  very 
material  facts  relating  to  it.     For,  in  th^  first 
place,  he  asserted  that  that  country  had  not 
been  a  fief  of  the  crown  of  England  before  its 
complete  reduction  by  king  Edward  the  ltt| 
notwithstanding  king  Edward,  in  the  famous 
Statutum  Walliie,  passed  immediately  after  the 
reduction  of  it,  expressly  declares  that  it  had 
been  so,  and  notwithstanding  a  cloud  of  pais- 
sages  in  that  venerable  old  historian,  Mattneir 
Paris,  (who  lived  in  the  reign  of  king  Henry 
the  3d,  k'uig  Edward's  father,)  which  prov^ 
that  it  was  in  such  a  state  of  feudal  sub- 
jection to  the  crown  of  England  throughout  all 
the  reign  of  king  Henry  the  3d  and  for  several 
reigns  before.    But,  in  opposition  to  these  de- 
cisive testimonies,  lord  Mansfield  will  have  i^ 
that  Wales  had  never  been  a  fief  of  the  crown 
of  England  before  the  reduction  of  it  by  king 
Edward,  but  was  then,  for  the  first  time,  re- 
diiced  by  his  victorious  arods,  to  be  a  dependant 
dominion  of  the  crown  of  England;  but  that, 
for  some  reasons  of  policy,  (uhich,  however, 
lord  Mansfield  does  not  slate,  nor  even  bint 
at,)  kinff  Edward  thought  proper  to  declare  it 
to  have  been  in  a  state  of  feudal  subjection  to 
the  crown  l>efore  his  conquest  of  it.     Aud  berf 
we  observed  that  lord  Mansfield  reasoned  in- 
conclusively even  from  his  own  assumed  state     * 
of  the  fact.    For,  if  Wales  had  not  been  a  fief    i 
of  the  crown  of  England  before  king  EdwanTs 
reduction  of  it,  but  bad  been  (as  lord  Mansfield     \ 
supposes)  an  absolutely  independent  state  until 
that  time,  yet,  if  king  Edward  had,  for  ai^     i 
reasons  of  policy,  thought  fii  to  consider  ft     i 
I  (though  fa'selv)  as  having  been  before  in  a  state     i 
;  of  feudal  suliieciion  lo  the  crown,  such  a  plan     • 
I  of  pulic\  in  king  Edward  would  have  rendered     | 
!  Wales  an  unfit  example  of  the  exercise  of  thf 
power  of  a  king  nf  Eni>land  over  a  conquered     |, 
iMiuntry ;    because  it  must  l>e  supposed   tbsit    ^ 
kin;r  Edward  woukl,  in  such  a  case,  have  ex- 
ercised only  such  rights  of  govern  iiirnt  over  it    | 
aa  were  compatible  with  the  pjiitical  sitoalioh     » 


SS7] 


CamiAdl  v.  HaJL 


A.  D,  1774h 


[SS8 


Id  wbicb  be  woald  bare  tbougbi  fit  to  place  it, 
whicb  would  hate  been  that  of  au  ancient  fief 
of  the  crown  redaoed  into  possession.  And  we 
ekerf  ed  also  that  he  bad  misconceived  another 
naterial  fact  relating  to  this  country,  with  re- 
spect to  the  power  by  which  laws  were  made 
fur  the  gOTernment  of  it  a(\er  its  reduction  by 
king  Edward.  For  he  asserts  tliat  king  Ed- 
ward made  laws  for  it  by  his  own  single  autho- 
rity, Dotwilhstandinll^  it  is  expressly  declared 
ky  that  king  himself  in  the  preamble  of  bis 
anonfl  Htaiutum  Walliae,  above  mentioned, 
that  the  laws  be  then  established  for  the  go- 
fcnmeot  of  it  were  made  *  de  conciiio  proce^ 
*  mm  regni  nostri,'  or  by  the  consent  of  bis 
fsrliament. 

**  These  mistakes  we  observed  to  have  been 
Mdeby  lord  Mansfield  in  what  he  said  con- 
Cfroiog  those  two  great  examples  of  Ireland 
and  Vvales ;  whicb  are  also  of  too  great  anti- 
qoity  to  have  mnch  weight  in  determining  a 
tticraoo  concerning  the  cun:»titution  of  the 
Eagliafa  government  at  this  day. 

**  We  then  observed  that  sll  the  other  in* 
tenoas  that  were  mentioned  by  him,  except 
those  of  Gibraltar  and  Minorca,  are  of  no  im- 
psrtanca  to  the  question.  These  instances 
were  the  town  of  Berwick  upon  Tweed,  the 
dacby  of  Guienne,  or  Gascony,  the  toliro  of 
Cslais  io  France,  the  province  of  New*  York  in 
North  America,  and  the  island  of  Jamaica. 

■*  All  that  be  says  of  Berwick  upon  Tweed 
h^  thai  it  was  governed  by  a  royml  charter. 
Birt  that  circumstance  is  no  proof  tnat  the  king 
VM  the  sole  legislator  of  it,  any  more  than  be 
ii  of  tbe  cities  of  York,  Bristol,  Exeter,  and 
iveaty  other  towns  in  England,  wluob  are 
gtvcmed  alao  1^  royal  charters.  And  even 
last  charter  of  Berwick  appears  to  have  been 
esBfirmed  by  act  of  parliament  in  the  reign  of 
king  Jamea  the  1st. 

**  As  Io  the^lnchy  of  Gnienne,  or  Gasoony, 
and  ^he  town  of  Cafais  io  France,  they  were  not 
ac^ircd  by  tbe  kings  of  England  by  conquest, 
ha&  by  marriage  and  inberitan<:e^  and  conse- 
qncntiy  can  a£>rd  no  example  of  the  power  of 
loe  crown  over  conquered  countries. 

**  And  tbe  province  of  New -York  in  Anoerica 
ia  an  unfit  example  for  this  purpose,  because, 
thoogh  perbapa  in  truth  it  might  be  a  mere 
flaaqueat  made  upon  tbe  Dutch  in  tbe  year 
1064,  after  they  had  been  many  years  in  quiet 
naaassainn  of  it,  yet  it  was  not  so  cwisidered  by 
BDg  Cbarlea  the  Sil,  who  took  it  from  them, 
bol  was  claimed  and  seize«l  upon  by  bis  order 
aa  a  part  of  the  territory  nf  the  more  ancient 
Eagliah  colony  of  New -England,  into  which, 
it  wan  pretended,  the  Dutch  bad  intruded 
Ivca  without  the  perinissien  of  the 
And,  upon  this  ground  of  an  nlreaily- 
_  right  to  it  in  the  crown  of  En^laiHl,  it 

granted  awav  by  king  Charles  the  2d  to 

bia  Mother,  the  duke  of  York,  before  ever  the 

which  waa  sent  to  take  possession  of  it, 

sailed  from   England  ;   and  it  was  taken 

lioQ  of  by  colouel  Nicliolls,  as  a  part  of 

lbs  kiog'a  oM  dMaiaionSy  bafora  the  king  en- 

VOL,  XX. 


o. 


tered  into  tlie  first  Dutch  war.  As,  therefore^ 
it  was  not  considered  by  the  crown  as  a  con* 
quered  country,  tbe  government  estaklislied  in 
it  cannot  be  justly  cited  as  an  example  of  tb« 
authority  of  tbe  crown  over  conquered  coun« 
tries. — And  nearly  the  same  thing  may  be  said 
of  the  island  of  Jamaica  ;  since  hird  Mousfield 
tells  us  that  lie  had  found,  upon  inquiring  into 
the  history  of  it,  that  it  had  been  aliHosi  en- 
tirely abandoned  by  the  Spanish  inhabitants  of 
it  soon  after  its  conquest  by  the  arms  of  Eng* 
land  in  the  year  1655  in  the  time  of  Crom- 
well's usurpation,  and  that  it  was  occupied 
only  by  English  settlers  at,  or  soon  after,  the 
restoration  of  king  Charles  tbe  ad  in  1660  ^ 
insomuch  that  it  bad  been  considered  ever  sinc« 
that  period  as  an  English  plantation,  and  nol 
as  a  conquered  country.  For,  if  this  be  true» 
(as  I  do  not  doubt  it  is,)  it  renders  this  island 
an  unfit  example  of  the  exercise  of  the  legis- 
lative authority  of  the  crown  over  conquered 
countries.  I  mean  only,  however,  that  it  ia 
not  a  direct  example  for  this  purpose :  for  in- 
directly, 1  acknowledge,  both  this  island  and 
tbe  province  of  New- York  may  be  used  as  ftt^ 
^uments  in  favoiu*  of  this  authority,  by  reason* 
ing  as  follows :  'ITbe  power  of  tlie  crown  over 
a  conquered  country  must  be  at  least  as  great 
as  it  is  over  a  planted  country,  or  colooy. 
Therefore,  since  tbe  king  of  England  exercised 
legislative  authority  over  the  island  of  Jamaicv 
for  about  twenty  years,  without  tlie  concur* 
rence  of  either  tlie  English  parliament  or  aa 
assembly  of  tlie  people;  and  since  the  duke  of 
York  did  the  same  thing  in  the  province  of 
New- York  for  about  eighteen  years  by  virtiM 
of  a  delegation  of  the  powers  of  government  tw 
him  from  the  crown  by  king  Charles's  letters- 
patent ;  and  these  two  countries  were  not  con- 
sidered as  conquests,  but  as  plnntations  of  Eng- 
lishmen ;  it  follows,  djartiorif  that  in  coun- 
tries that  are  not  only  conquered,  but  considered 
as  conquered,  tbe  crown  may  lawfully  exeroia» 
the  same  authority.'  This  would  nave  beea 
a  tolerably  plausible  argument,  and  rotich 
stronger  than  any  of  those  which  lord  Mans- 
field made  use  of  in  that  judgment.  But 
he  did  not  make  use  of  this  argument;  and 
indeed  could  not,  consistently  with  the  opinioa 
he  delivered  concerning  planted  countnea,  or 
colonies :  for  in  these  be  declared  that  the  kinfr 
alone  had  not  the  power  of  making  lawa  and 
imposing  taxes,  bul  the  king  and  parliament 
conjointly,  or  the  king  and  tbe  assembly  of  the 
freeholders  of  the  colony  conjointly,  agreealdy  to 
the  opinion  of  sir  I^ilip  Yorke  and  sir  Clement 
Wearg  in  the  year  1722  concerning  the  island 
of  Jamaica.  He  could  not,  therefore,  maktt 
use  of  the  fore^foiiig  argument  d  forihri,  in 
favour  of  tlie  king's  sole  legislative  authority 
over  conquered  G4iuiitries,  which  is  built  upon 
the  supposition  of  his  majesty's  having  bad 
such  an  autliority  over  planted  countrifs,  or 
colonies;  because  he  denied  the  existence  of 
the  latter  autliority,  which  is  its  fbundation. 
According  to  lord  Ulanslield's  doctrine,  tbera* . 
fore,  of  the  king's  not  being  the  aola  kgislal 


i 


SSff] 


15  GEORGfe  III.         The  Case  of  the  Island  of  Grenada^         \M6 


of  planted  couotries,  the  itiKtances  of  New- 
York  aod  Jamaica  cannot  afford  the  abo? e  in- 
direct arGTument  d  fortiori  in  aopport  of  the 
king'a  sole  leffislulno  authority  over  conquen-d 
countriea.  Nor  can  tbev  nflford  a  direct  ar^j^u- 
ment,  independently  ot  the  consideration  of 
plaiiieil  conntries,  in  support  of  this  authority  ; 
oecauvt*  ihofie  places,  or  prorinces,  (thou((h 
really  conquests,)  were  considered  and  treated 
as  planted  conntries.  And  therefore  they 
ought  not  to  have  been  cited  by  lord  Mansfield 
as  proofs  of  the  said  authority.  As  to  the  opi- 
Dion  of  such  lavryers  (if  there  are  any  such  at 
this  day)  as  would  go  further  than  lord  Mans- 
field in  their  notions  of  the  king's  le^^islative 
authority,  and  would  asy,  that  the  king  is  the 
■ole  legislator  not  only  of  all  conqoered  coun- 
tries, but  of  all  planted  countries  in  which  he 
bss  not  divested  himself  of  his  authority  by 
some  charter  or  proclamation,  I  shall  say  no- 
thing to  it,  but  that  I  agree  with  lord  Mansfield 
ID  considering  the  opinion  of  such  lawyers  as 
erroneous  with  respect  to  planted  countries, 
and  that  I  am  inclined  to  go  beyond  lord 
Mansfield  in  thinking  it  likewise  erroneous 
with  respect  to  conquered  countries,  or,  at 
least,  that  the  arguments  adduced  by  his  lord- 
ship in  support  of  it  in  that  latter  case,  are  not 
sufficieDt  to  establish  it. 

**  As  to  Gibraltar  and  Minorca,  in  which  the 
king  has  made  from  time  to  time  some  regu- 
lations by  bis  orders  in  his  privy  council,  we 
have  observed  that  the  former  of  these  placcfs  is 
really  nothing  more  than  a  garrison-town, 
without  an  inch  of  ground  belonging  to  it  be- 
yond the  tbrtifications ;  and  that  the  latter  of 
them,  thoogh  an  island  of  some  extent,  has  al* 
ways  been  considered  by  the  people  of  £ngland 
IB  nearly  the  same  ligfht,  or  as  an  appendage  to 
the  fortress  of  St.  Philip's  castle,  which  defends 
the  harbour  of  Mahon ; — that  its  civil  govern- 
ment has  been  intirely  neglected  by  the  mi- 
nisters of  state  in  Great-Britain  ever  since  the 
eonqaest  of  it,  and  that  no  attempt  has  been 
made  to  encourage  the  profession  of  the  Pro- 
testant religion  in  it,  or  to  introduce  the  Eng- 
lish laws  there,  even  upon  criminal  mailers ; 
and  yet  that  the  state  of  the  laws,  which  are 
•upposed  to  take  place  there,  is  to  uncertain  and 
undetermined,  that,  (though  the  old  Spanish 
laws  are  supposed  to  be  in  Tbrce,  and  most  fVe- 
quently  appealed  to^,  the  inhabitants  sometimes 
plead  the  English  laws.  And  from  these  cir- 
oumstsnees  of  neglect,  confusion,  and  uncer- 
tainty,— and  likewise  from  the  small  importance 
of  the  aubjecis  upon  which  the  kings  of  Great- 
Britain  have  eiercised  a  legislative  authority 
over  these  places  by  their  orders  in  council,  (no 
laws  for  creating  new  felonies  or  capital  crimes, 
or  for  imposin^^  taxes  on  the  inhabitants  of  those 
coQDtries,  or  tor  any  other  very  important  pnr- 
poae,  having  ever  been  made  with  respect  to 
them),  we  concluded  that  neither  this  island 
nor  the  town  of  Gibraltar  were  fit  examples  to 
prof  e  lord  Mansfield's  assertion  coneeming  the 
nde  legislative  anthority  of  the  crown  over 
oonqnerad  oomitries* 


"  These  were  the  principal  remarks  we  made 
upon  lord  Mansfield's  second  ground  of  ar^-' 
nieni  in  support  of  the  sole  legndative  authoritT' 
uf  the  crown  over  conquered  countries,  h  bicn 
consisted  of  hihtorical  examples,  which  were 
supposed  to  be  precedents  of  the  exercise  of 
such  an  authority. 

**  i  come  now  to  lord  Mansfield^s  last  bead 
ofar^meot  in  support  ofthis  authority  ;  which 
consisted  of  the  opinion  of  the  juilges,  as  re- 
ported by  lord  Coke,  in  Calvin's  case,  and  of 
that  of  sir  Philip  Yorke  and  sir  Clement  Wearg, 
(Attorney  and  Solicitor  General  to  king  George 
the  1st),  in  the  yesr  1792,  on  a  question  referred 
to  them  concerning  the  island  of  Jamaica. 

<*  Conceraing  the  opinion  of  the  judges  in 
Calvin's  case  we  observed  in  the  1st  place,  that 
it  WHS  extrajudicial,  having  little,  or  no,  rela- 
tion to  the  question  then  under  consideration, 
which  was.  Whether  a  person  bom  in  Scotland' 
since  the  accession  of  king  James  the  ist  to 
the  crown  of  England,  was  to  be  considered  as 
a  natural- bom  subject  in  England  as  well  as  in 
Scotland,  so  as  to  be  intiiled  to  purchase  land, 
and  maintain  actions  at  law  for  the  possession ' 
of  it,  in  the  former  kingdom  as  well  as  in  the 
latter.  And,  n|K>n  this  ground  of  its  being 
extra-judicial,  we  concluded  that  this  opinion 
of  the  judges  conceraing  conquered  countries 
was  not  to  oe  considered  as  decisive  upon  tba 
subject. 

**  In  the  second  place,  we  observed  that  this 
opinion  of  the  judges,  concerning  the  power  of 
the  crown  over  conqueretl  coontnes,  was  inter- 
mixed with  another  opinion,  concerning  the 
difference  between  Pagan  and  Christisn  con- 
quered countries,  which  was  so  unreasonable, 
illiberal,  and  unjust,  that  lord  Mansfield  said  il 
had  long  ago  been  most  deservedly  exploded. 
Now,  if  the  opinion  of  those  judges  on  the  latter 
subject  is  so  very  contemptible,  it  must,  surely, 
lessen  our  respect  for  the  wisdom  and  judg- 
ment of  the  judges  who  delivered  it,  and  con- 
sequently must  take  off  much  of  the  wei^t 
which  their  other  opinion,  concernine Christian 
countries  conquered  by  the  arms  of  England^ 
would  otherwise  derive  from  their  authority. 

*'  In  the  Sd  place,  we  observed  that  it  ap- 
pears from  the  history  of  those  times,  that  the 
judges,  who  determined  Cslvin's  case,  were 
considered  by  many  persons  of  that  age  as' 
having  acted  with  a  servile  degree  of  com- 
plaisance to  king  James  on  thai  occasion; 
which  may  be  supposed  to  have  influenced 
them  in  the  opiniom  they  delivered  upon  inci- 
dental points  that  were  mentioned  in  the  course 
of  their  argumenta,  as  well  as  in  their  opinion 
upon  the  main  qoeation  then  in  dispute  before 
them.  And  this  consideration  must  contribuie 
to  lessen  the  authority  of  their  opinions  upon 
those  incidental  points  as  well  as  upon  the  main 
point,  and  conseqnently  that  of  their  opinion, 
so  much  relied  upon  by  lord  Mansfield,  eon* 
cerainj^  the  power  of  the  crown  over  conqneicd 
countries. 

**  And,  in  the 4tb  and  lastplaee,  we  obserred 
that  Ibis  opinion  of  lord  Coke  and  tba  ollie» 


■Hn  CampbeU  V.  Hall. 

jadgca  ID  Ctlrin'i  caie,  cODccrniDg  the  kgis- 
l«li*e  power  of  Ibc?  crown  otcrcniiqiiered  qoun- 
IrMB,  ii  not  the  Eani«  with  lord  Huisfielil's  opi- 
nion upon  Ihix  lubject,  but  maleriilly  diHertnl 
fmn  it.  For  lord  Coke  laciiha  to  the  crown 
enly  the  |K>wer  orchangioK  the  laws  ofthecoo- 
fOereil  oounlry  onec  fur  all,  upon  Ibe  cooquett 
ef  it,  anil  iiitroiliii.'iug  (he  Imwa  nf  EukUuJ  in 
tbdr  stpad :  but  he  aifils  that,  when  once  the 
kio^  has  inlroiluced  ihe  laws  nf  Etifiland  into 
Ibc  conqiirred  country,  he  cannot  allerivarJa 
ilier  them  without  the  consent  of  parliament ; 
which  is  nyiag,  that  the  kbg  aoa  parllatnent 
■nd  not  the  king  alone,  are  pos- 
ibe  neimaDent  ri^hl  of  legiilatino 
8i>  thai  this  autburity  of  Calrin's 
or,  (lucb  as  it  is),  is  rather  adrerse  tlian  fa- 
luraUe  lo  lori]  Mansfield's  doctrioe  upon  this 

itj»Cl. 

"  Theie  arc  Ibe  obteriatinna  we  made  with 

s  in  CalTiD'i 
id  so  great  i 


A.  D.  1774. 


134S 


X"'?'.' 


Vrtrke  and  air  Clement  Wearg  In  the  year  ITSa 

ipno  •  <]ueslioa  Ihal  was  referred  to  tbeoi  con- 

iriiiuj;  (he  ialand  of  Jamaica. 

"  This  opiniou,  we  acknowledged,  did  really 

^incide   wiih  lord   Mansfield's  uploion  upon 

le  aulhorilv  of  the  crown  over  conuuered  coun- 

-"t,  tbouKli  tbe  npioioD  of  the  judges  in  Cal- 

'..r*C>M  dill  nut.     But  we  agreed  that,  as 

''s'hc  learned  g«nllemen  were  at  that  time  to 

ii^  wFrvife  of  Ibe  crown  In  llie  offices  of  atlor- 

I'l   ftnd  solicitor  ganeral  to  king  George  the 

■•:,  (which  matt  natural  ty  be  supposed  to  hare 

^i<m  them  some  degree  of  bias  in  faTour  of 

mt  iircrogatlTeoflhe  crowo,)  and  this  opinion 

■ppMra  to  bate  been  gireo  by  them  in  a  very 

tasty  and   negligent  manner,  (since  they  did 

aat  uke  ibc  [uins  lo  inquire,  and  lo  fnrm  a 

jadnoent,  whether  J amsica  ought  to  have  been 

a^  coosidered  aa  a  conquered  country,  or  bad 

tjlh*  nnnduct  of  ibe  crown  in  the  gotern- 

IBBDt  of  it  sioce  Ibe  Rnlorstion  in  1600,  been 

bmight  iutolbe  condition  ot'a  planted  count r;r> 

•r  colony  ;  which   was  so  nece««ary  lo  Iheir 

fifiag  an  meful  and  satisfactory  opioiou  upon 

At  BiBiler  referred  to  ihem ;)  I  say,  we  agreed 

jjttt,  for  these  reasons,  thia  opinion  of  theirs 

■ael  intilled  to  much  regard  with  respecl 
H  ateniion  nfthe  important  ijuestion  which 
R  flutiirct  of  OUT  preseni  iiHiuiry. 
And  Ibiia  we  complrlcd  our  discaaoion  of 
Mansfield's  third  ■n<l  l»l  bead  o<'  srgu. 
SWMI,  whiofa  waa  grounded  on  the  npioiona  of 
judgnnnd  other  leariird  lawyera. 

"  Till*,  1   presume,  is  the  kind  of  recapilu- 

iMiMs  which  you  wished  me  to  make  tn  you, 

I  ihc  priDcipal  eonci  iwiont  we  bad  agreed  on 

''re  court*  of  our  examination  of  lord  Mans- 

l'a«|iiftion  upon  thiasubjecL 


wbicli  w*  bare  agreed  on,  u 


«aiily  than  1  otberwise  eanid  do.  Nor  do  I 
think  of  any  thing  furtber  to  trouble  you  about 
upon  tbe  subject.  And  yet,  belure  I  inlircly 
quit  it,  I  must  beg  leave  to  eipreal  my  sar- 
prize  at  Ibe  rtry  poailire  and  peremptory 
manner  In  which  lord  Msnifietd  asserted  this 
power  of  making  laws  for  cniiouered  countries 
to  belong  to  ihe  crown.  '  No  (lis piili^,  says  he, 
wai  erer  slarled  before  upon  the  king's  legis- 
lalire  rigfit  over  n  conquest.  It  never  was  de- 
nied in  Wesiininsler-ball ;  it  never  tvaa  ques- 
tioned in  parliament.'  And  ngain,  '  No  book, 
DO  saying  of  ajudge,  no  opinion  of  any  coun- 
sel, public,  or  private,  has  Wen  cited  on  tha 
other  side  ;  no  instance  has  bpen  found  iu  any 
perimi  of  our  history,  where  a  d'>ubt  has  been 
raised  concerning  ii.'  These  are  Mrangely 
confident  expressions,  considering  the  weaknesa 
of  the  proon  he  adduces  in  support  of  tliem ; 
lo  which,  indeeil,  they  form  a  remarkable  coo- 
Irast.  This,  I  confess,  has  surprised  me  in  a 
mno  so  niucb  celvbraled  for  his  learning  aod 
abililies  an  lord  Mansfield.  I  therefore  wish 
lo  knovr  how  you  accouoi  for  il;  and  ihe  ra> 
iber,  because  this  etlreme  positiieueas  in  a 
roan  of  his  abililies  has  a  tendency  (o  dazzle 
and  overbear  my  judgment,  and  make  me  yield 
implicitly  lo  bis  opinion,  notwithstanding  1 
have  satisfied  myself,  by  our  discusiioii  of  thia 
siilijecl,  that  the  reasons  he  has  adduced  in 
support  of  it,  are  Tery  weak. 

"  E. — Your  remark  ii  very  just.  There  isa 
strange  degree  of  posillveness  in  his  assertions, 
that  is  very  ill  soiled  lo  ibe  weskuess  of  his 
arguments  in  support  of  ihem.  And  what 
makes  it  tbe  more  surprizing  ii,  that  he  him- 
self ordered  this  case  of  Campbell  and  Hall  lo 
be  argued  no  lesti  than  three  limes,  on  three 
diflereni  days,  at  the  bar,  before  he  decided  it  ; 
which  would,  surely,  have  been  unnecessary, 
and,  consetjuently,  lojurious  to  Ihe  parties  (by 
forcinic  them  lo  suffer  s  needless  delay,  and 
incur  an  unnecessary  degree  of  expence,  in  Ihe 
prosecution  nf  their  legal  claiuu,)  if  Ihe  matter 
lisd  been  so  extremely  clear  and  free  from 
diiubi  8*  he,  in  dsliveriog  bis  Judgment,  repre- 
sents it.  But  Ihal  posiliveness  uf  ssserlinn  ia 
agreeabte  to  his  cooslaot  manner  of  speaking, 
and  may,  perhaps,  be  considered  as  one  of  tha 
ingredients  of  his  s^iecies  of  eloqueuce,  as  it 
certainly  has  the  effect  you  mention,  of  daz- 
zling, tor  a  time,  and  overbearing  his  hearer* 
into  an  aequiPBcence  in  tbe  truth  of  ibeproposl- 
tioiia  he  so  peremptorily  asserts.  But  you, 
nbo  have  exumineil  iba  reasons  adduced  by 
liini  in  support  of  bis  assertiun  conorrniug  the 
present  subject,  and  have  found  them  In  be  in- 
sufficient,  ought  lo  break  through  Ihe  inchant- 
menl,  and  lo  yield  to  Ihe  conclusions  of  your 
own  understauding,  and  erabrnce  whslappeara 
lo  it  to  be  the  truth  ;  agreeably  to  the  old  Latin 
proverb,  'Amicus  Plato;  Amicua  Socrates ; 
srd  magis  arnica  verilas.'  Howeier,  to  tako 
off  Bomelbing  of  the  impresaioti  which  you  asv 
those  positive  aECsertiunt  of  lord  MansflelJ, 
oliicb  you  juti  now  repealed,  ars  apt  to  maka 


3^s] 


15  GEORGE  m.  The  Cmse  qfihe  Island  of  Grenada^         [5(1 


tipoo  your  mind,  I  will  eodcafour  to  slieir  yoa 
that  most  of  them  m\gbt  be  chaofred  into  others 
of  an  opposite  tendency,  tvbich  ahoald  be  either 
at  nearly,  or  more  nearly,  agfrecable  to  the 
truth  :  thouffh  yet,  I  confess,  they  will  not  be 
decisive  of  the  question  afaiast  the  legislative 
mutliority  of  the  arown,  any  more  than  lord 
Mansfield's  assertions  are  decisive  in  lavonr  of 
it;  because  both  those  assertions  and  lord 
Mansfield's,  (to  which  they  are  opposed,)  are 
neif stive  propositions,  from  which  no  certain 
conclusions  can  be  drawn. 

**  Lsrd  Mansfield  says  io  the  first  place ; 
*  That  the  kiat^'s  legislatiTe  right  over  a  con- 
<|aest  lias  never  been  denied  in  Westminsler- 
hall.'  Now,  if  this  assertion  were  true,  it 
ivould  prove  nothing,  unless  this  legislative 
right  had  been  frequently  asserted  in  West- 
minster- hall,  and  made  the  ground  of  some 
procetfdini;  there ;  which  it  has  not.  We  may 
therefore  chaoj^e  this  assertion  into  the  follow- 
ing ;  *  The  king's  legislative  right  over  a  con- 
qoest  has  never  been  asserted  in  Westminster- 
ball.  *  And  this  latter  assertion  is  as  near  the 
truth  as  hml  Mansfield's,  or  rather  nearer  to  it. 
For  the  king's  legislative  power  over  a  eon- 

Soest  has  not  been  asserted  in  Westminster- 
all,  as  I  believe,  shove  two  or  three  times ; 
•nd  that  by  single  judges,  and  in  a  slight,  ooca- 
•ionat,  and  ezirajudical  manner :  but  (if  we  un- 
derstand by  it  the  fun,  and  proper,  and  per- 
manent legislative  power,  and  not  the  power  of 
introducing,  once  for  all,  the  laws  of  England 
into  the  conquered  country,)  the  king's  legisla- 
tive power  over  a  conouered  country  was  de- 
nied by  lord  Coke  and  almost  all  the  other 
judges  in  Calvin's  case,  where  they  said,  *  that, 
when  once  king  John  had  introduced  the  laws 
of  England  into  Ireland,  no  subsequent  king 
could  alter  them  without  the  consent  of  parlia- 
ment.' Yon  see,  therefore,  that  this  first  as- 
sertion of  lord  Mansfield,  *  That  the  king's  le- 
gislatire  right  over  a  conqnest  has  neier  been 
denied  in  Westminster* hall,'  is  not  true;  and 
that,  if  it  were  true,  it  would  not  be  material  to 
the  decision  of  the  main  onesfiou,  unless  the 
said  legislative  right  had  been  frequently  a»- 
•erted  in  Westminster- hall,  and  made  the 
ground  of  some  proceeding  there ;  which  it 
has  not. 

**  LKird  Mansfield's  next  asaertiou  is,  *  That 
the  king's  legislative  right  over  a  conquest  was 
Bcver  questituied  in  parliament.'  Now  we  may 
assert,  I  believe,  with  equal  truth*  '  That  it 
■ever  was  acknowledged,  or  asserted,  in  parlia- 
ment' And  the  reason  of  both  these  equsHy 
true,  but  very  different,  propositionB,  is,  that 
the  parliament  has  never  had  occasion  to  con- 
sider the  conduct  of  the  crown  with  respect  to 
any  conquered  countries,  since  we  have  any 
memorials  of  the  debates  in  pariiament ;  which 
is  only  from  the  reign  of  kine  Edward  the  6th, 
or  about  the  vcar  1550:  and  indeed,  I  believe^ 
we  may  go  nirther,  and  say,  that  tho  crows 
has  msde  no  new  conquests  sinoo  that  period, 
to  be  tho  objecti  of  this  supposed  legislotive  a«- 
tkorityi  tnepi  tbe  pmiaee  of  Now-Yoik,  tho 


iaUnd  of  Jamaica,  the  town  of  Gihraltar,  and 
the  island  of  Minorca,  of  which  wo  bofo  ioea 
that  the  two  first,  (though  in  troth  tbcy  weso 
conquered  from  the  Dutch  and  tho  Spaniards,) 
vrere  always  considered  as  planted  Obuntriea,  or 
eotonies,  and  the  two  last  nave  been  cooridmd 
by  the  English  nation  as  mere  garrison  lowni« 
or  fertiesscB,  no  otherwise  worthy  of  ootieo 
than  as  they  defend  the  harbours  of  CKbraltar 
and  PortiMahon,  which  are  usefbl  to  the  Bri- 
tish trade  in  the  Mediterranean.  However,  I 
will  not  take  upon  me  to  say  with  any  doff  reo  of 
eonfidenca,  either,  *  that  tne  king's  legislativo 
right  over  a  conquest  has  never  Men  denied  » 
parliament,'  (as  lord  Mansfield  asserts)  or  *  that 
It  has  never  been  acknowledged,  or  asserted,  io 
pariiament ;'  becanse  I  do  not  pretend  to  bo 
well  enough  acquainted  with  the  siany  fblio 
volumes  of  the  Journals  of  the  two  houses  of 
parliament,  to  Tenture  upon  either  of  these  as- 
sertions, or  nther  negations :  but  I  am  inclined 
to  think  they  are  iMth  true :  and  in  that  caao 
one  of  them  msy  fairiy  be  set  against  the  other. 

**  Lord  Mansfieki's  next,  or  third,  assertioii 
is,  '  That  no  book,  no  ssying  of  a  judgo^  no 
ophiion  of  any  counsel,  public  or  pnvate,  has 
been  cited  on  the  other  side.'  Now,  in  answer 
to  this  assertion,  it  may  be  truly  asserted  tbat» 
<  no  book,  no  saying  of  anv  judge,  no  opinion 
of  aoy  private  counsel,  (that  is,  of  any  eotmsel 
that  waa  uninfluenced  by  the  possession  of  a 
precarious  office  hekl  at  the  pleasure  of  tho 
crown,)  and  but  one  opinion  of  any  puMiecooD- 
sel,  (or  counsel  in  possession  of  such  ofltos,) 
namely,  that  of  sir  Philip  Yorke  and  sir  Clo- 
ment  Weorg,  in  the  year  1722,  (and  that  opi- 
nion seems,  opoo  other  grounds,  to  have  hcoo 
a  very  hasty  one ;)  has  been  6ted  by  his  lord* 
ship  m  support  of  this  legislative  authority  of 
the  crown  over  conquered  conntries.*  I  say 
this  assertion  may  be  truly  nutde  in  oppositiao 
to  hml  MansfieA's :  for  the  saying  of  tho 
judges  in  Calvin's  case  (which  is  the  only  opi« 
nion  of  any  judges,  which  lord  Mansfieid  hum 
cited  in  support  of  this  authority)  appears,  omi 
examination,  to  be  adverse  to  his  loHsbip's  «o^ 
trine.  -  And  thus  we  shall  have  assertioi»  againat 
assertioQ  concernmg  the  want  of  opmioiia  of 
judges  and  other  learned  men  upon  this  oob- 
ject,  supposing  the  assertion  of  kwd  Mansfield 
to  be  tme.  But  these  assertions  provo 
nothing  on  either  side.  The  want  of  the  opt* 
nions  of  judges  and  other  learned  men  co«* 
ceminga  question  never  agitated,  affords  ni 
no  groonda  for  the  decision  of  it :  and  there- 
fore we  must  have  recourse  to  other  methods 
of  investigation  in  order  to  aatisfy  onrsoifot 
concerning  it. 

«<  But  lord  Mansfield*s  aasertion,  that  «  no 
book,  no  saying  of  a  judge^  no  opinion  of  any 
counsel,  public  or  private,  has  been  cited  on 
tho  other  side,'  is  not  strictly  true.  For  tiM 
opinion  of  Vattel,  a  learned  nsodem  writer  oa 
the  law  of  nations,  was  cited  on  that  aide :  and, 
as  this  qoestMD  seems  rather  to  belong  ta  Ibo 
law  of  aatioas  than  to  the  nsunicipol  low  off 
Bngludi  Mehn  Mrtkority  ougbt  Ml  ••  to. 


345] 


Can^hett  v.  Hall. 


A.  D.  177*. 


[S4(» 


dnrriEsrdcd.  Vtttel's  work  is  writ  in  French : 
Imt  1  have  an  Enf^lish  translation  of  it,  in  which 
tba  paange  relating  to  this  subject  is  expressed 
IB  tbeae  words.  *  It  is  asked,  to  whom  the 
eonqnest  belongs ;  to  the  prince,  who  made  it, 
•r  to  the  state  ?  This  question  ought  never  to 
htve  been  heard  of.  Can  the  sorereign  act,  as 
iBcfay  tor  any  other  end  than  the  good  of  the 
Mite?— Whose  are  the  forces  eniptoyeil  in  the 
var  F'-fiven,  if  lie  had  made  the  conquest  at 
bis  own  expence,  out  of  his  own  revenue,  or 
Im  proper  and  patrimonial  estates,  does  he  not 
■sin  use  of  his  subjects'  arms  ?  Is  it  not  their 
Uaod  that  is  shed  ? — And,  even  supposing  that 
be  had  em|>loyed  foreign,  or  mercenary, 
taopa,  doea  he  not  expose  his  nation  to  the 
CMony'a  resentment?  Does  he  not  draw  it 
iito  the  war,  while  the  advantage  is  to  be  his 
«aly  ?— is  it  not  for  the  cauf>e  of  the  slate,  and 
ff  the  nation,  that  he  takes  arms  ?  Therefore 
•I  ibc  rights  proceeding  from  it  appertain  to 
tbt  nation.  If,  indeed,  the. sovereign  makes 
mr  for  a  cause  personal  to  himself,  as,  for  iu- 
Msace,  to  ascertain  a  right  of  succession  to  a 
fercign  sovereignty,  the  question  is  altered  : 
Mch  an  affair  would  be  foreign  to  the  state; 
km  Iben  the  nation  should  be  at  liberty  either 
tavHit  its  prince  or  not  concern  itself.  And, 
if  be  ia  em|iowered  to  make  use  of  the  national 
fwee  in  supfwrt  of  his  personal  rights,  snch 
ngbia  are  no  longer  to  be  distinguished  from 
MK  of  the  state.'  The  meaning  of  this  pas- 
s^ppy  as  applied  to  Great- Britain,  seems  to  be, 
ibal  every  coontry  conquered  by  the  British 
arms  ia  an  acquisition  to  the  British  nation, 
aad  not  to  the  king  alone  ; — that  its  public  re- 
arnie  becomes  part  of  the  public  revenue  of 
Gitat  Britain,  as  much  as  the  taxes  raised  in 
Great  Britain  itself,  and  is  to  be  disposed  of  in 
the  same  mauner,  and  for  the  same  public  uses, 
as  those  taxes,  instead  of  belonging  to  the 
kng's  privy  parse; — and  that  the  power  of 
impasing  new  taxes  on  the  inhabitants  of  such 
csaatry,  and  likewise  that  of  making  new  laws 
fcr  tbeir  government,  most  belong  to  the  same 
bady  of  men  as  is  lawfully  possessed  of  those 
psweis  in  the  kingdom  of  Great  Britain  itself; 
Ibait  is,  to  the  king,  lords,  and  commons  of  the 
kiagdom,  conjoinSy  ;  they  being  the  body  who 
kgallj  represent  the  whofe  people  of  Great 
Bnlaio,  and  are  invested  with  the  whole  antho- 
rity  anginally  inherent  in,  and  derived  from, 
the  said  people,  or,  according  to  Vattel's  ex- 
prtision,  the  said  state  or  nation. 

**  This  passage  from  Vattel's  book  on  the 
law  of  natioBS  was  cited  in  one  of  the  argu- 
mcBts  of  this  cause  of  Gsmpbell  and  Hall  be- 
flbfe  lord  Mansfield  :  and  therefore  he  ought  not 
to  have  said  that  no  book  was  cited  on  that  side 
of  the  question.  If  he  meant  that  no  Ijook  of 
Eaglish  law  was  cited  on  that  bide,  he  should 
bave  conlineil  his  expression  to  that  sort  of 
book. 

Df  m  lord  MansfieM's  assertion  above- 
!Bliaiied,  That  no  book,  no  saying  of  a  judge, 
•MMMi  9f  any  counsel,  public  or  private, 
Bmi  died  OS  the  other  side,  strictly  true 


«* 


with  respect  to  the  second  article  of  it,  the  saj 
ings  of  judges,  any  more  than  with  respect  to 
the  first  article,  of  authorities  from  books.  For 
we  have  seen  that,  upon  examination,  the  opi- 
nion of  the  judges  in  Calvin's  case  appears  to 
be  an  authority  on  that  side  of  the  question: 
since  the  judges  there  affirm,  that,  when  once 
king  John  had  introduced  the  laws  of  England 
into  Ireland,  no  subsequent  king  could  alter 
ihem  without  the  consent  of  parliament ;  whicK 
is  saying,  that  the  legislative  authority  over 
conquered  countries  does  not  belong  to  the 
king  alone,  but  to  the  king  and  parliament 
conjointly. 

'*  As  to  the  opinions  of  lawyers  on  this  sub- 
ject, it  may,  perhaps,  be  true  (as  loni  Mana- 
field  asserts),  that  none  were  cited  in  the  argu- 
ments in  that  cause  on  that  side  of  the  question. 
Yet  1  have  met  with  two  opinions  of  very  re- 
spectable lawyers  that  incline  much  to  that  side 
of  the  question,  though  they  may  not  entirely 
adopt  it  Th^e  are  the  opinions  of  sir  William 
Jones,  who  was  attorney-general  to  king 
Charles  the  second,  and  Mr.  Lechmere,  who 
heM  the  same  office  under  king  George  the 
1st:  and  thc^  were  given  while  those  gentle- 
men respectively  held  that  office  under  the 
crown ;  which  gives  those  opinions  an  addi- 
tional weight;  because,  the  bias  on  their 
minds  arising  from  their  possession  of  that 
office,  having  probably  been  in  favour  of  the 
crown,  an  opinion  against  the  prerogative  of 
the  crown  must  have  been  the  effect  of  strong 
conviction.  8ir  William  Jones  was  attorney- 
general  to  king  Charles  the  second,  in  the  year 
1679,  in  the  time  of  the  ferment  about  the 
Popish  Plot,  while  that  king  (though  fond  of 
arbitrary  power),  was  oblig^,  by  the  spirit  of 
the  times,  to  employ  some  honest  and  popular 
men  in  his  service,  and  to  pass  some  popular 
laws  for  the  preservation  of  public  liberty.  He 
executed  this  office  with  great  apphnse,  and 
was  reckoned  to  be  the  most  learned  lawyer  of 
that  time ;  sir  Matthew  Hale,  the  great  chief- 
justice  of  the  KingVbrnch,  being  then  dead  : 
and  he  was  also  esteemed  a  very  honest  man, 
and  a  lorer  of  his  country,  mw  it  is  said  in 
the  life  of  sir  William  Phips,  page  23,  (as  it  is 
quoted  in  Mr.  Smithes  History  of  New-York, 
from  which  I  take  it),  that  this  sir  William 
Jones  told  king  Charles  the  second,  That  he 
could  no  ihore  grant  a  commission  to  levy  mo- 
ney on  his  subjects  in  the  plant^itioiis,  without 
their  consent  by  an  asf^ewbly,  than  they  could 
discharge  tbemsflves  from  their  allegiance. 

**  According  to  ibis  account  of  this  learned 
lawyer's  opinion,  it  is  not  certain  whether  he 
had,  or  had  not,  in  his  mind,  when  he  gave  it, 
the  distinction  between  planted  countries,  or 
colonies,  and  conquered  countries,  and  whe- 
ther he  meant  to  deny  the  right  of  the  crown 
to  levy  money  by  its  own  single  authority  in 
both  these  sorts  of  dependant  countries,  or  only 
in  the  former.  But,  according  to  other  accounts 
of  this  same  opinion,  it  appears  to  have  relateil 
to  conquered  countries  as  well  as  planted  ones. 
For  in  a  letter  written  by  the  house  of  repr^ 


347J 


15  GEORGE  III.  The  Case  qfthe  Island  of  Grenada—         [348 


senUtiTef  of  the  pro? ince  of  the  Maisachusets 
Bavy  in  the  mooth  of  January,  1768,  to  the 
ean  of  Shelburne,  (who  was  at  that  time  one  of 
bii  majesty'!  priDcipal  secretaries  of  state),  it 
is  recited  in  these  words;  8ir  William  Jones, 
an  eminent  jurist,  declared  it  as  his  opinion,  to 
kiog^  Charles  the  second.  That  be  could  no 
more  irrant  a  commission  to  lef  y  money  on  his 
aulyects  in  Jamaica,  without  their  consent  by 
an  assembly,  than  Ihey  could  discharf^e  them- 
self  es  from  their  allegiance  to  the  crown. 

**  In  this  account  we  see  that  this  opinion 
related  to  Jamaica;  which  was  a  conquered 
country.    The  oolv  remaining  doubt  therefore 
M,  whether  sir  William  Jones,  when  he  gate 
this  opinion,  considered  Jamaica  as  continuing 
still  in  its  original  state  of  a  conquered  coun- 
trjr,  or  whether  he  supposed  its  political  con- 
dition to  ha? e  been  altered  by  the  erents  that 
had  happened  to  it  since  its  conquest,  (such  as 
the  withdrawing  of  the  Spanish  inhabitants 
from  it,  and  the  accession  of  Ensflishmen  to  it, 
who  were  invited  by  the  king's  proclamation 
to  come  and  settle  in  it),  so  as  to  have  been 
thereby  converted  into  the  political  condition  of 
a  colony,  or  country  that  had  been  originally 
planted  by  Englishmen  under  the  king's  au- 
thority ;  which  is  the  light  in  which  lord  Mans- 
field sieems  to  think  that  island  ought  to  have 
been  considered  in  the  year  1729,  when  sir 
Philip  Yorke  and  sir  Clement  Wearg  gave 
their  opinion  concerning  it.    But  there  may  be 
a  great  deal  of  difference  lietween  the  condition 
of  Jamaica,  in  the  year  1722,  and  its  condition 
in  king  Charles  the  8d's  time,  about  the  year 
1677,  or  1678,  when  this  opinion  probably  was 
given :  and  the  reasons  for  considering  it  as 
having  changed  its  political  state  from  that  of 
a  conquered  to  that  of  a  planted  country,  or 
colony,  were  much  stronger  in  the  vear  1722 
than  at  the  other  |>eriod.  For  durins  the  greater 
part  of  Charles  the  second's  reign,  and  tliere- 
ibre,  probably,  when  this  opinion  was  given, 
the  inhaliitants  of  Jamaica  were  governed  only 
by  a  governor  and  council,   without  an  as- 
sembly of  the  people  :  and  consequently  king 
Charles,  when  this  opinion  was  given,  had  not 
yet,  (by  granting  them  the  privilege  of  being 
represented  by  an  assembly  with  a  power  to 
make  laws  and  impose  taxes  for  the  public  uses 
of  the  island),  divested  liiin.^eirof  his  ant(^e<lent 
right  to  im|H)se  taxes  on  tliem,  if  such  a  right 
bad  really  belongeil  to  him.     It  seems  there- 
Fore  not  unlikely  that  sir  William  Jones,  when 
io  ^hve  this  opmion,  might  consider  the  island 
*t'  Jamaica  as  continuing  still  in  its  original 
tate  of  a  conquered  country,  notwithstanding 
itojst  of  the  Spanish   inhabitants  had  left  it:  | 
nd,  if  he  did  consider  it  in  that  lifrht,  it  is  evi- 
enl  that  this  opinion  of  his  would,  in  such 
iise,  be  an  opinion  exactly  in  point  to  contra- 
ict  lord  Manstield's  doctrine  of  the  king's  sole 
^gialalive  authority  over  conquered  countries. 
"  And,  agreeably  to  this  conjecture,  I  find, 
I   Another  account  of  thir«  opinion,  that  sir 
r  illiam  Jones  did  consider  Jamaica  as  a  con* 
Mr^l   couDtry,  and  expressly  called  it  to, 


and  yet  denied  the  king's  authority  to  iropoae 
taxes  on  its  inhabitants  without  the  consent  of  an 
assembly.     For  in  another  letter  of  the  «anie 
assembly  of  the  representatives  of  the  province 
of  Massachusets  bay,  written  in  the    same 
month  of  January,  1768,  as  the  former  letter 
to  lord  Shelhiirne,  and  addressed  to  Dennis 
De  Berdt,  esq.  their  agent  in  England,  they 
apeak  of  this  opinion  of  sir  William  Jones  in 
these  words :  *  There  was  even  in  those  timea 
[the  times  liefore  the  Revolution]  an  excellent 
attorney-general,  sir  William  Jones,  who  waa 
of  another  mind,  and  told  king  Charles  tbe 
second,  that  he  could  no  more  grant  a  commis- 
sion to  levy  money  on  his  subjects  in  Jamaica, 
though  a  conquered  island,  without  their  con- 
sent by  an  assembly,  than  they  could  discbai^ 
themselves  from  their  allegiance  to  the  Eng- 
lish crown.'    If  this  last  account  of  sir  William 
Jones's  opinion  is  the  true  one,  it  is  evident 
that  he  considered  Jamaica  as  continuing  atill 
in  the  condition  of  a  conquered  country,  and 
consequently  that  his  opinion  wiUi  respect  to 
the  king's  power  over  conquered  countries  ia 
directiT  contrary  to  lord  Mans6eld*s. 

"  The  other  opinion  which  I  mentioDed  as 
material  to  our  present  enquiry  was  that  of  Mr. 
Lechmere,  a  lawyer  of  consi Jerable  eminence, 
and  esteemed  a  man  of  great  integrity,  wba 
was  attorney-general  to  king  George  the  Isf. 
This  opinion  1  bad  occasion  to  mention  to  yon 
in  our  last  conversation,  just  before  I  begun 
the  account  of  the  imposition  of  the  duty  of 
four  and  a  half  per  cent,  upon  goods  exported 
from  Grenada  by  the  king's  letters  |iatentof 
July,  1764.     It  is  shortly  thus.    When  the 
British  ministers  of  state,  in  the  year  1717, 
had  a  design  of  advising  the  king  to  impose,  by 
his  royal  prerogative,  the  said  duty  of  four  and 
a  half  per  cent,  on  goofis  exported  from  the 
island  of  Jamaica  and  the  little  islands  of  Ane- 
gada  and  Tortola,  which  are  situated  at  a  small 
distance  from  8t.  Christopher's,  they  consulted 
Mr.  Lech  mere,  the  attorney -general,  U(>on  the 
legality   of  the  intendeil   measure.    And  be, 
thereupon,  honestly  told  them,  *  that  the  per« 
son  who  should  advise  his  majesty  to  take  such 
a  step,  would  be  guilty  of  high  treason.'     But 
I  do  not  know  whether  he  considered  Jamaica 
as  still  continuing  in  the  state  of  a  conquered 
island,  or  not.     If  he  did,  this  opinion  of  bit 
would  be  an  opinion  exactly  in  point  to  our  pre- 
sent subject,  and  directly  contrary  (as  well  as 
the  opinion  of  sir  William  Jones,  according  to 
the  la<(t  account  of  it,)  to  the  doctrine  of  lord 
MansAeld  concerning  the  sole  legislative  an- 
tliorily  of  the  crown  over  conquered  countrief. 
**  These  two  respectable  opinions,  against 
the  said  supposeil  legislative  authority  of  tlia 
crown,  may  fairly  be  set  in  opposition  to  tbe 
opinion  of  sir  Philip  Yorke  and  sir  Clement 
Wearg,  so  much  relied  on  by  lord  MaiwfieM» 
in  support  of  it. 

<*  You  now,  I  hope,  are  satisfied  that  lord 
Mansfield's  peremptory  asaertiona,  '  that  «• 
doubts  bad  ever  been  entertained  by 
lawyerfy  btfora  the  said  caae  of  Caai 


M9] 


CampheU  v.  HaU. 


ttd  Hall,  coDceraingf  the  king^'s  solo  legisla- 
life  authority  orer  coaqaei'ed  countries/  are 
Bot  quite  agreeable  to  the  truth,  but  that  some 
lawyers  of  character  in  former  times  have 
prrsumed  to  entertain  a  ilifTerent  opinion,  and 
cren  to  tell  the  king's  ministers  that  they  diil 
n.  And  consequently  you  should  shake  off 
fipom  your  mind  that  over-great  awe  and  de- 
faeoce  to  that  learned  lord's  opinion  which  the 
persiDptory  manner  of  his  making  those  asser- 
tisoi  bad  impressed  upon  it,  and  should  boldly 
Tcuiire  to  entertain  that  opinion  upon  the  sub- 
ject which,  upon  the  full  enquiry  you  have 
OMde  into  it,  appears  to  you  to  be  the  roost 
RBsoiiable. 

"  F.-— I  will  endeavour  to  do  so,  as  far  as  T 
vm  aUe.  But,  I  protest,  I  find  it  difficult ;  as 
his  aotboritative  manner  of  making  these  as- 
miioos  does  still  retain  some  influence  over 
■y  Bund,  notwithstanding  you  have  now  con- 
viMed  me  that  they  are  neither  altogether 
troe,  nor  decisive  of  the  matter  in  question,  if 
tbcy  were  true.  However,  upon  the  whole,  1 
ds  veotore  to  conclude  that  the  reasons  be  has 
given  in  support  of  his  opinion,  <  that  the  king 
alsoe  has  a  legislative  authority  over  conquered 
cooBlnes,'  are  far  from  lieing  sufficient  to 
■sintain  it.  I  should  therefore  continue  to 
boM  the  opinion  which  at  first  appeared  to  me 
Bast  restonable,  to  wit,  *  that  the  king  and  par- 
fiaaicBt  conjointly,  and  not  the  king  alone,  had 
a  right  to  make  laws  for  the  inhabitants  of  con- 
jliened  coontriifs,'  and  to  impose  taxes  on  them, 
m  it  were  not  tor  one  remaining  difficulty,  con- 
ctnuDg  which  I  must  desire  the  assistance  of 
your  opinion.  This  difficulty  is  grounded  on 
Ae  authority  which  lord  Mansfield's  doctrine 
■ay,  perhaps,  derive  from  the  very  circum- 
stance  of  its  being  bis  opinion,  and  having  been 
delivered  by  him,  as  such,  in  his  judicial  capa- 
city on  a  question  that  brought  the  subject  re- 
giiarl^  before  him  for  his  decision ;  more 
specially,  if  we  consider  the  silence  of  the 
•Ihcr  judges  of  the  court  of  King's- bench, 
wben  lord  Mansfield  delivered  this  opinion,  as 
isipljriDg  their  concurrence  with  him  in  it. 
For  la  this  case  it  may  be  said,  that,  on  the 
only  occasion  on  which  this  doctrine  *  of  the 
ktsig*!  sole  legislative  power  over  conquered 
eonntriea'  has  been  brought  into  question  before 
an  English  court  of  justice,  it  bus  been  decided 
in  frvour  of  the  crown  by  the  unanimous  opi- 
nion of  alt  the  judges  of  the  court ;  and  that, 
whatever  the  law  might  be  before,  such  a  deci- 
sion must  be  considered  as  settling  it  for  the  fu- 
tnre  in  favour  of  the  said  power  of  the  crown, 
ormnot  be  a  peremptory  guide  to  all  future 
emirlB  of  justice  in  their  decision  of  the  same 
Mention,  as  ofien  as  it  shall  occur  before  them. 
I  should  he  glad  to  know,  therefore,  what  you 
chink  of  tilts  conclusion,  and  whether  by  the 
rnlcs  oboerved  by  English  courts  of  justice 
with  respect  to  points  already  decided  by  the 
«MC  or  other  courts,  such  a  question  ought  to 
ho  esnoidered  no  having  been  decided  for  ever 
!•  iMmar  of  the  crown  by  thin  oiM  decision  of 


A.  D.  1774.  [350 

lord  Mansfield  and  the  court  of  King's-bencfa. 
If  it  is  to  be  so  considered,  I  must  needs  think 
that  lord  Mansfield  and  his  brother  judges  will, 
by  that  opinion  of  theirs  in  their  judgment  on 
the  case  of  Campbell  and  Hall,  have,  indi- 
rectly, made  a  law  of  the  most  capital  import-' 
ance  to  Great  Britain  and  the  British  domi- 
nions. 

««  E, — ^Your  question  is  a  very  proper  one, 
and  not  a  very  easy  one  to  answer  ;  there  being 
no  express  law,  nor  even  constant  usage,  that 
ascertains,  in  all  cases,  the  degree  of  deference 
which  is  to  be  paid  by  courts  of  justice  to  the 
former  judicial  decisions  of  the  same  or  other 
courts  of  justice.  And  we  have  seen  lord 
Mansfield  himself,  since  he  has  been  chief 
justice  of  the  King's- bench,  and  his  brother 
judges  of  that  court,  in  more  than  one  instance, 
determine  a  point  of  law  in  a  oMinner  directly 
contrary  to  the  determination  of  it  by  all  the 
judges  of  the  same  court  of  King's-bench  on 
a  former  occasion,  though  the  said  former  de- 
termination had  been  acquiesced  in  by  the  party 
against  whom  it  had  been  made,  and  had  been 
taken  and  reputed  for  good  law  ever  after,  till 
the  new  case  in  which  lord  Mansfield  and  the 
other  judges  of  the  court  of  Kiug's-bench  de- 
termined the  point  in  a  different  manner.  1 
particularly  remember  an  instance  of  this  kind 
m  a  case  in  which  the  names  of  the  parties  were 
Wyndham  and  Chetwynd,  containing  the  qua- 
lifications necessary  to  the  three  witnesses  who, 
by  a  certain  statute  made  to  prevent  frauds,  are 
required  to  attest  and  subscribe  a  will  of  lands, 
in  onler  to  its  validity.  But  the  ^^eneral  rules 
concerning  the  authority  of  judicial  determi- 
nations of  points  of  law  I  take  to  be  as  fol- 
lows. 

**  In  the  first  place,  where  a  point  of  law  has 
been  agfitated  in  ail  the  courts  through  which 
it  may  be  carried  by  ap^ieal,  or  writ  of  error, 
and  has  been  finally  determined  by  a  judgment 
of  the  highest  court  of  appeal,  that  is,  of  the 
House«of  Lords,  (for  that  is,  in  Great  Britain, 
the  highest  court  of  apfieal  both  in  matters  of 
law  and  equity ;)  such  a  determination  is 
reckoned  to  lie  of  almost  as  much  authority 
with  respect  to  the  point  so  settled,  as  an  act 
of  parliament ;  or,  at  least,  it  is  so  considered 
by  all  the  ordinary  courts  of  justice,  though, 
perhaps,  the  fJouse  of  Lords  itself  might,  on 
another  occasion,  if  they  thought  there  was 
very  strong  ground  for  it,  determine  it  in  a  dif- 
ferent manner. 

**  In  the  second  place,  uhen  a  point  of  law 
has  been  fully  ap^ued,  and  solemnly  deter- 
mined by  one  of  the  four  great  courts  of  West- 
minster-hall, that  is.  the  court  of  Chuncery, 
the  court  of  King's-bench,  the  court  of  Com- 
mon Pleas,  and  the  Court  of  Exchequer,  and 
the  party,  against  whom  the  judgment  has 
been  given,  has  acquiesced  in  it,  and  has  for- 
born  to  bring  an  appeal,  or  a  writ  of  error, 
into  the  next  higher  court  of  justice,  fo  which 
the  right  of  revising  the  judgments  of  the  first 
court,  and  correcting  the  errom  in  them,  be- 

2 


351] 


15  GEORGE  III.  The  Case  of  the  Island  of  Grenada—  [35f 


Ionics ;  and  such  forbearance  does  not  arise 
trniD  the  poverty'  or  inability  of  the  said  party 
to  bear  the  expence  of  prosecuting^  such  writ 
of  error,  or  appeal  to  the  next  higiier  court ; 
such  a  determination  acquires  a  great  dpi^ree 
of  respect  and  auUiority  in  Westminster-hall, 
and  is  usually  adopted  and  followed  by  the 
courts  of  justice  in  their  subsequent  determi- 
nations of  the  same  point  of  laif ,  as  often  as  it 
comes  before  them.  Yet  it  is  not  of  quite  so 
great  authority  as  a  determination  of  the  House 
of  Lords  upon  a  question  brought  there  in  the 
last  resort :  and  we  have  sometimes  seen  such 
determinations  overturned  by  subsequent  de- 
texminations  of  the  same  or  other  courts  of  jus- 
tice in  Westminster- hall ;  as  was  done  in  the 
eourt  of  King's-bench  in  the  case  of  Wy  ndham 
and  Chetwynd,  which  1  just  now  mentioned 
to  yon.  Yet  such  overtuniings  of  the  former 
lolemn  determinations  of  courts  of  justice  are 
Tery  unfrequent,  and  are  not  in  general  approv- 
ed of,  though,  perhaps,  in  some  very  strong 
cases,  where  the  former  determinations  have 
been  made  upon  very  wrong  principles,  they 
inay  be  justifiable. 

**  In  the  third  place,  when  a  matter  has  been 
fully  argued  before  one  of  the  courts  of  West- 
minster-hall, and  a  solemn  judgment  has  been 
given  u|K>n  it  in  favour  of  one  of  the  parties; 
and  in  the  said  judgment  more  than  one  point 
of  law  has  been  determined  in  favour  of  such 
party  ;  and  the  losing  party  acquiesces  in  the 
said  judgment,  and  forbears  to  bring  a  writ  of 
error  for  a  reversal  of  it  in  a  higher  court  of 
justice ;  the  determinations  of  such  points  of 
law  acquire  a  consitterable  degree  of  weight  anil 
authority  in  the  estimation  of  lawyers  and  sub- 
sequent courts  of  justice,  but  yet  are  not  quite 
so  much  respected  as  the  determinations  in  the 
two  former  cases:  and  for  this  plain  reason, 
that,  as  more  than  one  point  of  law  are  deter- 
mined at  the  same  time  in  favour  of  one  of  the 
contending  parties  and  against  the  other,  it  is 
uncertain,  whether  the  losing  party,  when  he 
acquiesces  under  the  whole  judgment,  and 
forliears  to  bring  a  writ  of  error  in  a  superior 
court  to  get  it  reversed,  acquiesces  in  all  the 
points  of  law  deteriuiiu'd  n;;ainst  him,  or  only 
in  some,  or  one,  of  then) ;  bocausc,  if  only  one 
of  them  is  rightly  determined  a;;:ainst  him,  the 
judgment  against  liini  wiMitd  be  affirmed  u|Hin 
a  writ  of  error,  as  much  as  if  all  tiie  points 
bad  been  so  determined.  This  nncorlaiuty 
concerning  the  particular  |ioints  of  law,  in  the 
detcrnii nation  of  which  the  losing  party  may 
be  supposed  to  acquiesce,  takes  from  the  deter- 
roinutioiis  of  each  of  the  points  of  law,  that  are 
determined  against  him,  some  p:irt  of  the 
weiuht  and  authority  which  snrh  dftcrmipa- 
tious  would  otherwise  derive  trom  his  acqui- 
escence. 

"  And  fourthly,  if  a  matter  has  hern  fullv  ar- 
gued  before  a  court  of  justice  in  Weslmiusier- 
hall,  and  a  solemn  judgment  has  been  given  upon 
it  io  favour  of  one  of  the  parties ;  and  in  the  said 
iudffmeDt  one,  or  more  than  one,  point  of  law 
li*.  hPvii  dctenaiQcd  ia  bis  favour,  and  anotber 


point,  or  points  of  law  have  been  determined 
against  him  ;  and  the  losing  party  acquiesces 
in  the  said  judgment,  and  brings  no  writ  of 
error  to  reverse  it ;  such  an  acquiescence  of 
the  losinff  party  can  operate  as  a  confirmation 
of  only  those  points  of  law  which  are  deter- 
mined against  him,  and  not  of  those  which  are 
determined  for  him.  In  such  a  case,  there- 
fore, there  will  be  several  determinations  of 
points  of  law,  all  deliberately  made  by  the 
same  ju<lges  and  in  the  same  cause,  whicli  will 
have  different  degrees  of  weight  and  authority, 
namely,  the  points  determined  in  favour  of  the 
losing  party,  and  the  points  determined  against 
him.  For  the  points  determined  in  favour  of 
the  losing  party  will  have  that  decree  of  weight 
and  authority  which  arises  from  the  respect  due 
to  the  learning,  abilities,  and  integrity  of  the 
judges  who  have  decided  them,  and  to  the  de- 
liberate manner  in  which  they  have  been  cod* 
sidered  and  discussed  before  they  were  decided ; 
but  those  which  are  determined  against  the 
losing  party  will,  besides  the  weight  and  au- 
thority arising  from  the  foregoing  circum- 
stances, be  entitled  to  an  additional  degree  of 
respect  arising  from  the  acquiescence  of  the  loa- 
ing  party,  which  will  shew  that  he,  and  his  coun- 
sel learned  in  the  law,  despair  of  having  those 
points  determined  in  a  difiercnt  manner,  if  they 
were  to  bring  a  writ  of  error  fur  the  purpose. 

**  These  seem  to  roe  to  be  the  different  de- 
grees of  authority  which  are  attributed  bv  the 
English  courts  of  justice  to  the  sforesaiu  dif- 
ferent sorts  of  judicial  determinations  of  points 
of  law  by  former  judges :  which,  I  presume, 
you  will  agree  with  me  in  thinking  reasonable. 

'*  P. — 1  enter  very  readily  into  these  distine* 
tions  between  the  different  sorts  of  judicial  de- 
terminations, and  think  thein  very  natural  and 
reasonable.  And,  according  to  this  gradation 
of  ihem,  it  seems  to  me  that  the  opinion  of  lord 
Mansfield,  delivered  iu  the  case  of  Campbell 
and  Hall,  concerning  the  sole  legislative  au* 
thority  of  the  crown  over  conquered  coun- 
tries, (even  supiiosing  the  otiier  jvidges  of  the 
King^s-bench  to  have  concurn'd  wiili  him  in 
it,)  must  be  placed  iu  the  fourth,  or  lowest  class 
of  them.  For  in  that  caiie  there  is  no  room  to 
infer  any  thing,  from  the  acquiescence  of  either 
of  the  parties,  in  fuvour  of  that  o|uiiioo.  For, 
as  to  the  defendant  Hall,  who  was  the  losing 
party,  all  that  can  be  inferred  from  his  acqui- 
escence in  thejudpnent  given  against  him  in 
that  action  is,  that  he  and  his  counsel  acqui- 
esced in  the  opinion  of  the  Court  U|N»n  the  2d 
Iioint,  *  of  the  immediate  operation  of  the 
king's  proclamation  of  October  1763,  as  a  bar 
to  the  exercise  of  his  antecedent  legislative  an* 
thority,'  and  despaired  of  having  it  otherwise 
determined,  if  he  should  have  brought  it  into 
the  llunsc  of  Lords  by  writ  of  error.  And  at 
to  the  plaintiff  Campbell  who  gained  his  caufe, 
he  could  nut  bring  a  writ  of  error  to  reverse  %. 
judgment  that  was  given  in  his  favour.  8u  tbal^ 
the  opiniou  of  lord  Mansfield  u|Nin  that  9f^ 
pdnfc mnit,  indeed,  be conndeRd  as  the  Cfin^^ 


)33J 


Campbea  v.  HM 


nf  that  Ivarned  lord,  *ni),  p«rha|i8,  of  tbe  wIioIp 
court  of  Kiii|['i- bench,  upuu  m  {luint  thai  liad 
bfen  tully  ar|fiied  belbre  llifm,  aaJ  muit  b« 
CDiitled  hi  all  tlie  reatircl  wliicli  i*  due  id  it  on 
ihu  accnuni,  l>ul  canout  derive  any  aildiljonal 
wriijchl  I'rum  Ibe  acquiencencp  of  cllher  of  the 
juiitt  tiaHcr  it ;  iliat  U,  il  inuvt  lie  a  jaJicial 
dccJMoa  of  tlie  lowetl  of  llie  four  claniea  ot 
juJicial  ilMiiioua  which  you  have  been  just 
aow  ileacribiDg. 

"  £.  —It  is  e!»clly  no.  The  ojiinioD  of  lord 
Hanilield  i1|iiid  tliai  hrit  |HjinI  li  a  derialon  of 
llial  fourth  and  loweit  clii«.  And  ilierelbre  I 
nipiMxe  that  il  wuulJ  not  be  cnuaidemi  liy  tbe 
Mne  or  any  olber  cuurt  ol'  jiitlice  in  Weat- 
■ioatef'hall,  on  soy  other  occmioo  iu  which 
Ibc  lama  ptiiot,  '  of  the  liing'a  te^pslaliTe 
Mlhnriiy  OTcr  conquered  couiilriea,'  ahould 
Kcur,  IB  beiog  alKtoIulely  biudiii){  and  Jeci«ve 
•f  Ihrqiiealjou,  lO  aa  to  be  enlitled  lo  the  oio- 
firmtiiuu  «f  such  court  ol'  junlice,  ihouffh  the 
rrasona  no  which  II  was  fiiunded  ahoulil  be  rn- 
IIHy  disapproved  liy  the  jui)|;es  of  which  such 
court  aliould  be  cain)iosnl ;  Hince  we  hate  teen, 
io  the  case  of  Wyudham  ami  Chelwynd, 
(■hich  was  detercolned  by  lord  Mannfieiil  him- 
•rlf)  that  even  a  decision  ol'the  sei'oiid  claaa  is 
sot  always  so  cDniiilvreil.  llul  yet  it  would 
certainly  have  considerable  wei)j;hl  niih  the 
Judaea  nf  surh  lubseqiienl  cuurt  of  justice,  so 
ai  lo  indure  theni  tu  ifive  Jud^raeiit  agreeably 
to  it,  if  they  were  only  In  a  slate  of  doubt  coo- 
cn-uiny  (he  validity  of  ilie  roKons  on  which  it 
liad  beea  (grounded,  and  did  iiol  Ihoroughly 
ilJMppmve  them.  So  ihat  I  am  afraid  we  must 
allow,  that  (weak  and   i11'f>jouui]ed  as  it  aji- 

Ears  to  you  and  me,)  ihl*  oiiiniun  of  lord 
antfielil,  conceruloL'  ilie  l>iLi)!'a  sole  teglsla- 
llve  jioner  over  cuncjircrecl  cuiiiilries,  Is  a  tem- 
porary juiliclal  delernilNsti'in  III'  thai  quealioD 
IS  favour  ofiheiirerognliieuf the  cmwu.  But, 
■a  you  rii{li1ly  observed,  il  iH  a  deeision  of  the 
fuiwth,  or  loweat,  class  of  the  aeveral  sorts  of 
jwticial  ifeterniioalinn*  above  described. — But 
I  bo)*e  your  cariotity  is  now  satisfiL-d  with  re- 
sptct  lo  this  imjioriant  qiiestiim  of 


I  think,  we  have  very  aufficiunlly  discussed. 

*'  F, — My  curiosity  ii,  indeed,  satisfied  od 
Ikia  subject :  but  ttie  pleasure  I  hare  had  Id  the 
raquiry  is  allayed  wiib  suinu  mjjiliire  of  un- 
caimras  arising  from  tlm  wcii;ht  thai  may  be 
thought  (o  b4-U>og  lo  that  o|>lnion  of  lord  Ulaos- 
fidd.  Fur  Imw  can  any  lover  nf  liberty  and 
llie  En|;lish  coDSiitulion  (nt  I  must  sincerely 
pnfeaa  myaFli'  to  be)  not  b«  Mirry  lo  And,  thai 
the  only  judicial  decision  thai  has  beeo  made 
ma  the  aubject,  baa  ascribed  to  lb«  ctown 


A.  D.  177*.  [354 

alone,  without  the  concurrence  of  the  parlia- 
meiil,  a  power  to  make  laws  and  impose  laxei 
at  pleasure  on  (he  inhabitants  of  all  cuunlric* 
that  are  conquered  by  the  Urilikh  anna  f — 
I  therefore  hope,  either,  Ihat  the  law  upon 
this  Hubjeci  will  soon  be  altered  by  aa  exprna 
act  of  iiirtiameiil  for  Ibe  pur|)nse,  or  that  tha 
ijucslioli  may  aKain  be  brought  under  llie  con- 
aiilerstion  of  some  court  uf  justice,  acid  ba 
there  deleruiined  in  a  dilFcrcnl  manner,  as  lbs 
CHEC  jubt  now  mealioned,  of  Wyndliam  and 
Clietnynd,  was  determined,  by  lord  Mans^ld 
liiintielf  and  the  other  jud^ra  of  Ihe  King'i- 
bencb,  in  a  manner  direclly  contrary  lo  ■ 
former  delerminalian  nf  ihe  same  point  of  law 
in  the  Mine  cuurt  of  Kioj^'i-beorh,  ihouch  the  . 
■aid  former  delerminsliou  had  been  a  decision 
of  the  secoiul  daaa.  Fur  it  may  be  of  terrible 
consequence  lo  Ihe  freedom  of   the  Enulish 


permanently  in  Ihe  posseasiuo  of  the  crowu. 

'■  F. — I  heartily  join  with  V  00  in  ihesewisbes : 
but  doubt  a  little  whvlher  lliey  are  likely  lo  he 
soon  accnmplished.  Uawe*er,if  lUli  queatiua 
were  tgaip  lo  come  before  a  cuurt  of  juatieea 
and  the  ;iierils  of  the  cause  were  lo  Itiro  ainglj 
u[ion  the  decisiun  uf  il,  (which  wa*  not  ihecata 
in  ihe  action  of  Campbell  agBioal  Half,)  I  ca* 
hardly  prrsiiarle  myself  thai  the  jud^  of  any 
cuurt  in  \Vestmiuii(ar-hsll  would  thiok  tbein- 
selves  bDinid  to  determiue  it  sgreeably  to  hud 
niaoaiield's  opinion,  mervly  Ibmugh  driercnca 
lo  thai  opinion  and  without  any  new  reasou  ■ 
thst  should  influence  tlieir  own  judgmenU  iii 
iWvour  of  it ;  seeing  that  tha  reasuoa  alledgeil 
by  lord  Maailield  in  support  of  it  bi¥e  ap- 
l>eareil,  upon  examinatiuu,  to  be  M  very  wtak, 
and  thai  lis  aulhurity  ai  a  jadicial  tleciitoa  (i 
two  deKrF(»  lower  than  that  of  tha  cue  in  the 
court  of  KioK's-broch,  above  alluded  to,(vi'hich 
iscalldl  llieoaseof  Ansly  aadDowaing.^wbick 
iieil  by  tbe  sams  coort  in  the  syb- 
uf  Wyndbam  and  Cbetwyod,  that 

been  a  decision  uf  tlie  second  claaa, 

and  Ibis  being  only  of  the  fourth.  But  Ihl*  ie 
all  mstter  of  conjecture,  anil  consequently  not 
worthy  our  further  consideration."  Caoadiio 
Freeholder ;  a  work  uf  which  Dr.  Watson,  tha 
erainenl  Uibop  of  Llandaff,  haa  very  truly  said 
(Note  to  Assize  Sermon  preached  at  Cambridg* 
in  the  year  1769)  that  it  is  replete  with  MUud 
and  perapicuous  reaaooiug. 

With  rnprcl  to  the  application  of  the  re- 
venue arising  from  Ihe  four  and  a  half  per  crnl, 
duty,  see  Bome  Ji»UMiii»i  in  ihe  House  of 
Lonh  nn  April  0,  18113,  and  iti  the  Houfo  uf 
Commonion  March  30,  lS03;on  July2,  ISOi, 
Pari.  Deb.  vul.  3,  p.  002,  and  on  Hay  8,  1800^ 
Pari.  Dd,.  vol.  U,  p.  i09. 


sequen 


Pt^vouyx. 


SS5j 


16  G£ORGE  III. 


Trial  (^the  Duchess  ofKingsion, 


[m 


551.  The  Trial  of  Elizabeth^  calling  herself  Duchess  Dowager 
of  Kingston,  for  Bigamy  :*  before  the  Right  Hon.  the  House, 
of  Peers,  in  Westminster-Hall,  in  full  Parliament  assembled, 
15th,  16th,  igth,  20th,  and  22d  Days  of  April:  16  Geokoe 
in.  A.  D.  1776.  t  [Printed  under  an  Order  of  the  House  of 
Lords.] 


Monday t  April  15,  1776. 

Id  the  Court  erected  in  Westmiuster-hall,  for 
the  Trial  of  Elizabelh  Duchess  Dovrager 
of  Kingston,  for  Bigamy. 

About  ten  o*clock  the  Lords  came  from 
their  own  House  into  the  court  erected  in 
Westminster- hall,  for  the  Trial  of  Elizabeth 
docbesB-dovrager  of  Kingston,  in  the  manner 
IbUowimr : 

The  Lord  High  Steward's  gentlemen  atten- 
dants, two  and  two. 

*  See  the  Trials  ef  Mary  llloders,  vol.  6, 
p.  97S,  and  of  Fielding,  vol.  14,  p.  1327,  for  the 
like  offence. 

f  <*  Rex  v.  Ddgbess  of  Kingston. 

"  Mr.  Wallace  had  moved  on  the  part  of  the 
defendanti  for  a  Certiormri  to  be  directed  to  the 
JMtices  of  Oyer  and  Terminer,  at  Hicks's-hall, 
In  remove  into  the  Court  an  indictment  found 
agpiost  her,  at  the  sessions  there,  for  bigamy ; 
aqd,  upon  tKe  motioDi  the  court  granted  the 
writ. 

"  But  now  lord  Mansfield  took  notice  to  Mr. 
Wallace,  that  the  motion  was  irregular.  For 
a  defendant  has  no  rii^bt  to  remove  an  indict- 
ment of  felony  from  Ilicks's-Hall,  without  the 
consent  of  the  prosecutor ;  and  in  this  ease 
there  was  no  consent,  ttierefore  his  lordship 
■aid  the  writ  issued  mpraoidi,  and  must  he 
ooperseded. 

*'  Mr.  Wallace  said,  the  onl  v  object  of  reinov- 
iif  the  indictment  was  for  the  purpose  of  her 
being  bailed ;  but  per  lord  Mansfield,  the  pur- 
pose for  which  it  was  intended,  makes  no  dif- 
ference.—The  nest  day  Mr.  Wallace  moved 
for  a  Habeas  Corpus,  Mr.  Justice  Aston  having 
ff  ranted  a  warrant  for  her  apprehension  (as  had 
been  settled  amongst  the  parties,  as  the  pro- 
pereit  method  to  be  taken)  upon  a  certificate  of 
the  indictment  beuig  Ibund. 

*'  The  warrant  and  the  return  to  it  were  road ; 
and  4hen  Mr.  Wallace  moved  to  ball  her.  He 
mentioned  th^  suit  in  the  spiritual  ooort,  npon 
the  jproceedings  there  against  Mr.  Hervey,  for 
jactitation  of  marriage^  aud  also  the  pnceed- 
ings  in  Chancery  relating  to  her  mannage ;  all 
these  prooeedinga  were  pnt  into  oourt,  and  cp^ 


The  clerks  assistant  to  the  House  of  Lords^ 
and  the  clerk  of  the  parliament. 

Clerk  of  the  crown  in  Chancery,  bearing  Iht 
king's  commission  to  the  Lord  High  Steward, 
and  the  clerk  of  the  crown  in  the  Kins's- bench. 

The  roasters  in  Chancery,  two  and  two. 

The  judges,  two  and  two. 

The  peers  eldest  sons,  two  and  two. 

Peers  minors,  two  and  two. 

Chester  and  Somerset  heralds. 

Four  Serjeants  at  arms  with  their  maces,  two 

and  two. 

-  -       —  ■^ 

sented  to  her  being  bailed,  as  there  conid  be 
no  doubt  (he  said)  of  her  appearance  to  an- 
swer to  the  indictment. 

**  Lord  Manijkld,  Though  we  should  un- 
doubtedly have  bailed  her,  it  is  better  to  take 
it  as  upon  the  consent  of  the  prosecutor ;  and 
she  must  be  bound  to  appear  in  the  Honae  of 
Lords  when  required,  to  answer  to  the  indict- 
ment, as  well  as  to  appear  in  this  court.  Bnt 
as  there  is  nothing  aigainst  lier  in  this  court, 
her  appearance  here  may  be  dis|>ensed  wilh 
for  the  future  upon  motion,  without  giving  her 
the  trouble  of  actually  appearing  here  in  court 
any  more. 

"  Bail  was  taken  accordini^ly,  herself  being 
bound  in  4,000/.  and  each  of  her  four  bail  in 
1,000/. 

<**The   recognizance   was   as  follows:— 

*  England.    Duchess   dowager  of  Kingston^ 

*  who  stands  indicted  by  the  name  of  £liza« 
'  beth,  the  wife  of  Augustus  John  Hervey,  esq. 
'  is  delivered  to  bail,  upon  a  writ  of  Habeaa 

*  Corpus  ad  subjiciendum,  for  her  appearanoa 
'  in  the  court  of  our  sovereign  lord  the  kiogf 

*  before  the  kint;  himself  at  Westminster,  on 

<  the  first  day  of  Uie  next  term,  and  so  frooa 

*  day  to  day,  until  she  ahall  be  discharged  by 

<  the  said  court,  and  not  to  depart  the  said  covrt 

<  without  leave ;  and  alao  for  her  appearanes 

*  before  our  said  lord  the  king  in  parliankent,  to 

*  answer  to  an  indictment  against  her  for .  ft- 
'  hwy,  whenever  she  shall  be  therennto 

*  quired.    Bjr  the  Court.    Burbow.' 

**  I  have  baerted  this  recognisanoi^  f 
ftisf  im,  becaoia  there  was  found  only  a  aingli^', 
instance  of  Ibo  like»  (via.  of  a  remnia|noB  'j 
taken  in  tUa  joourt  to  appear  in  apniiiMp^^ 
^-  "^IhilQf  lbo.|34^.0ri^^        ^ 


f  <^^.  "r 


S57] 


for  Bigamy. 


The  yeoiiiqD*iish€r  of  the  Hoose. 

The  btrons,  two  and  two,  begiDning  with 
tbeyounffest  baron. 

Tlie  biahopii,  two  and  two. 

The  viscounta  and  other  peers,  two  and  two. 

The  lord  priFy  seal  and  loni  president. 

The  archbishop  of  York  and  the  archbishop 
of  Canterbury. 

Wfore  the  kingr  himself  at  Westminster,  on  tlie 
(bit  day  of  next  term,  and  so  from  day  to  day 
QDtil  he  shall  be  discharged  by  the  said  court, 
ltd  not  to  depart  that  court  without  leave,  to 
taswer  to  those  things  which,  on  the  behalf  of 
•or  said  lord  the  kinf  shall  be  objected  against 
him ;  and  also  for  his  appearance  from  time  to 
time,  until  he  the  said  Charles  lord  Orrery 
shall  be  discharged  by  due  course  of  law,  be- 
fore our  lord  the  kinir  in  parliament,  whenever 
by  our  said  lord  the  king  he  shall  l>e  thereunto 
RQuired,  to  answer  to  those  things,  which  on 
behalf  of  our  said  lord  the  king  shall  be  there 
objected  against  him."  Cowper's  Reports, 
p.S8S. 

Upon  occasion  of  these  proceedincfs  against 
the  prisoner  in  the  following  Trial,  Mr.  Har- 
grave  was  consulted  on  the  part  of  the  prosecu- 
liofi.  With  his  wonted  zeal  he  composed,  pre- 
viously to  the  trial,  a  most  elaborate,  learned, 
and  able  discourse  '  Concerning  the  Effect  of 
Sentences  of  the  Courts  Ecclesiastical  in  Cases 
of  Marriage  when  pleaded  or  offered  in  evi- 
dence in  the  Courts  Temporal,'  which  several 
years  afterwards  he  published  in  his  *  Collection 
of  Tracts  relative  to  the  Law  of  England.'  In 
tbit  discourse  he  has  accumulated  a  vast  maaf 
of  judicial  decisions  and  legal  reasonings  re- 
tpeeting  the  two  main  questions  of  law  which 
were  made  in  this  case,  viz. 

1.  Whether  a  sentence  of  the  spiritual  court 
sgainst  a  marriage  in  a  suit  for  jactitation  of 
■arriage  is  conclusive  evidence  so  as  to  stop 
the  counsel  for  the  crown  from  proving  the 
nid  nrarriage  in  an  indictment  fbr  polygamy  ? 
9.  Whether,  admitting  such  sentence  to  be 
eondosive  upon  such  indictment,  the  counsel 
fer  the  crown  may  be  permitted  to  avoid  the 
cftct  of  such  sentence  by  proving  the  same  to 
have  been  obtained  by  fraud  or  collusion  ? 

In  addition  to  what  will  be  fbimd  in  this  re- 
pert  of  the  trial,  1  most  refer  the  reader  for  far- 
ther illustration  of  the  law  respecting  these 
two  OQeationa  to  that  treatise  of  Mr.  Hargrave ; 
wMch  it  is  to  be  hoped  will  be  incorporated  into 
Us  valoaMe  *  JurtsconsuU  Exercttatiunes'  now 
hi  course  of  publ ieation . 

Mr.  Leach    has   inserted  in  his  Casea  in 

CmwB  Law  a  very  brief  note  of  this  case,  exhi- 

I      Mug  the  decision  of  the  C^Hirt  upon  the  two 

r      fBlMoM  which  f  have  just  stated,  and  alaii 

1^    MP  anoilicr  qnestiiim  whfch  was  as  itated,  vis. 

""^i —  -  leeress  convieted  by  her  peers  of  a 

sloby  is  by  law  entitled  to  the  be- 

d|t  staniteBi'  ao  as  to  exrnae  her  from 

tifaiiMbt,  wSthoot  being  buraed  in 
Wai  MM  ib  any  impritoliBttitr 


k'' 


A.  D.  177S.  iSSA 

Four  ferjeaiits  at  arms  with  their  macea,  two 
and  two. 

The  aerjeant  at  arms  attending  the  great 
seal,  and  purse-bearer. 

Then  Garter  king  at  arms,  and  the  gentle- 
man-usher of  the  Black  Rod  carrying  the  white 
sUff  before  the  Lord  High  Steward. 

Henry  earl  B.ithurst,  chancellor  of  Great- 
Britain,  Lord  High  Steward,  alone,  his  train 
borne. 

His  royal  highness  the  duke  of  Cumberland, 
his  train  borne. 

The  I^ords  being  placed  in  their  proper  seata, 
and  the  Lord  High  Steward  upon  the  woolpack, 
the  House  was  resumed. 

The  clerk  of  the  crown  in  Chancery,  having 
his  majesty's  Commission  to  the  Lord  High 
Steward  in  his  hand,  and  the  clerk  of  the  crown 
in  the  King's-b«nch,  standing  before  the  clerk's 
table  with  their  fares  towards  the  state,  made 
three  reverences ;  the  flrst  at  the  Ubie,  the  ae* 
corid  in  the  mid-way,  and  the  third  near  the 
woolpack{  then  kneeled  dowh;  and' the  clerk  ' 
of  the  crown  in  Cbnncery ,  on  his  knee,  pre- 
sented the  Commission  to  the  Lord  High 
Steward,  who  delivered  the  same  to  the  clerk 
of  the  crown  in  the . Ring's-bench  to  read: 
then  rising,  they  nnade  three  reverences,  and 
returned  to  the  table.  And  then  proclamation 
was  made  for  silence,  in  this  manner: 

Sejj.  at  Armt,  Oyez,  oyez,  oyez !  Our  so- 
vereign lord  the  king  strictly  charges  and  oopn- 
mands  all  manner  of  persons  to  keep  aiknco, 
upon  pain  of  imprisonment. 

•Then  the  Lord  High  Steward  stood  ap,  aM 
spoke  to  the  Peers. 

L.H.S.  H  is  inajestj^'s  Commission  it  abonl 
to  be  read :  your  lordships  are  desired  to  attend    ' 
to  it  in  the  usual  manner ;  and  all  others  ari  • 
likewise  to  stand  up  uncovered  while  the  Conh 
mission  is  reading. 

All  the  peers  uncovered  theroselvea;  and 
they,  and  all  otiiers,  stood  up  unoovered,  while  ,. 
the  Commission  was  read. 
'*  Georgb  R, 

<*  Georire  the  third,  by  the  grace  of  God,  . 
of  Great- Britain,  France,  and  Ireland  king, 
defeniler    of  the  faith,    and  so  forth.  'To    -. 
our  right  trusty  and  right  well-beloved  cousin 
and  counsellor  Henry  earl  Bathurat,  our  chan*  \ 
eel  tor  of  Great- Britain,  £reHiiig.    Know  yo^. 
that  whereas  Elizabeth  the  wife  of  Aoirnstni 
John  Hervey,  late  of  the  parish  of  St.  George, 
Hanover-square,  in  otir  cnunty  of  Middlesex  -  ' 
esq.  I)ef*)re  our  justices  of  Oyer  and  Terminer,       ' 
at  Hiokfi'ii-hall,  in  St.  John-street,  in  audfot 
our  county  of  Middlffsex,  upon  the  oath  of 
twelve  jurors,  ifoud  ami  lawful  men  of  the  said 
county  of  Middlesex,  then  and  there  sworn  and       4 
charged  to  enquire  for  us  for  the  body  of  the      ^ 
said  county,  vtaiuls  indicteil  of  |iolytnimy.*and 

*  **  Piilygaiiiy,  or,  as  it  is  more  fref|ueiiilyf 
though  imprfv|iei1y,  called,  bigamy,  (which  only 
means  having  two  wives  in  succession,)  nw- 
aista  in  having  a  pliihility  of  wives  at  tlie  samn  ^  ^ 

Itimoi  and  wna  originally  conwlered  asof  ecole* 
'I- 


»-■ 


fV 


fV 


S59J  16  GpORGE  III.  Trial  of  the  Duchess  of  Kingston^ 

feloniousljr  marry injBT  Evelyn  Pierrepont  late 
duke  of  Kini^toti,  slie  beings  then  inarriei),  and 
the  wi(b  of  the  said  Auf^uslus  John  Hervey  : 
we,  considering^  that  justice  is  an  excellent 
▼irtue,  and  pleasing  to  the  Most  High,  and 


[360 


beinqf  willing  that  the  said  Elizabeth  of  and  fur 
the  felony  whereof  she  is  indicted  as  aforesaid, 
before  us,  in  our  prefpnt  parliament,  according 
to  the  law  and  custom  of  our  kingdom  of  Great 
Britain,  may  be  heard,  examined,  senteaced. 


aiastical  cognizance  only :  thoup^h  so  early  as 
the  atat.  4  Ed.  1,  c.  5,  de  Bigamis,  it  was 
treated  as  a  capital  offence,  and  ousted  of 
clergv  by  that  statute.  The  benefit  of  clergy 
was  however  restored  by  the  stat.  1  Ed.  6, 
c.  12,  §  16.  And  the  cnme  itself  being  as  it 
•eems  left  of  doubtful  temporal  cognizance,  the 
Stat.  1  Jac.  1,  c.  11,  enacts,  *  that  if  any 
person  or  persons  within  England  and  Wales, 
being  married,  or  who  hereafter  shall  marry, 
do  marry  any  person  or  persons,  the  former 
hnsband  or  wife  being  alive,  every  such  of- 
fence  shall  be  felony ;  and  the  person  and  per- 
Bons  so  offending  shall  suffer  death  as  in  cases 
of  felony.'  Clergy  however  is  not  thereby 
taken  away  ;  but  by  the  stat.  18  Eliz.  c.  7, 
§  9, 3,  the  offender,  besides  being  burned  in  the 
hand,  may  be  imprisoned  not  exceeding  one 
year:  and  by  sUt.  19  Geo.  3,  c.  74,  §  3,  a 
moderate  6ne  or  whipping,  in  the  manner 
therein  specified,  may  lie  substituted  in  lieu  of 
bumiog  ;  but  not  to  abrtdge  the  power  of  the 
court  to  imprison  under  any  former  act.  And 
now  by  the  sUt.  35  Geo.  3,  c.  7,  *  If  any 
Derson  or  persons  within  England  and  Wales 
Deipg  married,  do  at  any  time  from  and  aflter 
the  passing  of  this  act  marry  any  person  or 
persons,  the  former  husband  or  wife  bemg  alive, 
■nd  aliall  be  in  due  manner  convicted  under 
the  said  act  (of  Jac.  1,)  they  shall  be  subject  to 
the  same  punishments,  pains  and  penalties,  as 
by  the  laws  now  in  force,  persons  are  sub- 
JMt  to,  who  are  convicted  of  grand  or  petit 

**  lliis  by  stat.  4  Geo.  1,  c.  11,  (and  stat.  6 
Geo.  1,  G.  223,)  may  be  transportation  for  seven 
years  in  lieu  of  burning  or  whipping.  But 
though  the  stat.  35  Geo.  3  mei-ely  re-enacts 
the  enacting  part  of  the  statute  of  James,  yet 
it  also  virtually  includes  all  the  exceptions 
contained  therein  and  after  mentioned,  for  the 
title  of  the  act  is  *  for  rendering  more  effectual 
the  statute  1  Jac  1,'  and  it  begins  by  reciting 
that  '  whereas  the  punishment  of  persons  con- 
victed of  felony  under  the  sutute  1  Jac.  1,  has 
not  proved  eflectual  to  deter  wicked  persons 
ftom  the  offence  therein  describetl,  be  it 
enacted,  &c.'  and  it  afterwards  attaches  the  in- 
creased punishment  upon  such  as  are  convicteil 
of  the  offence  specified  under  the  said  act. 

"  By.§  S,(of  stat  35  G.  3,c.  67,)  if  any  per- 
son ordered  to  be  transporteil  by  this  act  shall 
be  afterwards  at  large  within  Great  Britain, 
without  some  lawful  cause,  liefore  the  expiiv- 
tMMi  <»f  the  term,  &c.  every  such  person  lieing 
thereof  lawfully  convicted,  shall  be  guilty  of  fe> 
loBjr,  and  suffer  death  without  beneSt  of  clergy . 

^*  By  J  4,  of  1  Jac,  1,  c.  11,  no  attainder  Ibr 
uy  felooy  by  that  act  shall  work  oorrliptton  of 
blottd,  loai  of  dower,  or  disheriioB  ^  hen.*' 

SMl*il1iBsorihcQrMriii^iariAt\| 


^^•-    <•' 


m* 


:X. 


mRj 


i.v 


What  Mr.  East  in  the  above  passage  has 
said  concerning  the  statute  4  Ed.  1,  c.  5,  de 
Bigamis,  is  not  altogetlier  correct.  That  sta- 
tute has  for  its  object  the  case  of  bigamists  in 
the  proper  sense  of  the  word  who  might  be 
convicted  of  felony  ;  and  it  does  not  nt  all  re- 
late to  polygamists.  Possibly  Mr.  East  was 
led  into  the  incorrectness  by  an  error  in  the 
quarto  edition  of  the  Statutes.  This  error  had 
been  pointed  out  by  the  very  learned  and  aoco- 
rate  annotator  upon  lord  Coke'8  first  Institute, 
in  the  following  note  to  lord  Coke's  fourth  kind 
of  disparagement,  sc.  *  propter  jacturam  privi- 

*  legii,'  Aec. 

'^  The  word  '  bigamy'  is  frequently  used  to 
describe  the  crime  of  marrying  a  aecond  wife 
during^the  life  of  the  fimt ;  but  the  proper  name 
for  this  offence  in  our  law  is  '  polygamy,'  and 
with  us  a  bigamist  is  a  man  who  either  marries 
a  widow,  or  afler  the  death  of  his  first  wife 
marries  a  second  time,  in  consequence  of  which 
he  formerly  could  not  claim  the  benefit  of 
clergy.  Ttiis  denial  of  the  benefit  of  clergy  to 
bigamists  was  in  consequence  of  some  antient 
papal  constitutions  and  canons  of  councils 
against  admitting  bigamists  into  holy  orders ; 
a  prohibition,  which,  however  s|>eciuusly  ile- 
fended  by  texts  of  scripture,  wholly  originated 
from  the  injurious  policy  of  the  church  of 
Rome  in  discouraging  the  marriages  of  the 
c1erg3',and  lead  the  way  to  the  complete  estab- 
lishmentofcelibacy  amongst  them.  See  Levit. 
c.  21,  ¥.  13,  14.  1  Tim.  c.  3,  v.  19,  8umma 
Concil.  per  Mirand.  fol.  4,  a.  119,  a.  168, 
b.  S30,  b.  Bingh.  Ant.  Christ.  Cb.  b.  4,  c.  5, 
Tayl.  Elem.  Civ.  L.  295,  and  the  word  '  biga- 

*  mus*  in  the  index  to  the  Corp.  Jur.  Canon,  ed. 
Pitlueor.  However,  the  exclusion  of  bigamists 
from  the  benefit  of  clergy  was  not  entirely  ac- 
complished till  the  council  of  Lyons  ended  the 
doubts  whirh  before  prevailed,  by  {lositively 
declaring  bigamists,  *  omui  privilegio  clericali 
'  nudatos.'  Jt  appears,  that  this  constitution 
was  immediately  received  in  England  ;  for  the 
statute  of  4  E.  1,  de  Bigamis,  takes  notice  of  it, 
and  explains  how  it  should  be  construed,  by 
directaiig  that  it  should  be  understood  to  com- 
prehend bigamists  before,  as  well  as  those  who 
became  so  af\er.  See  4  E.  1,  c.  5.  3  lost. 
S;73.  3  Hal.  Hist.  PI.  Cr.  372.  3  Hawk.  PI.  Cr. 
b.  -2,  c.  33^  §  5,  and  Barringt.  on  Ant.  8tat.  3d 
ed.  73.  When  the  benefit  of  clergy  by  being 
allowed  to  all  who  could  read,  was  extended  to 
laymen  as  well  as  persons  in  orders,  the  reason 
for  opiting  tngamisis  of  clergy  in  great  mea- 
sure ceased ;  but  uotvi  iihatanding  this,  the  ex- 
ceptioD  of  bigamy  continued  till  it  was  takefi- ' 
away  by  the  atatute  of  Edw.  6b  Tile  poiDlkir  ^ 
out  exactly  the  appropriated  sense  of  the  wonr 
* higifliy\iDOur  law  waa4lw JQBore 


« « 


I 


561]  Jut  Bigamy. 

■od  adjudfred  ;  and  that  all  other  thiDi^a  wbinh 
are  oecetnry  in  this  behalf  may  be  iluly  ex- 
tire  to  it.  We  find  a  remarkable  instance  of 
ihta  in  the  qnarto  edition  of  the  statutes,  the 
editor  of  which,  in  a  note  on  the  4  E.  1,  c.  5, 
nsfcre  to  the  1  Jam.  1,  c.  1 1,  as  makinif  bi|;amy 
a  felony.^'    See  notes  to  Uargr.  Co.  Lilt.  80,  b. 

I  will  here  insert  the  enactment  under  consi- 
deration, as  it  is  exliibiied  in  the  authentic 
•dition  of  the  Statutes. 

'*  4  Ed.  1,  c.  5. — Statutum  de  Bitfamis. 

«•  The  Statute  of  Bigamy. 

«*  Ex  MS.  Harl.  395,  f.  80. 

"  De  Bicramis  quos  dn*s  pp"  in  consilio  Lu^- 
duD*  om'i  |)'vileg'  clicali  p'vavii  p'  constitucom' 
inrie  editam  et  un'  qiiidam  p'lati  illosqui  efT'ci 
fiu*int  bigami  ante  p*d'cam  constitucom'qn'  de 
frioo'  rettati  fiu'int  tanq'am  clicos  exi^j^u't  sibi 
iiyandos ;  concordat nni  est  et  declaratum  co- 
ram R'  et  co'silio  suo  q*d  constituco'  ilia  intelli- 
genda  est  q'd  si?e  eff 'ci  fiu'int  Biifanii  ante 
pM'cam  constitucom',  sive  post  dereto'  non 
libentV  pM'cis  pMatts  :  Immo  fiat  de  eis  justicia 
licut  de  laicis. 

**  Concerning;  men  twice  marrie<1,  called  Bi- 
fimi,  whom  the  bishop  of  Rome,  (more  cor- 
reeily,  our  Lonl  the  Pope)  by  a  constitution 
ma<le  at  the  council  of  Lyons,  hath  excluded 
from  alt  clerks  prifilege,  whereupon  certain 
prelates,  when  such  persons  bate  been  attainted 
tor  felons,  have  prated  for  to  have  them  deli- 
vered as  clerks,  which  were  made  Bi^mi  be- 
fore the  same  constitution  ;"  (more  correctly, 
when  SHch  persons,  as  were  twice  marrie<l  be- 
fore the  same  constitution,  have  been  called  in 
^untion  for  felony,  have  prayed  for  to  have 
tliem  delivered  as  clerks,)  **  it  is  agreed  and  de- 
dared  l>ehire  the  kiii^  and  his  council,  that  the 
ume  constitution  shall  be  understood  in  this 
wise,  that  whether  they  were  Bisfanii  before 
Ibe  same  const itutinn,  or  after,  they  shall  not 
from  henceforth  be  delivered  to  the  prelates,  but 
justice  shall  be  ncecuted  upon  them»  as  upon 
other  lay  people.','* 

*  **  A  canon  of  Pope  OreiBfory  the  10th  had 

taken  away  the  benefit  of  clergy  from  a  bii;a- 

mist;   which  having;  l>eeu  adopted  in  England, 

the  cler|;y  iiad  a  doubt,  whether  a  person  in 

hMy  orders,  who  had  l»een  ffuilty  of  this  offence 

■wfore  the  canon  tuok  place,  might  claim  the 

isduli^nce  of  the  common  law  ;   this  statute, 

tbervfiire,  retrospectively  declares,  he  shall  not 

be  eniiiied  lo  such  iMr^vile<re.    Prynne  [Records 

*ol- 9,  p.  -151.]  tSKes  notice  of  two  mixtakes 

■lade  by  sir  Eiiward  Coke.    The  first  relates  to 

Ibe  name  of  ihe  Pupe,  who  made  the  canon  ; 

aad  Uic  seciind  to  the  preamble,  which  is  mis- 

'••t'd.    The  Pope  who  summoned  the  council 

MLyooft  wma  Gref^ory  the  lOih.  and  not  H«mi- 

%«*Jbe8ih,wbowu  not  elected  till  tl>e  28th 

f  Umd^  iHtj.aod  consequently  not  till 

^^^^''SSLZr"  *^  ^^  »t«tutc  was 


A.  D.  ma. 


[ast 


erciseil  and  executed  ;  and  for  that  the  office  of 
High  Steward  of  Great  Britain  (whose  presence 

In  the  Appendix  to  sir  Sanuiel  Romilly'e 
most  able,  valuable,  and  instructive  Tract,  enti« 
tied.  Observations  on  the  Criminal  Law  of 
England,  (Note  M,)  are  the  following  very  judi^ 
cious  observations  on  this  offence  : 

**The  crime  of  bigamy  comprehends  twe 
species  of  offences,  ditfering  greatly  from  each 
other  in  their  character  and  effects,  and  Xn  their 
degree  of  moral  guilt;  and  the  circumstances 
which  mark  the  distinctions  lietween  these  dif« 
ferent  offences  are  clear  and  unequivocal.  If 
the  atrocity  of  a  crime  is  to  be  measured  bj 
the  extent  of  the  wrong  done  to  rhe  person 
who  is  the  victim  of  it,  few  crimes  can  be  moi«  • 
atrocious  than  that  of  a  married  man,  wlio,  by 
representing  himself  to  be  a  bachelor,  prevaiff 
on  a  modest  woman  to  become  his  wifi?.  He 
possesses  himseT  by  fraud  of  her  person,  know-  * 
ing  that  he  may  at  any  moment  dismiaa  btr 
as  a  prostitute  from  his  bed ;  and  nothing  can 
exceed  the  horror  she  must  feel,  whenever,  tlie 
secret  of  his  first  marriage  being  divulged, 
she  shall  be  awakened  to  her  real  situation,  and 
shall  find  herself  despoiled  of  her  honour,  and 
that  the  children  she  has  borne  are  bastards 
and  outcasts.  The  real  nature  of  this  crime  is 
that  of  a  frauduleut  and  most  agii;ravated  se- 
duction, effected  under  colour  of  law,  with  all 
the  solemnities  of  religion,  and  under  auch  dr-' 
cumstances  that  no  prudence  or  caution  could 
effectually  guard  against  it.  But  be,  whO| 
before  his  second  marriage,  apprizes  the  womsM 
that  he  is  already  a  husband,  does  htr  no 
wrong.  His  offence  is  one  to  the  state  slone, 
and  consists  in  nothing  but  the  puldic  scandal . 
it  affords.  The  bigamist,  who  hail  concealed 
bis  first  marriage  from  bis  victim,  is  equally 
guilty  of  this  outrage  on  public  decency,  and 
has  besides  done  one  of  the  greatest  poMdble 
injuries  to  an  individual.  It  resulta  from  these 
considerations  that  in  a  woman  the  criute  of 
bigamy  can  never  be  so  heinous  as  in  a  man, 
and  thai  in  a  man  the  heinousness  of  the  crime 
consists  altogether  in  the  concealment  of  tbe 
former  marriage.  Mr.  Justice  Btavkstone 
however,  not  adverting  to  those  dislinclions, 
tells  us  that  bigamy  '  has  been  made  felony 
by  reason  of  its  being  so  great  a  violation  of  the 
public  economy  and  decency  of  a  well-ordered 
state.*  *  It  is  that,'  he  suys,  *  which  never*^ 
can  l>e  endured  under  any  ratiiinal  civil  estab* 
liahnient ;  and,  in  northern  countries,*  he  ob- 
serves, *  the  very  nature  of  the  climate  seems 
to  recoil  against  it.'  Comm.  vol.4,  p.  163. 
But  he  does  not  even  glance  at  the  injury  done 
to  the  woman,  who  suffers  from  the  crime: 
and  even  the  more  phili»sophicBl  author  of  tbe 
*  Principles  of  Penal  Law,'  deiines  |Kilygaroy 
only  to  be  a  *  Kross  species  of  adu:tery,  ag- 
gravated by  the  profanation  of  a  reUgions  rite/ 
p.  105. 

*^  Althongh,  aa  has  been  slreadv  observed, 
this  is  in  women  a  crime  of  much  less  magni- 
tude than  in  men,  yet  tiotil  tbe  stat.  of  S 


■A 


-A. 


i>tt 


tes] 


16  GEORGE  Iir. 


Trial  t>fthe  Duchess  of  KtngUoir, 


[%1 


in  Ibb  bcbalf  ts  required)  U  now  raeint  (•■  ve  - 
KTwinlbriDed)  we,  very  much  can6dii3^  in  your 
flddiiy,  prurience,  iirovident  circumipeciion, 
Uil  induilry,  have  tiir  this  cauie  DTriiJned  «nU 
conttimieil  you  SiewBnl  of  Great  Briliin,  to 
be*r,  exreute  inrl  exerciw  fnr  ihls  time  the  Riid 
office,  with  all  lliingi  liae  ami  Lelongintf  to  tbe 
seme  <iflice  in  tliii  behalf:  anil  therefore  we 
commBud  y«n,  ihat  youclitigentty  set  alioulihe 
nrenilwa,  ao'l  for  lliii  lime  do  exercise  and 
eSFCUit  wikti  efTect  all  ihnae  thinK*  which  be- 
|ani(  in  1l>e  ufiice  o1'  Steward  of  tirent  Itritain, 
and  ubicb  are  required  iD  tbii  bebalf.  In  wii- 
nen  whereof  we  have  caused  ibeie  our  letteri 
to  be  made  paienl.  Wiioew  ourtelf  at  \Vf«- 
niotier,  ibe  IStb  day  of  April,  in  tbe  Ifltb  year 
0t'  our  Ttign. 

"  By  \£e  ILiNO  himtelf,  ligoed  wilh  hi*  own 
feud.  YoRKB." 

Sfrjnnt  at  Am$,  God  «»e  tbe  bins'! 

Thrn  Garter,  and  the  |;ent1nnBn-twbpr  of 
tbr  Black  Riid,  after  three  re* en- noe«,  kneelinif, 
JMnily  urnvnled  ibe  while  ilalTto  hii  ^race  tbe 
liocil  Hi|[b  Steward ;  and  ilien  his  gnce,  at- 
tended by  Garter,  Black  n<>d,  and  ilie  Purse- 
bearer  (mnkia^  hi*  priiprr  reterencea  towards 
tfaa  throne)  reiiiaveil  frmn  Ibe  wual|'iicb  lo  an 
■rmed  diair,  vrbtch  was  pbierd  on  the  upfwi^ 
mcnt  alep  but  ntie  iif  the  throne,  aa  il  was  pre- 
pared fnr  ihal  |ijr[H»e;  and  then  seated  bim- 
nll'  in  Ihe  chair,  and  delivereil  the  staff  to  the 

Kstleman  iiilier  of  ihe  Black  Rod  on  his  riuht 
iid,  the  Purae-besrer  bokting^the  puracon  bis 
left. 

Ckrk  of  Ike  Cronu.  Serjeant  at  Arms,  make 
pmdamaijon. 

Stij.  at  Arm*.  Ojfi,  ojn,  ayes!  Our  *o- 
vereieii  lord  the  kin^  siricily  char^rg  and  com- 
nsanu  at)  manner  ut  jienwiis  to  keep  silence, 
apon  pain  of  ifflprisolinient. 

Then  the  Clerk  iif  the  Crown,by  direction  of 
-  Ihe  Lord  High  Str  ward,  read  the  Certiorari,  and 
tile  Return  lliereuf,  together  wilh  the  Caption 
of  tbe  tndietment,  and  tlie  Indictment  ceniGrd 
Iheictipen,  B^fiiinal  Eliisbctb  ducb  est 'dowager 
af  KingitoB  ;  ia  h»ev«rha: 

"  Geor^  tbe  third,  by  Ihe  ip^ce  of  God,  of 
Great  Hrilsin,  Fr«Dee,  and  Ireland  kini;,  de- 
fender nf  the  falih,  and  tu  forib.  To  our  jai- 
GcFS  of  Oyer  and  Terminer,  at  Hicks's-hall,  in 
'  Bt.  Juba-ntmt,  in  and  fiir  our  county  of  Mid- 
dleaes,  and  lo  every  of  tbem,  meeting.  We 
baiu^  wilting,  for  certain  reasons  us  thrreiinlo 
Basing,  tbst  all  and  singnlar  indiclraenta  of 
«baiaoe*er  iclnoiea  whereof  Eliaabclb  calling 
beiwlf  ducbea^'do wager  of  Kingston,  by  ilie 
same  of  ElisKbelh  ibr  wih  of  AugiMtus  John 
|I»r*ey  buoflhe  parish  of  81.  George,  Han- 
ever-squire,  in  the  county  ot  Hiddleaex,  esq., 


rity  to  women)  pasaed,  it  Waa  puphhaMe 
Mb  pftaJafi  wub  diiih,  tai  a  m^^ 
fe  bnr^  !■  Ifci  hiidi,  ^  ■ - 


is  indicttd  before  yon  (aa  Is  said)  ba  datenninad 
tiet'oreusin  ourpariiamont,and  aot  ebcwbere; 
[la  curnntand  you  and  every  of  yon,  that  yon, 
or  oni:  of  you,  do  send  under  your  seal*,  or 
iinikr  Ihe  seal  of  one  of  you,  before  ua  in  out 
jiriHt^ni  parliament,  iromediately  after  Ihe  re- 
(;ei|)t  of  this  our  writ,  all  and  siogalar  tbein- 
dJcciTii-nt*  aforeiaid,  wiih  all  Ihinga  touching 
lilt;  s^.me,  by  wbatiioeTer  name  lEe  said  Eli- 
zalivili  \t  called  in  Ibe  same,  tO|{elher  wilh  Ibis 
vtTil,  tliil  we  may  cause  I'urlher  to  be  done 
litcrGQn  what  of  right  and  according  lo  Ibe  law 
and  custom  of  England  we  shall  aee  Gt  to  lie 
dun  a.  Witness  oiinelf  at  Westmiiisler  the 
lltlidayof  Noveuber,  iu  tbe  16tb  yearof  uur 
reign,  YoBKX." 

'■  To  Ibe  Jualicea  of  Oyer  and  Tenninar, 
at  Hicks's-ball,  in  tit.  Jolin-ktreel,  in  and  fitr 
the  county  of  Uiddlesex,  and  lo  every  of  tbeis, 
a  Hrrii  df  Cerliorari  lu  certify  into  tbe  upper 
liouEe  of  parliament  tlie  iudictmcut  found 
Bicainst  Ebzabeih  callinK  herself  duclwaa- 
dciwa)rer  nf  Kingston,  by  Ibe  nsnie  of  Eliiabelh 
ivilo  iif  Augustus  John  Hervey,  for  bigamy, 
rtiiirniktjle  iminedialcty  iMl'ure  lbs  king  in  par- 
lianieol, — By  order  o I  tbe  Lords  apirilual  aad 
lentpiiral  iu  parliament  assembled.        Youts." 

The 

"  The  Answek  of  sir  John  Hawkins,  knL  ona 
of  tbe  justices  within- written. 
•  ■  Miiitim*.  Be  it  remembered,  that  at  tba 
general  srssion  of  Oyer  and  Terminer  of  our 
lord  Ibe  king,  holilen  lor  Ihe  eonnly  of  Mid- 
dlesex, at  Bicks'a-bal!,  in  St.  John -street,  in  th* 
said  county,  on  Monday  the  9lh  day  of  Jann- 
ary,  in  llie  IStb  year  of  tbe  reign  of  our  sort- 
;n  lord  George  tbe  3d,  kinir  ofGreat  BrilaJB, 


r  Jobit  Hawkins 


knL, 


Cnx,  Oarid  Wilmol,  Jobu  Breltell,  eaqs. 
anil  others  their  fellows  justices  of  our  said  lord 
Ihe  kins,  assigned  hy  his  msjesty's  leileia  pa- 
leni  under  tbe  great  seal  of  Greal-britaln  di- 
rected la  same  justices  before  named,  and 
nlbets  in  tlie  said  letters  named,  to  cnquira 
nvMe  fully  the  truth  hy  Ihe  nslli  iif  good  and 
iBu  fill  men  of  Ilie  sakT  county  of  Mlildlesex, 
siiil  byoiher  ways,  means,  and  methods  br 
Miiluh  \\n-j  shall  or  may  belter  knnw  (aa  weU 
nllliin  liberlies  as  nilhoul)  by  whom  the  tmtta 
ulthe  niallerniay  be  belter  knnno,  of  all  trea- 
sons, iniiprisioiiH  of  treaaon,  imnrreeiiona,  r». 
bellions  counterfeit  in  gs,  clippings,  WBBbinga,'^ 
talse  coinings,  and  nlber  ralsikie*  of  tbe  money  ■ 
of  Great  Britain  and  other  kiogdoma  and  d^ 
miaioiis  wbalsoever,  and  of  all  murders,  feto^ 
nies,  manaUugfaters,  killings,  buiglariee,  npM^ 
of  women,  unlawful  meetings,  cnneaniieMi'' 
tinUwrul  nttering  of  wnnia,  asaembliea,  tf^* — ■ 
prisions,  eenlfalwacies,  hlar  allcgMione,,  ft 

paases,  r*—-   4mIb.  MfifiiM     aai^^WI  •■ 


for  Bigami/. 

Iiin  tlie  cooDty  aforesaid  (as  well  witli- 

s  as  without)  by  whomsoever  aud  in 

iner  soever  done,  commiUed,  or  per- 

and  by  whom,  or  to  whom,  when, 

after  what  manner,  and  of  all  other 

id  circumstances  concerning  the  pre- 

id  every  of  them,  or  any  of  them, 

manner    whatsoever;    and   the  said 

■nd  other  the  premises  to  hear  and 

i  according  to  the  laws  and  customs 

id,  hy  the  oath  uf  John  Tilney,  James 

Kicbard    Phillips,    Samuel    Stable, 

iird,   William  Hilliar,  Paul  Barbot, 

Weatherill,  Thomas  Waddell,  John 

Samuel  Baker,  Thomas  SherifT,  John 

,   Thomas  Tanton,    John    Goodere, 

smas,  and  Robert  Davis,  gentlemen, 

,  lawful  men  of  the  county  aforesaid, 

sworn  and  charged  to  enquire  for  our 

the  king  for  \n^  body  of  the  same 

it  is  presented  in  manner  and  form  ai 

y  the  iDdictment  and  schedules  here- 

!xed.  Butler." 

ge  the  third,  by  the  grace  of  God,  of 
tain,  France,  and  Ireland  king,  de- 
the  faith,  and  so  forth.  To  our  jus- 
[)yer  and  T(*rminer,  at  Hicks's-hall, 
no-street,  in  and  for  our  county  of 
c,  and  to  every  of  them,  greeting, 
by  our  writ  we  have  lately  com- 
011,  and  every  of  you,  for  certain  rea- 
or  one  of  you  should  send  under  your 
the  seal  of  one  of  you,  before  us  at 
Iter,  immediately  after  the  receipt  of 
all  and  singular  indictments  of  what- 
'eapasses,  contempts,  and  felonies 
Elizabeth  the  wife  of  Augustus  John 
esq.  was  indicted  before  you  (as  was 
II  all  things  touching  the  same,  by 
;r  name  the  said  Elizabeth  should  be 
'rein,  together  uith  the  said  writ  to 
tcil,  that  we  might  further  cause  to 
lereon  what  of  right  and  according  to 
id  custom  of  England  we  should  see 
one  :  and  we  do,  for  certain  reasons 
nto  moving,  command  you  aud  every 
lat  you  or  one  of  you  do  wholly  su- 
hatsoever  is  to  be  done  concerning 
lion  of  that  our  said  writ ;  and  that 
>ed  to  the  determination  of  the  tres- 
mtempts,  and  felonies  aforesaid  with 
^itioQ  which  to  you  shall  seem  right 
'ding  to  the  law  and  custom  of  Eng- 
withstanding  our  writ  as  before  sent 
eded  for  that  purpose.  Witness  Wil- 
I  Manstitld,  at  Westminster,  the 
linl  day  of  May,  in  the  fifteenth  year 

ared  13lh  June  1775.  C.  E.    By  the 
By  rule  of  Court.  Burruw." 

Mliirdy  by  the  grace  of  God,  of 

^'•■^JBVMd  Ireland  kings  «!*- 

^  tmrjpiticefl  of  Over 

hFiJI,  in  St.  JoliD- 

iTMiddkMZtMd 


A.  D.  1776. 


[866 


ji-  ' 


to  every  of  them,  greeting.    We  being  willing, 
for  certain  reasons,  that  all  and  singular  iodict- 
ments  of   whatsoever   trespasses,  coutempt*, 
aud  felonies  whereof  Elizabeth  the  wife  of 
Augustus  John  Uervey,  eaq.  is  indicted  before 
you  (as  is  said)  be  determined  before  us,  and 
not  elsewhere,  do  command  you  and  every  of 
you,  that  you  or  one  of  you  do  send  under 
your  seals,  or  the  seal  of  one  of  you,  before  us 
at  Westminster,  immediately  after  the  receipt 
of  this  our  writ,  all  and  singular  the  said  in* 
dictments,  with  all  things  touching  the  same,       * 
by  whatsoever  name  the  said  Elizabeth  may.. 
be  called  io  the  same,  together  with  this  onr 
wiit,  that  we  may  further  cause  to  be  don* 
thereon  what  of  rigfht  and  according  to  the  lair 
aud  custom  of  England  we  shall  see  fit  to  b»  ^ 
done.     Witness  William  lord  Mansfield,   pt 
Westminster,  the  eighteenth  day  of  lUay,  in  ibm        • 
fifWnth  year  of  our  reign.  '  '^ 

"  By  the  Court.  Burrow.'*  ^  "^ 

"  At  the  instance  of  the  with  in- named  dc»    .^  * 
fendaut,  by  rule  of  Com  t." 

The  execution  of  this  writ  appears  by  the 
schedules  and  indictment  to  this  writ  inoezed.  . 

"  The  Answer  of  sir  John  Hawkins,  koigfat, 

one  of  the  justices  within- written.  * 

"  Middiesex.    Be  it  remembered,  that  at  tbtt      ^ 
general  session  of  Oyer  and  Terminer  of  our.  .-«. 
lord  the  king,  hoUlen  for  the  county  of  Middl»-        '  J 
6ex,atHicks's-hall  in  St.  John-street,  iotheanii       * 
county,  on  Monday  the  9tb  day  of  January,  i&     '     ^ 
the  fifteenth  year  of  t^  reign  of  our  sovereign        , 
lord  George  the  third,' king  of  Great  Brilain, 
and  80  forth,  before  sir  Jolin  Hawkins,  kD>ght» 
sir  James  Esdaite,  knight,  David  Wilmbii  Joh^ 
Macliin,  esqrs.  and  others  their  fellows  jtisticcn 
of  our  s:ii«l  lord  the  king,  assigned  hy  his  me* 
jesty's  \eMen  patent  under  the  gre^t  seal  of  . 
Great  Britain  directed  to  tlie  same  justices  be-       ^ 
fore- named,   aud    others    in    the  said   letleis 
named,  to  emiuire  more  fully  the  truth,  by  the 
oath  of  good  and  lawful  men  of  the  county  of 
Middlesex  aforesaid,  and  by  other  ways,  mesne, 
aud  methods,   by  which  they  shall  or  may 
better  know  (as  well  within  liberties  as  without) 
by  whom  the  truth  of  the  matter  may  be  better 
known,  of  all  treasons,  misprisions  of  treason^ 
insurrections,  rebellions,  coiinterfei tings,  clip^ 
pin^s,  washings,  false  coming**,  and  oilier  falnl* 
ties  of  the  money  of  (ireat  Britain  aud  other 
kingdoms  and  dominions  whutjtKiver,  and  of  all 
murders,     felonies,    manslaughters,    killings^ 
burglaries,  rapes  of  women,  unUwful  meetings, 
conventicles,  unlawful  uttering  of  words,  an* 
semblies,  misprisions,  confvderaciea,  falae  alle- 
gations, trespasses,  riotM,  rouia.  retentions,  ca- 
capes,  contempts,  faUiiiefl,  ue^liy:eiicea,  c!oa- 
cealments,  iiiaintenaiires,  OjipreHKiona,   chana* 
parties,  deceipls,  and  all  other  evd  doings,  of- 
fences, and  injuries  whatsoevi^,  andaJaotb^ 
accessaries  of  them,  within  the  county  a  lure'- 
said  (aa  well  within  lilKTtiea  as  without)  bjc 
whunuiMver  and  in  what  manner  Mever  aoau 


'  A 


« 


367]  16  GEORGE  lU. 

Gommilttd,  or  perpetrtted,  anil  by  whom,  or  to 
wbam,  when,  how,  inii  slter  what  mamier, 
uil  of  all  otlier  article*  ami  circiim»iamM-s  uoD- 
•erniiKT  the  iiremiteit,  auil  eicry  of  tliem,  or 
aay  ot  tbem,  ii>  any  maimer  wliauoever;  and 
the  gaid  Irt«aoini  aiiil  nilier  the  pfeini!*»  to 
bear  and  deleniiiiie  »ccurilio|;  In  the  law  t  and 
cuatoma  of  Eoi-lao'l.  ^i  'he  oalh  of  John  T.l- 
ney,  Jainea  Staflurd,  Richard  Philhi.K,  S*miie 
-  Stable,  8amiiEl  Bird,  William  Hillla^  P^nl 
Barbot,  William  Weatherilli  Thoinw  W«ddr^, 
John  Williaina, Samuel  Baker, Tlionia«Slienir, 
John Ldcwler.TliiimaaTanHin,  John  Gooilere, 
John  Thoina»,  and  Ui.bert  Davia,  jfcmlemen, 
good  and  lawful  tatn  of  ibe  county  aforesaid, 
DOW  here  awom  and  charijed  to  enquire  lor  our 
^  Mid  lord  the  king  for  the  body  ot  the  same 
county  :  it  is  preaented  in  manner  and  t.inn  as 
.  appears  ly  a  cerl'^-  ■■ 
Rheduleipoexed. 


Trial  of  the  Duchess  of  Kingston,  [368 

aotwer  ui  coocerninjf  certain  felonies  whereof 
»i,o  ii  indicted  before  our  said  juMices  j  and 
hme  you  then  there  llii«  wri'-  Witness  sir 
Jfittn  Hawkins,  kniijbt,  at  Hicks'a-hall,  the 
am  day  of  January,  in  the  fifteenth  year  of 
,iur  reiifn."  Bin-uJi." 

"  The  within  named  Elizabelli  the  wife  of 
AiiffUBiua  John  llertey  is  not  found  in  Qty 
bailiwicL.— The  Answer  uf 

"  WiLUkM  1'lumer,  esq.  J 

■nil  >  Sheriff." 

"  JuiiN  Hakt,  esq.  J 


-  Great  Bntalo,  France,  and  Wlanil  kin^,  de- 
fender of  the  faith,  ami  lo  furlh.  To  the  she- 
riff of  oar  coonly  of  Middlesex,  greeling :  we 
command  jou,  that  you  omit  not,  by  reason  ol 
•ay  liberty  in  your  bailiwick,  but  that  you  lake 
Efeabeth  the  Wife  of  Autpisiu*  John  Herfey. 
late  of  the  pariah  of  St.  George,  Ilannver 
•quare,  in  ihe  county  of  Bliddlesev,  enquire,  it 
■he  shall  be  found  in  yoor  bailiwick,  and  hec 
Mfely  keep,  so  that  you  may  have  her  body 
before  our  justices  uxvigned  by  our  lettera  pa- 
tent under  our  tfrcst  seal  uf  Great  Uritaiu,  lo 
.  enquire  more  fully  the  truth,  by  tlie  oath  of 
mod  and  lawful  men  ofour  county  ul  Middle. 
KS  aforesaid,  and  bv  oilier  ws.ys,  meaus,  and 
Bethuda  by  which  'ihey  diall  or  may  belter 
know  (as  well  wilhin  liberties  as  without)  by 
whom  the  troth  of  Ihe  mailer  may  be  heller 
known,  of  all  treatons,  mlsprisiunt  of  tieason, 
iniurrections,  rebelliviis,  coiinterfeitings,  clip- 
fHogs,  washings,  false  coininifS,  and  other 
falsilie*  of  the  money  of  Great- Brilaii 
other  kinirduma  sod  dominioua  whalsoei  e 
of  all  murders,  teloniei,  in anslau fillers, 
bgs,  huiwtafiea,  rapes  of  women,  unlawful 
■neelin^,  confenticlea,  unlawful  ulteriiig  ul 
words,  assemhlief,  misprisions,  confedcraciea, 
false  allegations,  trespasses,  riots,  rouls,  rt- 
IfiitionB,  eMsapes,  contciiipis,  falsities,  negli- 
gences, conceal  men  is,  msinleiisncei,  opprw- 
ikms,  champarties,  deceipis.  and  all  oilier  evd- 
ilaini{a,  nffeiices,  mid  iiijuvii-s  whinaoever,  aiid 


county  aforesaid  (as  well  witliln  lilierlies  as 
without)  by  whomsoever  and  in  what  in«n- 
BCr  aacrer  done,  committed,  or  perpetriletl, 
and  by  whom,  or  to  whom,  when,  how,  and 
after  what  manner,  ami  uf  all  "tlier  artivlL's 
and  circumsUiice*  coucernint{  the  premnes, 
and  e»ery  of  them  or  sny  of  thfiii,  m  any 
Bianaer  whatsoe«er ;  and  the  said  treawmi 
and  other  the  prcmisca  In  hear  and  deirniuiie, 
MoenliBf  to  the  laws  and  cusioins  uf  Knglaml, 
Mtheoett  ireneral  aesaion  of  Oyer  and  Ter- 


"  Geonie  the  third,  by  the  grace  of  God, 
of  Grcal-Uritaio.  France,  and  Ireland  kins.', 
defender  of  the  faith,  aod  so  forth.  To  ilia 
sheriifofourcounty  of MiddleBOX, greeting:  we 
cummaudyou,  as  before  we  Lave  commanded 
\oa,  that  you  umit  not,  by  rtaioo  of  any  li- 
berty in  your  bailiwick,  but  that  you  Uka 
Elizabeth  the  wife  of  Augustus  Johu  Hertej, 
late  of  the  parish  ofSt-GeorgeHaooner-iquat*, 
■  the  county  of  Hiddlasex,  esquire,  if  she  sliall 
„a  found  in  your  bailiwick,  and  bet  Mfelj 
keep,  so  that  ynii  have  her  body  before  our 
iuatices  assigned  by  our  letters  patent  under 
oor  great  seal  of  Great-Briuin,  lo  eoquiic 
more  fully  the  tmlh,  by  Ihe  oath  of  good  and 
lawful  men  of  our  oouuiy  of  Middlesex  afot^ 
said,  and  by  other  ways,  means,  and  melliMH 
hy  wliich  they  shall  or  may  belter  know  (as 
ivelt  wilhin  lS)erti*s  aa  without)  by  whom  tfas 
iruth  of  the  mailer  may  he  belter  known,  of  all 
lieasoni,  misprisions  of  Ircason  insurmtiona, 
rebellious,  Gounterfeilings,  clippiogo,  washtoga, 
false  coinings,  and  other  falsities  uf  the  pionej 
of  Great- Briuiu,  and  other  kingdoms  and  do- . 
minions  wliatsoerer,  and  of  all  murders,  felo- 
nies, manslauglilers,  killings,  burglaries,  npea 
of  women,  unlawful  meetings,  con.culicles, 
unlawful  uttering  uf  words,  assemblies,  misprt- 
siona,  confederacies,  falseallegftiloiis,tie«paa!iea» 
riots,  rouls,  rclentioos,  escapes,  contenjpta, 
lilsilies,  negligences,  concealments,  iitaiutt- 
iiaiices,  (ipprestions,  cliani[iariieE,  deceit*,  and 
oil  other    cvil-duings,   offences,    and   injuries 

whatsoever,  and  also  llie  acoea----  -''  ■' 

within  Ihe  county  aforesaid  (as 

benies  us  wiibiiui)  by  whuni 

wbut  manner  soever  done,  coi 

iielraled,  and  by  whom,  or  lo 

how,    and    alter    what   manner,  and    of   aH 

iitlier  arlicles   and  circumstances  concernlDr 

ilie  incmises  and  every  of  Ihem,   or  any  af 

them,   in  any   manner  wbalsoerer;    and  tbft 

said  treasons  and  other  the  premises  to  bear 

and  detenuine  accnnliuir  in  the  Ir  ''  ~ 


of  them, 
well  wilhin  li- 

niiiicd  or  per- 
whum,  when. 


M  the  Dett  general  aesaion  of  Oyer  and  Ter-  -Jl^uib^ 

aiDcr  to  bo  hulJeo  fur  our  aaid  county  to   ;  y.Tff/^m»» 


and  teniiiner  to  be  Iioldeo 
ity,  to  answer  us  concerning  c 


Mmiiiy,  to  answer  us  ciiucermug  i.t>™i-  y"...'. 
lies  wheteofalie  is  indicted  before  our  wutj^^ 
ires;    and   have  you   then   there  tbV  -* 


'iiuuaNrJobn  daw  kins,  kBioh*'-' 
.11,  Ihe  I4th  daj  of  Vttr^^ 


360]  Jbr  Bigamy. 

Au^^Mtiii  John  Henrey,  esquire,  is  not  foaod  in 
ay  fattiliwick.— The  Answer  of 

*•  Wm.  Plomer,  esq. ') 

and  >  Sherifr." 

"  John  Hart,  esq.  ) 

**  MiddUux.  The  jurors  for  our  sovereigfu 
lord  the  now  king,  upon  their  oath  preseut, 
that  £iizabeth  the  wife  of  Audrn^tus  John 
Herrey,  late  of  the  parish  of  SL  George,  Han- 
ofer^oare,  in  the  county  of  Middlesex,  esquire, 
en  the  8th  day  of  March,  in  the  9th  year  of  tlie 
nign  of  oar  sovereign  lord  George  the  third, 
DOW  king  of  Great- Britain,  and  so  forth,  being 
then  married,  and  then  the  wife  of  the  said 
Augustus  John  Hervey,  with  force  and  arms, 
at  the  said  pnrish  of  8t.  George,  Hauoyer- 
iooare,  in  the  said  county  of  Middlesex,  felo- 
uoosly  did  nnarry  and  lake  to  husband  Evelyn 
nerrepoot  duke  of  Kingston  (the  said  Au- 
gnslus  John  Hervey,  her  former  husband, 
Eeing  then  alive)  against  the  form  of  the  sta- 
tate  in  such  case  made  and  provided,  and 
against  the  peace  of  our  said  lord  the  king,  his 
crown  and  dignity :  and  the  said  jurors  for  our 
said  sovereign  lord  the  now  king,  upon  their 
oath  aforesaid,  further  present,  that  the  said 
EUiabeth,  heretofore  (to  wit)  on  the  4tli  day  of 
Angost,  in  the  18th  vear  of  the  reign  of  our 
late  sovereign  lord  George  the  second,  late 
kin|^  of  Great- Britain,  and  so  forth,  at  the 
parish  of  Lainston,  in  the  county  of  Southanip- 
— ,   by  the  name  of  Klizabeth  Chudh-igh,  did 


Barry  the  said  Augustus  John  Hervey,  and 

^      him  the  said  Auirustus  John  Hervry  then  and 

tbere  had    for  her  husband  ;    ana   that  the 

BMd  EHsEabeth  being  married,  and  the  wife  of 

the  said  Augustus  John  Hervey,  afterwards  (to 

wit)  on  the  8th  day  of  March,  in  the  9th  year 

•f  the  reign  of  our  said  sovereign  lord  Geoigfe 

,    the  third,  uow  king  of  Great  Britain,  and  ku 

ibrth,  with  force  and  arms,  at  the  said  fiarish  of 

Si.  George,  Hanover-square,  in  the  saitl  county 

•f  Niddle8«*x,  feloniously  did  marry  and  take 

li  husband  the  said  Evelyn  i^ierrepont  duke  of 

Kingston  (the  said  Augustus  John  Hervey, 

ber  former  husband,  being  then  alive)  against 

the  form  of  the  statute  in  such  case  made  and 

fffovided,  and  against  the  peace  of  oiir  said 

saiereign  lord  the  uow  king,  his  crown  and 

dignity.  O.  T." 

"  Troe  Bill.  Augustine  Greenland,  Ann 
Cffubrck,  Christopher  Dixon,  Thomas  Dodd, 
litniuel  Harper,  John  Fozard.— 8woru  in 
Cwrt." 

L  H.  S,  la  it  your  lordships'  pleasure,  that 
.,1  ^Hidges  have  l«ave  to  be  covered  ? 
'  j'.l     Lwrfi.  Ay,  ay. 
"^  ^1    CLif  ihe  Cr.  Serjeant  at  Arms,  make  pro- 
''.  ^l  ^'**^l<>rthe  gentleman- u«tlier  of  the  Black 
^'.\^«"*^te  bring  his  prisoner  to  the  liar. 
"^^i^""  W  •*  ^rmt,  Oyex,  oyez,  oyez !  Eliza- 
>^!.>        ^  iodMsa-dowager   of  Kingston,    cume 

«n  Yoo  aiid  yonr  bail,  oi-  else  you 


mg  the 


.V 


A.  D.  n76.  [370 

Trial,  called  to  the  bar  by  the  following  pro- 
clamation. 

Gentleman-usher  of  the  Black  Rod,  bring 
your  prisoner  Elizabeth  duchess- dowager  of 
Kingston  to  the  bar,  pursuant  to  the  order  of 
the  House  of  Lords.] 

Then  Elizabeth  duchess-dowager  of  King- 
ston was  brought  to  the  bar  by  the  deputy- 
gentleman-usher  of  the  Black  Rod.  The  pri- 
soner, when  she  approached  the  bar,  mado 
three  reverences,  and  then  fell  upon  her  knees 
at  the  bar. 

L.  H.  S,  Madam,  you  may  rise. 

The  prisoner  then  rose  up,  and  cnrtsied  to 
his  grace  the  Lord  High  Steward,  and  to  the 
House  of  Peers :  in  return  to  which  compli- 
ment his  grace,  and  the  lords,  bowed. 

Then,  proclamation  having  been  made  again 
for  silence,  the  Lord  High  Steward  spake  to 
the  prisoner  as  follows. 

L.H.S,  Bladam ;  you  stand  indicted  for 
having  married  a  second  husband,  your  first 
husband  being  living. 

A  crime  so  destructive  of  the  peace  and  hap- 
piness of  private  families,  and  so  injurious  la 
its  consequences  to  the  welfare  and  good  order 
of  society,  that  by  the  atatute-law  of  thia 
kingdom  it  was  for  many  years  (in  your  sex) 
punishable  with  death :  the  lenity,  however,  of 
\  later  times  has  substituted  a  milder  punishment 
in  its  siead. 

This  consideration  must  necessarily  tend  to 
lessen  the  perturbation  of  your  spirits  upon 
this  awful  occa<«ion. 

But  that.  Madam,  which,  next  to  the  inward 
feelings '  of  your  own  conscience,  will  afford 
you  most  comfort  is,  reflecting  u|ion  the  ho- 
nour, the  wisdom,  und  the  candour  of  this 
high  court  of  criminal  jurisdiction. 

It  is.  Madam,  by  your  particular  desire  that 
you  now  stand  at  that  oar :  you  were  not 
brought  there  \iy  any  prosecutor. 

In  your  petition  to  the  Lord^,  praying  for  a 
speedy  trial,  you  assumed  the  title  ol  duchess- 
dowager  of  Kingston,  and  it  was  by  that  title 
that  tiie  court  of  King's- bench  admitted  yon 
to  bail ;  in  your  petition  you  likewise  averred, 
that  Augustus  John  Hervey,  whose  wife  the 
indictment  charges  you  with  being,  is  at  thif 
time  earl  of  Bristol :  upon  examining  the  re- 
.  cords,  the  Lordi:  were  satisfied  of  the  truth  of 
I  that  averment,  and  have  accordingly  allowed 
you  the  privilege  you  petitioned  fur,  of  being 
tried  by  your  peers  in  full  parliament;  and 
from  thein  you  will  be  Kure  to  meet  with  no- 
thing hut  justice  tempered  with  huiuanity. 

Before  1  conclude,  I  am  rommandtMl  by 
the  House  to  acquaint  you.  Madam,  and  all 
other  persons  having  occaKion  to  ^peak  to  the 
Court  during  the  trial,  that  tluy  are  to  mldrtss 
themselves  to  the  lords  in  gential,  and  nut  to 
any  lord  in  particular. 

Duchea  of  Kingston.  My  lords,  I,  the  un- 
fortunate widow  of  your  late  brother,  ihe  most 
noble  Evelyn  Pierrepout  duke  of  Kingston^ 


a  n 


371] 


16  GEORGE  III. 


Trial  of  the  Duchess  of  Kingston, 


[37S 


am  brotijfht  to  the  bar  of  lliis  riirlii  honourable 
House  uiihoiit  a  shadow  of  fear,  but  infinitely 
awed  by  the  rp((|)ect  that  is  'due  to  yeu,  my 
most  honourable  jiid;rps.  ^ 

My  lords,  aflcr  havinpf,  at  the  liaxard  of  my 
life,  returned  from  Rome  in  a  danpfc^rous  sick- 
ness to  submit  myself  to  the  laws  of  ray  coun- 
try, 1  |dead  some  little  merit  in  my  willing; 
obedience ;  aud  I  intreat  >our  lordshijis^  indul- 
gence, if  1  should  be  deficient  in  any  ceremo- 
nial part  of  my  conduct  towards  you,  my  most 
honoured  and  resuectable  judjres  ;  for  the  iu- 
iirmities  of  my  body  anil  the  oppression  of 
spirits  under  which  I  Iaf»our,  leave  your  un- 
h^ppy  prisoner  sometimes  without  recollection  : 
but  it  must  be  only  with  the  loss  of  life,  that  I 
can  be  deprived  of  the  knowledi^eof  the  rrs[)ect 
that  is  due  to  this  bi|rh  and  awful  tribunal. 

X.  H.  S.  Alailam,  your  ladyship  will  do  well 
to  give  attention,  while  you  are  arraigned  on 
your  indictment. 

Then  proclamation  was  made  for  silence. 

After  which,  Elizabeth  duchess  dowager  of 
Kin^on  was  arraigned,  in  the  focm  of  the 
■aid  mdictraent  against  her,  by  the  clerk  of  the 
crown  in  the  KingV  bench. 

CL  of  the  Cr.  Elizabetli  duchess-dowager  of 
Kingston,  you  stand  indicted  by  the  name  of 
Elizabeth  wife  of  Augustus  John  Hervey,  late 
of  the  parish  of  St.  George,  Hanover- square, 
esq.  (now  become  a  peer  of  this  realm)  for  that 
yon,  on  the  8th  dav  of  March,  in  the  ninth 
year  of  the  rei^  of  his  present  majesty  our  so- 
Terei^n  lord  kmg  George  the  third,  being  then 
married,  and  then  tiie  wife  of  the  said  Au- 

Sistus  John  Hervey,  with  force  and  arms,  at 
e  said  parish  of  St.  George,  Hanover- square, 
in  the  said  county  of  Middlesex,  feloniously 
did  marry  and  take  to  husband  Evelyn  Pierre- 
poot  duke  of  Kingston,  the  said  Augustus  John 
Hervey,  your  former  husband,  oeio^  then 
alive ;  against  the  form  of  the  statute  m  such 
case  made  and  provided,  and  against  the  peace 
of  our  said  lord  the  king,  his  crown  and  dig- 
nity.— ^The  indictment  further  charges,*  that 
you  the  said  Elizabeth,  heretofore  (to  wit)  on 
the  4tb  day  of  August,  in  the  18th  year  of  our 
late  sovereign  lord  George  the  second,  late 
king  of  Great-Britoin,  and  so  forth,  at  the 
parish  of  Lainston,  in  the  county  of  South- 
ampton, by  the  name  of  Eli/.abeth  Chudleigh, 

^  *  "  The  indictment  must  state  the  two  mar- 
riages, and  aver  that  the  former  consort  was 
alive  at  the  time  of  the  second  marriage.  In 
the  duchess  of  Kingston's  case  the  first  count 
stated  generally  that  the  defendant  on  such  a 
day,  &c.  being  then  married  and  then  the  wife 
of  A.J.  H.  with  force  and  arms  at,  ^c.  did 
feloniously  marry  E.  P.  &c.  the  said  A.  J.  H. 
being  then  alive,  &c.  The  second  coimt  stated 
the  time  and  place  of  the  first  as  well  as  the 
second  marriage.  When  the  trial  is  in  the 
county  where  the  party  was  apprehended,  there 
Is  an  atMitiooal  averment  of  that  fact."  East's 
PJeu  of  the  Crown,  c.  IS,  s.  8. 


did  marry  tiie  said  Augustus  John  Henrey 
and  him  the  said  Aunfustus  John  Hervey  then 
and  thi*re  bad  for  your  husband ;  and  that  you 
the  said  Elizabeth,  being  married,  and  the 
wife  of  the  said  Augustus  John  Hervey,  after- 
wards (to  wit)  on  the  8th  day  of  March,  in  the 
ninth  year  of  the  reign  of  our  said  sovereign 
lord  Gcori>;c  the  third,  now  king  of  Great-Bri- 
tain, and  so  forth,  with  force  and  arms,  at  the 
said  parisli  of  St.  George,  Hanover-square,  fe- 
loniously did  marry  and  take  to  husoand  the 
said  Evelyn  Pierrepont  duke  of  Kingston,  the 
said  Augustus  John  Hervey,  your  former 
husbanil,  being  then  alive. —  [Tow  say  you? 
are  you  guilty  of  the  felony  whereof  you  staud 
indicted,  or  Not  Guilty  ? 

Duchess  of  Kingston.  I  Elizabeth  Pierre- 
pont, duchess  dowager  of  Kin<;ston,  iudicted  by 
the  name  of  Elizabeth  the  wife  of  Augustus 
John  Hervey,  es-q.  say  that  1  am  not  Guilty. 

C/.  of  the  Cr.  Culprit— How  will  you  be 
tried?  ' 

Duchess  of  Kingston.    By  God  and  my 
I  peers. 

'      CL  of  the  Cr,   God  send  your  grace  a  good 
deliverance, 

CI.  of  the  Cr,  Serjeant  at  arms,  make  pro- 
clamation. 

Serj,  at  Anns.  Oyez,  Oycz,  Oyez!  All 
manner  of  persons  that  will  give  evidence,  on 
behalf  of  our  sovereign  lord  the  king,  against 
Elizabeth  duchess- dowager  of  Kingston,  the 
prisoner  at  the  bar,  let  them  come  forth,  and 
they  shall  be  heard ;  for  now  she  stands  at  the 
bar  upon  her  deliverance. 

X.  H.  S,  My  lords,  the  distance  of  this  place 
from  the  bar  is  so  great,  that  I  must  desire  your 
lordships'  leave  to  go  down  to  the  table  for  the 
convenience  of  hearing. 

Lords.  Ay,  ay. 

Then  his  grace  removed  to  the  table. 

Duchess  of  Kingston.  My  lords,  the  sup« 
posed  marriage  in  the  indictment  with  Air, 
Henrey,  which  is  the  ground  of  the  charge 
against  me,  was  insisted  upon  by  him  iu  a  suit 
iMtituted  by  roe  in  the  consistory  court  of  the 
right  reverend  lord  bishop  of  London  ;  by  the 
sentence  of  which  court,  still  in  force,  it  was 
pronounced,  decreed,  and  declared,  that  I  wss 
free  from  all  matrimonial  contracts  or  espousals 
with  the  said  Mr.  Hervey :  and,  my  lonls,  I 
am  advised  tliat  this  sentence,  which  I  now 
desire  leave  to  offer  to  your  lordfthips  (remain* 
ing  unreversed  and  uninipeached)  is  conclusive, 
aud  that  no  other  evidence  ought  to  be  received 
or  stated  to  your  lordships  respecting  such  pre- 
tended marriage. 

L,  H.  S.  l>o  the  counsel  for  the  prosecutor 
object  to  the  reading  of  the  sentence.' 

Att,  Gen.  (Thurlow,  afterwards  lord  chan* 
cellor.)  My  lords,  observing  that  the  prisoner 
was  about  to  make  some  application  to  your 
lonlships,  1  was  not  solicitous  to  rise  in  tba 
order  and  place  wherein  I  ought  to  have  ad- 
dressed myself  to  the  House;  because  1  would 
not  intermpt,  or  prevent,  auy  thing  which  she 


•  J 


srs] 


Jbr  Bigatmf. 


A.  D.  177&; 


[374 


mif  ht  tbink  muteriAl  for  her  to  Uy  bttfore  yoar 
lorilfhips. 

I  attended  much  to  the  form  of  the  applica- 
tno.  If  I  compreheod  the  aim  of  it,  she 
neaoa  to  olyect  to  your  lordf  hiM  beariiH^  any 
e? idenoey  either  ^iven  or  ftatecl,  m  lupport  of 
the  jMvient  indictment ;  the  mund  of  her  ob- 
jection being  a  sentence*  saidto  ha?e  passed  in 
the  ecclesiastical  court,  against  the  nrst  mar- 
risfe  supposed  in  the  indictment.  Upon  this, 
yonr  lordships  have  demanded,  whether  I  ob- 
ject to  the  reading  of  the  sentence  ? 

If  the  proceeding  referred  to  had  been  ten- 
faed  to  your  lordships  in  the  only  place  which 
can  be  thought  the  proper  or  regular  one,  for 
rseeiTing  tlie  defendant's  eridence,  to  be  sure, 
■any  questions  would  naturally  have  arisen 
apon  it.  First,  whether  that  proceeding,  ex- 
pnined  as  it  will  be,  lias  the  force  of  a  sen- 
tence, or  amounts  to  more  than  a  circnmstance 
snd  pro(>f  of  the  fraud  complained  off 
Secondly,  whether  a  serious  sentonce  of  that 
sort,  pronounced  between  party  and  party, 
ought  to  be  admitted  in  a  criminal  prosecution, 
and  against  the  king,  who  was  no  party  to  it, 
nor  could  have  become  so  by  any  means  P 
Thirdly,  whether  it  creates  an  estoppel,  or 
condusire  evidence  against  the  crown? 
Fourthly,  whether  it  does  so  in  this  peculiar 
species  of  prosecution  ? 

But  in  the  way  this  thing  is  urged,  it  seems 
perfectly  impassible,  or  at  least  altogether  pre- 
mature, to  discuss  the  force  and  effect  of  it,  as 
aridenoe.  That  supposes  a  case  already  made 
Ibr  the  prosecutor,  which  requires  the  aid  of 
evidence,  on  the  part  of  the  prisoner,  to  dis- 
prove or  explain  it.  But,  if  I  catch  the  idea 
periectly,  the  present  insisting  is,  that  the  sen- 
tence now  offered  to  the  consiileration  of  your 
lordships  carries  some  lei^^al  furce — what,*!  do 
aot  pretend  to  define  or  explain  ;  for  I  protest 
I  have  no  guess  what  is  meant ;  hut — some 
kgal  force  with  it,  which  enables  the  prisoner 
10  demand,  in  thisstsge  ufthe  business,  that  the 
trial  shall  not  prn€*eed,  nw  any  evidence  be 
heard  to  maintain  the  indictment,  but  that  the 
whole  matter  shall  be  wound  up,  and  conclude 
with  some  resuluiion  of  your  lordships, — not  to 
acquit  (lor  in  order  to  that  you  must  try)  but  to 
distOMs  the  primmer  m  itiiuut  trial,  afler  putting 
herself  U|Kin  her  peers  fur  trial, 

I  have,  notwithitaudiiiie,  shortly  intimated 
the  nature  of  the  objeciions  which  may  be 
made  to  it,  a«  an  article  of  evidetire  for  the 
priMoer ;  partly  to  |iuint  out,  how  untenible 
the  priipositiun  is  of  stopping  llie  trial,  by  in- 
lerpofiing  a  thing  whose  reality,  cumpclence, 
and  efftrL't  wilt  be  so  much  disputed  in  matter 
of  fact  aud  of  law  ;  but  chiefly,  to  lay  in  my 
claim,  that  this  papc>r  (if  } our  lordships  should 
ihiok  it  wurth  hearing)  may  be  read  at  this 
tine,  aud  for  the  pur|»use  of  the  motion  now 
made  by  the  prisoner  only,  without  prejudice 
ts  any  objection  which  I  may  think  fit  to  make 
ts  it,  if  it  shoulil  be  offered  as  evidence  in  the 
csarie  of  the  trial. 

If  it  be  read  under  the  reserve  I  have  men- 


tioned, not  as  a  part  of  the  trial,  bat  to  make 
this  application  of  the  prisoner  to  yonr  lord« 
ships,  previously  to  her  trial,  intelligible ;  and 
for  the  sake  of  raising  the  argument  npon  it,  in 
case  your  lordships  sbonkl  suffer  such  a  point 
to  be  argued  at  all ;  in  these  views,  I  will  not 
object  to  the  reading  of  iL 

But  if  it  be  offered  as  a  piece  of  evidence  for 
the  prisoner,  so  that  1  most  admit  or  object  to  it 
now,  I  shall  certainty  insist  upon  going  en  with 
the  prosecution,  and  drive  this  article  of  evi- 
dence into  its  own  place,  the  prisoner's  defence. 
There  it  will  be  better  seen,  bow  far  it  is  avail- 
able, or  even  eompeteut. 

Unless  I  could  learn  the  purpose  of  oflbring 
it  from  those  who  advised  it,  I  do  not  know 
how  to  make  a  more  particular  answer  to  your 
lordships'  question. 

Duchess  of  Kingston.  Will  your  lordshipa 
please  to  permit  my  oounscd  to  be  heard  to  tliia 
point  P 

Lords,  Ay,  ay. 

L,  H'  S.  Mr.  Wallace,  yon  may  proeeed 
for  the  prisoner. 

Mr.  Wallace.  My  lords,  1  have  the  hononr 
to  be  assigned  one  of  the  counsel  to  advise  and 
assist  the  noble  prisoner  at  the  bar  in  all  mattera 
of  law  that  may  arise  in  the  course  of  the  trial. 

I  shall  submit  with  great  deference  to  your 
lordships,  that  the  present  stage  of  the  busi- 
ness is  the  proper  season  to  introduce  the  sen- 
tence which  has  been  mentioned  to  the  Court. 

My  lonls,  the  sentence  is  conceived  to  he 
conclusive  upon  the  fact  of  that  marriage  which 
is  the  ground  of  this  indictment.  The  indict- 
ment supposes  that  the  prisoner  at  the  bar  waa 
married  to  Augustus  John  Hervey  :  the  sen- 
tence now  offered  to  your  lordships  is  not  only 
of  a  competent  iurisdiction  to  decide  that  ques- 
tion, lint  the  only  constitutional  jurisdiction. 

My  lords,  whilst  this  sentence  remains  un- 
impeached,  1  conceive  that  it  is  conclusive 
against  all  evidence  to  be  produced  of  the  fact 
of  the  marriage.  It  is  in  that  light  the  pri- 
soner is  advised  to  offer  it  to  your  lordships, 
that  a  court  of  competent  jurisdiction  having 
decided  the  point,  it  will  l)e  in  vain  to  call  parole 
witnesses  to  the  fact ;  and  it  will  «mly  take  up 
your  lonlships'  time,  and  it  will  be  of  no  real 
use,  to  state  the  evidence  of  witnesses,  whicti 
witnesses  cannot  appear  to  give  that  evidence 
before  the  Court. 

My  lords,  the  office  of  a  counsel  in  opening 
the  case  to  any  Court  is,  as  I  conceive,  to  state 
with  clearnesM  the  evivJetiCc  that  is  to  be  ad- 
duced, that  the  Court  may  better  understand 
and  apply  it :  therefore,  unless  the  evidence  is 
competent,  your  lordships  will  not  hear  any 
state  of  it.  This  too  perhaps  may  be  the  time, 
though  I  shall  forbear  at  pres«'nt  to  enter  into 
it,  to  discuss  whether  the  sentence  be  admissi- 
ble ;  or,  if  admissible,  whether  conclusive :  but 
we  are  now,  my  lonls,  upon  the  order  of  pro- 
ducing this  sentence ;  and  if  it  has  the  effect 
which  I  f  bail  humbly  submit  in  a  proper  seaaoa 


S75] 


IS  GEOKOE  m. 


Trial  of  the  Duchess  of  Kingston, 


[376 


to  your  lordships  that  it  has,  of  beiag'  absolately 
conclusive,  tliea  the  evideoce,  which  is  now 
ready  to  be  stated  by  the  conDsel  lor  the  prose- 
cution, oujfht  not  to  be  produced,  and  of  course 
CHi^ht  not  to  be  stated.    Tiiifi  is  the  light  in 
which  the  cause  appears  to  me  at  this  moment ; 
and  1  trust  ^our  lordships  will  concur  in  opi- 
nion, that  if  the  sentence  has  the  conclusire 
effect  which  we  are  ready  to  spbmit  to  your 
lordships  it  has,  it  repels  all  testimony,  and 
makes  it  improper  therefore  to  slate  any.     If 
a  precedent  should  be  thought  necessary  for 
what  is  prayed  by  the  noble  prisoner  at  the  bar, 
I  beg  leave  to  refer  your  lordship*  to  a  ca«e  de- 
temoiined  at  the  bar  of  the  court  of  King*s- 
bench  in  the  reign  of  king  William:  it  is  re- 
ported in  Mr.  Heirjeant  Carthew*s  Reports,  225, 
upon  a  trial  of  an  tjectmrnt.  The  question  was, 
iff  sir  Robert  Carr  was  actually  married  to  Isa- 
bella Jones,  by  whom  he  had  issue,  and  under 
whom  the  plaintiff  in  that  cause  claimed  the 
estate.    The  defendant,  by  way.  nf  anticipation 
of  the  evidence  which  the  plaintiff  was  about  to 
five,  moved  the  Court,  that  the  plaintiff  ought 
not  to  be  allowed  to  prove  a  marriage  between 
Ihem,  because  there  was  a  sentence  in  the  Ar- 
ches upon  a  suit  of  jactitation  brought  against 
her ;  by  which  it  was  decreed,  that  there  was 
no  marriage  between  them,  but  that  they  were 
free  from  all  matrimonial  contracts  and  espou- 
sals.   The  sentence  was  then  offered  in  evi- 
dence by  the  defendant's  counsel  at  the  bar,  to 
conclude  the  plaiutiff  from  any  proof  of  the 
marriage,  unless  he  could  shew  that  the  same 
was  repealed :  and  u|)ou  a  debate,  the  Court 
were  all  of  opinion,  that  this  sentence,  whilst 
unrepealeil,  was  conclusive  against  all  matters 
precedent ;  and  that  the  temporal  conrts  must 
give  credit  to  it,  until  it  is  reversed,  it  being  a 
matter  of  mere  spiritual  cognizance :  and  upon 
this  the  plaintiff  was  nonsuited.     Your  lord* 
ships  may  perceive  that  tliis  case  is  applicable 
to  another  part  of  the  business  before  your  lord- 
ships ;  but  1  cite  it  now  merely  to  shew  the 
sentence  was  offered,  and  received,  to  preclude 
ilie  examination  of  witnesses;   and  surely  if 
witnesses  are  not  admissible,  their  testimony 
ought  not  to  be  stated. 

Attorney/  General.  My  lords,  I  do  not  even 
now  comprehend  the  order  of  proceeding  pro- 
pose<l. 

J f  there  be  any  thing  in  the  present  motion, 
considei-ed  as  proposing  a  fit  manner  of  regu- 
lating this  trial,  or  as  a  point  of  general  law  ; 
in  short,  if  their  prnposiiiun  be  maintainable  at 
all,  I  do  assure  your  lurdsbips,  that  1  am  not 
anxious,  or  in  any  degree  desirous,  to  state  a 
case  to  this  audience  nhich  must  wound  the 
sensibility  of  the  prisoner:  this  I  would  avoid, 
unless  public  justice,  and  the  necessity  nf  the 
prnsecntioD,  should  absolutely  require  it  of  me. 

If  it  be  possible,  on  her  part,  to  make  any 
ground  for  stopping  the  prosecution  in  this 
manner,  I  shall  be  well  content  to  stop  here  :  to 
me  it  appears  flatly  irnpoasible.  I  slated  some 
general  hints  to  tbu  effect  when  1  spoke  list 


The  learned  counsel,  in  attempting  te  make 
good  their  proposition  of  stopping  the  trial  Id 
this  stage,  have  contented  themselves  with  a 
general  averment,  that  the  law  n  with  them ; 
and  refer  to  the  manner  in  which  evidence  was 
received  in  the  particular  case  of  one  ejectment^ 
where  no  contradiction  or  controversy  anpears 
to  have  been  raised  among  the  counsel  about 
the  nature  of  the  cause  depending,  the  sen- 
tence produced,  or  the  parties  to  both.  Here, 
a  great  deal  is  to  be  previously  settled  on  those 
heads. 

I  did  not  imagine  the  learned  counsel  would 
have  stopped  so  shortly:  but  if  they  tboaght 
well  of  the  motion,  I  expected  they  would  have 
gone  the  length  of  arguing  on  it,  and  of  en- 
deavouring to  demonstrate  the  possibility  of 
windioff  up  the  whole  prm:eeding  here,  by 
comparmg  the  nature  of  the  sentence  with  the 
whole  compass  of  the  prosecution,  stated  with 
every  degree  of  imaginable  aggravation. 

Your  lordsltips  might  easily  perceive  oiT 
reason  for  px|>ecting  the  argument  to  take  this 
course.  The  sentence  may  be  read ;  indeed  it 
muAt  be  read,  it  is  the  only  ground  of  the 
motion.  But  unless  such  is  demonstrated  to 
be  the  effect  of  it,  yonr  lordshi|>s  can  take  no 
order  upon  it,  nor  make  any  use  or  applicatioa 
of  it,  without  hearing  the  prosecutor's  case.  It 
is  not  therefore  enough  to  read  the  sentence. 

My  reason  for  troubling  your  lordships  at  all 
was  only  to  observe,  thai  the  motion  concludes 
against  even  hearing  the  iirosecutor ;  and  to 
submit,  according  to  my  humble  dnt^',  to  your 
lonlships,  whether  that'be  a  point  off  law  nt  to 
hear  the  prisoner  upon  by  her  counsel.  If  it 
be,  your  lordships  will  call  upon  the  learned 
counsel  whom  you  have  allowed  the  prisoner, 
to  sustain  it  ffuU^  iu  argument.  Otherwise 
your  lordships  will  reject  it  as  inadmissible. 
All  prosecutions  might  be  stopped  in  this 
manner. 

A  Lard.  Does  Mr.  Attorney-General  object 
to  the  reading  of  the  sentence  'f 

An.  Gen.  Subject  to  the  reservation  of  my 
right  to  object  to  it  in  every  shape,  when  it 
shall  be  offere<l  in  evidence :  upon  that  ground 
1  do  not  object  to  it.  I  am  not  now  admitting 
this  sentence  to  he  adduced  in  the  course  of  the 
cause,  or  as  a  part  of  the  defence,  to  which  1 
shall  say,  it  is  incompetent.  But  I  let  it  in« 
to  ground  a  motion  anterior  to  the  hearing  of 
the  cause.  In  that  view,  and  in  that  view  only, 
I  admit  it  to  be  read.  Indeed  it  seems  to  be 
offered  as  a  part  of  the  counsel's  speech  ;  and 
I  admit  it  as  coniainmg  the  whole  of  the  argu- 
ment, yet  offered  in  support  of  the  motion. 

That  your  lordships  may  understand  what  is 
to  l»e  made  of  this  senti  nee  wben  read,  they 
must  read,  in  their  order,  the  original  allega- 
tion of  Elizabeth  Chudleigh  ;  the  cross-alle- 
gation delivered  in  by  Mr.  Heney  ;  her  an- 
swer; the  articles  on  which  the  proofs  wera 
taken  ;  the  depositions ;  and  the  sentence :  for 
thus  the  sentence  proceeded. 

Lord  Man$jield.  They  most  give  in  erideiica 
the  whole  sentence. 


_fi)r  Bigami/. 
'^M  Rnlrnce  oaly  begun  10  be  read .) 
Att.  Cen.     I   (Diut  Iroutile  your  turdsliips 

Tti«j'  nre  now  offering  lo  reul  the  «enleace 
m\y.  witliuut  rsblmg  ilie  iilk-|;ii[iout  ul'  the 
parlici,  ihcir  arliclea  anil  prueli.  Pot  tthal 
m«>ni  1  ray  well  comprelienil.  Bnt  I  tpjire- 
tiwiil.  itiul,  iftjud^ni^ut  bt  read  in  acourt  of 
liw.  llicy  miiDl  rend  llie  declarilioo,  ulea,  re- 
jilicBiioii.  and  all  other  nialters  kadiiig  li>  llie 
judpurnt.  in  order  tamnkeitiiileltigible.  Here 
iIk'3  wiiiiIiI  read  the  leitletice.abatractally  I'rom 
Uir  nlliuaLiuni  kaJ  other  matturs  upon  which 
iLii  iviiifiice  proceeded. 

IxinJ  C-Dndtn.  I  wish  to  know  of  the  coun- 
»'l  tor  ilif  |iriiouer,  whether  they  meaot  toob- 
jtti  111  ilie  wliideiiroceeJingB  iii  the  jaclitalioD 

iMv.  W  iiHact.     I  have  not,  tipoii  the  part  of 

ilii-   iii.[.]t-  [irUoner,    the  least   oliJKctiua   that 

>i  Li>>    iiMii.'tediiigs  should  liehrauftht  before 

!i<l«i,      I  coiioeite  that  what  the  uSi- 

lii  anf(lit  before  tUi:  Court  was  what 

'Lfi'mu  oidrnce  in  such  case.     I 

il^i.'cl  auy  other,  in  any  case  I  have 

r;  produced  hut  the  sentence,  which 

.lioi'i   the  proci^ediugs  had  in   that 

I  understand  the  jiroceeilin^a  are 

I   '•<)  llie  part  uf  the  nuble  prisoner 

-fi*  II  aiA  the  least  objection  lo  the  H'We  be- 

^  laal  before  the  Cnarl. 

TiYw  Lonla  then  permitted  the  following;  Pro> 

■'■rditif[»  ID  the  Janilatioii  Cau*e,  auil  the  Seri- 

'  Bce  pTDnoiinoed  in  the  Eccteaiaitical  Court,  to 

-  read  4e  benttur. 

ttvxmv  KKoaiON,      Michaelmai  Trrm,  1768. 


■'  tn  ibe  name  of  (io<l,  Aineo.     Before  you 

■■-   -"f-'Mpful  Jobu    Detleaworlh,   doctor  of 

■■-  ni-neral  nf  the  riglil  rerereud  father 

I'liliard,   by  di»ine  pertniMioa.  bird 

'.   iixlnn,  and  nffioiat  priticipal  uf  the 

>  |iiMMip*l  court  ot  LondOQ  lawfully 

.  ynuraumigale  or  any  other  enin- 

.'  <u  Ibii  bvbalf  ofthe  prociar  of  Ibe  ' 

tllcabeth  Chudlei|;h,  of  the  parish  ! 

■  .  ^..rei.  WrsI minster,  in  the  connly  ' 

'  '       I  ;  BgaiDBl  the  hoaoumble 

.'  v.  of  Ilie  parish  nf  St. 

1  ■;  Uieceunlynfftliddle-  ' 

i,--."ni  Lilly  miiri  [ir noil  Or  pernooi  lawfully 
■  ••inwtiiti^tir  ■pprariiijf  for  him  in  judgment  , 
•(••re  jou  hj  way  of  enmplalnl,  and  bcrrby 
-  fiipl«i&i*|(  unlo  yaa  In  ihit  behalf,  doih  kay, 
'in%»,  anil  in  law  articulately  prupouud  ai 

•«»%;  llialialoMy, 

'  1,  TImi  the  said  boDoiirahle  Elizabeth 
'  .inilii^  Via  and  ii  free,  and  no  way  enticed 

loy  laetrinenial  eontracl  or  npoiisaU  with 

'  (ul  hnaourabla  Au^uilua  John  Hervey  ■ 
-■■ii  for  anil  as  a  ptTWin  frre.  and  no  way  en- 
'  'HH,  ma  asd  ia  GommoDly  accoiinied,  re- 


A.  D.  1776.  [378  , 

Euted.  anil  fatten  in  h»,  aurangJl  her  nen;b' 
Dim,  friend',  and  tiimillnr  acquaintance:  and 
the  parly  prttponenl  ilm  li  alledge  and  pmiMilnd 
every  thing  in  Ibis  article  contained  jomljy  and 
aeferally. 

"  3.  That  Ibe  said  hiinaurahle  AugusluB  , 
John  Hpr*ey,  siillideiiily  knowini;  the  pre. 
misei,  anil  iintwillisMiutlni;  th*  raiiie.  did  in  the 
year  uf  onr  Lord  IT63.  IT64,  1T6*,  I7ea,  and 
i767,  and  Jo  llie  seteial  months  therein  con- 
Gorring,  and  in  this  ureseut  year  of  our  Lord 
Um.  within  the  parish  of  8aii>t  James  West- 
minuter,  afiiresaid.  and  in  other  purjthex  and - 
placeH  in  the  neij^bbourhoDd  thereof,  and  lliere- 
10  adjoining,  or  in  atl,  some,  or  one  uCtlie  afore- 
meniioned  times  and  places,  in  tht'  presence  of  ' 
■ereral  credible  witnesses,  falsely  and  malt'  ' 
ciously  boast,  assert,  and  report,  ihui  he  was 
matrieil  i»  or  coniracled  in  iDairiusT  with  the 
aforeaaiit  bnonnrable  Elizabelh  Chodlejgh ; 
whereat  Iti  truth  and  fact  not  any  such  mar- 
riBife  was  ever  solemnized  or  erer  coiitracted 
between  (hero  ;  and  this  was  and  islrue,  public 
and  nniorions;  and  the  party  proponent  dotb 
alled|;e  and  projioandorany  other  time  or  limea 
and  places  as  shall  appear  from  the  proofs  In 
be  made  in  this  cause,  and  as  before. 

"  3.  That  the  said  honourable  Augustus 
Jobn  Rerrey  hath  been  oftentimes  or  at  least 
once,  on  the  part  and  behalf  of  the  said  bonour- 
ble  Elizabeth  Chudleigb,  and  her  friends  and 
acquaintance,  asked  and  requested,  or  desired 
In  desist  and  abstain  frnin  bis  aforesaid  pretended 
false  and  malicious  boaatiug,  asserting,  and  re- 
porting,  a«  mentioned  in  the  oeit  preceding  ar- 
ticle :  and  the  party  proponent  doth  alledge  and 
propound  as  before. 

"  i.  That  the  said  honouraMe  An((ustus 
Jobn  Herrey,  being  as  aforesaid  asked  and  re- 
quested to  cease,  desbt,  and  abstain  from  his 
aforFSaid  pretended  falae  and  malicious  boast- 
ing, asserting,  and  repnriing,  hath  not  in  the 
least,  nor  doih  in  the  h'asl  at  present  cease-, 
desiat,  and  ^Mlain  therefrom,  but  continually 
with  like  malice  ami  rsshnesa  dues  conklanlly, 
falsely,  and  maliciously  boast,  assert,  alfiriii, 
and  report  the  ume,  to  the  great  danger  of  his 
aonl's  heahh,  no  small  prejudice  lu  Ibe  said 
hnnnurable  Elizabeth Chudleigh, and  pernicious 
example  of  others :  and  this  vn  and  ia  true, 
public,  and  notorious ;  and  the  parly  proponent 
doth  alleilge  and  propound  at  before. 

"  5.  That  of  all  and  singular  the  premises  it 
was  and  is,  by  and  on  the  part  and  behalf  of  lli« 
■aid  honourable  Elizabeth  Cliudleluh.  spinster, 
ibiukiog  herself  greatly  injured,  aggrieted, 
and  disquieted  by  reason  of  the  si'urraald  pre- 
tended Itlse  and  malicious  boasting,  asserling, 
and  renoriiiig  of  the  said  honourable  Augustus 
John  Heney,  rightly  and  duly  cnmplaintil  li 
you  Ihejiiilge  aforesaid,  Hiid  lo  this  Court,  fur 
ilft  and  meet  remedy  lo  he  had  anil  pr»*ided  i 
this  behalf:  and  the  parly  proponent  doth  aU 
ledge  and  propound  as  belnre. 

"   6.     That   the    said    honourable    Aii;;ns 
Jobn  Hervey  was  and  is  of  the  parinh  of  SitiDt 
Junw,  Wealminittr,  in  the  county  ot  Middle-  ^ 


379} 


16  GEORGE  m. 


Trial  of  the  Duchess  of  Kingston^ 


[380 


•ex,  and  diocese  of  London,  and  therefore  and 
bv  reason  of  the  premises  was  and  is  subject  to 
the  jurisdiction  of  this  Ck)nrt :  and  the  party 
proponent  doth  alledge  and  propound  as  before. 
"7.  That  all  and  singular  the  premises 
were  and  are  true,  public,  and  notorious,  and 
thereof  there  was  and  is  a  public  Toioe,  fame, 
Itnd  report,  and  of  which  legal  proof  being 
made,  the  party  proponent  prays  ri^ht  and 
justice  to  be  effectually  done  and  administered 
to  him  and  hb  part^  in  the  premises ;  and  also 
that  by  this  court  it  may  be  pronounced,  de- 
creed, and  declared,  that  the  said  honourable 
Elizabeth  Chudleigh  at  and  during  all  the 
times  in  this  Cbel  mentioned  was  a  spinster,  and 
free  from  all  matrimonial  contracts  and  espou- 
■als  with  him  the  said  honourable  Augustus 
John  Hervey;  and  that  he,  notwithstanding 
the  premises,  did,  in  the  years,  months  and 
places  in  this  libel  mentioned,  or  in  some  or  one 
of  them,  falsely  and  maliciously  boast,  assert, 
•nd  report,  that  he  was  married  to,  or  contracted 
in  marriage  with,  the  said  honourable  Eliza- 
beth Chudleigh  ;  and  that  he  may  be  enjoined 
perpetual  silence  in  the  premises,  and  obliged 
and  compelled  to  cease,  desist,  and  abstain  from 
such  his  aforesaid  false  and  malicious  boastings, 
assertions,  and  reports  for  the  future ;  and  that 
he  may  he  condemned  in  the  costs  made  and  to 
be  made  in  this  cause  ou  the  part  and  behalf  of 
the  said  honourable  Elizabeth  Chndleigh,  and 
compelled  to  the  due  and  effectual  payment 
thereof  by  you  or  your  definitive  sentence  or 
final  decree  to  be  giTen  in  this  cause ;  and  fur- 
ther to  do  and  decree  in  the  premises  what  shall 
be  lawful  in  this  behalf,  the  party  proponent 
not  obliging  himself  to  prove  all  and  singular 
the  premises,  or  to  the  burthen  of  a  anperfluous 
proof,  Bgainst  which  he  protests;  and  prays, 
that,  so  Tar  as  he  shall  prove  in  the  premises, 
lie  may  obtain  in  his  petition,  the  benefit  of  the 
law  being  always  preserved,  humbly  imploring 
the  aid  of  your  office  in  this  behalf, 

*'Artii.  Collier. 

"  Pbt.  Calvebt. 

"  Wm.  Wynne." 

**  Hervey  against  Hervbv  called  Chuolbiob. 
Fountain — Bishop. 

'*  Which  day  Fountain,  in  the  name  of  and 
as  the  lawful  proctor  of  the  right  honourable 
Augustus  John  Hervev,  and  as  such,  and  under 
that  denomination,  did,  by  all  ways  and  means 
which  may  be  most  lieneficial  and  efiectual  for 
his  said  party  in  this  behalf,  and  to  all  intents 
and  purposes  in  law  whatsoever,  say,  alledgp, 
and  in  law  articulately  propound  as  ibllows; 
to  wit : 

**  1.  That  some  time  in  the  year  1743,  or 
1744,  the  right  honourable  Augustus  John 
Hervey,  then  the  honourable  Auj^ustus  John 
Hervey,  esquire,  and  son  of  the  right  honour- 
able Juhn  late  lord  Hervey,  became  acquainted 
with  £lizabeth  Chudleigb,  now  Hervey,  at 
Winchester  races;  and  the  aaid  honourable 
AagiHtua  John  Hervey,  esquire,  banng  cea- 


ceived  a  liking  and  affection  for  the  sahi  Eli- 
zabeth Chudleigh,  and  being  a  bachelor,  and  a 
minor  of  the  age  of  17  or  18  years,  and  free 
from  anj^  matrimonial  contract,  did  privately 
make  h»  addresses  of  love  and  conrtship  la 
the  said  Elizabeth  Chudleigh,  who  waa  then 
also  a  minor,  and  a  spinster  of  the  age  of  about 
18  yeare,  and  also  free  from  any  matrimonial 
contract;  and  ahe  the  said  Elizabeth  Chud- 
leigh, now  Hervey,  did  receive  and  admit  such 
his  addresses  and  conrtship,  and  entertain  him 
as  a  suitor  to  her  in  the  way  of  marriage,  bat 
without  the  privity  or  knowledge  of  either  of 
their  relations  or  friends,  excepting  her  aant 
the  late  Mrs.  Hanmer;  and  they  motoally 
contracted  themselves  to  escli  other :  and  tM 
party  proponent  doth  alledge  and  propound  of 
any  oiher  time  and  place,  aud  of  every  thing  ia 
this  article  contained  jointly  and  severally. 

*• «.  That  in  the  said  year  1744,  the  aaid 
honourable  Augustus  John  Hervey,  esquire, 
was  a  lieutenant  in  the  navy,  and  lielonged  to 
his  majesty's  ship  ComwsiT,  which  in  August 
1744  lay  at  Portsmouth  ;  that  the  said  Eliza- 
beth Chudleigh,  in  July  1744  being  on  a  viait 
at  John  Merrill's,  etquire,  at  Lainston,  in  tha 
parish  of  Sparshot  io  the  county  of  Southamp- 
ton, with  her  aunt  Mrs.  Hanmer,  and  the  aaid 
Augustus  John  Hervey,  beinsif  then  on  board 
the  said  ship  the  Cornwall  ai  Portsmouth,  went 
from  tlience  to  the  said  Mr.  MerrilPs  in  order 
to  see  the  Raid  Elizabeth  Chudleigh ;  and  tha 
said  ship  being  under  sailing  onlera  for  and 
being  soon  to  depart  for  the  West  Indies,  it  waa 
proposed  between  the  said  Augnstiis  Joho 
Hervey  and  Mrs.  Hanmer,  that  they  the  said 
Augustus  John  Hervey  and  Elizsbeth  Chud- 
leigh ahoutd  be  married  privately  at  the  aaid 
Mr.  Merrill's  house ;  and  accordingly  they  tha 
said  Augustus  Juhn  Hervey  end  Elizabeth 
Chudleign  were,  on  or  about  the  4th  day 
of  August  1744,  in  Mr.  Merrill's  house  m 
the  parish  of  Sparshot  aforesaid,  joined  to- 
gether in  holy  matrimony,  about  eleven 
o'clock  at  night,  by  the  reverend  Thomaa 
Amis,  since  deceased,  a  clergyman  in  holy 
orders,  according  to  the  riles  and  ceremonica 
of  the  church  of  England,  in  the  presence  af 
Mrs.  Hanmer,  the  aunt  of  her  the  said  Elisa- 
beth Chudleigh,  and  Mr.  Moontnay,  both  ainoa 
deceased ;  and  were  then  and  tliere  by  hisa 
the  said  Thomas  Amis  pronounced  for  and  aa 
lawful  husband  and  wife :  and  the  paii^  pro- 
ponent doth  alled};e  and  propound  as  before. 

'*  S.  That  after  the  said  Augustus  John 
Hervey  and  Elizsbeth  Chudleigh,  now  Her- 
vey, were  so  privately  married,  they  consum- 
mated such  their  msrriage  at  the  said  Mr, 
Merrill's  house,  by  having  the  carnal  know- 
ledge of  each  other's  bodies,  and  laying  for 
some  time  in  one  and  tlie  same  bed  naked  and 
alone,  but  without  the  privity  or  knowledge  of 
any  part  of  the  family  aud  servants  of  the  said 
Mr.  Merrill:  and  the  parly  proponent  doth 
alledge  and  propound  as  before. 

«  4.  That  the  said  Augustus  John  Herva¥« 
esquire,  continued  at  the  said  Mr.  McnilTls 


Jar  Bigamy. 
.  im  sr  llim  davi,  ml  ibco  returned  to 
biiuiil  ithi(i  CornwBll,  wherein  he  in  NoTem- 
Ur  faUawiag  nitnl  I'ur  Ihe  Vfeat  Indiei;    anil 
tb*t,  00  iccoiiDl  orcemin  circuaiBtancei  of  bis 
rtnulj,  ii  bdag  percuary  IbU  (he  said  roar- 
riiifF  rtiQulil  he  kepi  a  lecret  from  erery  per- 
••«,  azc^Eil  those  bcrore  meationni,  thererore 
tkcMid  liliulieth  Ileney  coDiiauMl  to  go  by 
Uu  Ditiiie  or  Chud1vi|{1i  when  ibe  lefl  ibe  ssiil 
Nr.  Herrill'B,  rendio^  at  different  places,  sail 
jamiaa  for  a  tingle  person  ;  that  ihc  said  A>i- 
tmum  Jobn  Herrey,  esquire,  roraBined  in  ihe 
Vlcrt  Indira  lill  the  rn^ulh  of  AiiguKi  in  the 
■■•-u  1740,  when  he  sailed  tiir   Knglsnd,  and 
InlaiDorernnornbantthe  IGih  of  Oclober 
l»>lAg;    that  the  Mid  Elizabeth  Ileney  U 
u  tiatr  r««id«d  in  Cnnduil-Mreel,  where  the 
.:  •  Anj^iulua  John    Heriey,  etquire,  went  lo 
'  her  u  his  vife  seferal  iin>e«,  did  she  re- 
ived llim  and  acknowledged  him  to  be  li«r 
I'liaud,  liul  Ihey  did  not  publicly  own  their 
:»irrj*|^,  orMhaliit  loeelher  as  bupdrjud  snd 
■  ii-:  and  ihi»  Was  nniTia  Hue  ;  aud  the  party 
"{•onrat  diuh  allcdge  and  propound  as  before. 
■    J.  Tlini  Ibv  uiiT  AugualuK  John  Hervey, 
pirs-,  OD  the  iSiit  day  of  the  mouth  of  Ho- 
■lAer  la  the  said  year   1746,  wenl  lo  sea 
;>io,  4Dd  relurnrd  to  England  in  the  Jsuuary 
'■'•imiBg;     llial    the  said  Elizabeth    llerrey 
'  |iicTwt>c  C^hiidleif  h  at  tliat  lime  continued  in 
<.'«a>Uiii-«trcct;   but  some  diffetcncej  arisiii)r 
hliratn  lb*m  on  aeeoniit  of  the  conducl  of  the 
ma  Eiieabnli  Herr«y,  thay  eominucd  to  lire 
irparmr  fniiii  i-jtli  nllirr  for  the  fulure ;    and 
Vi.Snmus  Jobu  HerTey 
.ii!>'^'  the  (aid  Elizabeth 
'  i[i  the  month  of  May, 

—I,.  .....i...  :  II.  .  .  i..<  ri^vu.  And  continued  abroad 

UliUu  tuuait>  ol  D.-vt'inbar  in  the  Iblloiving 
<tar;  thai  from  ilic  nine  they  so  continued  io 
in  ■aparalF  a*  Hr»rt'*Hid  lo  this  lime.  Ihe  Mid 
Jtosnuua  Ji>hn  llerrev  has  never  <i«i led  the 
MMElizahtlh  Uert<y':  and  this  was  nnd  is 
!■•;  and  lh«  party  proprinent  doih  nlleilge 
mi  fMyauod  M  before. 

"  0.  Ttiil  oil  and  smc'dnr  liie  piernirea  were 
■i-  I-,  ami  there- 

''  ■■'■.  fame,  and 

''  .■  made,  the 

r  fii«ice  to  be 

n»H,  ■■»«  that  •!  may  Iw  pronounced,  that  the 
•M  nvlit  luinnnrahle  Aii^tlun  Joiio  Hervey 
MlEkufKibChnattigh  wereand  are  lawful 
.. .  ^..  Oeo.  H. 


A.  D.  177(J.  [38» 

this  behalf,  and  lo  all  intents  and  purposes  ia 
law  whalsoeTer,  say,  alledge,  and  srticulalelj 
propound  as fblktwa ;  lo  «il  i 

'■  1.  That  BB  well  betore  as  erer  since  the 
pretended    lime  of    the    pretendeit    marria^ 

f leaded  and  propounrled  by  the  right  honoura'  , 
le  Augustus  John  Heiley.  the  other  parly  in 
this  suit,  to  have  been  on  or  about  the  4lh  of 
AuguM  1T14,  ihe  said  honourable  Elliabeth 
C'hudld^h  has  always  passed  as  a  single  wo- 
iiisn,  and  has  always  gone,  been  known,  and 
been  nddrecsedbythensueof  Elizabeth  C'hud- 
lei^,  and  by  no  oilier,  and  hath  always  vUited 
and  received  visits  as  a  single  womiD,  and  hath 
always  lived  separate  and  apart  Trom  the  said 
right  hououmble  Augustus  John  Hervey,  with- 
out  any  interposition,  let,  or  hindrance  of  ih* 
said  right  hnDonrable  Augustus  John  Hervey, 
and  hath  not  at  any  time  lived  or  cobabileif 
with  him,  or  he  with  her ;  and  this  was  and  is 
true;  and  so  much  Ihe  said  right  honourabla 
Augustus  John  Hervey  well  knows  and  beltevea 
in  his  cooscieoce  to  be  true ;  and  the  party 
propunenl  doth  alledge  and  propound  every 
thills'  in  (bis  article  contained  juinlly  and  sfr. 
verally. 

"  2.  Thut  in  Ihe  vetr  of  our  Lord  17-13,  tha 
said  Elizabeth  Chudleigh  wasadmilied  a  maid 
of  honour  to  her  royal  highness  the  princesn  of 
Wales;  and  on  the  death  uf  his  royal  biehnesa 
the  niioce  of  Wales,  on  or  about  the  ITih  of 
April  17SI,  re-admittetl  and  continued  roaid 
of  honour  lo  her  royal  highness  the  princess- 
dowager  of  Wales,  without  any  let  or  hindrance 
of  the  said  right  honourable  Aagusiii*  John 
Hervey,  and  bulb  duciag  the  who'e  of  the  said 
time  continued  aud  noir  continues  a  roaid 
of  honour  to  her  royal  bighuesii  ihe  nrincesi- 
dowBger  of  Wales,  wjlhoni  any  let  or  hindrance 
of  the  said  right  honourable  AngUElus  John 
Hervey ;  and  this  waa  ond  ia  true ;  and  so 
much  the  said  light  honourable  Augustus  John 
Hervey  jtnuwa  nnd  believes  in  hi*  conscience  to 
be  true  ;  and  tho  |>any  proponcut  doth  alledgs 
und  propound  as  before. 

"  3.  That  in  supply  of  proof  of  the  premises 
nteiitioued  in  the  next  preceding  article,  tho 
party  pioponent  doth  exhibit  and  hereunto  an- 
nex two  certificates,  and  copies  of  the  entries 
from  the  treasurer's  office  of  the  princess- 
dowager  of  Wales,  marked  wilh  the  letters  A 
and  B,  of  the  admission  of  the  said  Elisabeth 
Cbuilleighasiiiaiil  of  honour,  and  of  her  con- 
tinuance now  in  such  post,  and  prays  that  tha 
same  may  be  here  read,  and  taken  as  if  heie' 
inserted ;  and  doth  alledge  that  thr  same  cot 
tain  troe  copies  of  Ihe  entries  or  the  said  Eli- 
zabetli  Chudleigh  as  maid  of  honour,  and  woa 
and  is  signed  by  Mr.  William  Watts,  deputy- 
treasurer  to  her  royal  highnesi  the  princess- 
dowager  of  Wtdes;  and  that  Elisabetli  Child- 
leigh  ihereiu  natnttd,  and  Blixabelh  Chudleigh 
party  in  Ihia  suit,  was  and  is  one  anil  the  anro* 
persuD,  and  not  divers :  and  the  party  propa- 
iienl  doth  alledge  and  propound  hi  belure. 

'■  1.  Tlial  in  Ihe  year  ny^.  Ihe  >aid  EUxa. 
bttb  ChudleiKh,ioh«rowu  name  is  a  apinstcr,' 


583] 


16  GEORGE  III. 


Trial  of  the  Duthtu  ofKingiloH, 


[384 


anil  without  my  interposition,  let,  or  hindrance 
of  the  said  rii(ht  lionoarable  Auguitui  John 
Harvey ,  (»r  hin  lieinnf  a  party  thereto^r  any.  ways 
concerned  therein,  took  a  lease  of  the  ri^nt 
hon(»u<-alile  lord  Berkeley  of  Straiten  of  cer« 
tain  land  in  llill-atreet,  in  the  parish  of  St. 
Creor^e,  Hano?er  square,  in  the  count v  of 
I^liddie^x,  whereon  the  said  Elizabeth  Cuud- 
leigh  caused  to  be  built  a  house,  wherein  she 
continued  to  live  for  the  space  of  five  years 
and  upwai-ds,  and  afterwards  sold  the  same  to 
Hugo  Meynell,  esquire,  and  received  the 
money  proceedintr  from  the  sale  thereof  to  her 
own  use :  and  this  was  and  is  true ;  and  the 
party  proponent  doth  alledge  and  propound  as 
before. 

<<  5.  That  in  supply  of  proof  of  the  pre- 
mises mentioned  in  the  next  preceding  article, 
the  party  proponent  doth  exhibit  and  hereunto 
annex  the  original  lease  of  the  lantl  aforemen- 
tioned, dated  the  14th  of  April  1753,  executed 
by  the  said  lord  Berkeley  and  John  Phillips, 
who  was  interested  therein,  and  thereby  leased 
to  the  said  Elizabeth  Cliudleigh,  spinster,  her 
executors,  administrators,  and  assigns,  for  the 
term  of  87  years,  and  marked  with  the  letter 
C,  and  prays  that  the  same  may  be  here  read, 
and  taken  as  if  herein  inserted;  and  doth  al- 
ledge  that  every  thing  waa  so  had  and  done  as 
is  therein  contained ;  and  that  Elizabeth  Chud- 
leiffh,  spinster,  therein  mentioned,  and  Eliza- 
beSi  Cliudieigh,  spinster,  party  in  this  cause, 
was  and  is  one  and  the  same  person,  and  not 
divers :  and  this  was  and  is  true ;  and  the  party 
proponent  doth  alle<lge  and  propound  as  before. 

*<  6.  That  on  the  Sd  of  February,  in  the 
year  of  our  Lord  1757,  the  said  Elizabeth 
Chudleigh,  spinster,  was  admitted  a  copyholder 
and  tenant  to  the  dean  and  chapter  of  Westmin- 
ster for  the  house  and  land,  or  some  part  there- 
of, wherein  she  now  lives,  at  Kuightsbridge, 
in  the  county  of  Middlesex,  in  her  oivn  then 
and  now  maiden  name  of  Elizabeth  Chudleigh, 
and  without  any  interposition,  let,  or  hindrance 
of  the  said  right  honourable  Augustus  John 
Hervey,  or  without  his  being  a  party  thereto 
or  any  ways  concerned  therein:  and  this  was 
and  is  true ;  and  the  party  proponent  doth  al- 
ledge  and  proptiund  as  before. 

**  7.  That  in  supply  of  proof  of  the  premises 
mentioned  in  the  next  preceding;  article,  the 
party  proponent  doth  exhibit  and  hereunto  an- 
nejc,  and  prays  may  be  here  read  and  taken  as 
if  herein  inserted,  a  copy  of  the  court-roll  of 
the  said  Elizabeth  Chudleigh's  being  a<lmiited 
tenant  to  the  premises  mentioned  in  the  next 
preceding  article,  and  marked  with  the  letter 
D;  and  that  Elizabeth  Chudleigh  therein 
mentioned,  and  Elizabeth  Chudleigh  party  in 


parish  of  Kensington,  in  the  county  of  Middle- 
sex, and  this  wiSiout  any  interposition,  let,  or 
hindrance  of  .the  satfl  right  honourable  Angus- 
tus  John  Hervey,  or  his  being  a  party  thereto 
or  any  ways  ooocenied  therein  ;  and  in  such 
lease  the  said  Elizabeth  Chudleiirh  waa  de- 
scrilied  by  the  name  of  Elizabeth  Chudleigh: 
and  this  was  and  is  true  ;  and  the  party  propo- 
nent doth  alledgeand  propound  as  before. 

'*  9.  That  in  supply  of^proof  of  the  premtsei 
mentioned  in  the  next  preceding  article,  the 
party  proponent  doth  exhibit  and  hereunto  an- 
nex, and  prays  may  be  here  read  and  taken  at 
if  therein  inserted,  the  said  lease  mentioned  in 
the  preceding  article,  and  marked  with  the  let- 
ter £ ;  and  doth  alledge  that  every  thing  waa 
so  had  and  done  as  therein  is  contained  ;  and 
that  Elizabeth  Chudldgh  tlierein  named,  and 
Elizabeth  Chudleigh,  spinster,  party  in  this 
cause,  was  and  is  one  and  the  same  person,  and 
not  divers :  and  this  was  and  is  true  ;  and  the 
party  proponent  doth  alledge  and  propound  as 
before. 

'<  10.  That  Mrs.  Ann  Hanmer,  the  annt  of 
the  said  Elizabeth  Chudleigh,  spinster,  the 
party  proponent,  and  who,  in  the  second  arti- 
cle of  the  pretended  allegation  atlmilted  on  the 
E art  of  the  said  right  honourable  Augustus  John 
lervey,  is  pretended  to  have  been  present  at 
the  pretended  marriage  pleaded  by  the  said 
Augustus  John  Hervey,  did,  in  the  year  1769, 
write  a  letter  wirli  her  own  hand  to  the  said 
Elizalieth  Chudleigh,  spinster,  wherein  she  ad- 
dresses her  as  a  single  woman,  therdn  calling 
her  *  dear  Mrs.  Chudleigh ;'  and  also  in  or 
about  the  year  following  did  make  her  last  will 
and  testament,  and  codicil,  the  codicil  not  dated, 
but  the  will  bearing  date  the  11th  day  of  Jddo 
1763,  and  both  will  and  codicil,  as  well  as  the 
letter  aforesaid,  are  of  the  hand-writing  of  the 
said  Mrs.  Ann  Hanmer,  and  so  known  to  be  by 
|>ersons  who  have  seen  her  write  and  subscribe 
her  name  to  writings,  and  are  well  acquainted 
wiih  her  manner  and  character  of  hand- writ- 
ing ;  and  in  which  will  and  codicil,  proval  in 
the  prerogative  court  of  Canterbury,  and  now 
remaining  in  the  registry  thereof,  the  said  Mrs. 
Hanmer  hath  by  the  will  given  a  silver  sugar- 
urn  and  spoon,  und  by  her  codicil  hath  given 
and  bequeaihe<l  a  legacy  of  100/.  to  the  said 
Elizabeth  Chiidleigli,  by  the  name  and  descrip- 
tion of  the  hooouraOlc  Mrs.  Eiizabetii  Chud« 
leigli :  and  tins  was  anil  is  true ;  and  the  party 
proponent  doth  alledge  and  propouml  as  before. 
*'  H .  That  in  supply  of  proof  of  the  premises 
mentioned  in  the  next  preceding  article,  the 
party  propouniling  doih  exhiliit  und  hereunto 
annex,  and  pruys  may  be  here  reail  and  taken 
ns  if  herein  inserted,  the  said  letter  marked  with 


this  cause,  was  and  is  one  and  Uie  same  perikon,  i  the  letter  F,  beginning  thus;  *  Siinning-hill, 


and  not  divers :  and  the  party  proponent  doth 
allege  and  propound  as  l)efore. 

<'  8.  That  in  the  year  of  our  Lord  1762,  the 
said  Elizabeth  Chudleigh,  spinster,  trauHUfted 
business  with  John  Butcherin  her  own  maiden 
name  of  Chudleigh,  and  took  a  lease  from  the 
Slid  Mr.  Butcher  of  certain  lands  situate  ip  the 

i 


August  the    14th— 62-      Diar    Mrs.   Chud- 

*  leigh,'  and  i  nditig,  *  I  am,  il  'ur  .Muduni,  your 

*  sincere    well-wiHlier    and    hinnble    servant, 

*  A.  Hanmer;'  und  also  duth  exhibit  a  copy  of 
the  said  will  and  codiril  uf  the  said  Mrs.   ifan-  • 
luer,  marked  with  letter  G ;  and  duih  alle<lgn 
that  Mrs.  Hanmer,  the  aunt  of  the  party  pro* 


SB5] 


Jbr  Bigamy. 


A.  D,  1776. 


[386 


poneBt,  who  vnrtte  the  mid  letter  to  the  said 
Mrs.  Chudleigh,  and  who  made  the  said  will 
Md  codicil,  aud  Mrs.  Hanmer,  whom  the  said 
right  hooourabic  Augustus  John  Henrey  pre- 
tends to  ha? e  been  a  witness  to  his  preteuded 
nafriagv,  was  and  is  one  and  the  same  person, 
and  act  di?ers ;  and  tliat  Mm.  Cliudlciffh  men- 
tinned  in  the  said  letter,  and  the  honourable 
Hra.  Elizabeth  Cliudleigh  mentioned  in  the 
aaid  laat  will  and  codicil,  and  filizabc^th  Chud- 
Icifffa,  spinster,  party  in  this  cause,  was  and  is 
the  same  person,  and  not  divers :  and  this  was 
■nd  is  true ;  and  the  party  prop«>nent  doth  al- 
lege and  propound  as  fieture. 

**  12.  That  Mr.  Merrill,  at  whose  house  the 
•aid  right  honourable  Augustus  John  Hervey 
hath  bleaded  the  said  pretended  marriage  to 
4ftTe  been  solemnized,  wrote  two  letters  with 
his  own  hand,  and  sent  them  by  the  post  to  the 
•aid  Eliaubeth  Chudleigh,  party  in  this  cause, 
wherein  he  addresses  her  as  a  single  woman, 
the  aaid  letters  heiii^  dated  Nov.  Ist,  1765,  and 
Mov.  3d,  1766,  written  in  one  sheet  of  paper, 
and  superscribed  or  directed  thns ;  <  To  the 
^benonrable  Mrs.    Elisabeth   Chudleigh,    at 

*  Chalmingtnn,  near  Dorchester,  Dorset ;'  and 
IB  the  letter  of  the  dd  of  Nov.  1765  are  these 
verds,  to  wit;  '  1  have  added  your  christian 
■  aanie  to  your  surname  in  the  direction  of  this, 

*  lest  the  word  honours  hie  should  not  be  snffi- 
'cievt  to  prevent  a  Idunder,  and  the  letter 

*  abouM  be  given  to  Mrs.  Chudleigh.  I  have 
'  net  with  so  many  and  such  gross  blunders, 

*  that  I  think  I  can  never  enou«;li  guard  against 

*  them  ;*  and  the  party  proponent  doth  alledge, 
that  by  these  vwrds,  *  should  be  given  to  Mrs. 

*  Chudleigh,'  was  meant  Mrs.  Chudleigh,  at 
Chalmington,  aunt  to  the  said  Elizabeth  Chud- 
Irigh,  the  party  pro|M>nent,  at  whose  house  she 
then  was :  and  this  was  and  is  true ;  and  the 
•arty  proiNioent  doth  allege  and  prujMund  as 

**  13.  That  in  supply  of  proof  of  the  pre- 
mises in  the  next  preceding  article  mentioned, 
the  party  proponent  doth  exhibit  and  hereunto 
annex,  and  prays  may  be  here  read  and  taken 
•i  if  herein  mserted,  the  said  two  tetters  men- 
bsiicd  in  the  next  preceding  article,  the  iirst 
marked  with    the  letter  II,  beginning  thus, 

*  Lainstone,  November  the  Ist,  1765.     Dear 

*  Madam,  though  I  have  nothing  particular  to 
'  write  to  you  o|»on,'  und  ending  thus, 
'Though  had  I  mentioned  it  to  them,  Mrs. 

*  Kelly's  snci  Mrs.  Eistop's  would  not  have 
*been  waning.      I  am,  dear  Madnm,  your 

*  most  obedit-nt  humble  servant,  John  Merrill ;' 
and  the  other  letter,  marked  with  the  letter  I, 
beginning  thus,  *  Noveinlier  Sd,  1765.  Dear 
'  Madam,  the  above,  as  you  see,  was  intended 
<  to  flpu  hy  the  last  post,'  and  f  udintr  thns,  *  that 
'  i  think  1  can  never  enough  guard  against 
'ihem.     1  am,  dear  Madam,  \our  most  f»be- 

*  diciit  hnmlde  servant,  John  Merrill ;'  and  the 
party  proponent  doth  alledge  and  propound 
that  the  whole  bmly,  subscriptions,  and  siiper- 
ecriptioD  of  the  said  letters  were  and  are  of  the 
|ii*n|icr  band- writing  and  subscription  of  the 

VDL.  XX. 


nid  John  Merrill,  and  so  known  and  believed 
to  be  by  persons  who  are  well  acquainted  with 
his  manner  and  character  of  hand- writing  and 
subscription ;  and  that  by  the  words,  *•  I  have 

*  added  your  christian  name  to  your  surname 

*  in  the  direction  of  this,'  was  meant  and  in- 
tended the  christian  and  surname  of  Elizabeth 
Chudleigh  the  party  in  this  snit ;  and  that  the 
honourable  Mrs.  Eliz^ibeMi  Chudleigh  men- 
tioned in  the  said  superscription,  and  the  ho- 
nourable ElizaU-ih  Chudleigh  party  in  this  suit, 
was  aud  is  one  and  the  same  fiersoo,  and  not 
divecs:  and  this  was  and  is  true;  and  the 
party  proponent  doth  allege  and  propound  as 
before. 

'*  14.  That  the  said  Mr.  Merrill  hath  alao 
in  and  by  his  last  will  and  testament,  bearing 
date  the  first  day  of  January  1767,  prove<l  in 
the  prenigative  court  of  Canterbury,  and  now 
remaining  in  the  registry  thereof,  given  and 
bequeathed  a  legacy  or  legacies  to  the  said 
Elizabeth  Chad&igh,  spinster,  party  in  this 
suit,  by  her  then  and  now  maiden  name  of 
Elizabeth  Chudleigh :  and  this  was  and  is 
true ;  and  the  party  proponent  doth  allege  and 
propound  as  before. 

"  15.  That  in  supply  of  tlie  premises  men« 
tioned  in  the  next  preceding  article,  the  party 
proponent  doth  exnibit  and  hereunto  annex* 
and  prays  may  be  here  read  and  taken  as  if 
herein  inserted,  a  copy  of  the  clause  of  the  will 
of  the  said  Mr.  Merrill,  marked  with  the  letter 
K ;  and  doth  allege  that  Mr.  Merrill  at  whose 
house  the  pretended  marriage  pleaded  by  the 
said  right  nonourable  Augustus  John  Hervey 
is  said  to  have  been  solemnized,  and  Mr.  Mer- 
rill who  made  the  said  will,  was  and  is  one  and 
the  same  person,  and  not  divers ;  and  that  the 
honourable  Elizabeth  Chudleigh  mentioned  in 
the  said  will,  and  the  honourable  Elizabeth 
Chudleigh,  spinster,  party  in  this  suit,  was 
and  is  also  one  and  the  same  person,  and  not 
divers :  and  this  was  and  is  true ;  and  the  party 
proponent  doth  allege  and  propound  as  before. 

"  16.  That  in  the  year  of  our  Lord  1766, 
the  aaid  Elizabeth  Chudleigh  borrowed  of  Mr. 
John  Drummond,  a  banker,  at  divers  times,  on 
mortgage  and  bond  security,  in  her  own  name, 
and  without  any  interposition,  let,  or  hindrance 
of  the  said  right  honourable  Augustus  John 
Hervey,  or  his  being  a  party  thereto,  or  his 
being  any  ways  concern«id  therein,  the  sum  of 
6,160/.  and  gave  the  said  Mr.  Drummond  a 
bond  for  1,000/.  part  thereof,  in  her  then  and 
now  maiden  name  ot  Elizabeth  Chudleigh* 
and  also  mortgaged  certain  premi>es  situate  in 
the  msnor  of  Kniglitsbridge,  in  the  county  of 
Bliddlesex,  in  her  said  then  and  now  maiden 
name  of  Elizabeth  Chudleigh,  unto  the  said 
Mr.  Drummond,  (or  the  repayment  of  the  sum 
of  4,160/.  to  the  said  Mr.  Drummond,  as  will 
appear  by  the  original  bond  and  mortgage-deed 
now  in  the  custody  or  power  of  the  said  Mr. 
Drummond,  to  which  she  refen? ;  and  the 
party  proponent  doth  allege  that  Elizabeth 
Chudleigh  mentioned  in  the  said  iNind  and 
mortirage-deed,  and  Llizabeth  C hud Icigh,  spin* 

2C 


887] 


18  GEORGE  m. 


Trial  of  the  Ducheu  of  Kingston, 


[888 


Iter,  party  in  this  suit,  wu  and  is  one  and  the  j  and  the  party  projionent  doib  allegte  and  pr»« 

same  persuu,  and  not  difers :  and  this  was  and  '  pound  as  before. 

is  true ;  and  the  party  proponent  doth  allege        **  91.  That  the  said  Mr.  William  Field,  as 


and  propound  as  before. 

'*  17.  That  in  supply  of  proof  of  the  pre- 
mises mentioned  in  the  next  preceding  article, 
the  party  proponent  doth  exhibit  and  hereunto 
annex,  and  prays  may  be  here  read  and  taken 
as  if  herein  inserted,  the  counterpart  of  the  said 
mortgage- deed,  dated  the  18th  of  April  1766, 
marked  with  the  letter  L ;  and  doth  allege  and 
propound  that  the  same  was  and  is  the  coun- 
terpart of  the  said  mortgage-deed  remaining  in 
the  custody  or  power  of  the  said  Mr.  Drum- 
mond,  as  mentioned  in  the  next  preceding  ar- 
ticle ;  and  that  Elizabeth  Chudleigb  mentioned 
in  the  said  bond  and  mortgage- deed,  and  Eli- 
sabeth Chudleigb,  spinster,  party  in  this  suit, 
was  and  is  tbe  same  person,  and  not  divers  : 
and  this  wan  and  is  true ;  and  the  party  propo- 
■enl  doth  allege  and  propound  as  before. 

"  18.  That  in  the  month  of  February  in  the 

J  car  of  our  Lord  1765,  and  in  tbe  month  of 
nne  1768,  the  said  Elizabeth  Chudleigb,  spin- 
ster, borrowed  of  Mr.  William  Field,  of  the 
Inner-Temple,  attorney  at  law,  seferal  nums 
of  money,  to  the  amount  of  the  sum  of  1,900/. 
or  thereabouts,  for  which  she  gave  to  the  said 
Mr.  Field,  as  security,  two  bonds  in  her  own 
Dame  of  Elizabeth  Chudleigb,  without  the  in- 
terposition, let,  or  hindrance  of  the  said  Au- 
gustus John  Heivey,  or  without  his  being 
party  thereto,  or  any  ways  concerned  therein : 
and  this  was  and  is  true ;  and  the  party  pro- 
ponent doth  allege  and  proiiound  as  before. 

**  19.  That  on  or  about  tbe  S5th  of  February 
1756,  administration  of  the  goods,  chattels, 
and  credits  of  Harriot  Chudleigb,  late  of 
Windsor- castle,  in  the  county  of  Berks,  widow, 
deceased,  the  mother  of  the  said'  Elizabeth 
Chudleigb,  party  in  this  suit,  was  granteil  to 
tlie  aaid  William  Field,  as  the  attorney  and  for 
the  use  and  benefit  of  Elizabeth  Chudleigb, 
described  in  the  said  administration,  and  in  the 
recerds  of  the  prerogative- court  of  Canterbury , 
by  the  name  and  description  of  Elizabeth 
Chudleigb,  sjpinster,  the  natural  and  lawful 
daughter  andf  only  child  of  the  said  Harriot 
Chudleigb  deceased,  without  the  interposition, 
let,  or  hindrance  of  the  said  right  honourable 
Augustus  John  Hervey,  or  without  his  being 
party  thereto,  or  any  ways  concerned  therein: 
and  this  was  and  is  true ;  and  the  party  propo- 
nent doth  allege  and  propound  as  before. 

**  80.  That  in  supply  of  proof  of  tbe  pre- 
mises in  the  next  preceding  article  mentioned, 
tbe  party  proponent  doth  exhibit  and  hereunto 
snnex,  and  prays  may  be  here  read  and  taken 
ss  if  herein  inserted,  a  cop^  of  the  administra- 
tion-act entered  on  record  in  ihe  aaid  preroga- 
tive-court of  Canterbury,  and  sisoetl  by  the 
deputy-registrars  of  the  said  court,  or  one  of 
them,  marked  with  the  letter  M  ;  and  doth  al- 
lege that  Elizabeth  Chudleigb,  spinster,  there- 
in menlKMied,  and  Elizabeth  Chuilleigh,  spin- 
ster, party  in  this  cause,  was  and  is  one  and 
Iks BMBs  psnott ;  aud  this  was  sad  is  tms; 


the  attorney  of  the  said  Elizabeth  Chudleigh, 
and  by  virtue  of  a  letter  of  attorney  from  Tier 
for  that  purpose,  given  in  her  name  of  Eliza- 
beth Chudleigb  to  him,  used  to  receive  her  sa- 
lary as  maid  of  honour,  without  any  ioierposi- 
tion,  let,  or  hindrance  of  the  said  right  ho- 
nourable Augustus  John  Hervey:  and  this 
was  and  is  true ;  and  the  party  proponent  duUi 
allege  and  pro|iouiid  as  before. 

"  22.  That  on  or  about  the  fil>h  day  of  ITay 
1766,  the  said  Elizalieth  Chudleigb,  parly  ia 
this  suit,  presented,  in  her  ov^n  name  of  Eliza- 
beth Chudleigb,  by  virtue  of  a  preseuistion 
signed  by  her  for  that  purpose,  the  reverend 
Mr.  John  Julian,  junior,  to  the  living  of  Hartr 
ford,  in  the  county  of  Devon,  who  wan  in  vir- 
tue of  the  said  presentation  duly  instiiuted  and 
inducted  to  the  saiil  living,  withoui  any  inter- 
poaition,  let,  or  hindrance  of  tbe  said  riuht  ho- 
nourable Augustus  John  Hervey,  or  hi>  being 
a  party  thereto,  or  any  way aconcerned  therein : 
and  that  this  was  and  is  true;  and  the  party 
proponent  doth  allege  and  propound  as  before. 

**  23.  That  in  supply  of  the  proof  of  the  pre* 
mises  mentioned  in  the  said  next  preceding 
article,  the  party  proponent  doth  exhibit  an3 
hereunto  annex,  and  prays  may  be  here  read 
and  taken  as  if  herein  inserted,  an  authentic 
copy  of  the  said  presentation  marked  with  ths 
letter  N,  signed  by  and 

also  a  certincate  of  the  institution  of  the  said 
reverend  John  Julian  to  the  said  rectory  of 
Hartford,  signed  by  Richard-  Burn,  notary- 
public,  secretary  to  the  lord  bishop  of  Exeter, 
and  marked  with  the  letter  O  ;  and  doth  al- 
ledge  that  Elizabeth  Chudleigb  mentioned  in 
the  aaid  presentation  and  certiticate,  and  Eliza* 
beth  ChudJeigh  party  in  this  cause,  was  and  is 
one  and  the  same  person,  and  not  divers:  and 
this  was  and  is  true ;  and  the  party  proponent 
doth  allege  and  propound  as  before. 

•'  24.  Thatthesaid  Elizabeth  Chudjeiijrh,  for 
many  years  subsequent  to  the  pretended  time  of 
tbe  pretended  marriage  aforesaid,  kept  a  current 
account  of  cash  with  tiie  bank  of  England  in  her 
name  of  Elizal»eth  Chudleif;h,  aud  as  a  singls 
woman ;  and  also  in  all  common  as  well  as  other 
occurrences  of  buyiiigs  and  sellings,  and  other 
money  matters,  whenever  occasion  happened, 
the  said  Elizal)eth  Clindleigli,  spinster,  parly 
in  this  suit,  hath,  as  well  before  as  ever  sines 
the  pretended  time  of  the  pretended  marriage 
pleade«l  by  the  said  right  honourable  Auiifiistus 
John  Hervey,  constantly  in  her  own  name  of 
Elizabeth  Chudleigb,  Kpiuster,  transacted  such 
business,  by  paying  aud  receiving  money,  giv- 
inflf  and  taKiug  receipts  for  the  same,  hiring 
and  discharging  servants,  and  on  all  other  oc- 
casions, Hithout  the  interposition,  let,  or  hin- 
drance of  Ihe  said  rii;hi  honourable  Augustus 
John  Hervey,  or  his  being  any  ways  concerned 
therein:  and  this  was  aud  ia  true;  and  tbe 
party  propoaeat  doth  ailedge  and  propoimd  m 


for  Bigamy. 

ind  liDgulir  tb«  preiuiMB 
-ei«  >m  WT  iruc,  ami  to  furth. 

"  AttTii,  Collier. 
"  Pet.  Calvmt- 

■■  VVll.WlfMNE," 

CimtiLEian  *rjii[i«l  tIeitvET. — Sentence  mJ 
and  prumut^cd  [he  lOlb  uf  February  17G9. 
In  ihp  nimcr  or  Gixl,  >men.  We  John 
wprth,  doclor  of  lawi,  ticBr-i^oeral  of 
ricbt  reverend  father  in  God  Ricbard,  by 
"ipfrmiiaiDO,  lord  biabop  of  London,  and 
il  principal  of  the  consialorlal  and  e|Hico- 
oourl  of  London,  batini;  sveo,  beard,  and 
onderaiDod,  and  folly  and  inalurely  diwusaed 


A.D.  1776. 


"  Ir 


tbtni 


I  and  ci 


b  Cbudletyb.  ol'ibe  parish  of  St.  Mi 
;  Wotininater,  ill  Ihe  county  of  Middle- 
|,apiiitleT,  the  party.agenl, and  complainant, 

'  ■•- pjrt,  and  tbo  rigbt  honourable  Au- 

u  HrrTey,ol'ihe  jiariBh  of  ^t.  James, 
^Veitaiioiter,  in  tlie  counlv  nf  Middlesex  and 
a  of  Lnodon,  bachelor,  falsely  calling 
r  Ihr  butband  of  the  said  honourable 
lelb  Chadleigb,  the  parly  accused  and 
-'-   '     '     n  the  other    {• 


piir  proctora  reiuecliiely,  and  the  pvncior 
'  a  Mid  boaourable  Elizabeth  Chudkiicb 
^iDg  MniteDce  lu  be  Kiteii  and  juilice  tn  be 
Iklo  hta  party,  and  ihe  proctor  of  the  ikid 
liffbl  honuurablB  Augaalui  John  Hfrcey  altn 
r../iieMly  prayiaif  a«Dteoce  and  justice  tn  be 
'  (IE  10  hiv  aaid  party  ;  and  we  liating  care- 
'  illy  lookrd  into  end  duty  cooaidered  of  the 
■  Ucilr  i>rr>i.'(«ding«  hud  and  done  before  ur  in 
li.i'  uiil  I'll  line,  and  obaerred  by  law  what  ouuht 
Up  \.r  i.l.^rteil  in  ihia  behalf,  1ia»e  ihniigiht  fit 
Qiitl  ilu  liiui  think  6t  to  proceed  to  Ihe  g'ivinif 
tiKi  {iri>iiiiili{in|{  our  definiilte  sentence  nr  tioal 
ii-rr--  III  iJ>i>  name  eauar,  in  manner  aud  form 
f.l;„«„iU(iu  w.i:) 

"  Kijiuiiiiuch  as  by  the  acts  rnacteil,   alte^- 

■■'■   I  \U.'n,.f:\,  propounded,  proied,  and  confeaa- 

II  lie,  we  hafe  found  and  clearly  dis- 

.MheproctDr  of  the  aaid  honourable 

iiiidlciith  halh  fully  Badaufficirnily 

'■  |>riiteil  his  iiilenlioo  deduced  in  a 

'  I  uiid  alle^atina  and  nllier  pleadinei 

"    c'*'i>  <D-  enhibited,  aii<l  ailmitlpd 

il   in  this aame cause,  and  now  re- 

.iic  regi»try  of  this  court  (which 

•   •  Ration  and  olber  pleadinUB  and 

t  ike  and  will  have  taken  aa  if  here- 

ri'l  iuierltd  fur  ua  to  pronounce  ■« 

ir  aball  pronounce;)  and  ihnt  nil' 

, ,  - .  .  -Ill  cflcctual  in  law,  bu'  b  on  the  part 

.'  !••  bill  ul  the  aaid  ri)[bl  buiiourahle  Autfua- 

Juka   Hi-t'ey  lieou  excepted,  deduced,  ex- 

luil,  propoaoilnl,  pmired.  ar   confetied  in 

'  le  to  ikfcBl,  prejudice,  or  weaken  the  inteu- 
u  aT  tb«  Mid  bonaiuaibte  lUixabelk  Chud- 


[390 

leijtb  deduced  aa  aforesaid ;  and  particularly 
that  tlio  aaid  rit(hl  honourable  Auniustus  John 
Herrey  hatli  totally  failed  in  ibe  pmiit'  of  hi« 
nlleiriiiiaii  iciien  in  and  admitled  in  ihia  cause, 
whereby  be  pleaded  and  propounded  a  pre- 
tended intu'riusc  to  have  been  aulemnized  be- 
Iweeu  him  hdJ  thesaiil  bnnuurable  Elitabeih 
Chudlei|{h,  spioiler:  and  ibetefiire  we  John 
Betlesworth,  doctor  of  lawa,  the  jud|;e  afore' 
said,  f)r«t  catling  upon  God  and  aetting  him 
alone  before  our  eyts,  and  b«Ting  beard  couniel 
in  this  ctuae,  do  pronounce,  decree,  and'de* 
clare,  that  the  aaid  honourallr  Elizabeth  Chud- 
leigb,  at  and  during  all  the  time  mentioned  in 
the  laid  libel  picen  in  and  admitted  in  this 
cause,  and  now'  remaiuiog;  ii)  the  registry  of 
thb  court,  was  and  now  is  a  spinster,  and 
free  from  all  malrimonial  coutracls  or  ea- 
pousals  (aa  lar  ni  to  us  as  yet  appears) 
more  egpecielly  witli  the  «aid  right  honour- 
able Augustus  John  HerTey  ;  and  Ibat  the 
said  right  honourable  Augustus  John  llertey, 
Dot  with  standing  ihe  preiniies,  did  in  the  yeara 
and  moniha  hbellale,  wickedly  and  inahci- 
ouslv  boast  and  publicly  asieri  (iliou|;h  false- 
ly)  that  he  was  cuotracled  in  mari'ia^e  to  the 
said  honourable  Elizabeth  Chudlcigh,  or  that 
they  were  Jollied  or  contracle d  together  in  nia- 
trifflony  :  wberelure  we  do  uroaouiicc,  decree, 
and  declare,  thai  perpetual  tilence  muU  and 
aught  to  be  imposed  and  enjoined  the  said  right 
honourable  AugUEtua  John  lleriey  as  to  the 
premlsff  tibellate,  wliich  we  dn  impose  and  en- 
join him  by  these  prescnlat  and  we  do  decree 
the  aaid  right  hounurable  Augustua  John  Her- 
vey  to  be  ndmonished  to  delist  from  bis  buaat- 
iag  and  asserting  that  he  was  contracted  to  ut 
joined  with  the  said  honourable  Elizabeth 
Chudleigh  in  matrimony  aa  albresald ;  and  we 
ilo  also  pronnuDce.  decree,  and  declare,  that 
Ibe  aaid  right  honourable  Augustus  John  Her- 
Tey  nugbt  by  taw  to  be  cuodemned  in  lawful 
expeiicet  made  or  lo  be  made  in  Ibis  cause  oit 
Ibr  part  and  lirbalf  of  the  suid  bonouriible  Eli- 
zabeth Chudleigh,  tn  he  paid  to  ihe  said  Eliza- 
beth Chudleigh  or  her  prodori  and  accord- 
ingly we  do  condemn  hmi  in  such  expeDcea, 
which  we  tax  at  and  mudrtate  lo  the  sum  of 
l(K)J.nf  lawful  money  of  Great  Britain,  braid ea 
the  expence  of  a  nmnitiiin  for  payment  ou  ihia 
beball  by  this  our  definitire  senience  or  Rnal 
decree,  which  we  read  and  promulue  hy  thea* 
presents.  J.  B£TTK5woitTU. 

"  Abth.  Colller. 

"  PlT.C^LVEKT. 

"  \Vm.  Wtnne." 

This  senieiiCB  was  read,  promnlged,  Bni] 
girea  by  Ibe  witbin-namfil  the  ticar-general 
and  nificial  principal  on  Friday  the  tOih  day 
of  February  in  the  year  of  our  Lord  1765.  in 
the  dining-rnom  adjoining  to  the  comniun-hal 
of  Dociura  Commona,  situate  within  the  parish 
if  St.  Benedict,  near  Paul's  wharf,  London, 
there  being  then  aud  there  prenentlhe  witueasrt 
specified  in  the  auts  of  court,  which  I  at- 
test.—M*uk  Hoijia;^,  nolarj.public,  deputy. 


391] 


16  GEORGE  IIL 


Trial  of  the  Ducheu  of  Kingston^ 


iSBKt 


Mr,  Wallace.  Yoor  lordihtpf  tre  now  pot-    oae  Afses  Adiiineihall,  aad  fobiwpiept  to  this 


neftwfl  of  a  Sentence  criTea  by  Uie  Cunsislory 
Court  of  the  bishop  of  London  in  «  cause  in- 
stituted ihirre  to  try  a  claini  made  by  Mr.  Her- 
Tev  of  Diarriafre  with  the  no^Je  priioner ;  yonr 
lonJshf|»*  find  by  that  sentence  the  claim  eza- 
mined,  snd  the  decree  prononnced  upon  the 
ailf-^ationsand  the  ifridence  fpven  in  the  cause ; 
by  viliicb  decree  the  noble  prisoner  at  the  bar 
is  (If  claretl  tree  from  all  matrimonial  contracts 
and  espousals  with  Mr,  Hcrvey. 

My  lords,  the  noble  prisoner  by  the  indict- 
ment is  charireil,  subsequent  to  this  supposed 
ma rriaj^e  to  Mr.  Herrey,  to  bsYe  married  the 
late  duke  of  Kinsfston. 

It  is  for  ine  now  to  submit  to  your  lordships, 
that  this  f entence  is  conclusiwe  as  lonr  as  it  re- 
mains in  force,  and  that  of  necessity  it  must  be 
received  in  e%idence  in  all  courts  and  in  all 
places  w  here  the  subject  of  that  marriage  can 
becfiriie  a  matter  of  dispute. 

My  lords,  I  don't  know  any  court  which 


msrriage  a  person  of  the  naoie  of  Bontiag  li- 
belled sftninaA  the  wife  of  Tweede,  clajmin|]^ 
under  a  pre-contract,  and  the  spiritual  court 
enforced  that  contract:  afterwards,  oo  the 
death  of  Bun^in"*,  a  question  arose  between  the 
issue  of  the  secfMid  marria^  and  the  ouHateral 
relations  of  Bunting ;  the  collateral  relatioBS 
insistiDi^  that  the  second  roarrisKe  was  atterij 
void,  because  there  hsd  ezisied  a  first  marriage, 
and  the  husband  living  at  the  time  of  the  ae- 
eond.  Another  objection  I  shall  state  to  your 
lordships  was,  that  though  it  might  be  eooehi* 
sive  between  the  parties,  yet  Tweede  the  i^ 
husband  betnfr  no  party  to  the  suit,  nor  to  the 
sentence  which  dissolved  the  marriage  betwate 
them  in  the  Ecclesiastical  Court,  it  couM  nal 
affect  him,  nor  indeed  any  body  but  the  partita : 
the  resolution  of  the  Court  was,  thst  be  being 
then  de  facto  the  husband,  thoueh  be  was  eat 
a  party  to  the  suit,  nor  in  the  Eoclesiaslical 
Court,  yet  the  sentence  against  the  wife  should 


the  cnnstiiiilion  of  this  kingdom  hss  placed  the  I  bind  the  huabaud  de  facta ;  and  **  fbrasmudh 
decisions  of  the  rights  of  marriage  m  but  the  ^  as  the  oognizaooe  of  the  right  of  marriage  b^ 
eccl^iiiastical :  I  believe  it  will  not  be  contended,  |  longs  to  the  Ecclesiastical  Court,  and  the 


that  the  common-law  courts  of  this  country  t  court  has  given  sentence  in    this  case,  the 


bare  any  such  original   jurisdictFoh.      Mar- '  judges  of  our  law  ought  (although  jt lie 
nages  may  indeed  incidentally  come  to  be  dis-  j  the  reason  of  our  lau)  to  give  fluth  and  credit 
cussed  aud  determined  in  the  courts  of  common  I  to  their  proceedings  and   sentences,  and  te 


la«v,  and  in  many  cases  absolutely  necessary  to  i  tbink  that  their  proceedings  are  consonant  te 
the  due  administration  of  justice;   but,  my'  the  law  of  holy  church,  for*  cnilibet  in  suo  arte 


lords,  it  will  not  be  found,  that  where  the  pro- 
|ier  forum  has  given  a  decision  upon  the  point, 
the  common- law  courts  have  ever  taken  upon 
themselves  to  examine  into  the  grounds,  or 
at  all  question  the  validity,  of  that  sentence. 

My  lords,  as  far  as  we  have  books  to  resort 
to,  we  find  instances  from  the  earliest  times 
down  to  the  present,  where  the  power  of  the 


'  perito  credf  ndum  e«t  ;^  and  so  the  issue  of  the 
first  msrriage,  in  consequence  and  upon  the 
credit  of  the  sentence,  were  considered  as  le- 
gitimate." My  loni  chief  justice  Coke  has 
also  reported  another  case  u|hmi  tlie  siibjec^t  of 
marrisge  in  the  40th  year  of  oiieeo  Elisabetb, 
which  your  lortlsbips  will  find  in  the  seventh 

S art  of  his  Reports,  page  41,  by  the  name  ef 
Leon's  case,  which  is  shortly  tnis  :-«Christo- 
thccmimon-law  courts,  and  where  their  deci-  '  pher  Kenii,  esquire,  married  Elisabeth  Stowell, 
sionN  linve  been  considered  as  conclusive  upon  ,  and  had  issue  ;  afiervrards  the  Ecclesiastical 
every  question  in  which  they  have  jurisdiction,  f  Court  pronounced  a  sentence  of  divorce  between 
and  r«i|H'cially  in  cases  like  the  present,  par-  Mr.  Kenn  and  the  lady,  who  were  not  of  the 
ticulnily  ht  longing  to  them.  age  of  consent  at  thetime  of  the  marriage; 

My  mrds,  I  don't  know  in  the  common-law  '  and  in  consequence  of  this  sentence  he  married 
courts  uiiy  instance  where  the  legality  of  mar-  a  second  wife :  the  issue  of  the  fir«t  marriage, 
riagi;  con  come  directly  in  question,  that  the    claiming  the  inheritance,  exhibited  a  bill  in  me 


courts  lia«  e  decided  upon  it  without  referring  to 
the  bishop,  the  ordinary  of  the  place,  to  cer- 
tify ;  unless  the  marriage  has  been  decided  by 
a  suit  instituted  in  the  Ecclesiastical  Courts. 

Your  lordships  will  permit  me  to  refer  your 
lordshi|}s  to  those  authorities  of  law  which  are 
to  lie  found  in  our  books  ;  and  by  the  able  as- 
sistance which  your  lordships'  indulgence  has 
given  the  prisoner  at  the  bar,  you  will  more 
particularly  have  explained  the  nature  of  the 
proceedings  in  the  Ecclesiastical  Courts,  how 


court  of  Wards  of  that  day,  in  order  to  have 
the  benefit  of  the  succession  ;  and  offered  to 
prove,  that  though  the  sentence  had  been  given 
in  the  Ecclesiastical  Court  on  the  ground  of 
his  father  and  mother  being  within  the  age  of 
consent,  yet  that  they  were  above  the  age  of 
consent ;  that  in  truth  they  had  c(»habitH  to-^ 
gether  for  eight  or  nine  years,  and  had  issoe 
of  that  marriage.  There  could  be  no  doubt,  if 
the  matter  was  open  to  examination,  that  the 
first  marriage  was  effectual ;    for  in  the  first 


iir  and  to  what  purposes  in  those  courts  they  I  piece,  the  parties  were  above  the  age  of  eon- 
are  conclusive,  and  where' they  are  open  to  '       '        .•*....    i  •  ... 

such  litigation.  I  shall  beg  to  refer  your  lurd- 
shina  to  a  case  reported  by  lord  chief  justice 
Coke,  in  the  fourth  part  of  his  Ueports,  by  the 


sent,  and  if  they  had  been  under  the  age  of 
consent,  yet  their  cohabitation  together  after 
that  age,  and  more  especially  as  they  had  issue, 
would  have  been  sufficient  to  establish  the  roar- 


name  of  Bunting  and  Addingshatl.      In  the  .  riage.      It  was  argued  too,  that  it  was  open  to 


S7th  year  of  the  rdgn  of  Elizabeth,  there  was 
a  marriage  betweeo  one  Thomu  Tweede  and 


examination,  because  both  the  statute  and  com* 
mon  law  of  the  country  take  mrtioe  of  the  age 


Joy  Bi^iini!/. 

Hal  (  ami  Ihrrerore  it  wiit  niuall}  e^ra- 

■llo  K  ooiiTI  uf  cumiiion  Uw  lo  cxnmiiie 

i|ilbr()aMliMi,  a*  loin  GnclenMlital  Court. 

'"Wfurthwurgeil,  that  ihequEstian  reUinl  lo 

ihnitKKK or  which  the  Ec«lc«i«isticill  Court 

t  nn  Juriiulfaiiltiii  or  (yinlit)ul,  ami  IberrliuT 

"^t  »  qUMlkm  |irnp«rly  belbrc  ■  eoarl  ol' 

iqn  law  ;    but  the  Caurl  ilien  conceitpd 

idfM  M  far  bound  by  >tie  rieciaiim  nl'lhe 

tiaaricill  Court,  llinutrh  roundcil  on  ftlte 

_  atioB,  Ihtt  (hey  held  th«  plainliffio  ttait 

!e  OM  vmilled  tn  my  r^liel. 

■jr  tonh,  I  b#;  le«*e  (i>  lraii1>1«  your  lord- 

^  wilh  (he  wnnli  of  ilieCiMrt  upon  thai 

■fler  ctiiiag  the  rensoDS,  tbc  book 

lit  it  )>u  r«9nlTcil  by  «1l  ihejiiRllcn"  (for 
M  •  wrenncc  tn  thv  Iwo  chief  juctkes,  lo 
ff  jnuicn,  la  llic  chii-f  bnran.  tnd  ttro 
troni)  *'  Ihst  the  apnleiice  Hhoiild  cnn- 
k  ■*  hog  u  It  rpiiiflin^d  in  force."  And, 
"~'(,  the  reB*ioag'i»pn  are,  "  thai  the  eu- 
mI  jndfe  hu  KDiencpd  the  cuntract 
Tilpe  lo  be  •oid  and  nf  no  rffwl ;  and 
l>fh  Itiey  ifte  nf  tlie  a^e  ol'  cixiVent,  ypt 
p  VrijiDK)  conlrtcl  «  bi  void  and  of  uo  ef- 
ChM  there  traajust  caiMe  of  divorcv ;  and 
r  narriage  had  been  wiibin  (be  age  of 
Ut,  the  vcdesiaBlical  judgv  is  jud^  aa 

M  ■bull  he  a  aufficjenl  nstenl  or  nol ;  and  il- 

ti.ii.<<T|i  I  lie  (^;|.-le■i■Bti(■al  jud^  cbewa  Ihe  cause 

<  "tice,  yet  fbravmueh  as  he  is  jiidj^e 

'   jkikI  matter,  that  ii  of  ibe liinfulntva 

ni..iTij|[#,  we  irtll  nerfr  pitamitie  ihe 

'  iir,  ohrther  it  belnienr  I'aHe;  forof  Ihinspi 

ii'  cif:«'z4ncF  wh^recf  bel<iDg«  In  the  Erele- 

'  .\<ix«l  Cniirt,  me  oiii;bt  tn  give  credit  lo  iheir 

,  a*  ihry  giie  lo  the  juil^enls  Id 


if  ilw 

F  had  Iweo  on  aeiitence  of  (be  l£c- 

i)  Cnnri,  no  ilmihl  could  have  rxiiied 

'it  of  Mweetainn  :  but  ihe  seolPiice  in 

■I  Court  Iiavilie  inlerposeil,  the 

B  Iaw  conceived  Ihetnaelres  ah- 

I,  nay,  that  (hey  had  no  rietii  tn 

raUse  of  Ibal  lenience,  for  it  waa 

iBady  ofecdesieiticBl  jurisdiclion, 

M  give  faith  and  credit  to  Ihe  «eii- 

klttctMla«iic*l  jndge  in  thut  cause. 

^^1  vrWi  Hod  that  my  lord  chief 

»  lung  a([n  as  the 

1  the  4lh.  where  llie  aame  doe- 

MAMtfnwn  in  (be  BcrieslBEtiioal  Cnurl 

oipliile   and   deciiive   Jiiriadictim 

FT«pi,  from  the  rejKirter 
■  *hn  delemiined  liitin, 
:w.  I  take  in  be  of  the 
ii<l  arkmiwInlKinfT  'hnse 
ir  freifiienHy  In  (he  boobt, 

a{h  not  imdiT  tnU-inn  decinimn.  hut  at  Itife 
I  DpiniMi*  ul  .tudgaa  and  «i'  liiryera 

Btb«aa(lu*tgfr 


A.  u.  nits. 


[39* 


.  My  lords,  I  ilid  bcl'ure  mentinn  to  ynur  lord- 
■hips  a  cue  froin  Canheo  ;  1  aiMlJ  iif)t  «tate  it 
Iiarliuularly  bow,  but  ouly  tn  the  point  which 
we  era  nuw  upon,  that  ii,  ol'  tlie  •enieuoe  bemg 

My  lords,  thie  was  not,  as  anpiMMed  ih  the 
artriituent,  a  «ui  prim  opliiiia),  which  e*ery 
jiirli>e  mtisl  give  wilh  theiiilbTmaiion  lie  carrits 
nith  him,  and  wilhoal  Ihe  amiaiance  of  the 
rest  of  the  jurlg:ei  of  tbe  court,  but  a  ■ulenn 
drcltion  in  trial  at  bar  iji  the  court  nl'  King's, 
bench  in  Ibe4ih  ofkmgU'illiim,  when  I  thlok 
kird  chiel  jiistioe  Rnit  jireaidcd  in  (bai  court: 
it  waa  loo  upon  a  smteuce  uf  jaclitatioD  of 
niarringfl,  which  your  larTisbi|>s  liHTe  iww  be- 
tiire  you,  whicli  was  there  held  lofaecanctV' 
aive  eviilence,  aad  lUat  nn  testimony  whnteTtr 
oiirfat  lo  be  received  i^insl  it,  Yuor  lorilibipa 
will  take  the  wnrdK  of  the  CauH  Wfioii  ihat  oc. 
casion  :  '•  npoa  the  debale,  Ihe  Cmtrt  were  all 
of  opioion,  tiiat  this  Mnience  wIuIhI  anre)wa!eci 
ITBB  cDDrluaite  igatnat  all  mailers  (K-ecnlent ; 
and  thai  the  lamporal  court*  muil  give  creiKt 
(a  it  unid  it  is  reversed,  being  a  mallet  of  ineie 
eptritual  cof^nitance." 

Your  larHiliiii*  lind,  Ihat  in  ihe  rrign  of 
king  William,  that  nul Inn  which  had  frmn  all 

.  time  prevaiinl  »ai  as  strong  as  ever,  and  Ihat 
tbe  jiiilges  of  the  court  of  KtogVlwnch,  m 

i  which  it  wa»  tried,  were  alt  dearly  of  npinion, 

I  that  a  ca«p  like  ihe  preHrnl  of  jaetiiaiinn  of 
raarriBge  was  cnnclimive  upon  tbe  point,  till  it    , 

I  was  reversed  or  repealed. 

My  lords,  the  same  doctrine  ia  laid  down  by 

,  my  lorii  chief  Jmtiee  Hull,  uhn  presiileil  at 
Ihe  trial  nf  tliia  cause,  in  a  case  re|)oned  in 
SalkeM,  «90,  by  Ihe  nameol  Blaobhura'a  mw : 
lllunia  upon  the  riaimof  profterly  In  tliegooda 
of  a  woman  deceased.  Tbe  ptainiilT  proved 
Ihe  goodH  lo  be  In  hi^  pnsaeulon,  and  lo  be 

,  inken  away  by  the  drfrmlnnt.  Airaii^il  this 
daim  nf  itie  plainlilT,  the  defendant  sheWMl 
Ihat  thcK  wore  the  gunils  of  one  Jane  Black- 
ham  In  her  hle-ttme,  and  thai  Ihe  defemlaat 
hadiukenoul  letters  of  adminisiralinn  in  her, 

'  and  so  WB«  entitled  lu  the  goods.  Upon  this 
the  phunlifT  pmtert,  that  some  tew  tfaya  befoK 
her  (tealh  she  was  aclnalty  married  to  bim  ; 
and  ill  answer  lo  lltat  it  was  toalMed,  that  tbe 
8pi[ilua1  CAOrt  had  deierminevl  the  right  to  be 
in  the  defendant ;  <<»  they  coirid  not  here 
granted  administration  lo  Ih«  delendatil  b4t 
upon  a  Rupumiiion  tliBI  there  was  no  auch  mar- 
rlBBi-  i  anit  that  this  aeaience  being  a  matter 
(finiin  their  jiirndicllon  was  conclatlve.  anil 
couM  oM  be  gaiiisaid  as  in  evidence.  My  lonl 
chief  joBlice  Hull,  who  was  the  jud^  mtting 
St  Nisi  Piiiia,  wbii  ilrtermined  the  cane  1  ia«t 
cited, injB  ihiwi  "  ■  matter  whioh  has  been 
ilireclly  determineil  by  their  senlenoe  cannot 
be  |>«maai<l ;  their  aentenue  i^  cnncliisive  in 
Biieh  cases,  and  no  evident^  shall  be  admitted 
In  prave  the  eanlrary  ;  but  Uieu  it  must  be  la 
point  directly  tried." 

My  kird»,the  sentence  More  your  lordship* 
•I  preaent  is  in  a  cause,  where  ihu  diject  of  the 
pruiecutioii  was  to  queation  the  claim  of  mar- 
riagc,  and  where  the  marriage  ii  the  point  di- 


305] 


16  GEORGE  III. 


tectly  tried  and  detertnined  ;  to  that  ftecordini^f 
to  lord  Holt's  opinion,  ifthe  sentence  be  directly 
upon  the  question,  it  is  so  conclusive,  that  it  is 
not  cooDpetent  for  tny  court  of  common  Itw  to 
eztmine  into  the  matter,  or  recei?e  any  evi- 
dence to  contradict  it. 

My  lords,  these  are  cases  as  far  as  hare  hap- 
pened in  the  courts  of  law. 

I  shall  now  trouble  your  lordships  with  a  case 
determined  in  the  llouse  of  Lords,  under  the 
name  of  Hatfield  and  Hatfield :  it  came  on  be- 
fore the  House  of  Lords  in  the  year  1725. 
The  case,  as  collected  from  the  printed  cases  of 
the  times,  is  thus:— one  Leonard  Hatfield  mar- 
ried Jane  Porter,  who  had  diflerent  names  I 
see  assigned  her,  and  by  his  will  made  a  pro- 
▼ision  for  her  as  bis  wife.     In  March,  1730, 
■be  filed  a  bill  in  the  court  of  Exchequer,  in 
Ireland,  where  the  subject  of  her  provision 
lay,  against  Leonard  Hatfield,  a  son  by  a  former 
wife,  and  against  a  trustee,  to  have  the  benefit 
of  the  provision.    In  January  following  the 
defendant,  the  son  and  heir  of  her  husband, 
having  discovered  that  she  had  been  before 
married  to  one  Porter,  which  Porter  was  then 
living,  he  procured  a  release  of  part  of  the 
provision  from  Porter,  and  filed  a  cross- bill  for 
m  discovery  of  the  marriage,  and  to  stay  the 
proceedings  upon  her  bill.      In  this  cross  bill 
ne  questioned  her  upon  her  marriage  to  Porter : 
she  denied  that  she  had  ever  gone  by  the  name 
of  Porter  ;  but  with  respect  to  a  marriage  with 
Porter,  she  pleaded!  hat  she  ought  not  to  make 
a  discovery,  because  it  tended  to  criminate  her- 
selff     and  being*   an  accusation  of  bigamy 
Mffainst  her,  the  jjtlea  by  the  rules  of  the  court 
of  equity  was  ot    course  allowed,  that  court 
never  compelling  persons  to  discover  on  oath 
crimes  which  may  be  the  subject  of  prosecution 
against  themsel?  es. 

My  lords,  however  by  the  plea  one  pretty 
plainly  discovers,  that  there  was  reason  to  sup- 
pose she  was  the  wife — indeed  she  knew  it— it 
was  capable  of  proof,  and  would  be  proved  in 
the  cause. 

My  lords,  they  proceeiled  to  the  examination 
of  the  witnesses,  and  clear  evidence  was  given 
that  this  woman  was  the  wife  of  Porter: 
Porter  himself  had  confessefl  it  in  his  answer, 
and  he  had  stated  the  minister  and  the  wit- 
nesses who  were  present  at  the  marriage ;  so 
that  he  gave  Hatfield,  the  heir  at  law,  an  np- 
portunity  of  bringing  direct  proof  of  the  iiiar- 
riai^e  from  the  very  persons  present.  This  I 
woman,  finding  that  she  would  be  pressed  by 
that  proof,  had  recourse  to  the  ecclesiastical 
court :  she  instituted  a  suit  against  this  Porter 
of  jactitation  of  marriage,  pending  the  cause ; 
and  aAer  depositions  taken,  though  not  pub- 
lished, she  got  Porter  over  to  her  interest.  He 
was  willing  to  defeat  that  release  which  he  had 
given;  and  therefore  he  does  not  enter  into 
proof,  but  appears  by  a  proctor  for  form's  sake, 
that  a  judgment  might  pass  against  him.  Upon 
Ibis  tlie  ecclesiastical  judge  decreed,  as  in  all 
causes  of  jactitation  they  do  where  they  find 
that  there  ii  no  marriagei  that  the  party  libel- 


Trial  of  the  Duchess  ofKingston^  {390 

linff  was  free  from  alt  matrimonial  eontracta 
and  espousals  with  Porter.     Jn  this  case  Porter 
had  given  a  release,  as  her  husband  had  upon 
oath,  in  the  court  of  Exchequer  in  Ireland, 
stated  the  marriage  with  precision,  even  named 
the  minuter  and  the  witnesses  at  the  mftr- 
riage,  yet  in  the  ecclesiastical  court  he  appean 
by  a  proctor,  and  has  sentence  passed  against 
him,  without  insisting  on  the  marriage  or  any 
defence.    The  court  of  Exchequer  in  Ireland 
received  this  sentence  as  conclusive  agaitist  the 
marriage  with  Porter;   they  conceived  they 
were  bound  to  give  credit  to  the  ecclesiastical 
court.    The  plaintiff'  in  the  cause,  knowing  in 
what  manner  he  had  been  deceived,  that  ia 
truth  Porter  was  the  husband  of  this  woman, 
appealed  to  the  House  of  Lords  in  England. 
The  House  of  Lords  here  couceived,  as  the 
court  of  Exchequer  had  done,  that  the  matter 
was  determined  by  a  competent  jurisdiction ; 
and  yet  your  lordships  see  there  was  fraud  upon 
the  face  of  the  proceedings,  if  it  had  been  com- 
petent to  the  Court  to  have  entered  into  that 
consideration :  but  the  House  of  Lords  here 
conceived  the  matter  at  an  end  whilst  the  sen- 
tence remained  in  force,  and  the  decree  of  the 
court  of  Exchequer  was  affirmed.    Upon  the 
pleading  this  sentence,  the  court  of  Exchequer 
in  the  first  instance,  the  House  of  Lords  in  the 
last,  proceeded  to  determine  the  matter.    Jt  ia 
so  taken  notice  of  by  sir  John  Strange,  in  a 
case  I  shall  presently  mention.     It  is  taken  no-' 
tice  of  by  a  very  laborious  compiler  of  the 
law,  Mr.  Viner :    under  his  title  of  Marriage, 
he  mentions  the  ground  of  the  determinatioa 
thus:— the  legality  of  marriage  shall  never  be 
agitated  in  equity,  especial!}'  after  sentence  in 
the  spiritual  court  in  a  cause  of  jactitation  of 
marnage,  although   the  proceedings    in    the 
spiritual  court  were  only  faint  and  collusive. 

My  lords,  I  take  this  to  be  a  case  of  the 
greatest  authority,  a  decision  o^  the  House  of 
Peers  in  this  country,  and  upon  a  point  of  jacti- 
tation of  marriatjre,  a  sentence  of  the  same  na- 
ture with  the  present  before  your  lordships. 

I  shall  beg  leave  to  trouble  your  lordsbipe 
with  a  case  or  two  more  upon  the  subject, 
which  are  of  more  modern  times :  one  is  re- 
ported by  sir  John  Strange  in  the  second  part 
of  his  lleports,  960,  uiidtT  the  name  of  Clews 
and  Bathiirst.  The  action  was  for  maliciously 
procuring  the  plaintiff's  wife  to  exhibit  articles 
of  the  peace  against  him,  and  for  liYiiig  with 
her  in  adultery  :  the  plaintifl'  proved  the  mar* 
riacre  by  the  parson  ond  a  woman,  and  also  a 
consummation  ;  to  encounter  which,  the  defen- 
dant produced  a  sentence  of  the  consistory  court 
of  London,  in  a  cause  of  jactitation  of  marriaga 
brought  by  the  woman  against  the  plaintiflT, 
wherein  she  was  declared  free  from  all  contract, 
and  perpetual  silence  imposed  upon  the  plain- 
tiff; which  sentence  was  pronounced  since  the 
issue  had  been  joined  in  the  cause ;  and  the 
chief  justice  ruled  this  to  be  conclusive  evi- 
dence till  reversed  by  appeal,  and  the  plaintiff 
was  non-suited.  Your  lordships  find  here  waa 
a  cause  rightly  broughti  clear  proof  of  iIm 


Jqt  Bigamtf. 

„^„^  .,  -  -  ,  6  iriil  by  ilie 
Sm^ nn^autlurilie  fuel,  but  the  prmli 
II  ilie  (ccleHiiBileol  cmirt  i 
uoee  si'  lb»t  mtntage  i 
HiUlloa.  Tbe  chid'  Ju>lira  who  Irird  the 
'Mur  csmiiJered  lliu  hu»iiieM  n  cndiiileil ; 
..  .1  il  »*■  oi' no  cuu'rqufncc  uhen  Iheiiecirion 
"/•'  uiailp  I  tf  the  mimicnl  Wliire  the  trial,  il 
'  iir  miiiuKbt  IfiuK  by  n  court  haviD);  the 
"IrfT  aDil  the  iiilcjuriuliciiati  ut'  the  iiittler, 
mI  mlKiie  o|iiiiiun  mutt  be  decisive;  idiI 
■«f(\jte.  Iliui  IK  11  the  cause  bail  been  bruuisbt 
l'l-it«  any  »uil  iiitlilulFd  in  llir  rcvlrailitliual 
owrt,  ihKuiiVi  ibere  wd«  nn  iloubl  or  ihe  fotiii- 
W«n  fur  lh«t  oBiiie,  \v\  ihe  leiiteuce  i«  per- 
WIbI  111  hatr  i-fl'i-cl,  uiid  l»  non-«uil  that  plnin- 
W  <tbo  haiJ  beeu  injured  in  the  manner  lb« 
OM  «talM. 

If;  birds,  (here  was  lou,  «t  Ilie  tame  liltinp, 
nnbrr  cane  wbicli  is  reporlefl  in  the  iollowing 
Jiilin  Siruiii;e;  of  Da  Costa  auu 
wliitli  was  an  nclion  upon  a  cnn- 
irnwrriaK*,  jicr  terba  de^ufuro,  brousbl 
'  gvnllanian  at^aiust  the  lady,  who  piNtied 
mI  pha  HON  auumptil.     When  Uit:  plain- 
d  ofWDcd  hli  i-aie,  the  defendant  offered 
c  a  aenience  uflhr  G|<iritual  court  in 
'     «  Ilie  judge  hid  pru- 
)t  aijiainGl  the  mil  for  a  solemni'iatinn  in 
af  the  church,  and  declnrcil  Mt-s.  Vitia 
I  fr«in  all  contract :  and  ihe  Dbiel'jus- 
d  ihia  to  lie  proper  mid  coiictuiiie  eri- 
tkalitwoa  a  cause  within  their  J  urix- 
;  that  the  nature  at'  the  contract  was 
f  «uniinable  by  lh«ra  ;  and  therefore, 
il  dMrrmioeil,  ne  non-siiitrd  tlie  plain< 
Mt  eauie,  though  the    plaiiililT  there 
md  iraa  ready  lu  liuve  pruvol,  the  fact 
irrUite  brliire  ihecourl;  hut  Ihe  len- 
ag  ioterpaiied,  the  court  cooceiied 
lajHy  that  credit  which  every  cnurl 
dune  in  WcBlminster-Hall,  which 
.n  e*pry  Bue  had  dooe  to  the  eccle> 
teTjnrtadJcliun  in  catps  uithin  iheir  jiiris- 
Ml    tod  llndini;   himielr   ccuicluded    hy 
'Vfecttd  die  jilaintiff  of  Ihe  effect  of  thi* 
Slj  lordi,  itWDs  in  Ihia  caie  that  the 
r  Batfictd  and  Hatfield  was  quoted  as  ao 

,  Ihete  are  cases  upon  tlie    very 

f  marriage,  ani!  many  of  (hem  your 

"■ct  an<l  force  and  cou- 

tr  to  that  BOW  under 

bmi,  thai  Drajactitatiancaute.     My 
la  ba*  bvcn  mare  recently  end  within 


I  lb*  huiuiiiiable  Mr.  Tharou  Hcrrey, 
(nan,  to  recuter  a  debt  fur  iie<«a' 
I  for  hi.  wife.  An  ihat  Irjal  the 
ai  prutril  lo  the  idiifaction  of  the 
It  lirlvoiliiiil  liiimd  hable  to  pay  fur 
urix.  Air.  Hcrrey  iu^litulnl  a 
eoiiiidory  court  of^lhe  binhop  of 
jaclilaiiun,  and  he  wm  declared 
i  vyouMli  ud  cuuuacta  uf  umr- 


rii«  With  It*  My,  llnnog  the  c« 
oriiiiBienlrnce,  lhougba|ipealiilfrom,  nnotlier 
creiJiior  brou^hl  an  avtiou  against  Itlr.  llerfey, 
and  hud  to  jirnduce  in  ciidence  the  aanie  wil- 
nenaea  who  had  proved  the  one  of  the  oilier 
crtditnr  belVire  any  sentence  bad  i>een  obtained, 
and  had  aueceedni  ;  but  the  learned  chief  jui' 
tice  whu  tried  ihat  cause,  conceited  it  was  not 
llien  iipen  to  examinalioa  ;  tbat  Ihnusb,  iu  th* 
titst  inslance,  wlicu  Ihecauseof  Ihe  (irvt  credi- 
tor catne  tohediicuneil,  there  was  no  lenlenca 
ill  the  eocleciastical  court,  aud  of  ueceitity  ll)« 
court  of  commiin  law  must  decide  upon  th* 
marriaije  ;  but  there  had  ihen  iutetteued  a 
Eentence  in  the  ecclesiasiicai  court,  »liiclt, 
whilst  iu  force,  was  cnnclusiTe ;  and  of  courie 
di^misMd  the  plaioliff'i  claim;  and  the  intent 
of  Ihat  appeal  na«  ta  luapend  and  reverie  that 
»entenc« ;  yet  n  hile  it  stood  unreversed  it  waa 
conclusive,  iheliict  of  marriage  waaopen  Iu  no 
exnininatiou  in  any  court  whatsoever,  I'hls  it 
onlv  an  afHrmiince  of  the  priaci|ileiof  the  law, 
anil  the  dactrioe  louud  in  ilie  determiDtlioaa  nf 
a  ihnnwind  cases  which  the  book)  furnlab. 
,  My  lords,  it  ii  not  peculiar  to  the  case  of 
tnarnaife ;  il  is  the  same  in  other  instance* 
where  ihe  ecclesiaatical  courts  bare  ihe  juria> 
diction  ;  ii  is  so  In  ihe  probate  of  wills,  it  is  ao 
in  Ihe  granlingr  uf  letters  of  adininistralion :  if 
a  will  is  frirged,  if  ■  will  is  fraudulenlly  ob- 
tained uf  a  persiinal  estate,  of  which  Ihe  £c- 
cleaiusticsl  Cuurt  has  Ihe  jurisdiction  ;  if  (bat 
court  has  granted  a  prubile,  it  is  not  open  to 
a  court  nf  uninmon  Ihw,  il  is  not  open  to  a 
court  of  equity,  to  enter  into  the  fraod  uiade 
use  nf  in  uWininj;  the  will,  or  to  Ihe  forgery 
comtnitled  upon  a  testator.  I  shall  refer  your 
hirdships  lo  a  case  or  two  upon  thai  bead  :  Ihat 
of  Noel  and  Wells,  in  first  Levinz's  IteporU 
23i,  in  ihe  ISlh  ol'  king  Charles  the  second  .- 
it  was  an  action  brought  by  the  executrix  of 
ibe  hushanil,  and  upon  ihe  trial  the  plaintiff 
produced  Ihe  probate  of  the  will  in  evidence. 
The  defendant  inslsteil  the  will  wiu  forged ; 
and  the  chief  juHice  before  whom  it  was  tried 
was  of  opinion,  hecoutdnol  give  such  eviUenc* 
(lireclly  ai;ainBt  the  seal  of  iheerdinary.in  any 
Ihlngi  wiihin  hit  jurjidiclion:  u[)on  which  a 
case  was  made  for  the  opinion  of  the  court, 
and  a  verdict  was  for  the  plaintiff,  and  ihe  court 
held  that  the  chief  justice  at  Ihe  irlal  had  done 
Tight  in  rejecting  the  evidence  of  Ihe  forgery, 
that  no  such  evidence  ought  lo  be  given  idl 
the  prohote  was  repealed '.  they  might  indeed, 
hy  proving  (he  seal  of  the  ordinary  fui-ged, 
hate  relief  i  but  if  Ihu  seal  uf  the  ordinary  waa 
Kenuiue,  then  vthilever  forgery  nr  fraud  waa 
comtnitled,  it  was  not  open  to  the  examinalioa 
uf  a  common-law  court. 

My  lords,  the  same  doctrine  is  lo  be  found 
in  the  case  of  tlninsby  and  Kerrick  and  olheri, 
which  was  delerminvd  hy  Ihe  tinuse  of  Lonls. 
It  waa  stated  iu  ihiil  cnte,  ihai  one  iloWt 
Brtnshy,  the  complainant's  sun,  iNrmi;  iniilled 
10  ihe  reversion  of  a  freehold  and  copyboU 
estate  expectant  upon  the  death  of  ibe  com* 
plsiuani,'  made  hit  will,  by  which  he  gin  all 


16  GEORGE  m.  Trial  if  the  Duskeisn/Khgf  Ion 

e  10  tliB  defeniUnt  i 


zA 


S99] 

hi*  n»\  and  iicrsoml  vitale  10  tliB  defeniUnt  i  malter.  Tli«  same  law  hutdi  in  rKpeet  In  tha 
Kerrii^k,  atifl  ntrule  liim  his  exi^ciitnr,  hIio  courts  of  Ailniir&lty ;  whether  iiriie  or  not 
proreil  llie'will  in  (he  EcdeslaUktil  Cmiri,  in  prize.  beloni^R  to  the  Court  of  Ailnriraliy  ; 
cnmrnnn  hrm  :  ahenTBrili,  in  a  coDleit  in  the  juritriictioD  of'  iliat  court  tJeciiles  upon  the  inb- 
Bodei>MslioBl  Court  tourhintf  ibr  vnlidttv  of  iject;  though  iliejr  have  given  ■  wron);  ileci- 
'    '     '"  a^icen  in  favour  oFthe  |  siun,  though  tliefacladiil  milwafranlit,  ilinu^h 

Braniby.  Ihe  lather,     ihejudge  nas  dona  it  corruDil;,  yet  it  ii 


fiW  a  bill  in  Chancery, to  ^t  asiile  the  will  for     lence  which  ilic 


fraud  and   iiiipoaiiian. 

mined,  aoiS  many  acts  and 

imposiliiin  were   proted   opon  the  defendiinl. 

The  i^aUM!  came  lu  lie  Leard  before  lord  Mac- 

cleiilield,   then   cliaiicellnr,    upon  Ihe   14lh   of 

Notember   1TI8,   when    his   kirdship,   struck 

with  the  tnouEiniua  fraud  anil  iulquilv  of  the 

IrsDiaclion,  declared  (he  executor  should  stand 

as  *  iruiitee  for  the  next  of  kiu.     Ujioii  appeal,     and  yon  gi 

the  Uou«e  of  Lnr<ts  reversed  Ihe  decree,  upon  ,  lion.     I  migh 


huuud  by,  nhtr^Ter  it  coineslD  lilipgniioi 
and  I  have  known,  in  point  of  experience,  m  «ji 
actiun  of  Irespaai  hmuglit  here  fur  seitiiiff  • 
ahip,  where  it  has  been  before  a  Court  uf  Ad- 
miralty and  receifed  a  decision,  that  the  cnuit 
of  common  law  no  longer  entertains  the  caoae, 
for  the  queslion  of  prize  or  not  price  is  peou- 
''  rly  belonging  to  the  admiralty  J uriailictioii, 
'  '  uth  and  credit  to  ibil  jiirisilifN< 

refer  your  lordshiin  ii 


Ihe  gffonnd  lltat  it  wag  not  conitieieni 
of  eqnily  lo  examine  into  fraud  and  impoaitioa 
in  a  will  loucbing  nersonal  estate;  that  Ihe 
conrt  of  ecclexiaslical  jurisilictlnn  had  decided 
that  point ;  that  it  was  no  longer  open  to  dis- 

My  [onts,  the  same  rules  nblain  with  respect 
lo  every  cntirt  of  compelenljiiriiiiliclion,  whe- 
ther Irirei}^  or  domestic :  we  give  credit  to  the 
<leci»inus  of  all  foreiipt  courts  in  puinis  within 
Iheir  proper  jurisdiction,  and  do  not  examine 
into  the  (nets,  but  are, concluded  by  the  sen- 
tence. I  will  only  refer  your  lordnhips  to  a 
«a«e  ID  sir  Thomas  Koymunil's  Reports  473. 
In  the  war  between  the  l>ntch  and  the  French 
in  the  time  of  Charles  the  seotid,  a  ship  was 
seiied  by  the  French  as  a  Dutch  ship,  and 
eondemn'ed.  The  ship  being  in  truth  English, 
the  porehiier  umter  the  French  condetntiation, 
fcroughl  the  «hip  into  England,  where  the  right 
ftwtwr  eerzed  her :  upon  this  an  actinn  waa 
brotigitt  by  the  purchaser  under  the  condem- 
BBliott.  The  defemlaitl,  the  original  owner, 
oBered  to  prove  his  property,  and  that  Ihe  ship 
was  neter  a  Dutch  ship,  nor  was  liable  to  be 
■■ken  and  condemned  hy  the  French :  hut 
what  said  the  cnurir  IVe  must  give  credit  to 
Ihe  eondeinnalion  of  the  court  in  FranM ;  we 
are  forced  to  give  credit  lu  and  belieie  that  this 
•hip  was  in  the  condition  of  a  Dutch  ship,  and 
lulgeei  (u  a  condemnation :  anil,  Dpan  Ihe 
ground,  that  if  a  court  of  competetrt  Jurikdic-  , 

lion  giies  a  sentence,  all  other  courts  must  he  ■  Bramber,  in  Hussex,  which 
bound  by  it,  the  Englishmau  was  pivcliKled  \  tnany  records:  it  was  a  qnestinn  wbjiberl 
from  asaerlmir  his  right.*  It  was  the  same  r  reconla  wereadmisfiUe,  or,  if  admiasifcle^ 
il|Hm  a  case  of  ai^  insurance,  which  wilt  occur  \  conclusive  eridenoe.  The  counsel  who  m 
to  Mtne  of  rotir  lordships,  where  the  ahip  wax  '  in  tiivour  of  iliase  records  and  the  coocti 
trerraiiled  8h  cdish,  and  condemned  in  the  war  which  was  to  arise  from  Iheui,  compaivd  i 
betweeu  England  and  France :  the  parties  i  to  the  case  nf  ecclesiudcjil  tenlencet, 
were  coiii;lude<l  from  insisting  thai  the  ship  is  |  would  gladly  have  brought  tliose  reoords  i 
any  lunger  Swedish  or  a  neutral,  because  a  ;  in  that  rule.  The  Court  in  that  case  aofcl 
rl  ofcoiDpetenljarisdiclion  had  decided  the  ledged  ilie  argumeai  proper  with  respect  K 
Ecclesiastical    ConrW.     The  C' 


Ihe  cases  are  iununieruble  u|>oii  the  suliject)  to 
that  of  Burrougln  and  Janiinean,  in  Mrangfl, 
iSS,  which  wasapoD  a  bill  of  exchance,  wbet 
by  a  peculiar  local  cuatnm  within  Leghai 
it  ia  competent  to  the  acce^ilor  of  a  bill,  ht 
judgment  of  the  court,  to  hate  his  aeceptai 
annulled,  if  the  drawer  becpinen  Iwokru   '  * 
fore  the  bill  be  payalile.      There  »  nn  sui 
lathis  country;  yet,  gifing  credit  lu  th 
teoce  of  that  court,  the  Court  ol  Chancery  ll 
would  not  send   it  lo  a  trial  at  law,  but  iM 
mined  upon  the  piiini.  that  the  Hentence  io  I 
court  was  decisive  upon  Ihe  snhjecl,  it  beini 
matter  within  theirjiinsdiction. 

My  lords,  in  almost  eyery  case  where  jtw 
menl,  or  records  of  other  courts  liavebeeq  \ 
subject  of  discussion,  the  sentenee*  of  the  1 
clesiaslical  Court  have  always  betn  cited  ■ 
argued  from  as  cnnclunite  upon  the  subjeoj 
dispute,  and  the  courts  have  uniformly  a>loj 
those  oases  as  law ;  but  the  attempt  baa  < 
been  to  distinguish  cases  immediately  bfl* 
the  court  from  those  delermiued  by  tlie  e4 
aiaalical  jurisiliction,  Your  Inrd^ips  will 
much  nf  that  in  Ihe  case  of  Philipi  and  Bl 
in  Skinner,  468. 

Mv  lords,  there  wni  a  very  late  case  da 
mined  in  the  eoiin  uf  Common  Pletw,- 
whicb  is  now  got  into  print,  reported  by 
Berjeant  Wilson,  which  is  Biddulph  and  Al 
It  arose  upon  a  queslion  uf  claim  by  the  d 
of    Norfolk  to  all   wreck  within  the  rsua 


■  Meet  Ld.  Raym.  aas.   CnHhew  3'2.    lUx 

«.  Raines,  1   LA.   Kaym.   S(i«,  It!  hfod.  180. 

Oddy  V.  ilorill,  3  East  476.    See  also  Hi  at  case 

riled  in  13  East  473  ;  and  the  niher  i 

.  Hargr; 


that  the  seDleoce  uf  an  Ecclesiastical  Court,  iik 
a  matter  whereof  they  have  the  iole  cogni- 
zance, is  conclusive  evidence,  and  parole  e^ 
dence  shall  never  be  received.     My  lard.i,  U 
is  a  mnnuicript  nule  in  bring  ot    what 
judges  particularly  said  ;    and  I  luid  it  ^ 


m 


401] 


fir  Bigamtf, 


A.  D.  1776. 


[401 


cited,  M  one  of  th«  instiiiccs  where  tlie  «eii- 
tence  wm  conclutive,  by  the  learned  chief  jus- 
tice irho  tbeo  presided  in  the  Court:  he  says, 
if  ihere  is  a  sentence  in  an  Ecclesiastical  Court 
dedaring  a  marriaf^e— for  instance,  if  it  coutd 
be  proved  by  a  hundred  witnesses  that  the 
parties  were  neter  within  500  miles  of  each 
other,  that  efidenee  is  not  to  be  received,  but 
Ae  jndf^nient  of  the  Kcolesiastical  Court  is 
eondu^ive  n|Mni  the  |ioint.  In  many  of  the 
ctaes  I  have  cited  to  your  lordships,  the  Ques- 
tion came  directly  before  the  Court,  and  re- 
erired  a  solemn  disouwion :  in  some  the  doc- 
tiue  has  been  reeo^ized  ;  in  none,  nor  in  any 
ewe  that  1  know  of,  has  it  efer  been  doubted. 
Hy  lords,  though  the  cases  respect  civil  suits, 
I  tniot  that  no  real  ground  of  distinction  can  be 
■■de  between  criniinal  and  civil  proceed hi<]rs : 
ia  eivd  suits,  courts  go  as  far  as  possible  to  re- 
Rrre  claims  founded  in  equity  and  justice ;  in 
criminal  cases,  the  leaning  is  always  to  the 
defeodanto ;  and  therefore  I  should  conceive 
laeh  evidence  stronger,  in  a  criminal  pposeou* 
tiin,  in  favour  of  innocence. 

My  lords,  I  will  take  the  liberty,  liowever, 
of  reminding  your  lordships  of  two  or  three 
ciKs  in  criminal  law,  where  the  same  doctrine 
hn  been  established,  and  the  acts  of  the  Ec- 
clesiastical Court  deemed  condusif  e  npon  the 
nbieet,  antil  reveroed  hy  appeal.  My  lords, 
ia  the  1st  volume  of  sir  John  Strange's  Re- 

K,  481,*  your  lordships  will  find  a  case  that 
encd  at  the  Old  Bailey  in  the  8th  of 
|Scarge  the  Ist ;  it  was  an  indictment  for  forg- 
^wg  a  will  of  a  personal  estate.  On  the  trial, 
Ibe  forgery  was  proved  ;  hut  the  defendant 
prodndng  a  probate,  that  was  held  to  be  con  • 
cMve  evidence  in  support  of  the  will,  and  the 
defendant  was  acquht<Kl.  This  your  lordf>hi|>s 
iee  was  a  prosecutipn  for  a  very  serious  offence 
iadeed  ;  a  prosecution  for  the  forgery  of  a  will : 
Ibe  Ibrirery  is  staled  to  have  been  actually 
poveil  at  the  trial,  but  upon  the  production  of 
e  probate  from  the  EiSclesiastical  Court,  whose 
Mitons  are  final  and  conclusive  upon  such 
nbfceis,  the  defendant,  was  acquitted,  and  the 
widenee  of  the  forgery  rejected.  It  ought  not 
^kave  been  received j*  if  that  circumstance  of 
tbe  probate  had  been  discovered  sooner  to  the 
CSoert ;  hut  the  defendant,  perhaps  conceiving 
iIm  there  could  be  no  evidence  to  affect  him 
viih  the  guilt  of  forgery,  withheld  the  probate; 
vbnever  might  be  the  reason,  it  is  immaterial, 
biprodoeed  it  in  time  to  save  himself;  for  you 
mt  receive  a  probate  in  the  EccleRiastical 

*  This  was  the  case  of  the  King  and  Vin  -  , 
ent,  as  to  which,  see  the  remarks  which  were 
Mde  in  the  arguments  on  the  part  of  the  pro- 
loeation  in  the  case  before  us.  8ee,  too,  East's 
n.  Cr.  ch.  19,  f.  43,  the  various  cases  stated 
ky  Mr.  Hargrave  in  his  learned  Discourse  al- 
liidy  mentioned,  and  the  reasons  for  the  appd- 
in  Bouchier  and  others  v.  Taylor.  These 
as  were  written  by  Mr.  Hargrave,  and 
efihem  as  relate  to  the  matter  before  us, 
M  iaaerled  in  that  trealioe. 
VOL.  XX. 


Court  against  the  testimony  of  ten  thoumnd 
witnesses. 

Your  lordships  will  find  the  same  doctrine  in 
the  same  book,  Ist  sir  John  Scrange's  Reports, 
in  the  case  of  King  and  Roberts,  where  that 
defendant  exhibited  a  will  in  Doctors  Com- 
mons, as  ezecntur,  and  demanded  probate; 
after  long  contest,  it  was  determined  in  favour 
of  the  plaintiff;  and  upon  an  appeal  to  th« 
Dele^tes,  this  sentence  was  confirmed  ;  af^ 
the  sentence,  the  parties  who  had  brought  it 
about  fiell  out  amongst  themselves,  and  disco- 
vered that  the  will  which  had  been  proved  was 
a  forgery.  The  manner  of  giving  relief  waa  to 
grant  a  commission  of  review ;  hut  the  person 
who  had  l>een  disappointed  and  injured  by  this 
forgery,  also  preferreil  a  hill  of  indictment 
agrsiost  the  persons  concerned  in  the  act  of 
forgery.  The  chief  justice  refused  to  try. the 
cause  wtiilst  the  sentence  wns  in  force,  but  in- 
sisted that  it  should  stand  off  till  the  sentence 
was  laid  out  of  the  caae  by  the  decision  of  tlit 
commissioners  under  that  commission  of  re* 
view.  My  lords,  in  this  your  lordships  find 
the  doctrine  recognized  in  the  strongest  manner. 

The  next  case,  which  came  before  the  court 
of  King's-bcoch,  b  the  King  and  Gardell.*  It 
was  an  indictment  prosecuted  by  Mr.  Craw- 
ford, a  fellow-oommoner  of  Queen's  college, 
for  assault  upon  him.  At  the  trial  of  the  in* 
dictment,  the  defendant,  who  had  acted  by  thtf 
orders  of  the  college,  produced  the  aet3  of  the 
college  by  which  Mr.  Crawford  was  expelled; 
He  caiue  into  the  garden  of  the  college  after- 
wards with  an  intent  to  take  possession  of  bii 
rooms,  and  the  officer  of  the  college  took  hold 
of  him,  and  conducted  him  out  of  the  limits  of 
the  college*;  and  this  waa  the  assault  in  that 
indictment,  and*  which  was  in  point  of  law  an 
assault;  and  unless  the  defendant  had  a  de- 
fence, or  an  excuse  for  his  acts,  he  must  have 
been  tbuiid  guilty.  The  act  of  expulsion  was 
Cfiven  in  evidence.  An  offer  was  made  by  Mr. 
Crawfoi'il  to  prove  the  invalidity  of  thnso  acts, 
that  by  the  constitution  of  this  college  more 
persons  were  necessary  to  concur  in  an  act  of 
expulsion  than  had  been  present  at  that  time, 
and  other  objections  were  made  to  the  vaU'4ity 
of  those  acts.  The  learned  judge,  before  whom 
that  cause  came  to  be  tried,  conceivai  himself 
concluded  upon  this  subject ;  that  as  the  col- 
lege had  the  sole  jurisdiction  of  the  cause,  their 
decision  wa^ conclusive  upon  him';  and  it  did 
not  signify  upon  what  grounds  they  had  gone, 
for  the  effect  of  their  judgment  was  an  excuse 
of  the  defendant,  and  so  long  as  it  Vemained 
uoimpeached,  and  unreversed  in  the  proper 
course,  there  could  be  no  doubt  but  it  furnished 
protection  to  the  defendant,  or  to  speak  more 
properly,  a  defence  airainst  this  indictment. 
This  doctrine  not  being  satisfactory  to  the 
gentleman,  he  brought  the  business  before  the 
court  of  King's- bench  ;  and  that  Court  were 
onanimously  of  opinion,  that  the  Court  had 

*  See  the  Case  of  CoUett  v.  lord  Keitl^  % 
East,  360. 
2D 


16  GEORGE  III.  Trial  of  the  Duchess  o/Kingsioit,  [4M 

I  lady  at  the  bar  hopes  to  avail  herself,  begin,  at 
I  your  lordships  have  heard,  by  a  complaint  op 
iier  part,  that  Mr.  Hervey  did,  before  that  suit 
was  commenced,  improperly  and  without 
fi^round  lay  cUiin  to  her  as  his  wife;  in  other 
words,  in  the  language  used  in  that  court,  that 
he  did  jaclitate  that  the  lady  was  hit  wife. 
The  suit  being  thus  lft>gun,  the  next  proceed* 
ing  in  it  is  in  the  common  way,  where  a  persoo 
thus  called  upon  means  to  insixt  u)»on  a  mar- 
riage. The  defendant  in  the  suit  admits  that 
he  did  claim  the  lady  ast  his  wife,  and  contends 
that  be  had  a  right  to  do  so,  because  he  was 
lawfully  man-ied  to  her.  8uch  being  his  alle- 
gation, her  ladyship's  answer  to  it  is,  that  then 
IS  no  foundation  for  his  claim  ;  that  she  is  not, 
that  she  never  was  his  wife ;  and  she  states  in 
the  allegations  made  hy  her,  which  your  lord- 
ships iitive  heard,  a  great  variety  of  particulars 
during  a  very  long  period  of  her  life,  in  which 
in  the  most  public  manner,  and  upon  the  moal 
important  occasions,  she  was  universally  re- 
puted, received,  and  acted  as  a  single  woman. 
Atlerthis  ailec^^ation  of  hers,  the  next  proceed- 
ing was  to  examine  a  c^reat  variety  of  wit- 
nesses, upon  tht:  resul^of  whose  testimony  fol- 
lows that  which  is  tlie  important  part  of  tha 
business,  that  is,  the  scntc^ice  of  the  ecclesias- 
tical judge  ;  which  sentence  prun'Minces  in  tht 
same  way  in  this  as  in  all  other  suits,  whert 
two  parties  liiiirate  a  marriage  claimed  on  oot 
side  and  denied  on  the  other — that  these  two 
parties  were  free  from  any  matrimonial  con- 
tract. If  that  Heutence  is  to  have  the  forct 
which,  a?  it  is  apprehended  by  those  n  ho  sit 
on  this  side  of  the  bar,  by  law  it  must  have.  It 
will  of  course  follow,  that  this  indictment  must 
fall  to  the  ground ;  because  the  sole  foundatioa 
of  the  criminal  change  is  the  supposed  roar* 
riage  with  Mr.  Hervey,  which  this  sentence^ 
if  concluhive,  must  unanswerably  prove  nevec 
to  hare  existed.  It  must,  we  submit  to  youc 
lordbhips,  follow  as  a  consequence,  that  this  ifl 
the  iiroper  place  and  poiut  of  time  to  stop:  it 
would  be  to  no  purpose  for  your  lordships  to  sil 
here  to  hear  a  long  story,  the  ohjtct  of  which, 
when  the  sentence  was  conclusive,  would  only 
be  to  give  pain  to  one  whose  sufferings  no  one 
would  wisii  to  encreasc,  and  at  last,  after  it  bad 
been  heard,  no  possible  goo<l  effeci  could  fol* 
low  fi*om  it.  As  evidence  ought  not  to  be  heard, 
if  this  sentence  is  conclusive,  because  it  would 
he  bearing  that  which  could  have  no  intentioOf 
no .  weiglu,  no  conserjueuce ;  so  it  would  to 
nugatory  to  state  it,  and  every  body  would  wish 
to  dechne  the  hearing  it  for  thu  reasons  to 
which  1  alluded ;  and  I  am  persuaded,  not  ndj 
for  the  sake  of  the  noble  lady  at  the  l»ar,  bat 
for  the  sake  of  preserving  that  uhich  ever/ 
one  will  always  think  of  great  importance,  that 
is,  uniformity  in  legal  dtrrisionsuiidjudicaturetff 
that  this  sentence  must  upon  this  <»ccasioD,  90 
I  believe  on  every  one  has  been  in  w  bicli  mf 
such  sentence  has  ever  been  pro<Uiced  ia  0 
court,  be  deemed  decisive  and  unanswerable. 

My  kirds,  that  it  ought  to  be  so  apon  tUi 
occtsioDf  I  will  first  eDdetfOur  to  ahew  to  jm 


403] 

done  right  at  the  trial  of  the  cause  to  reject  all 
evidence  u|)on  the  ground  of  these  acta  of  ex- 
pulsion ;  that  the  acts  themselves,  being  within 
the  jurisdiction  of  the  college,  were  sufficient 
for  the  defendant  to  avail  himself  of ;  and  that 
it  was  not  competent  to  the  prosecutor  of  that 
indictment  to  shew  to  the  Court  that  these 
were  not  regularly  or  onlerly  done,  or  that  they 
were  invalid  in  any  respect  whatsoever.  My 
lords,  in  that  case  the  general  doctrine  was  re- 
oogniieed,  that  in  all  courts  of  competent  juris- 
diction their  acts,  however  wrong  they  are,  yet 
while  tirey  remain  in  force,  are  conclusive 
upon  every  other  court :  the  cases  of  eccle- 
■iastical  sentences,  and  many  others,  were  then 
mentioned. 

1  might  refer  your  lordahips'  memory  to  the 
cases  in  Exchequer  seixures,  where  condemna* 
tions  are  given  constantly  without  a  defence 
almost,  and  yet  all  other  courts  are  concluded 
by  them.  It  has  been  tbouglit  so  extremely 
bard  a  doctrine,  that  judges  have  wished  for 
the  liberty  of  examining  mto  the  fact,  and  to 
have  the  matter  fully  discussed  in  the  courts ; 
yet  when  the  matter  came  to  be  fully  argued, 
the  result  has  ever  been,  that  the  judgment  has 
been  found  conclusive  upoo  all  other  courts 
whatever. 

My  lords,  under  these  authorities  for  a  suc- 
ceasioD  of  ages,  1  confidently  rest  that  your 
lordships  will,  in  the  present  cause,  conceive 
the  sentence  of  the  Ecclesiastical  Court  now 
produced,  in  a  case  clearly  within  their  juris- 
diction, in  a  case  in  which  they  have  the  sole 
jurisdiction,  to  be  conclusive ;  no  courts  what- 
ever have  a  direct  cognizance  of  marriage  but 
the  Ecclesiastical  Court.  Suppose  a  person 
without  any  grounds  whatever  claims  a  mar- 
riage ;  it  may  be  highly  injurious  to  the  lady  ; 
she  has  no  remedy  but  by  resorting  to  an  ec- 
clesiastical court,  because  there  is  no  other 
court  that  can  bring  the  matter  immediately 
and  directly  in  question :  if  a  woman  separate 
from  her  lawful  husband,  what  court  is  there 
to  compel  her  to  cohabit  with  him  but  the  cen- 
sure of  the  Ecclesiastical  Court?  (t  is  that 
forum  which  the  constitution  of  this  country 
has  intrusted  with  the  decision  of  the  legality 
of  marriages. 

As  there  are  not  to  be  found,  iu  common- 
law  or  ecclesiastical  courts,  any  decision  con- 
,  trary  to  those  1  have,  with  great  deference,  al- 
ready submitted  to  your  lordships'  considera- 
tion, 1  trust  your  lordshi|i8  will  give  that  de- 
termination upon  the  vahdity  and  effect  of  this 
sentenoev  which  courts  of  law  have  ever  done, 
when  a  sentence  of  the  same  kind  has  been  a 
matter  of  discussion. 

Mr.  Mamfield  [now  (1813)  Lord  Ch.  Just. 
ofC.  B.].  My  birds;  1  am  also  to  trouble 
your  lordships  in  support  of  that  sentence, 
which  has  been  offered  to  you  as  conclusive 
upon  the  present  occasion.  The  sentence  hav- 
ing been  read  to  your  lordships,  you  are  now 
appriaeed  of  the  contents  of  it.  The  proceediogs 
ia  the  Ecclesiastical  Court,  of  which  the  noble 


405J     ' 


Jbr  Bigamy. 


lordsbips  by  eoDsideriiig  the  nature  of  that  act 
of  parliament  upon  wbicb' the  present  prose- 
eutioo  is  founded,  and  the  state  of  the  law  be- 
fore that  act  of  parliament  was  nnade. 

My  lords,  the  act  of  parliament  creates  no 
■ew  offence ;  it  punishes  nothing;  but  what  was 
punishable  bef<»re,  a  second  marriage  while  a 
rormer  existe<l:  takiosr  a  second  husband  or 
wife  while  there  was  a  former  in  l>etng,  was 
oadouMedly  an  offence  lon^f  before  this  statute 
sf  kint?  James  the  first;  indeed  as  long  ati  the 
eecleiiastical  constitution  of  this  country  has 
Mbsisted.  This  act  of  parliament  makes  no 
other  alt^nration  in  the  law,  but  as  it  subjects 
persons  committing  this  offence  to  temporal 
prosecution  and  puniNhment;  before  this  act, 
soch  an  offence  could  only  be  the  oliject  of  ec- 
clesiastical censure  and  punishment :  but,  my 
kiHs,  the  makers  of  this  statute  never  dreamt, 
that  they  were  in  any  respect  altering  the  ec- 
clesiastical constitution  of  this  kingdom ;  that 
they  were  in  any  instance  invading  or  breaking 
ii  apoD  the  rights  of  the  ecclesiastical  courts : 
DO  Boeb  thing  is  to  be  found  in  the  statute ; 
■Qlhhig  is  to  be  collecte<l  from  that.  Indeed, 
if  yoo  miglit  collect  from  the  preamble  to  the 
ictof parliaroent,  it  will  appear  to  everyone 
vko  reads  it,  that  it  was  not  in  the  imagination 
sf  those  who  framed  this  law,  that  a  second 
BMffrtage  could  be  made  the  object  of  punish- 
Mot,  where  there  had  been  a  sentence  which 
Pifteuted  a  supposed  former  marriage  being 
Wading  upon  the  parties.  When  I  say  that,  I 
iHode  tothe  exceptions  in  the  act,  which  make 
M  part  of  your  lordships'  present  considera- 
tion. But  besides  that,  the  preamble  of  the 
■et  tells  your  lordshi|»8  what  it  was  that  the 
Mikers  of  it  had  in  view :  the  preamble  tells 
ysir  lordships,  that  divers  evil-disposed  per- 
MBs  being  married,  run  out  of  one  county  into 
■Mlier,  or  into  places  where  they  are  not 
bswn,  and  there  become  to  be  married,  hait- 
iB|^  soother  husband  or  wife  living,  to  the  great 
pleasure  of  God,  and  utter  undoing  of  divers 
Wst  men's  children  and  others.  Now  it 
icfer  was  supposed  by  the  makers  of  this  act 
*f  parliament,  that  the  persons  described  in  the 
Fcamble  of  it  would  go  through  the  form  and 
ceremony  of  a  trial  and  litigation,  and  q))tain  a 
^teision  in  the  Ecclesiastical  Court,  before  such 
■ceood  marriage  was  to  take  effect,  which  was 
k^the  object  of  this  law:  but  it  is  enough 
^  in  this  statute  there  is  not  any  thing  that 
'e&ds  to  diminish  or  break  in  upon  the  domi- 
>iooofthc  Ecclesiastical  Court;  but  that  the 
ilitote  left  those  courts  and  the  law  relating  to 
^bem  just  in  the  same  situation  as  they  were 
Mire.  Now  if  this  was  an  offence  before  the 
>ct,  how  was  it  punishable?  What  would  have 
*ea  the  operation  of  such  a  sentence  before 


law  ?  Unquestionably,  a  nerson  taking  a 
Ncood  husband  or  wife,  the  first  being  living, 
Aigbt  have  been  made  the  subject  of  punish- 
Mint  in  the  ecclesiastical  courts.  Let  me  sup- 
Piit  a  prosecution  commenced  for  that  purpose 
W  tbt  oeeood  husbuid  or  wife,  the  first  hus- 
mk  or  wila  btiog  living:  those  who  ttand 


A.  D.  1776.  [406 

near  me,  who  are  much  l>ettpr  acquainted  with 
the  proceeding^  of  the  Ei'clesiastical  Court  than 
myself,  will  tell  your  lordsliips.  tlia4,  so,  long 
as  this  sentence  remains,  the  relation  of  hus- 
band and  uife  could  not  exist,  which  alone 
must  be  the  foundation  of  a  prosecution ;  for 
tukmga  second  husbHud  upon  ibis  statute,  the 
act  ut>on  which  the  whole  proceeiling  is  found'' 
ed,  having  made  no  alteration  in  the  case,  the 
law  remains  the  same.  It  does  not  follow 
from  thence,  nor  are  your  lordshiiM  to  suppose 
it,  that  such  a  sentence  as  this  would  in  the 
Ecclesiastical  Court  have  made  adultery  law- 
ful, or  have  made  a  marriage  with  a  second 
husband  or  wife  a  good  one :  certainly  not ;  bat 
while  the  sentence  subsisted,  it  would  have 
proved,  that  there  was  no  first  marriage  at  any 
time  by  any  parties  interested.  Such  a  sen- 
tence as  this  may  he  undone ;  it  is  a  funda- 
mental rule  in  all  matrimonial  causes  in  the 
ecclesiastical  courts,  that,  in  their  language, 

*  sententia  contra  matrimonium  non  transibit  in 

*  rem  judicatam.'  The  isSUe  or  the  kindred  of 
persons  intitled  to  estates  may  have  a  variety 
of  reasons  for  impeaching  marriages.  As  to 
the  continuing  in  a  second  marriage,  the  con- 
tinuing in  adultery,  the  repeating  it  is  only  an 
increase  and  aggravation  of  sin  where  the  first 
marriage  ought  to  have  prevented  it.  At  any 
time  there  may  be  a  suit  to  restore  and  set  up 
a  first  marriage,  which  has  been  undone  by  a 
sentence  by  accident,  by  mistake,  by  collusion, 
or  from  any  other  reason  not  satisfactory.  If 
all  the  evidence  that  could  have  been  had  re- 
specting the  marriage  has  not  been  laid'  before 
the  spiritual  judge,  any  party  who  has  any  in* 
terest  may  at  any  time  again  apply  to  that 
court,  again  institute  a  suit,  offer  new  evidence, 
have  that  which  has  been  already  heard,  heard 
again,  that  the  marriage,  if  it  did  really  exist, 
may  be  established  by  a  sentence  of  that  court : 
this  is,  1  believe,  clear  law,  and  undoubted  in 
that  judicature.  If  it  is,  then  your  lordships 
are  not  to  conclude,  that  by  any  sanction  which 
you  gire  this  sentence,  you  either  authorize 
adultery,  or  give  effect  to  second  marriages 
while  first  marriages  subsist;  no,  at  any  time 
that  first  marriage  may  he  established  notwith* 
standing  a  sentence  against  it,  when  any  person 
shall  think  fit  in  a  It^al  way  in  such  judica- 
tures to  impeach  that  sentence  :  but  all  that  is 
contended  for  is,  that  while  that  sentence  re- 
mains, the  matter  is  concluded ;  the  marriage 
cannot  be  proved  to  exist ;  the  relation  of  bus- 
band  and  wife  is  destroyed. 

My  lords,  if  this  which  1  have  now  sub- 
mitted to  your  lordships  be,  as  1  apprehend  it 
is,  well  founded  in  the  known  practice  and  law 
of  these  courts,  the  consequence  I  trust  will  be, 
that  this  sentence  must  now  have  the  effect 
under  a  prosecution  u|k>u  the  present  act  of 
parliament,  as  it  would  have  had  in  a  prose- 
cution in  the  Ecclesiastical  Court  for  an  adul- 
tery, or  a  crime  against  the  first  marriage.  In 
that  judicature,  the  only  one  which  by  the  laws 
of  this  country  has  a  regular  jurisdiction  to 
enquire  into  marriages,  by  a  solemn  judgment 


♦07] 


16  GEORGE  III. 


Trial  of  the  Dueliess  of  Kingston^ 


[406 


lhe«e  two  parties  are  declared  not  to  be  mar- 
ried ;  that  would  have  been  aa  aoawer  to  any 
prosecution  belbre  the  statute.  Tbc  statute 
leanv  tiie  poiver  of  the  ecclesiastical  courts  ex- 
mclly  as  it  was  before ;  leaviiif^  it  so,  a  sontence 
]Mronouiice«l  by  that  court  in  a  cause,  in  which 
it  has  clear  jurisdielion,  must  I  apprehend  be 
decisive,  ttut,  my  lords,  it  is  undoubtoil.  Va- 
rioMs  cases,  whicq  1  shall  not  trouble  your 
lordships  with  the  repetition  of,  have  been  men- 
tionejd,  which  prove  that  to  no  purpose  can  tliis 
noble  lady  at  the  bar  and  Mr.  Hervey  be  con- 
aidered  as  man  and  wife,  or  proved  to  be  man 
and  wile  while  this  senterice  subsists.  No  con- 
jugal duties  can  he  i^xmcImI  from  one  to  the 
4Mher ;  was  a  wijOs  starvivi^  in  the  streets,  she 
could  not  io  any  way  obliire  him  to  contribute 
to  her  support.  Wliilst  such  a  sentence  re- 
BMifls,  the  woipan  eamiot  be  a  wife  for  any 
beneficial  purpose  resultin|2r  i'rom  matrimony : 
iud  it  will  be,  1  believe,  difiiciilt  to  point  out 
9oe  for  which  ahe  can  be  a  wife,  unless  it  be 
fpT  the  aiugle  purpose  of  subjecting  her  tp  be 
luinished  as  a  felon  for  marrying  a  second  bus- 
uand.  I  can  hardly  believe  lliat  any  human 
creature  can  be  found,  who  would  wish  that 
th#  coble  lady  at  your  bar  should  for  this  pur- 
pose alone,  and  in  this  single  instance,  be 
dfsamed  a  wile,  when  she  can  be  in  no  other. 
But  if  there  he  an^  who  wish  it,  I  am  satis^Ml 

iour  lordships' mahea  will  goalonj^witb  the 
iw  aa  I  understand  it  to  be,  if  the  law  be  so : 
and  that  it  will  be  very  difficult  to  convince 
your  lordships,  that  she,  who  was  not  a  wife 
MNT  any  other  purpose,  aliouki  be  d^H^med  a  wife 
in  order  to  be  subjected  to  criminal  punishment 
for  an  open,  an  avowed,  and  by  hor  thought  an 
honourable  marrisfi^e  wilh  a  noble  duke. 

My  lords,  in  every  insiance  in  which  an  issue 
ip  the  teiu|K)rai  couris,  in  the  courts  of  com- 
mon law,  IK  joined  upfin  matrimony,  where  a 
marriage  is  in^isted  upon  on  one*  sidi*  and  denied 
oo  the  other  ;  in  every  instance  of  that  sort  we 
know  the  temporal  courts  decide  not ;  they 
send  to  the  spiritual  courts  to  have  the  mutter 
enquired  into  und  decideil  u|M)ii  ;  nothing  is 
more  clear  than  that  rule  of  law.  8u  it  is  in 
cases  of  dower;  where  dower  is  claiiue4l  by  a 
widow,  where  it  is  denietl  that  sht>  was  ever 
lawfully  married  to  her  husband,  thi^  temporal 
court  sayt),  it  has  no  puuer  t(»  enquire  into  the 
Blatter,  it  must  reler  it  tu  the  spiritiiul  court ; 
and  the  decision  of  the  bishop  is  ftnnl  upon  the 
point.  It  is  not  only  in  the  case  of  niurriage, 
but  in  other  cases,  that  the  derision  of  the  Ec- 
clesiastical Court  is  the  only  competent  one, 
and  is  linal  and  conclusive  to  all  pur|»oseM :  so 
it  is  upon  questions  of  legitimacy,  where  bas- 
tardy is  al lodged  and  denied  ;  the  common-law 
courts  decide  not  the  point ;  tliey  send  it  to  the 
£cclesiustical  Court :  so  it  is  with  regard  to  the 
probate  of  wills ;  and  no  case  can  be  stronger 
than  that  which  was  mentioned  to  your  lord- 
rikips,  where  even  upon  a  criminal  accusatioo, 
a  charge  of  Ibrgery,  an  accusation  resembling 
the  present,  a  decision  of  the  Ecclesiastical 
Court  io  fitrour  of  a  will  mo  hahi  to  bo  coo- 


clusive  evidence  upon  an  indi(;tmeot  Ibrforgery, 
and  that  no  proof  could  be  received  of  the  fact 
of  forgery  in  opposition  to  such  a  sentence.  It 
is  not  only  so  in  these  instances  of  the  Rcclcai« 
astical  Couit ;  there  are  others  wiili  regard  to 
captures ;  the  decisipns  of  the  courts  of  Admi- 
ralty are  in  like  manner  conclusive :  so  iJw 
court  of  Exchequer,  upon  disputes  oonccruiog 
the  revenue :  there  are  many  other  mstancca 
which  might  be  |)ointed  out  to  your  lord- 
ships, in  which,  alter  the  sentences  of  courle 
hating  competent  jurisdif*4ion,  all  other  courio 
are  shut  out  from  enquiry  into  the  matter, 
howeirer  it  might  appear  that  such  aeotencco 
are  not  founded  in  truth.  This  rule  is  so  dear 
and  so  well  known,  that  1  will  trouble  your 
lordships  with  no  particular  cases  or  instaacM 
in  wbicli  any  siicli  matter  is  determined  :  hut 
there  are  some  that  have  been  already  mea« 
tinned  to  your  lordships,  and  one  other  which  I 
shall  add,  to  which  I  shall  beg  your  lordabi|»ft* 
attention  on  account  of  anotlier  view,  which  it  if 
necessary  for  him,  who  would  contend  for  the 
full  force  of  this  sentence,  to  see  thissubfect  in. 
My  lords,  it  may  b^  said,  aomelhing  of  that 
has  lieen  hinted  already ;  much  we  know  hat 
been  talked  out  of  tloors,  not  all  I  believe  war* 
ranted  by  the  fact ;  but  of  that  now  we  are 
not  to  judge  or  enquire :  but  it  may  be  said,  ic 
anstrer  to  these  arguments  giving  the  utnaoak 
force  to  such  sentences,  let  them  be  final  aa4 
conclusive  as  they  may,  yet  if  a  sentence  can  bo 
shewn  to  be  the  effect  of  agreement  and  collu* 
aioo,  that  it  shall  not  be  final,  that  it  shall  not 
have  a  binding  force.  If  those,  who  are  to 
argue  against  the  effect  of  this  sentence  iu  the 
extept  in  which  it  is  now  endeavoured  to  he 
urgeil,  should  be  at  liberty  to  say,  that  they 
would  attempt  to  shew  that  this  sentence  now 
in  question  before  your  lordships  was  the  effect 
of  what  is  called  iu  the  common-law  courts* 
covin,  or  collusion ;  if  there  was  any  ground, 
as  I  do  most  iirmly  believe  there  is  not,  to  im« 
pute  this  sentence  to  any  such  original;  yet 
before  \our  lordships,  I  trust  it  will  appear, 
that  this  is  not  the  place  in  which  any  such  col- 
lusion ought  to  be  enquiretl  into.  Those  courts, 
which  the  constitution  has  trusted  with  the  in- 
vestigation and  decision  of  matters  relating  to 
marriage,  are  fully  equal  to  the  decision  of  any 
such  collusion  ;  they  may  undo  their  sentenoaa 
where  they  ap|>ear  to  be  collusive :  and  it  is  not 
to  he  presumed  that  auy  collusive  aeutencti 
would  be  encouraged  in  those  courts,  indeed 
there  is  one  strong  and  cogent  reason,  why  no 
such  colluMve  sentences  are  to  be  feared  in 
those  courts  ;  because,  as  1  before  observed  to 
vour  lordkhips,  a  sentence  there,  though  (son* 
elusive  white  it  stands,  may  at  any  time  be  atr 
Lacked  or  im|>eached  by  those  who  lind  an  io* 
terest  in  so  doing:  and  if  it  may,  then  it  would 
lie  idie  for  |M*rsons  to  lie  collusively  obLiioiog  a 
Bcikienre,  when  any  relations  that  might  be  afr 
tecu-d  by  issue  of  a  second  marriage,  in  aboil, 
any  persoo  who  has  an  iuterrat,  might  over* 
turn  and  destroy  it.  This  at  leaat  ia  vary  ojb* 
f iotti  upoB  the  ■""'foft  thtt  io  mat  urged  Io 


100]    * 


Jbr  Bigamy* 


A.  D.  1776- 


[410 


yo«r  kMTiMiipf,  and  the  effect  of  it  with  refj^rd 

t»  the  pmeot  protecuUoo,  that,  if  it  was  to 

•top  tlie  preseot  prosecution,  the  utmost  cod- 

M^oeoce  tbat  would  follow  from  it  would  be 

llhis,  that  it  could  only  prevent  sueh  prosecu- 

lioos^fin^  effect  in  caiM»  in  which  in  truth 

the  parties,  who  hail  lo  do  in  the  cause  in  the 

Bcdsiiastical  Court,  and  who  obtained  the 

teotence,  were  so  ctrcuBistanced,  that  it  would 

Ml  be  the  iulerest  of  any  hunsan  creature  to  en- 

dsarour  to  undo  their  work :  and  that  it  is  not 

••e  of  Ua«t  sort  of  marriages,  such  a  second  roar* 

Bsi^,  as  At  was  the  object  of  this  temporal  law, 

theslatcile  of  iaones  the  first,  to  make  the  sub- 

jsci  ef  punish mcHt.    It  was  made  on  account 

ff  temporal  miseliiefs  happening,  as  recited  in 

the  preamble.     Although  it  is  mentioned,  and 

Imly  mcotioned  in  tliat  statute,  that  such  se- 

sami  marriages  are  to  the  dishonour  of  God, 

and  are  oodoubteilly  high  offenrea  against  reli- 

ptto,  aiid  the  holy  ceremony  of  noarriage ;  yet 

if  tliat  bad  been  the  only  evil  that  had  been  ap- 

pudieoded  or  found  from  such  second  mar 

risfcs,  ii  is  not  to  be  lieliered,  but  that  the  le- 

fiifslure  of  this  country  would  have  left  such 

■srriages  to  have  been  considered,  enquired 

iais,  aoid  punished  in  ttiose  courts,  in  which  all 

stbfr  offerees  against  religion  are  very  pro- 

pifly  only  cogniEahle  end  punishable.    It  was 

the  temporal  mischief  that  produced  that  law ; 

iad  yottr  lordships  may  easily  judge,  what  ap- 

prrhauaiana  of  any  temfioral  mischief  would 

srise  from  such  weight  being  given  to  this 

asstcoee,  as  is  contended  for  from  prosecu- 

liias  being  stopped  by  such  sentences,  when 

il  ii  clear  Uiat  sentence  cannot  do  mischief  to 

•oy' human  creature,  who  does  not  chuse  to  sit 

dswB  and  aoi|uiesce  under  it ;  for  the  remotest 

Msuc,  at  the  greatest  distance,  that  can  be  hurt, 

■av  eommeuee  a  Ruit  in  the  spiritual  court, 

•ad  may  therefore  get  rid  of  this  sentence. 

Give  it  therefore  its  utmost  force,  let  it  weigh 

IS  much  as  is  desired  in  the  scale  in  favour  of 

Ibis  lady,  it  wouUl  only  go  to  prevent  a  prose- 

•■lioo,  where  the  marriage  undone  was  of  such 

••art,  that  no  human  creature  would  have  an 

iaiercal  to  support  it.    This  I  observe  to  your 

hrdsbips,  auppoaing  that   it    may  be   urged 

•faiast  this  sentence,  that  it  will  be  attempted 

Is  be  proved  to  be  produced  by  agreement  and 

•lihision. 

My  lords,  there  are  cases,  one  of  which  has 
bssn  already  mentioned  to  your  lordships,  that 
iaierms  |irovc  that  that  collusion  is  not  the  sub- 
jict  of  temporal  enquiry,  that  it  ought  to  be 
siatimd  to  the  spiritual  courts.  There  are 
Mber cases,  which  seem  to  me  in  effect  to  prove 
lbs  same  thing. 

The  case  of  Kean  has  already  been  Hieo- 
liaaed  la  your  lordships :  in  that  ease  it  was  an 
aitouipt  b¥  the  iKsuo  of  that  marriage,  where 
Ibsre  haflbefHi  a  divorce  betweea  the  parents 
•f  tlial  issue,  to  establish  the  marriage.  In 
Iba  divaree  tlie  semooee  had  proi«eded  upon 
ibe  parliea  not  having  been  ol'  asarriageable 
•ffe,  that  as,  the  man  of  14,  tlie  woman  9X 
U;  thai  ihey  had  never  cohabited  together. 


or  consented  to  the  marriage  after  they  had  at- 
tained to  marriageable  years,  to  the  years  of 
consent,  as  they  are  called.  But  who  ia  it  at- 
tempts to  undo  that  marriage  ?-— The  child  who 
was  bom  of  those  parents,  cohabiting  together 
long  after  they  had  attained  the  age  ^  coasent. 
And  yet  that  issue  was  not  heard  :  no,  the  sen- 
tence was  held  to  he  conclusive;  a  sentence 
proceeding  clearly  upon  a  ground  which  must 
be  false ;  stating  that  the  |>arties  were  not  of 
the  age  of  consent ;  staling  that  ttiey  bad  never 
consented  after  they  had  attained  that  age; 
when  it  was  an  undoubted^act,  ind««d  the 
existence  of  that  issue  which  litigated  it  proved, 
that  they  must  have  consented  to  the  marriage 
after  the  age  of  consent. 

The  next  case  that  I  would  suggest  to  yo«r 
lordshipe  is  one  that  has  not  been  mentioned, 
hot  which  appears  to  me  to  be  extremely  strong 
to  the  preseot  puvpose.  It  is  the  case  of 
Morris  and  Webber,*  in  Moore's  Reports,  S95. 
The  case,  in  short,  was  this :  two  persons,  one 
of  the  name'of  Berry  and  the  other  of  Wilmot' 
Gifford,  had  been  married;  they  had  bees 
married  some  years ;  they  had  no  off*ipring;  a 
suit  was  commenced  in  the  spiritual  court  Jor  a 
divorce ;  a  sentence  was  pronounced,  which  ia 
the  words  of  the  book  are  '  propter  vitium  per- 
*  petuum  et  impolentiam  generationis'  in  the 
husband.  The  sentence  havhig  so  proceeded, 
not  long  afterwards  both  these  parties  married 
again,  and  each  by  the  second  marriage  had 
several  children :  aoroe  years  afterwards  a 
cause  arose,  in  which  it  became  a  question, 
whether  the  issue  by  tbi?  second  marriage  of 
the  husband  thus  divorced  could  be  legitimatef 
It  was  contended,  that  those  subsequent  chil- 
dren by  that  husband  had  proved,  and  irrelra- 
gably  proved,  that  the  foundation  of  the  di- 
vorce was  false  ;  that  there  could  not  be  that 
'oitium  perpetuum  which  was  made  the  ground 
of  the  divorce.  The  oonlmon  -law  court ,  before 
whom  this  question  came,  clearly  held,  that 
that  was  necessarily  proved  by  the  subsequent 
children  which  that  husband  had  had  ;  but 
still  clear  as  it  was  ^hat  this  sentence  was 
founded  in  an  apparent  falshood,  yet  it  most 
stand :  it  is  the  sentence  of  that  court  to  which 
the  constitution  of  the  country  has  entrusted 
the  dedsien  of  such  matters ;  it  is  not  for  oar 
courts  to  enquire  into  it ;  we  should  usurp  a 
jurisdiction  which  does  not  belong  to  us  ;  and 
upon  that  ground  it  was  determined,  that  till 
that  sentence  of  divorce  was  undone  in  the  ec- 
clesiastical court,  it  must  be  binding  and  con- 
clusive, and  the  issue  of  the  second  marriage 
must  be  deemed  legitimate. 

*  8ee  vol.  S,  p.  849. 

Voliaire  has  remarked,  that  the  eecleshwlieal 
jodgea  derived  their  eonussnce  of  ipalriroenial 
causes  from  tlie  adoption  by  the  Romish  cbureli 
of  the  marriage  contract  into  the  clasa  of  eacra- 
meots.  In  matters  of  insuflieiency,  he  obv 
serves,  **  Des  olercs  plaidaiem  ;  deapr^treaja* 
geaieat.  Maisdeouoi  jii<jeaieiit-iUr 
jeia  qti'ilf  dcfaieat  igaanr.** 


41IJ 


16  UEOKGE  III. 


Trial  (i/'thc  Duchcs»  of  Kingttoti, 


[411 


My  lords,  no  cases  csq  well  be  imagiDed 
strouger  than  these  to  shew,  that  eten  sen- 
tences tbundecl  in  ngireement,  founded  on  what 
may  be  called  collusion  of  the  parties,  are  yet 
bindin^j^,  till  they  are  rescindetl  in  that  court  to 
which  aloue  the  law  of  En^rland  has  intrusted 
and  confined  Uie  consideration  of  such  matters. 

Another  case,  which  has  already  been  men- 
tioned to  your  lordships,  is  the  case  of  Hatfield 
and  Hatfield,  which  seems  to  me  also  to  decide 
this  |ioiul,  and  to  decide  in  terms.  The  case 
has  been  already  fully  st»te<l  to  your  lordships ; 
I  need  therefore  only  point  out  one  or  two  par- 
ticulars of  it.  There  was  a  dispute  between  the 
heir  of  one  Hatfield  and  a  woman,  who'claimed 
to  Ue  the  widow  of  tite  father  of  that  heir.  He 
insisted  upon  it,  that  she  was  not  the  wife  of 
Hatfield  liis  father,  because  she  had  been  mar- 
ried to  one  Porter.  The  marriage  with  Porter 
was  prored.  Porter,  who  was  a  party  to  the 
•uit  in  the  court  of  equity,  admitted  it  upon  his 
oath.  A  release  was  obtained  by  the  heir  from 
that  Porter.  Jn  ortler  to  get  rid  of  this  release, 
and  though  the  I'act  of  nii^rriage  was  prored  in 
the  clearest  terms,  the  woman  commenced  a 
suit  for  jactitation  of  marriage  against  Portef 
in  the  JSpiritiial  Court.  A  sentence  upon  his 
not  ap|iearing  was  pronounced  in  that  court 
against  him,  and  that  was  held  in  the  House  of 
Lonis  to  be  conclusive.  Those  who  went  lie> 
fore  your  lordships,  then  sitlin*;  iu  judicature, 
said,  tills  »as  a  sentence  by  a  court  which  had 
the  alone  Jurisdiction  of  the  matter,  and,  while 
it  stood,  it  must  decide.  The  books  that  take 
notice  of  Ibis  case  expressly  say,  that  the  sen- 
tence was  consideretl— indeed,  aher  the  case 
stated  to  your  lordships  it  could  not  but  be  so 
considered, — as  colUiMJie,  I  think  is  one  of  the 
words  to  he  found  in  the  books ;  and  yet  though 
appearing  to  )>e  a  feigned  and  collusive  sen- 
tence, the  anstf  or  was,  that  collusion  is  to  be 
judged  of  alone  in  the  court  where  the  oriirinal 
matter  arises,  which  has  alone  jurisdiction  Ufion 
the  subject ;  no  other  court  can  consider  it. 

My  lordH,  I  am  aware  that  it  may  be  said  in 
answer  to  this  case,  that  this  was  in  a  court  of 
equity,  which  had  no  jurisdiction  to  enquire 
into  questions  concerning  marriage  in  the  Ec- 
clesiastical Court.  My  lords,  that  is  no  an- 
swer ;  for  wherever  a  sentence  founded  in 
agreement  between  parties  is  used  to  the  preju- 
dice of  a  third  person,  in  whatever  court  it  is, 
unless  the  subject  be  of  such  a  nature  that  it  is 
exclusively  confined  to  the  particular  court  in 
which  it  arises,  wherever  such  a  sentence  is  at- 
tempted to  be  used  against  a  thini  person,  that 
third  person  may  avail  himself  of  the  collusion 
upon  which  it  is  founded :  for  how  is  it,  that  in 
all  common  cases,  where  questions  arise  about 
collusive  sentences,  that  the  party  against 
whom  they  are  used  gets  rid  of  them?  In 
order  to  do  that,  no  proceeding  is  requisite  in 
the  court  in  which  the  sentence  is :  no ;  the 
person  against  whoiD  it  is  urged  says,  How- 
e? er  that  seotepce  may  be  betweeu  you  two, 
who  areparties  to  it,  however  it  may  biod  jdoq, 
it  Is  fboiidcd  in  agiiwmwl  beUraai  yoa  ttro^ 


and  it  is  nothing  to  me ;  as  against  me  it  u 
void.  Thus  in  the  common  case  o^  executors, 
a  creditor  has  a  right  to  be  paid  out  of  the  ef* 
fects  left  by  a  dead  person,  who  is  debtor :  tbf 
executor  intending  to  cheat  the  creditor  by  an 
agreement  with  another  person,  who  is  no  real 
creditor,  prevails  upon  him  to  commence  a  suit, 
and  sufiers  judgment  to  pass  at  Uie  instance  ol 
such  a  friend  ;  by  which  he  is  made  the  ori- 
ginal creditor,  and  the  executor,  as  represents^ 
tive,  debtor  to  the  person  so  suing  by  agree' 
ment.  The  real  creditor  cannot  pursue  any 
steps  to  undo  the  judgment :  no ;  he  says,  by 
way  of  ahswer.  That  jadi;  ment  is  void  against 
me ;  you  two  |)ersons  agreeing  and  colluding 
together  shall  not  turn  the  forms  of  law  to  my 
prejudice :  and  as  this  may  be  done  in  one  case, 
why  not  in  every  other,  where  a  judgment  or  a 
sentence  founded  ikpon  collusion  is  UMd  against 
a  third  (lerson,  who  has  no  way  to  answer  it 
but  by  saying  at  once,  It  is  void  against  me, 
however  it  may  stand  good  between  \ou  ? 

This,  my  lords,  is  the  way  in  which  all  judg- 
ments by  collusion  or  by  GO%in,  in  my  know- 
ledge, are  answered  and  got  rid  of.  But  in  the 
case  of  Haifield  and  Hatfield,  which  1  last 
alluded  to,  it  is  answered,  that  the  Court  oi 
Eiptity,  and  the  House  of  Lords  judging  as  a 
court  of  equity,  had  no  authority  to  enquire  al 
all  into  a  matter  depending  in  the  Ecclesiastical 
Court  relating  to  marriage,  because  that  court 
hath  an  exclusive  jurisdiction  upon  the  subject ; 
and  yet  in  that  caKe  and  in  this  there  could  be 
no  reason,  1  submit  to  your  lordships,  why,  il 
an  agreement  of  the  parties  could  be  a  ground 
for  impeaching  a  judgment,  it  might  not  be  ai 
well  done  in  that  judicature  as  in  this? 

My  lords,  when  I  am  speaking  of  any  ar- 
guments that  one  may  suppose  to  be  urged 
from  an  attempt  to  prove  collusion,  there  are 
difi*erences  between  any  such  judgments  as  arc 
got  rid  of  by  a  third  perKon,  liecause  preju- 
dicial to  him,  and  founded  upon  an  agreement 
between  two  parties  to  a  suit  with  which  he  hai 
nothing  to  do  :  is  that  the  present  case  ?  No 
third  person,  that  has  an  interest,  attempts  now 
to  set  aside  this  judsrment :  the  object  here  is  to 
annul  the  judgment  as  between  the  parties  ta 
that  suit.  In  all  the  cases  that  can  lie  refjprred 
to,  where  questions  arise  upon  judgments  pass- 
ing by  agreement,  intended  to  be  levelled 
against  a  third  person ;  in  all  such  cases,  ai 
between  the  parties,  the  judgment  stands  good, 
The  object  of  those,  who  in  such  respects  im- 
peach the  judgment,  is  merely  to  prevent  its 
having  efi*ect  against  those  who  are  strangen 
to  it:  but  here  this  judgment,  this  sentence 
must,  as  between  the  parlies,  be  totally  undoM 
and  annihilated,  or  else  it  decides  the  question ; 
because  unless  it  is  undone,  if  it  stands  good 
between  those  two  parties  till  properly  im- 
peached in  the  Ecclesiastical  Court,  why  tbeo 
they  are  not  husband  and  wife :  and  this  coo* 
sideration  materially  distinguishes  such  a  judg- 
ment so  impeached  as  the  present  is,  from  Ibi 
oommott'ease  in  which  judgments  are  to  be  af- 
fteledi  am  10  as  to  be  aveided  bHwcen  tin 


413J 


for  Bigamy. 


A.  D.  1776. 


[411 


jwrtics,  between  whom  tbey  stand  good,  but  ai 
beine  laid  aside  more  properly  than  being 
afoideil,  so  as  not  to  be  turned  to  the  pre- 
judice of  a  tliird  person,  who  is  not  a  |)arty  to 
tbem. 

My  lords,  another  distinction  which  I  have 
btfore  suggested  to  your  lordtthips,  which  I  re- 
mind your  lonlships  of,  as  upon  the  present 
bead  of  the  arguments  I  am  suggesting  to  your 
lonlships,  there  is  this  difference  between  all  liie 
cases  that  can  be  brought  before  your  Jerdvhips 
ipou  the  bead  of  collusion  or  agreement ;  in 
all  tboae  cases,  in  such  as  I  have  alluded  to,  and 
a  hundred  others  might  he  put  which  fall  with- 
in the  same  rule  as  a  judgment  set  on  foot  by 
so  executor  to  defraud  an  honest  creiHtor ;  in 
iucli  cases  the  parties  have  no  way  themselves 
to  commence  a  suit  to  set  aside  this  judgment ; 
tbeir  mode  of  doing  it  is,  when  the  judgment 
ii  used  against  them,  answering,  W  hatever  the 
judgment  may  be  as  between  you  two,  as  to 
Be  it  is  void :  but  there  is  no  regular  process 
of  law,  no  suit  to  be  commenced,  by  which 
aoy  such  judgment  can  he  set  aside  by  a  third 
person ;  there  is  no  suit.  If  it  could  be  done 
at  all,  it  must  be  done  in  a  manner  which 
feraisbes  argument  in  support  of  the  present 
mtence,  because  it  could  only  be  done  by  an 
application  to  that  court  in  which  such  a  judg- 
■fot  is  given.  Another  court  may  say,  where 
it  is  attempted  to  be  used,  that  if  it  be  proved 
Is  bs  founded  in  agreement  by  those  who  are 
parties  to  it,  it  shall  not  be  turned  against  a 
tbird  person ;  but  no  other  court  but  that  in 
wbich  the  judgment  is  given  can  set  it  aside 
tod  annul  it. 

31y  lords,  these  distinctions  clearly  appear, 
as  1  submit  to  your  lordshi|)S,  in  such  cases 
vhere  such  judgments  are  attempted  to  be  got 
rid  of  by  third  persons  as  detrimental  to  their 
iottresUi:  but  1  believe  I  can  produce  to  your 
jordsbips  a  legislative  instance,  that  a  collusive 
jsdirmeot  in  the  Spiritual  Court  cannot  be  set 
•iide  after  once  given ;  that  it  is  (inal  and  con- 
dusive.  I  have  already  mentioned  it  to  your 
lenlkhi|»8  as  one  of  those  points  arising  in  cx>urts 
•f  justice,  upon  which  all  consideration  is  con- 
|Mto  the  ecclesiastical  courts  :  none  is  more 
iaiportanl  than  a  question  concerning  bastardy 
w leiriiimacy .  The  way,  your  lordships  know, 
is  which  that  question  is  sent  to  be  trieil  hy  the 
Ecclesiastical  tJourt,  is  this:  in  actions  of  va- 
noossiirts,  vihere  a  person  claims  a  title  by 
'loGi'nt,  tlie  legitimacy  of  his  birth  becomes 
BMierial.  If  the  party  against  whom  he 
daini6  says  that  he  is  a  bastard,  and  upon  that 
St  iiiitie  i*  joiiic^J,  the  cominon  law  courts  irf 
^iiicb  the  question  arises  seud  the  mattt-r  to  the 
£oclesiaHiical  Court  to  tie  enquired  of  and  de- 
cidrd.  Jn  answer  u»  a  writ  for  that  purpose  go- 
ia|p  from  the  common- law  court  the  ecclesiaM- 
I'cal  judge  makes  a  certificate,  and  he  certifies 
tbat  tbe  party  is  a  bastard,  or  is  legitimate : 
tbai  eertificale  is  conclusive;  it  is  not  only 
osaclnsiTe  i>eiween  the  parties  to  the  suit,  it  is 
omdiiMf e  ui  all  the  world ;  it  never  can  be 
Ncbcd  w  noTcd  again ;   that  certificate  ooce 


received,  that  record  in  the  common-law  courts 
is  final  for  ever. 

My  lords,  to  prevent  the  mischiefs  tbat 
might  arise  from  such  transactions  happening 
by  agreement,  and  a  false  certificate  obtained 
by  collusion,  depriving  persons  of  iheir  legal 
rights,  vari«>us  forms  are  now  requisite  by  an 
act  of^  parliament,  which  I  w'i|l  state  to  your 
lordships,  that  originally  were  not  so.  Va- 
rious  proclamations  are  necessary  in  the  court 
of  Chancery,  and  likewise  in  the  Court  of 
common -law,  in  which  such  question  arises* 
in  order  to  give  universal  notice  to  all  persons 
who  may  hy  |)ossihility  be  interested,  that  such 
a  question  is  to  be  sent  to  the  Ecclesiastical 
Court:  but  before  tbat  act  of  parliament  no 
such  proclamations  were  necessary.  The  act 
of  parliament  will  shew  your  lordships  what 
then  was  the  effect  of  a  cidlusive  sentence  ia 
the  Spiritual  Court  npf)n  the  subject  of  bastar- 
dy ;  and  the  sentence  of  that  court  was  con- 
clusive, and  could  not  be  touched  by  any  tem- 
poral judicature. 

My  lords,  the  act  of  parliament  was  made 
in  tbe  9lh  of  king  ilenry  the  6th,  chapter  the 
1  Xth :  the  title  of  the  act  is,  **  proclnmstiofia. 
before  a  writ  be  awarded  to  a  bishop  to  certify 
bastardy." 

My  lords,  the  preamble  of  the  act  before  It 
comes  to  the  enacting  part  is  very  long.  1 
need  not  read  the  whole  of  it  to  your  lordsnipt : 
it  is  in  substance  this :  **  that  several  persons, 
who  are  named  as  petitioning  in  the  law,  who 
claim,  some  as  sisters,  and  otbera  as  'daimingf 
under  sisters,  to  be  heirs  of  Edmund  earl  of 
Kent,  were  apprehensiTC  of  the  effect  of  a  col- 
lusive Certificate  that  would  be  obtained  by 
Eleanor  tbe  wife  of  James  lord  Audley,  who 
pretended  herself  to  be  the  daughter  of  that 
Edmond  earl  of  Kent ;  and  the  meaning  of  the 
act  was  to  prevent  the  efilect  of  such  a  collu- 
sive certificate,  which  was  apprehended  would 
be  obtained  by  this  Eleanor  wife  of  James  lord 
Audley ;  and  stating  tbat  there  was  no  founda- 
tion for  any  such  pretence.  That  she  was  not 
the  daughter  of  the  said  Bdmond,  the  act  goes 
on  to  say ;  nevertheless  the  said  Eleanor,  the 
wife  of  James,  upon  great  suhtilty  process 
imagined,  privy  labour,  and  other  means  and 
coloured  ways,  to  the  intent  that  she  ought  to 
be  certified  mulier  by  some  ordinary,  in  case 
that  bastardy  should  ue  alleged  in  her  person, 
hath  brought,  as  it  is  said,  in  examination  be- 
fore certain  judges  in  the  spiritual  court, 
knowing  nothing  of  these  contrivances,  cer- 
tain sut»orned  proofs  aud  persons  of  her  assent 
and  covin,  de|fO!>ing  for  her,  that  she  was  be- 
gotten within  marnage  had  nnd  sotenmized  be- 
tween the  said  E'Imoud  and  Constance,  late 
wife  of  Thomas  lord  l>espefiKer ;  so  that  it  is 
very  likely  that  the  sameordioury  would  cer- 
tify the  said  Eleanor  the  wife  of  James  muiier; 
which  certificate  so  had  and  made  ought,  by 
the  law  of  England,  to  disherit  the  said 
duchess,  duke  of  York,  earl  of  Salisbury,  earl 
of  Westmorland,  John  earl  of  Typioff,  Alice, 
Joyce,  and  iieory,  aud  their  issue  for  ever,  of 


415] 


IG  GEORGE  IIL 


Trial  (if  the  Duchess  ofKingstoHf 


[416 


the  whole  iDheritance  aforesaid  "  Thus  yonr 
lordships  see  it  is  stated  that  such  a  certificate, 
eo  obtained  by  the  most  flagrant  covin  and  col- 
lusion, which  is  stated  herie  in  this  preamble  of 
the  act,  is  said  to  have  such  eflfeot,  that  it  ought 
by  the  law  of  Enfc^and  to  disinherit  the  heirs 
anil  their  issue  for  ever,  thouji^h  a  certificate 
ni«>st  palpably  obtained  upon  the  p'ossest  frand 
awl  collusion.  Then' it  goes  on  to  prtroide^ 
■*  whereupon  the  premispt  tenderly  considered, 
and  to  eschew  sucli  subtle  disherisons,  as  well 
iu  tlie  said  case  as  in  other  cases  like  in  tinne  to 
cone,  by  the  advice  and  assent  of  the  Lords, 
and  at  the  request  of  the  said  Commons,  it  is 
onlained,  that  if  Eleanor  the  wife  of  James  be 
certified  mulier,  that  no  manner  of  certificate 
ahall  in  anywise  put  to  prejudice,  bind,  enda- 
mage, or  conclude  any  person,  but  him  or  his 
heirs  that  was  a  party  to  the  plea."  Thus  it 
providef  a  remedy  in  that  particular  case. 
Then  it  goes  fm  to  enacts  that  in  future  all  |iro- 
ceeedings  of  this  sort  shall  be  attended  with 
different  pniclamations  that  are  ordered  by  that 
act,  that  It  may  in  future  be  known  when  such 
certificate  will  be  applied  for  to  the  spiritual 
Marts,  and  that  all  parties  interested  may  have 
notice  to  make  their  objecttoas.  Now,  ray 
lords,  what  will  be  said  of  the  effect,  the  weight, 
the  authority  of  ecclesiastical  seotenoes  in  this 
part  of  the  law  after  the  act  of  parliament  ? 
boca  it  not  appear  by  this  law,  that  the  certifi 
cite,  in  other  words  the  decision,  of  the  Eccle* 
siaslical  Court  iu  a  case  of  bastardy,  eren 
tlMugh  feuiHled  upon  collasion,  was  decisive, 
when  oDOe  it  was  formally  received  from  the 
ecclesiastical  judge?  And  if  it  was  so,  will  it  be 
at  all  a  stretch  of  the  authority  of  that  judica- 
tare  now  to  say,  that  a  sentence  in  a  cause  of 
marriage,  which  is  as  pecidiarly  to  be  confined 
to  their  jurisdiction,  ought  to  have  the  same 
ferce  P  And  if  it  is  not  to  have  the  same  force, 
will  it  not  be  breuking  in  upon  or  evading  that 
jorisdictioo,  in  a  way  which  your  lordships' 
predecessors  have  never  done,  if  you  should 
DOW  suffer  this  sentence  in  another  place  to  be 
impeached  and  overturnHl  ? 

My  lords,  your  lonlvhtps  will  remark,  that 
in  tiMMe  cases  which  your  loril9hi|>s  have  been 
referred  to,  there  is  one,  the  case  of  forgery, 
which  is  the  case  of  Farr,  that  is  more  exactly 
like  the  present,  and  where  a  decision  of  the 
spiritual  court  upon  a  will  is  held  to  be  decisive 
against  the  clearest  proof  of  forgery.  But 
with  resfiect  to  the  other  cases,  your  lordships 
will  obserre,  that  they  are  all  civil  cases:  and 
if  this  deference  and  respect  is  to  be  paid  to 
sentences  by  the  ecclesiastical  judicature  in 
civil  causes,  I  am  sure  1  need  not  observe  to 
your  lonlsliips  that  in  criminal  causes,  where 
the  noble  la«l}'  at  your  lurtlships  bar  is  to  be 
entitled  to  every  indolg^ce,  to  every  favour, 
these  decisions  do  from  that  consideration  ac- 
quire double  force. 

My  lonis,  it  may  be  said,  what  did  this  act 
of  parliament  of  James  the  first  mean  ?  That 
when  there  had  lieen  such  a  sentence  as  this^ 
though  tboM  who  wore  parties  to  it  knaw'  that 


they  were  in  truth  man  and  wife,  that  after 
such  a  sentence  either  of  the  partier,  ao  know- 
ing that  tliey  were  man  and  wife,  should  be  at 
lil^rty  to  marry  again  wKhout  incurring  the 
penalties  of  this  statute  Pin  answer  to  that  it 
may  be  replied,  that  whilst  this  sentence  stands, 
if  there  be  any  weight  in  the  arguments  orged 
in  support  of  it,  it  is  not  to  be  presumed  that  it 
was  so,  or  could  be  so,  known  to  the  parties ; 
beeanse  that  was  to  impeach  the  sentence. 
But  another  answer  occurs  from  the  act  itself; 
for  the  act  did  not  mean  in  all  cases  to  punish  » 
second  marriage,  where  the  former  husband 
and  wife  were  found  to  lie  living;  because 
there  ia  an  exception  in  the  act,  an  exception- 
which  permits,  i  mean  so  as  not  to  make  it 
punishable,  permits  a  marriage  with  a  secowd 
nusband  or  wife,  even  though  the  former  be 
living,  and  be  known  to  be  living.  I.iet  but  the 
sea  be  placed  between  the  hu^nd  and  wife 
for  seven  years,  though  they  know  each  other 
to  be  living,  the  law  takes  not  place;  the?  arc 
not  the  subjects  of  punishment :  that  I  take  tO' 
be  extremely  clear.  The  circumstance  of 
knowledge  does  not  necessarily  import,  th^t  • 
person  marrying  a  second  husband  or  wifb 
nHist  be  subject  to  the  penalties  of  thir  taw  ow 
account  of  that  knowledge  of  the  first  hushtntf 
or  wife  being  living.  As  to  the  immorality  of 
the  case,  as  to  the  effect  against  religioa» 
against  the  eternal  sacred  obligation  of  mar- 
riage, it  reimuBs  exactly  the  same,  whettier  tim 
husband  is  on  this  side  the  chaimel  or  the  otheiP. 
But  the  law  has  said  in  that  case,  ^hontih  thv 
ceremony  of  marriage  would  be  thus  offemM* 
against,  though  the  obligation  would  he  so  fwC 
violated,  that  a  husband  or  wife,  knowing-  that 
the  other  husband  or  wife  were  living,  should 
take  a  second  ;  yet  that  knowledge  is  not  snf^ 
ficient  within  the  act  in  that  instance  to  subfetst 
the  party  to  punishment.  It  is  not  therefurc 
in  every  case  that  tlie  taking  a  second  hiisbaiMl 
or  wife,  even  with  knowledge  ihat  there  is  a 
former  subsisting,  will  subject  a  party  to  pii* 
nishment :  that  the  act  says.  It  is  not  a  |>aTf 
of  the  present  question  before  your  lordships* 
To  suppose  that  after  this  sentence,  the  nolde 
lady  at  your  bar  could  be  so  well  ncqirainted 
with  the  ecclesiastical  law,  as  to  know  that 
this  sentence  would  not  be  binding ;  that  is  too 
absurd  to  suppose.  Ifa  sentence  in  the  Eccle- 
siastical Court  is  to  have  that  wei<j:ht,  which  it 
has  had  from  the  earliest  times ;  if  the  same 
rule  is  to  take  place  in  criminal  courts  of  jiMli- 
cature,  and  in  favour  of  the  criminal,  which 
has  been  again  and  again  establishetl  in  civil 
causes ;  then  this  sentence  is  conclusive ;  there 
will  be  an  end  of  the  present  prosecution. 
And  your  lordshi|w  will  not  forget  what  I  did 
before  take  the  lii>erty  to  suggest  to  your  lord- 
ships, that  giving  the  iiiinost  sanction  tO  tliia 
sentence,  you  uever  bastardize  issue,  you  never 
disturb  families,  you  never  deprive  individuahi 
of  their  right ;  because  every  human  creatura, 
who  is  at  all  interested  to  dispute  a  aentaAe> 
against  a  marriage,  who  wisba  to  sei  ap-  «F 
anppoft  it,  may  at  any  time  apply  t*'tha'Bi^ 


Jot  Bigatny. 

daiwilical  Coart,  and  there  liave  llie  marriage 
up  ao)"  vol  c^lnbliibeJ.  Nu  cauie  Ihere- 
au  e*r-r  pass, in  whicli  a  inarriatre  "ill  re- 
aaiUmnbj  iiiRh  awnti^noe, except  wbrre 
is  no  human  creature  who  Ibinkt  il  north 
Iketr  while  lo  eiiileMour  tn  support  it.  And 
Uu*  trai|KHsl  law  may  lurely  very  well  go  ud- 
mWc^iJ  niiUc  a  <«Dlcace  sianda,  onil  tiD  ac- 
eoonl  fli'  that  u^ieace,  which  nilh  Ihe  ulrauat 
■*i(;l>i  "ad  crrilil  giieo  to  it  can  iiroJjco  nu 
Maiparal  miacUiel'.  IT  il  b«  wron^,  if  the  |>ar- 
bn  M  tl  ill  procBfinir  it  did  nroiiK,  it  mny  a( 
Mjr  time  be  UDdone  in  llie  Eccleaiailical 
Cmirl ;  ami  ai  to  the  ofTeiicQ  a^aiusl  the  right 
■r  narriaifc.  sgaiust  the  teligious  consiitulioa 
if  lh«  li>n-iii)m,  (bat  court  may  at  aiiy  lime  ef- 
l(ciu>k|ij'  [itiniah  thuee  t>'hii  hare  been  |;uilly  «f 
tay  audi  oFence,  nbo  have  iinpr«|>erly  mar- 
nrd  a  aiHTdnd  hiisliand  or  wife,  who  baie  iia- 
frtipetly  aiiciii|iieil  lo  get  rid  of*  marriage 
'hit  Miu  leifallv  ealablislied. 

And  ilterelure  upoa  the  whole  I  aahinit  to 
ir   lorili'hi|i'>,  that    upoa 
-    (h«Te  i»  no  Rroon.)   lo 
-<    «eui«ii(-e ;  thai  it  is  fi[ 
coursr  DO  other  evidence  oli|{bt  lo  be 
•  eil   imiieachin^  thi^  marria),rt ;  that  the 
nnenl  therefiire  louHt  lull;  and  that  »» 
•  rirace  can  be  received,  it  nuiild  bo  idle, 
p<rlilieul,  and  ot'  n"  iiae  to  atalu  il. 


A.  D.  1776. 


[418 


ra peach  oi 


I>(M:tur  Cahcrl.  i>ly  lords,  il  ii  my  duty  like- 
■iae  to  lre¥|-BS;>  n  iillie  upon  yuur  lordships'  p:i- 
^eofe  ou  llie  Mine  side  with  the  KeiiUciiien  h  ha 
■are  gone  iielnre  nir,  ihuueh  lbisi|iiesliuii  has 
icea  by  tliFin  cnnsidiTed  in  the  widest  cxleiil 
rf'viet*  ibu  I  believe  it  is  cajmhie  ol'. 

My  tordti,  the  loolion  now  niailf  by  the  noble 
My  B(  your  kirdshipa'  bar  is  thii,  that  havintf 
tkat  species  tif  evidence  t^liich  iihe  ajiiirehFnd* 
i»«ancl»Hive  in  tier  favour,  and  prei-luiles  the 
iroaecuior  from  guine  into  any  evidence  cm  bis 
part,  it  injy  be  received  by  yuur  lordshiiit  at 
''■  only  matter  projier  to  take  iulo  coiisidera- 

viilence  which  her  grace 
u  the  Ec^cln>ia»lical  Cuuit, 
prutHMiucrd  in  a  due  >iiil  ibeieupon,  in  a  direct 
Lae  of  itiarriage  ;  the  purport  of  «htcb  waa, 
Il  tli*.'re  w  HI  an  marriage  sulnistiiig  belweeo 
Ike  bMniurableMr.  4ugiiiiiis  Hei'tcy  and  the 
}  lady  ul  the  bar,  as  the  iadiclmeni  lays 
■  «•»«,  at  the  lime  «be  married  the  late 
Jake  fiC  Kintinion,  lliut  marriage  hciug  lite  sole 


I  thii 


;  fur  if  timl 


Uia  narriaije  "iili  the  ilitke  of  KiiigMi 

riectly  inauceiit,     Ifllii*  it  a  pruul,  sncn  a 

e  aa  yuur  liirdshlp^  by  law  ouf;bt  tu  aliide  by, 

Uni  llwre  wai  uoiui'b  marriage  aub^istiiig  be- 

va  tbi<in,  Ki  go  iulo  eiideuce  uf  any  sort 

■ival  be  luially  nugalory. 

ftly  luida,  II  is  welt  known,  that  by  ihe  cna- 
lU-ni""   of  ihi*  kingdom   thiTe  are  different 
■  <,\<^A  lot  the  hiigalion  of  dilti 


>plvd  t 


iilieo 


tilutm 


point  originally,  and  determine  il  directly ;  and 
It  is  contcuded,  Ibst  while  that  determination 
suUiEtt,  it  ought  lu  have  iu  eRect  in  all  other 

t laces,  and  in  all  oiIit  eouns  where  Ibere  shall 
e  occasion  lo  make  u(>e  of  it. 
My  lords,  ibis  ia  doI  asierled  only  of  one 
species  iif  eourta,  I  niian  Ihe  EcclesiuElical 
CourlR,  biitit  applies,  1  Hiiprehenil.  tosenlcnce* 
uf  all  olbets  whatever,  tliat  when  a  Juiigment 
has  been  giveu  by  any  cnurt  having  ori^tial 
and  direct  Jurisdiciiua,  though  ibal  may  iuci- 
deiitBlly  cotne  before  auother  court,  yet  they 
don'l  go  into  that  quealioo  which  has  by  a  com- 
petent Judicature  beeu  before  determined. 

My  lords,  il  is  true,  it  is  impossible  lor  any 
courls  locoDliiiue  lo  enercise  their  JurUdicliou 
tor  any  Gonaiderable  lime  vrithout  many  que«. 
tions  incidentally  arisiog,  which  are  not  really 
and  originally  within  their  Juribdictioo,  maay 
of  cccteaiastical  cognizance ;  and  for  the  nur- 
|io«e  nf  determining  (hat  cause,  if  the  inci- 
dental |H>iut  has  not  already  had  b. decision  in 
an  Kciiieaiantical  Court,  they  must  he  gone 
into }  becuuse  if  they  were  not,  there  wonid  be 
no  eod  of  the  interruption  of  justice.  Blany 
(jiieilions  arise  in  the  Eccleiiaalical  CouiU, 
which  are  originally  of  common-law  jurisdic- 
tion, yet  tlie  Ecclesiastical  Court  must  go  so 
fur  into  that  couaiderBtiun,  as  to  see  whether 
Ihe  pretence  be  true:  for  the  purpose  only  of 
delcrmining  the  cause  then  belure  that  Court, 
lliey  could  n<il  bate  originally  determined  this 
qUtiiiirnii.  Eiuppoae,  for  inslSQCe,  a  legalea 
claiming  a  legacy  in  an  Ecclesiastical  Court, 
the  executor  mny  plead  a  release ;  novr  Ihe  vali- 
dity or  invalidity  of  Ibat  release  is  originally 
cni[nizshle  by  the  commun-Iuw  courts  and  n» 
other,  yet  Ihe  ecclesiaslioal  juilge  must  so  far 
take  that  plea  into  CDiiside ration,  as  In  sea 
whether  there  ia  sriind  Jacie  a  release  or  no; 
hut  it  was  pleaded  in  reply,  tliat  ihere  had  been 
a  qiienlion  upon  that  release  at  curomou  law, 
Ibal  it  bad  been  there  pill  in  issue,  *Dd  that 
there  was  a  verdict  against  llinl  release.  1  ap- 
prebend,  that  no  ecclesiastical  judge  then 
wonid  think  himaelf  at  liberty  to  enter  into 
the  question,  whether  it  was  a  good  release  ot 
no  ;  but  the  verdicl  must  be  laken  as  true,  be- 
cause  the  Court,  though  incidentally  it  was 
obliged  to  take  notice  of  il,  has  not  a  jurisdic- 
'  in  I'l  delerniiiie  ihe  original qviestion. 
My  lordK,  ilits  may  be  applttd  lo  the  quea- 
in  Ibat  ia  now  before  your  lordshipi :  inar- 
riuij^e  causes  nrc  peculiarly  by  ihe  constilulina 
given  to  the  EccltsiHslicul  Courts  ;  Ihey  alons 
can  determine  an  original  and  ilirect  questian 
hetneen  the  parlies ;  and  if  de- 
termioulions  of  courts,  having  original  and  di - 
jurisdictiun,  are  to  rt'ceive  weight,  and 
.  will)  credit  from  all  oilier,  then  the  deter- 
of  Ecclesiatiieal  Courts  opno  mar^ 
riage  ought,  wherever  they  ctime  in  queelicin  in 
■ny  other  uuurl,  likewise  io  be  rereived  aa  «iin- 
ctu»ive.  Tbeobvioils  reason  ufibia  sinkra  me  tu 
be,  btrcaiise  ihnngh  every  ci'url  can  delcrniiiifl 
in  same  measure  a  questiuu  merely  as  a^i^lied 
lo  wJial  is  then  bal'ute  \\ma,  '^tX  Masj  cwnxuA 

■*y*jfe--- 


*19] 


16  GEORGE  III. 


Trial  f>fthe  Duchess  ofKingstottt 


[iSH 


determiDe  it  gpenerally,  they  caoDot  determine 
the  very  question  as  applicable  to  other  pur- 
poses. As  for  instance,  suppose  any  temporal 
right  under  a  marriage  is  to  be  considered  in  a 
common- law  court,  and  it  may  be  necessary 
for  that  purpose  to  enquire  whether  there  l>e 
such  a  marriage ;  the  general  question,  whe- 
ther such  persons  are  to  all  intents  and  purposes 
man  and  wife,  whether  they  are  bound  by  the 
obligations  of  duty  arising  from  that  state,  is 
certainly  not  to  lie  determined  bat  in  a  court 
of  ecclesiastical  jurisdiction  :  and  when  that 
court  has  been  m  possession  of  the  original 
and  general  question,  and  has  determine  it, 
for  the  common- law  conrt  to  enter  into  it, 
might  be  in  effect  to  alter  and  undo  a  judg- 
ment, as  far  as  the  consideration  then  is  before 
the  court,  which  certainly  that  court  has  no 
juris<liction  to  do.  That  this  is  to  be  received 
as  a  general  position,  1  apprehend,  is  support- 
able upon  this  ground ;  npon  the  great  mcon- 
S'uity  of  sentences  whicti  otherwise  must  arise, 
ow  suppose  there  be  a  sentence  in  a  court 
that  has  the  original  jurisdiction  to  determine 
marriages  between  roan  and  wife ;  to  determine 
upon  tne  state  of  those  persons,  whether  they 
are  in  fact  in  that  relationship ;  all  determina- 
tions upon  that  question  in  any  other  conrt 
may  be  directly  contradictory  to  that  aentenoe, 
which  still  must  remain  ;  for  the  parties  will 
and  must  remain  man  and  wife,  or  the  con- 
trary not  man  and  wife,  according  as  the  sen- 
tence was,  if  that  question  has  been  directly 
determined  in  an  Ecclesiastical  Court ;  and  any 
deterroinatioo  that  would  be  gi?en  by  another 
court,  may  be  contrary  to  that  obligation  and 
that  connection  which  the  Court,  having  a 
power,  has  determined  was  between  them. 
On  these  eonsiderationii,  therefore,  I  appre- 
hend it  is,  that  whenever  a  question  of  matri- 
mony has  arisen  in  any  common-law  court,  if 
there  has  been  no  determination  in  the  Eccle- 
siastical Court,  the  question  may  be  open  ;  but 
if  that  question  has  ever  come  directly  in  point 
before  the  Court,  having  direct  jurisdiction  to 
determine  il,  1  apprehend  to  this  time  there 
always  has  been  such  credit  given  to  the  sen- 
tence, that  it  Is  taken  to  be  conclusive  and  be 
determined  between  the  parties. 

My  lords,  this  distinction  was  made,  I  con- 
ceive upon  the  best  grounils  so  long  ago  as 
that  case  alluded  to  by  the  learned  gentlemen 
who  have  gone  before  me:  1  mean  Kenn's 
case,  reported  by  sir  Edward  Coke ;  that  was 
in  the  reign  of  king  James  1.  In  that  case 
there  is  cited  the  case  of  Corbett,  which  was  as 
early  as  Edward  4.  Taking  the  doctrine  laid 
down  u|)on  these  two  cases  together,  the  posi- 
tion there  establishinJ,  and  I  trust  adhered  to 
ever  since,  is  this,  that  when  there  has  been  a 
question  of  marriage  liti$;^ated  by  the  parties 
tneraselves  in  a  proper  court,  and  the  question  | 
has  been  determined  upon  the  marriage,  the 
sentence  will  always  hold  good,  till  it  is  reversed 
by  that  court.  Mo  much  was  determined  in 
the  case  of  Kenn.  lu  the  case  of  Corbett  it 
was  deteminedy  that  where  one  of  the  [larties 


Is  dead,  and  no  soch  sentence  was  had  betwee 
the  parties  while  living,  a  person  oaioet  eon 
mence  proceedings  in  the  Ecclesiastical  Gon 
relative  to  that  marriage.  The  reason  is,  th 
then  the  object  of  such  a  sait  most  be  tenlpon 
considerations  only  ;  it  must  be  to  baatardii 
issue,  or  it  must  be  for  some  purposes  whic 
the  Ecclesiastical  Court  has  not  original  jmi 
diction  of.  But  the  mere  question  of  Doarriagi 
of  connection  between  man  and  wife,  caa  nevi 
come  into  question,  nor  ought  it  to  be  litigali 
after  tlie  death  of  the  parties :  therefore,  tl 
Ecclesiastical  Court,  aner  the  death  of  tb 
parties,  does  not  entertain  that  suit,  nor  can 
oe  legally  commenced. 

My  lords,  there  are  a  variety  of  cases  wbid 
have  been  determined  that  have  been  quoli 
already  to  your  lordships,  and  which  I  shod 
be  very  sorry  to  take  up  your  time  in  repeat 
ing ;  but  it  seems  to  me  on  those  autboritiei  t 
have  been  established,  that  as  often  as  tba 
sentences  have  been  pleaded  they  have  bee 
allowed,  whether  they  were  sentences  in  cansc 
of  nullity  of  marriage,  or  in  jactitation  of  mil 
riage. 

My  lords,  if  danger  is  to  be  apprebenda 
from  too  much  credit  being  given  to  sad 
sentences,  lest  fur  improper  purposes  the; 
might  be  unduly  obtained,  there  seems  to  b 
less  danger  in  questions  that  arise  upon  mar 
riage  than  in  any  other ;  for  this  reason,  tba 
there  can  be  no  determination  against  a  mar 
riage  but  what  is  open  to  future  litigation.  W( 
all  know,  that  in  a  question  of  marriage  asi 
person  that  has  an  interest  may  intervene  be 
fore  sentence  given  ;  and  any  person  hsvisf 
an  interest,  though  they  have  neglected  to  intv 
veoe  in  that  canse,  might  appeal  within  thi 
proper  time :  nay,  I  will  go  so  far  as  to  sav 
that  if  any  person  having  an  interest  show 
have  so  far  neglected  it  us  to  omit  avaiKaj 
himself  of  an  intervention  or  apfieal,  yet  b 
might  still  come  before  the  court,  shew  his  ia 
terest,  and  be  beard.  A  marriage  cause  goe 
farther  still ;  for  I  believe  in  most  other  cases i 
determination  would  be  for  ever  binding,  a 
least  to  the  parties ;  but  in  these  questions, ! 
conceive  it  is  not :  for  if  there  w  as  to  be  ; 
question  between  a  husband  and  wife  in  a  cans 
of  jactitation,  and,  as  in  this  cause,  it  was  ds 
termined  that  there  was  no  marriage;  yet  th 
party  against  whom  that  sentence  was  obtais 
ed,  1  apprehend,  might  ap|>ear  at^erwards,  h 
might  produce  any  new  proof  that  he  did  M 
know  of  at  that  time,  or,  e\en  if  he  had  v 
produced  what  proof  he  had,  he  might  fc 
beard  upon  it.  The  reason  of  that  indulgeM 
I  take  to  be  this :  by  the  canon -law  a  marrta| 
was  held  to  be  indissoluble,  and  for  that  reasc 
a  sentence  against  it  never  could   be  final 

*  senteutiu  contra  niatrinioninm  nunquam  trai 

*  sibit  in  rem  judicatam.'  The  canon-law, 
is  well  known,  has  been  received  in  this  counli 
with  respect  to  marriage,  particularly  as  totb 
position  of  its  being  indissoluble.  In  no 
otb^  questions,  as  of  property,  a  person  migl 
be  bound  by  time»  booud  by  oot  OMkiiig  i 


>r  Bigamy.    ■ 

be  sboald  bare  duor  ;  but  u 
a  fmwm»  naoM  retenie  biuuelf  truin  thn  obli- 
|Miaa«  of  inarTiaf^  by  ts;  li[ise  of  line,  or 
aqr  wglgcl  id  ■Uliny'  his  case,  ibe  qiicslion  is 
mmopmn  tfanafurelbeie  ca^es  »re  cerlainiy 
llw  MM  daugergiM,  because  if  any  body  ap- 
fan  wh»  appnrbends  biiascll*  iDJured  in  this 
HMer,  and  baa  an  iatert«t  to  shew  tbat  this 


I  apiirebeail  it  la  conclURive.     Tbe 

■Mcae«  now  before  yuur  lordtbipa  is  a  »en- 

Mm  in    a  cause  of  jacIitatioD.      It  has  been 

Mfpo*ad  upnn  ibe  auihnriiiei,  many  iif  wbinh 

We  becu  cited  to  ynar  lurilsliipa  tu-day,  Ibat 

•(md  a  Beaieace  determinititf  upon  ibis  point 

tii  bten  olferctl  ia  any  coun  coning'  in  iiici- 

brtallv,  it  has  been  coDalaaily  received  :    but, 

■9  ktnls,  ii  bas  been  recdreil  witb  Ibis  realric- 

!■■,  •■  it  is  laid  ibiwn  expressly  in  Blacltbam's 

■M,  trkicb  bas  been  already  quoieil,  it  muu  ba 

wtere  tbe  tnaniage  bas  been  directly  in  issue; 

far  if  il   be  an  incidcolal  ptiint  unJy,  it  would 

Ht  tbeit  be  talialaciory.     In  Biackhani's  case, 

wher*  tbe  question  aroiie  upnn  tbe  tfrant  iif  an 

^■atBMtralicm,  il  was  ai^oed,  Ibat  the  Eccle- 

liajtiml    Ctiurt  hating  dalermiaed  upon   that 

^■iiri*1" *'"".   lliey  had  virtually  deiennineil 

1^    mairia^e,   sod    iberelbre  it   was   liiiiding 

mfom  all  (laniea :  but  it  was  aaiil,  Nu,  the  quea- 

Xjua  Muat  be  orit;iaelJy  aiid  dirnclly  upon   the 

iBarrtase,  nr  it  shall  not  have  effect ;    and  Ute 

•litUDcaiaa  aeeias  to  be  exceedingly  eood. 

VIj  larda.  in  ordet  to  brinf;  tbe  prcaenl  case 

-.-i^rure  wiiliin  tliis  pfmoiple,  it  ia  necessary 

'ltd*,    that  the  seotence  now   nnder  ynur 

n>«i>i|M>'  coiiiideratioa  is  a  direct  delerioinalian 

■fKHi  a  Diactiaire ;  because  if  it  be  not,  it  would 

to  liable  to   tbe  olgeciion  wbicli    I   have   noiv 

ttMd. 

ISy  lorit,  the  proceedinif  is  that  of  a  canse 
tf  jaditaiioB,  nhicb  is  be^un  by  a  man  or  h-q- 

)lpaa  tbe  pertan  nbn  daims  tu  be  the  husband, 
fm  taaatng  biiaalrd  and  asserted  iliat  lady  to  be 
Ma  atil'e,  to  abstain  from  aucb  assertions  tor  the 
hwr*. 

My  iMfda,  be  re  tbe  question  orit;i>>3ily  seema 
M  h*,  srhetber  ibe  persoa  called  upon  had  ever 
Mallj  claimed  ibe  lady.  In  tliat  ststre  uf  tbe 
^MMe.  if  ibe  efaiia  had  uni  gone  as  far  as  a 
on,  some  of  the  liovka  asuioiilale  Ibis 
i;  til  a  cause  of  delaiaaiion,  supposing 
Waa  be  a  caae  vl'  a-urits  only  ;  and  wlien  upon 
a  snamage  bein^  pleaded  to  jusiifv  the  daim, 
ih*  tyteinOB  turns  upon  Ibat  marriage,  it  may 
|e>h«^  ha  arijued,  tbat  il  ia  not  a  direct  case  -k 
■asMa^F,  bnt  Bu  inridental  one  only  :  il  aay 
■■a  ibervtbre  be  impniper  to  consider  it  in  this 
«■■,  leat  (uch  an  observation  shnulil  ba  made. 
I  uk«  it,  thai  when  in  a  cause  of  jactitation 
ihc  defendant  gives  in  a  ph>a  statioif  a  mar- 
iiai^s  aail  that  marriaiie  is  c«iiirailicie<l  by  tlte 
fhiMdtff,  though  II  18  intended  indeed  us  a  da- 
Haoa  10  Ibe  aceuulian  («r  wbicb  be 
■faa  U>  aiwwer,  that  of  havings  claiineil  tha 
mtf^  jNa  the  qaeatiBB  ifaM  alun  in 


»  -"«    -A.  D.  1776.  [42B 

Ibe  plea  is  not  only  intended  to  entitle  the  de- 
fendunl  to  bia  admission,  bat  the  court  is  then 
in  posaeaaioD  of  tbe  question,  whether  there 
was  a  marriaga  betweeo  llie  parties,  and  the 
delerminatiun  is  direct  upon  a  marriiuce.  If 
tlie  marriage  he  proved,  tliere  is  Ibe  saaie  !>en- 
lence  paaaed  aa  in  a  matriiuonial  cause ;  tberi: 
is  a  seutence  directly  pmnoundni;  tbere  wns  a 
marriage,  the  parlies  are  prooounceil  to  be 
man  apd  wite,  and  they  Diijchi  he  admonisbeil 
to  restore  in  each  other (.-anjujfal  rights.  If,  oa 
tlie  contrary,  the  defeodaot  should  fail  in  proof, 
the  determmalioH  is  tbia.  tbat  tbe  naily  has 
failed  in  his  justiBcalory  matter ;  and  tba  sen* 
fence  in  this  case  Koea,  tbat  the  Judge  baa 
found  tbat  be  baa  tailed  in  the  proof  of  the 
roarria)(e  alleged  to  have  been  bad  between 
Ibem,  he  i*  declared  to  lie  free  from  all  malri- 
mouial  contract*,  and  injoined  not  to  bnnsl  Ik 
future  ;  it  would  be  tberelore  a  lallacy  to  argue, 
Ibat  tliia  is  not  a  direct  dcier  mi  nation  of  tbe 
questiou  of  marriage:  it  is  indeed  ineralted 
upon  ihe  original  cense  of  jactitation,  but  that 
is  ai;reeable  and  coniouant  In  practice  io  other 


My  lords,  it  is  not  a  moDSlroas  thinK  to  as- 
sert that  a  cauw  may  change  its  iialare  frota 
its  urigiual  institution. 

(On  mutiun  of  a  Lord,  part  of  tbeSenleuce 

Dr.  Calvrrt,  Unacquainted  as  I  am  with 
the  proceedings  of  Jus  high  and  august  court, 
which  I  uever  bad  tbe  honour  to  appear  iu  be- 
fore, I  conceive  it  is  my  duly  to  take  immHiiaia 
notice  of  iboae  words  which  haie  been  read,  aa 
I  lupptMp  ibay  were  called  for,  because  I  oii|[lit 
Iu  coutine  my  obiervniioDs  In  Ibem  before  I  go 
any  liirlher.  The  lady,  who  ia  ihe  object  of 
that  enquiry,  is  pronounced  la  be  a  spinster  aa 
fares  yel  appears. 

My  lord^,  ibese  words  ari 
arnience,  and  I  apprehend  a 
lence  of  Uiis  nature;  the  purport  of  which,  I 
trust,  means  thts,  thai  tbe  case  is  o|ien  to  fu- 
ture disqaisninn  u|ioo  tbe  principles  that  hava 
been  already  staled;  thai  ihuugh  ihe  judge  de- 
termines opou  tlie  evidence  that  is  then  before 
I  hiin,  yel  tbe  parties  havimc  an  interest  to  bring 
:  that  question  ou  again,  maj'  he  heard.  As  far 
'  as  vet  appears  ta  us,  saya  the  judge,  the  lady 
■9  Iree  from  all  raaiHinoniBl  contracts;  and  aa 
I  loogasiliat  senieiicereniaina,  1  mean  to argae 
I  Ibat  il  is  a  conclusive  (sentence.  1  don't  mean 
)  llial  the  Cuart  is  precluded  from  anolbev  eo- 
'  quiry  ;  I  hace  stated,  that  no  parties  are  pre- 
I  Huded  from  anniher  enquiry  ;  and  I  conceive 
■he  meaning  of  those  words  aivto  ex|ireaa,  that 
I  aircording  to  the  light  whirh  then  appears  to 
I  the  Court,  the  Court  pronounces  (be  aentence. 
But  a  aentencr  of  that  sort  is  ool  from  ihenca 
ID  be  iiyueil  la  be  nugatory,  and  thai  ttie  Court 
I  deternixursniilhint;:  Ihe  Court  drierminpB  upAn 
'  what  It  has  heuni;  and  as  loacaHibatseutenca 


4S3] 


16  GEORGE  III. 


began  ori^Dally  upon  the  one  party  callingf  on 
the  other  to  jiutily  his  claim  as  husband  in  a 
cause  of  jactitation,  it  is  nothing  monstrous  to 
8up|)0te  it  has  so  far  changed  its  nature  as  to 
become  a  marriage  cause ;  and  I  will  mention 
other  cases  in  which  the  ecclesiastical  courts,  as 
.is  well  known  to  the  practitioners  in  those  cdurts, 
adopt  and  admit  of  a  similar  practice.  Sup- 
pose, for  instance,  a  man  was  to  bring  a  suit 
aipainst  his  wife  for  the  restitution  of  conjugal 
rights ;  in  bar  of  that  restitution,  the  woman 
may  plead  adultery  or  cruelty  in  the  hubhand, 
which  in  certainly  a  reason  against  admonish- 
ing her  to  return  home  to  her  husband.  But, 
my  lords,  this  is  not  all  that  the  Court  would  do 
in  such  a  case ;  for  she  baring  pleaded  adul- 
tery, that  plea  liecomes  in  fact  a  libel  in  the 
cause,  and  it  will  become  a  cause  of  adultery; 
and  I  have  known  within  my  memory,  and 
since  my  attendance  at  the  bar,  instances  of 
that  sort.  In  a  case  of  Mathews  and  Mathews, 
determined  in  1770,  in  the  Consistory  of  Lon- 
don, the  wife  pleailed  adultery  in  bar  to  resti- 
totion;  the  cause  went  on  in  that  suit,  and 
there  was  a  sentence  of  dirorce:  would  any 
body  contend,  that  it  was  not  as  direct  a 
sentence  of  dirorce,  as  if  it  had  been  so  ori- 
ginally instituted  ?  and  in  case  either  of  those 
parties  had  married  again  during  that  divorce, 
and  an  indictment  had  been  preferred  for  poly- 
gamy, can  it  be  contended  that  this  sentence  of 
divorce  would  not  be  a  defence  under  the  pro- 
viso in  the  body  of  the  act? 

^ly  lords,  another  instance :  suppose  a  man 
brings  a  suit  for  separation  by  reason  of  adul- 
tery against  his  wife ;  the  wife  may  recrimi- 
nate, and  may  give  in  an  allegation  pleading 
aduherv  in  the  husband.  The  prayer  indeed 
on  each  siile  would  be  for  a  separation ;  but 
there  is  a  very  considerable  difference  between 
a  sentence  for  separation  formed  upon  a  crime 
being  in  the  man  or  in  the  woman,  whether  it 
is  at  the  suit  of  one  or  the  other :  but  if  the 
party  that  is  defendant  in  the  original  suit 
should  go  on  and  prove  that  adultery,  and  the 
plaiutitf  should  not,  the  defendant  would  lie  en- 
titled nut  only  to  a  dismission  from  the  suit  the 
plaintiff  originally  hroui^ht,  hut  to  a  separation 
upon  account  of  the  adultery  pleaded  by  the 
defendant. 

I  mention  these  cases  to  shew,  that  it  is  not 
enormous  to  suppose,  that  ihough  the  original 
question  might  begin  in  a  cause  of  jactitation, 
yet  the  marriage  ueing  pleailed,  the  sentence 


Trial  of  the  Duchess  ofKingston^  [494 

this  judgment,  and  pronounced  for  the  mar* 
riage;  pronounced  not  only  that  Mrs.  Hervey 
was  justified  in  her  jactitation,  but  pronuuooed 
expressly  and  direciiy  tor  the  marriage ;  and  1 
believe  nolioily  will  doulit.  but  tha>  marriagf 
was  ss  oonclosiTely  determined  between  Uienn 
as  if  it  bad  been  originally  a  marriage  causey 
or  a  suit  of  nullity  of  marriage.  That  theac 
sentences  have  been  held  to  l»e  conclusive  in 
the  courts  of  common  law  where  they  have 
been  offered,  those  many  instances  that  have 
been  mentioned  seem  to  me  to  put  it  oat  of  alJ 
doubt. 

It  will  not  be  improper  to  consider  what  efled 
a  sentence  of  this  sort  would  have  in  the  Ec- 
clesiastical Court;  and  I  shall  contend,  thai 
while  a  sentence  of  this  sort  is  existing,  a  wifis 
could  not  be  beard  to  have  any  claim  upon  bev 
husband ;  she  could  not  claim  the  restitutien  of 
conjugal  rights ;  there  is  no  light  in  which  sIm 
would  be  understood  to  be  the  wife  until  the 
marriage  be  again  brought  into  question.  There 
is  a  case  in  print  that  seems  to  roe  to  go  ex^ 
actly  to  the  point  1  am  now  contending  for;  ii 
is  in  the  case  of  Clews  and  Bathurst,  which 
has  been  mentioned  already  to  your  lordsbipi, 
as  reported  in  Strange,  9ti8.  But,  my  lords, 
that  case  is  reported  likewise  in  another  book, 
a  book  lately  publiahed,  which  I  am  told  is 
good  authority,  and  the  cases  well  and  correctly 
tsken ;  ii  is  called.  Cases  in  the  time  of  Lord 
Hardwicke,  and  it  is  to  be  found  in  page  11. 
There  the  case  is  stated  a  little  more  at  large ; 
and  a  case  is  said  to  be  quoted  by  Dr.  Lee,  of 
Melliaent  and  Mellisent  in  the  year  1718.  lo 
that  case  a  woman  had  claimed  to  be  the  wife 
of  a  Mr.  Mellisent.  Mellisent  libelled  her  in 
the  Ecclesiastical  Court  in  a  jactitation  of  mar- 
risge.  She  pleaded  a  marriage,  but  failed  in 
the  proof ;  and  there  was  a  M-ntence,  1  appre- 
hend, <»f  the  same  sort  as  in  this  cause.  Ahex 
the  di-ath  of  her  hnshaiid  the  woman  would 
have  maile  out  her  right  to  the  administration, 
and  for  that  purpose  she  pleaded  her  marriage; 
that  must  have  originally  began  in  the  inferior 
C4>urt,  and  from  the  nature  of  the  suit,  I  anp- 
|»08e,  came  from  the  Prerogative;  but,  how- 
ever, the  detcrmitiution  I  am  alluding  to  was 
in  the  court  of  Delegates:  it  was  determined, 
as  there  remained  in  force  a  seiUeuce  which 
was  a  bar  to  her,  she  could  not  be  heani  to 
make  out  her  case  as  a  widow  to  the  deceasied. 
Your  lorilshipR  very  well  know,  that  though  the 
Prerofifative  is  an  ecclesiastical  court,  yet  the 


either  one  way  or  the  other  in  and  must  he  as  ',  juristiiclioii  of  that  court  isf  confined  merely  to 
deUrminate  as  if  the  qucKtion  had  originally  I  probates  and  administrations,  and  it  does  not 
been  upon  marriatre.  TlK*re  is  a  case  that  was  :  enteriain  causes  of  marriage.  Mrs.  Mellis^'nt 
litigatel  in  the  Krdesiaiiiirat  Court  not  lonj?  i  there  cluiiuing  as  the  widow  of  the  deceased  in 
ago,  and  which  n*  ilie  time  was  much  talked  ■  that  court  where  the  sentence  of  the  marriage 
of,  and  is  wifll  ki.owii ;  i  mean  the  case  of  Mr.  j  could  not  be  set  aside,  it  was  held,  there 
Thomai*  iJcrvey.  x\holM>ught  a  snitof  jacti- |  being  a  sentence  in  a  cause  of  jactitation,  in 
tation  of  marriage  in  the  Consistory  Court  ofj  which  the  marriage  was  pronounceil  against, 
LoDd<m  against  Mrs-  Hervev.  In  that  court  |  sh^  could  not  claim  as  widow.  In  that  case 
a  mai  riage  was  pleadeil ;  the  sentence  was  {  the  Prerogative  Court  held  the  same,  as  we 
sgaiost  that  marriage ;  the  same  waa  affirmed  •  are  contending  your  lordships  will  upon  this 
in  the  court  of  Arclies ;  but  when  it  was  ap-  ■  octagon. 
pnM  Is  the  oonrt  of  DekgttflSytbsy  reverted       Then  wii  another  eaae  io  the  Prarogttiv» 


Jor  Bigamy. 
n  th«  jnr  1771,  My  Maja  ngsinit 
The  qticitiiiu  nnwc!  iipnii  an  admi- 
n  la  GerltuJe  Brown,  who  ilieJ  inles- 
lilminiirntiuu  liail  bvi^n  i^ahnl  to  Sle- 
Dwo  BS  lipr  tiukbanit,  h»  liivin([  marrieii 
li«  yenr  ITW,  Alinwanls  ihnt  aditij- 
a  •>8  culli'il  in  by  laiJy  Mayo,  a 
r  by  B  Inrmcr  liualmnil  ;  sail  slie  con- 
I  tliat  Brown  hail  no  li^lit  lo  Ihal  hiK 
[■much  ai  at  Ihe  time  he  mar- 
ie lie  wan  alieaily  llie  huibaml  iif 
•  Eleanor  CiilK.  Id  anaiter  lo  Ihal  it  wbj 
l<lcide<l,  Lliut  there  hiid  been  a  sutI  nl  jaolila- 
:  1  ol'  marriage  bri'Ughl  hy  Drown  agaiust 
<  iiiU,  ill  which  (he  iiiarria)[e  was  pronunnced 
..linit,  Bixl  h«  wa»  iironouticed  lo  be  free  Icom 
ill  nuiriinoDial  conlr.icls  Willi  Eteanur.  In 
Diwei  ii>  tbal,  ■outlier  |ilea  wus  civen,  staling' 
did  It  wai  a  collusive  suit ;  Ihat  Ihey  codIiI 
ilirw  fraud  and  eirilusiun.  The  admiMion  of 
-  -'I  Lj-  :iiim  came  un  lo  he  dehateil  bel'nre 
'  r  die  I'rrroealive ;  anil  thua  lar  the 
ihi^reheini;asenteiii'e  now  in  ano- 
,:|ii«  was  ill  the  Prero^uiine  that  hail 
--:,..:., I. ;l;iiimi  »f  (iiBrrla(;e,  tliere  tieioga  Con- 
nilnry  ul  Lanitnn)  hy  wliicli  it  la  iironouiK^ 
ta  thi*  person  was  free  frnm  matrimonial 
Wt,  ibis  court  euunol  admit  this  allega- 
I  all  iiroceediogB  io  ihal  court  were 
that  it,  that  alle^iBtina  was  not  od- 
ill  the  parly,  il'  she  tlionght  proper, 
O  ta  the  pinper  court  to  reverse  il. 
baa  been  done  in  that  cauie  since ; 
e  in  all  prnbaliilily  Def«r  will:  I 
(fprebcnd  Iherclineihattliiisenleni^,  which  ii 
MV  aadtT  yoar  lordships'  coiiaideratinn,  mnst, 
M  iMip  u  il  rcniaiai  in  Ibrcp,  he  held  la  le 
nachuire,  for  this  reason  ;  because  though  it 
an  ba  ennuir«d  inia,  yei  it  ii  not  now  even  in 
t«aj  of  utif^atioii ;  nulliiu^  has  been  done  to 
Wfnd  It,  nor  are  there  any  steps  lowarda  it, 
m  k  remaiD*  in  ila  full  force. 

Hy  lords,  the  learned  gentlemen  who  bare 

PM  before  me  haie  ihoui;lii  proper,  in  order 

Mabviiietuy  ohjecliiinii  thai  may  arise,  to  cna- 

lidw  what  would  be  the   case,  tuppoBiug  il 

•liwld  be  urged  by   ihe  counBcl   on  tile  oilier 

iiit,  that  the  pniteciilor  would   uoderUhe  to 

*mw  ibai  till!  was  a  fraudulent  aeiiUnce,  and 

lAwinrd  hy  colluiinD.     My  lordii,  ihe  reason 

*f*ur  menltooiDi;  that  is.  unl  on  supposition 

*  Wliff  Ihat  there  would  cinie  out  any  such 

nclKn  1(1  the  prvaent  eauHe,  bui  that,  takin|f 

tip  ■•  wa  dii  as  a  prerinat  qnestiiio,   it  is  our 

a  (be  mon  diaadtan- 

■  view,  and  lo  maintain,  Ihat  in  nn  ease 

I  th*y  CMi  sup|io<ie  uu({hl  evidence  la  be 

i>td  BKBintt  the  srnleoce;  and  upon  Ihat 

■  I  apprrbend  that  c*ery  argument  which 

"S  adiluavd  to  shew  that  the  consideralinn 

bor  tiM  want  of  Iralhin  such  a  srntepce 

Iwwiilu  b«  ^aoe  inln  hy  this  court,  DtHy 

i  aqoal  piopnety  be  ippliad  against  icuinir 

a  the  quention  of    collusion,    l^fauie   thai 

ml  wbieh  goie  the  lenlence  is  open  In  Ihat 

lu-ry,  and,  I  apprrhend,  alone  proper  and 

How  vigoa  ud 


A.  D.  1776. 


[420 


nnsalisractory  mnst  be  the  eDquiry  of  different 
eourb  priiCEcdini;  tipon  dilTerent  matier,  difiis 
rem  principle!,  even  ihp  it-rma  mode  use  of 
qiiile  iIilTiTeol !  Should  Ihry  enquire  into  the 
queslinn.  whether  the  proceedings  were  fair  or 
not,  it  may  be  produmve  of  error.  Suppose  tt 
shoidd  be  shewn  in  some  particular  that  Ihtre 
was  evidence  supplied,  how  would  il  appear 
Ihe  Judgment  did  depend  ujinn  that  ground  ? 
Then  enicrioe  into  the  prool  of  colluaoii  would 
be  as  itriHi^lv  excepiiminble  as  their  enijuirin(f 
into  the  rifthi  or  propriety  of  the  senlence, 
whether  it  whs  duly  and  rijjblfully  proDOuneni 
hy  the  jud)[e,  winch  is  an  exercise  of  jurisdic- 
tion Hliieh  no  itidependeni  court  baa  over  the 
BeotenceM  or  judgments  of  anolher.  Your  lord- 
aliips  are  well  aciiusinted,  that  there  is  no  ap- 
pellile  jurisdinion  in  a  criminal  court  over  an 
ecclesiaslicti  court ;  lite  question  can  nidy  be, 
whether  thul  leuluace  shall  be  rei-eivrd  as  final 
aud  conclusive:  but  ihe  meUiod  in  nhieb  it 
was  oIilBined,  whether  it  was  righily  and  duly 
prououuceil,  are  very  good  questions  fnracoiirt 
ofappeal,  which  can  reverse  that  lenience ;  but 
an  enquiry  into  the  method  of  oblainintc  it  is 
improper,  as  long  as  the  sentence  remains.  If 
then  a  tieuteuce  of  this  sorl  will  be  held  to  be 
canclusive  and  satisfaclnry  in  all  civil  ques- 
tions, and  I  coDceire  the  aulhori lies  which  have 
been  quoted  will  be  suHicieut  lo  establish  that 
principle,  surely  it  will  much  more  slronttty 
anply  10  all  criminal  Ciisee ;  because  your  lord- 
■hipB  wi)1  see  tt  to  be  the  strangest  proposition 
lo  maintain,  that  when  a  man  or  woman  are 
not  to  be  considered  as  husband  and  wife  lo  ai^ 
civil  purpose,  yet  they  shall  be  so  only  for  Ihe 
purpose  of  punislimcnl  :  (bis  surely  would  be 
the  greaUst  absurdity.  Yet  supposing  the 
aentence  nol  repealed,  which  imporli  Ihe  man 
and  wumao  are  not  husband  and  wife  ;  and 
suppose  thirt  be  (he  general  sentence  that 
{fuglit  10  apply  to  Ihem  in  everj  situation  what- 
ever, though  Ihe  criminal  Jurisdiction  should  go 
on  to  pass  ceusure  upon  ihe  person  accused 
(for  that  is  all  the  criminal  jurisdiction  can  <io) 
Ihal  will  not  deilroy  (he  senleoce  in  ihe  Eccle- 
siastical Court,  sod  they  will  remain  not  hua- 
bandand  wife,  though  the  criminal  court  should 
puniih  one  of  them  for  whal  is  supposed  a 
second  marriage. 

My  birds,  I  suppose  it  will  not  be  contended, 
that  a  determination  before  a  rriminal  judica- 
lure  ounbl  to  have  ihe  effecl  of  a  delermina- 
lion  directly  upon  ihe  marriage :  I  apprehend, 
that  in  point  of  law  It  cunnol  be  supposed  it 
should  be  so  argued.  Your  lonlships  ndl  see 
Ihe  injuKtice  ofsuib  a  ptuceediog  iheii  wmild 
be  prodigious,  because  ihrn  a  ciimioal  juiis- 
dic(ion  must  drti'rmine  tipon  the  rights  of 
many  persons  who  have  not  a  lions ibi'ily  iif 
beini^  heurd.  Keep  iheir  quesliou  in  (he  nvil 
court,  adhere  in  the  deii^tioMialiun  o*  thai  court 
Ihat  haa  an  original  jurisdiction,  there  all  par* 
lies  might  have  bi-en  heard,  and  ihiy  msy  in 
future,  if  ihey  can  set  up  any  interr,,!  ;  hut  a 
deiermiualiOD  in  a  criminal  court  Ihut  mii£ht 
apply  in  lUe  moat  rvmoie  d«gree  lo  deiermiu* 


4S7J 


16  GEORGE  lU. 


TruU  of  the  Duckets  of  Kingston, 


L4SI 


cif U  cauMS,  would  be  the  most  manifeft  ii\|u8- 
tioe,  because  no  peraona  could  be  heard  for 
their  interest. 

The  question  for  your  lordships'  determina- 
tioD,  if  it  should  be  erer  gone  into,  will  be 
upon  tlie  marriafi;e  said  to  oe  bad  with  Mr. 
Henrey.  Any  determination  here  that  may 
affect  that  rigfbt,  may  affect  not  only  the  per- 
sons that  were  immediately  the  parties  to  that 
suit ;  but  your  lordships  see  many  connections 
arise  upon  marriage,  many  relationships  and 
new  claims  that  may  be  predudeil  by  such  a 
sentence  as  this.  Suppose  the  duke  of  Kinr- 
ston  had  had  children  by  his  marriage,  it  would 
be  as  much  their  interest  to  establisb  this  sen- 
tence, as  it  would  be  of  interest  of  any  other  to 
impeach  It;  and  that  such  rights  as  these 
should  be  determined  in  a  criminal  jurisdiction 
where  the  parties  cannot  be  heard,  I  appre- 
hend, is  a  position  that  never  was  yet  main- 
tained. 

Upon  these  principles,  I  hope  your  lordships 
will  be  of  opinion,  that  the  rule  ought  to  be  ap- 
plied as  well  to  questions  that  can  arise  in  cri- 
minal jurisdiotious  as  in  ci?il  ones.  That  cri- 
minal courts  have  determined  upon  these  prin* 
ciples,  there  are  cases  which  have  been  alluded 
to,  and  which  are,  I  apprehend,  extremely  per- 
tinent. One  is  the  case  of  the  King  against 
Vincent,  *Strange  481,  mentioned  to  be  an  in* 
dictment  for  furgeir  in  having  forged  a  will. 
The  reporter  says,  forgery  was  proved,  but  the 
defendant  produced  a  probate  uader  the  seal  of 
the  ordinary :  and  it  was  held,  that  that  was 
satisfactory  proof  of  the  validity  of  the  will. 
That  is  a  very  strong  case;  but  that  there  is  no 
right  to  determine  upon  civil  matters  in  such  a 
way  as  this,  or  even  to  prejudice  civil  matters, 
is  very  clear  in  that  report. 

My  lords,  tliere  is  another  case  re|>orted  by 
the  same  author,  sir  John  Straqge  70S,  the  king 
against  Rhodes,  that  came  before  the  Kiog's- 
bench,  when  sir  Robert  Raymond  was  the 
chief  justice.  That  was  upon  an  indictment 
likewise  upon  a  fors^ery  for  having  forged  a 
will.  That  will  had  been  proved  in  the  Eccle- 
siastical Courts.  My  lonis,  it  appears  by  this 
report,  that  it  was  not  only  a  probate  in  the 
common  form,  it  was  when  there  had  been  a 
long  litigation  in  the  Ecclesiastical  Courts,  and 
when  by  a  decree  of  the  court  of  Delegates 
the  will  was  pronounced  for.  Upon  ap|9ica- 
tion  to  the  KingVbench  tor  a  Habeas  Corpus 
ad  testificandum^  the  Court  there  decreed  not 
to  issue  the  writ  for  this  reason,  because  it  ap* 
peared  that  there  was  then  existing  a  direct 
sentence  for  the  will  ;  and  that  sentence  if  it 
had  been  pleaded  in  bar  to  going  into  the  ques* 
tion  of  forgery,  I  apprehend,  would  have  been 
allowed  to  be  conclusive  evidence;  for  the 
Court  said,  it  was  not  fitting  to  determine  the 
property  on  an  indictment,  it  likewise  appear  - 
ed,  that  though  there  had  been  a  sentence  of  the 
oonrt  of  Delegates  pronouncing  for  the  will, 
that  yet  there  had  been  an  ap|ilication  for  a 
commission  of  review ;  so  that  it  was  within 
the  knowledie  of  th«  Court  that  the  cause  wis 


in  a  means  of  having  a  revision.  But  it  wai 
understood  that  the  sentence  still  remsined  per 
feclly  in  force ;  for  your  lordships  know  per- 
fectty  well  tbe  difference  between  an  appea 
and  an  application  for  a  commission  of  review 
in  case  of  an  appeal,  tbe  sentence  is  suspended 
but  not  so  on  an  application  for  a  commiasioi 
of  review.  By  the  statute  of  Henry  8,  it  a 
provided,  that  the  sentence  of  the  Uelcgate 
shall  be  6nal,  and  no  appeal  shall  be  had  fion 
them ;  but  it  is  now  indisputable  law  that  tki 
king  may  by  bis  royal  prerogative,  upon  i 
personal  application,  and  a  special  case  laid 
direct  a  commission  for  reviewing  the  sen- 
tence :  but  there  is  no  appeal ;  the  sentcno 
remains  the  same,  unless  the  reviewers  in  tbeii 
judgment  shall  think  proper  to  reverse  it.  Jt 
this  case  it  appears,  that  there  was  then  existinfl 
a  full  and  direct  sentence  upon  the  validity  i 
that  will.  It  was  understood  then  that  tUi 
right  had  been  pleaded  by  the  defendant,  am 
the  chief  justice  slopped  the  proceeding,  an^ 
did  not  even  grant  tliat  motion  which  wasthei 
sent.  These  two  cases,  I  am  told,  have  beei 
recognized  again  in  that  court  in  a  very  lati 
case  of  a  man  who  was  executed  for  a  forgery 
one  Perry ;  and  1  am  told  the  judge  at  tMi 
trial  offereil  to  the  prisoner  to  put  off  his  triaJ. 
if  he  had  a  mind  to  make  use  of  that  plea :  bni 
I  am  told,  it  was  not  accepted  by  the  prisoner, 
and  the  trial  went  on.  But  tliis  I  am  sure,  m 
use  csn  be  made  of  that  case  to  shew,  that  iIm 
former  determinations  were  at  all  impeacbec 
by  it }  because  at  least,  if  the  probate  was  no 
insisted  on  by  the  defendant,  consequently  nm 
over*ruled  by  the  Court,  these  cases  then  re< 
main  in  tbeir  full  force.  And  I  will  ask,  ii 
what  manner  they  may  be  as  id  not  to  be  appli- 
cable to  the  prioci|>le  we  are  contending  for. 
that  in  a  criminal  court,  cases  of  this  sort  ought 
not  to  be  gone  into  ?  Will  it  be  said,  that  thii 
being  a  prosecution  under  a  special  act  of  par- 
liament, the  crime  consists  in  having  married 
two  persons,  tliatthe  marriage  must  necessarily 
come  under  the  consideration  of  that  court 
which  is  to  determine  P  and  they  cannot  by  th< 
act  of  parliament  itself  acquire  an  original  ju« 
risdiction  to  enquire  into  the  right  of  marriage. 
Does  not  it  apply  exactly  as  strong  to  the  case 
I  have  now  alluded  to  of  forging  a  will ;  for  il 
is  by  express  act  of  parliament  made  a  felonji 
of  death  to  forge  a  wdl ;  and  it  may  as  well  m 
argued  from  hence,  that  every  criminal  court 
has  by  that  act  acquired  an  orififinal  jurisdic- 
tion as  to  wills.  It  cannot  be  argued  a  mo- 
ment, that  a  criminal  court  has  oriifioal  juris- 
diction of  marriage.  I  do  not  say,  when  it  bai 
not  been  determined  before,  but  that  tbe  Court 
must  necessarily  enquire  into  the  lact ;  but  thai 
it  caoQOt  oriifinally  entertain  such  a  question. 
Now  there  cannot  be  a  case  stated  wherein  i 
question  was  between  the  parties  upon  the  vn- 
lidity  of  their  marriage  and  upon  their  atate  ol 
man  and  wife,  to  shew  that  it  can  be  deter- 
mined by  a  criminal  court.  If  it  cannot,  J 
conceive  clearly,  it  cannot  be  said  to  bnfc 
original  jurisdiction  upon  tbe  pointy  the  &9mA 


189] 


fjf  Bigaimy. 


A.  D.  1776. 


[:4» 


nd  coHiMkNi :  which,  fbr  the  reMon  that  hM 
Wen  pveoy  it  was  thought  proper  to  mention, 
iMt  it  ehoold  he  made  use  of  opoii  the  other 
■de.  It  will  he  said  perhaps,  that  there  are 
Maaj  instanees  where  parties  trying  to  a? ail 
themselves  of  a  judgrment,  or  the  sentence  of 
aasther  ooort,  of  the  ad? erse  parties  heing  al* 
iMVfd  to  shew  that  those  sentences  were  ob» 
tiinid  eoUosiTely:  this  distinction  I  ooncei?e 
has  been  made.  If  any  court  ever  is  permitted 
W  cnqnire  into  the  ^ oestion,  it  most  he  a  court 
having  concurrent  jurisdiction  ;  snd  then  your 
hrdshipa  will  see  the  question  upon  rery  dif- 
Iral  grounds ;  because  a  court  having  con- 
csnent  jurisdiction  has  also  the  opportunities, 
iH  the  methods  of  enquiring  into  trie  original 
fMSlion.  They  being  competent  to  determine 
Ike  original  point,  it  makes  no  considerable 
Mbence  whether  it  comes  before  them  at 
int,  or  wliether  it  has  before  been  determined 
ly  another  court.  It  will  not  be  contended,  I 
cmceire,  that  a  criminal  court  has  any  con- 
carrent  jurisdiction  with  the  Ecclesiastical 
Csntt.  It  clearly  cannot  be  so ;  it  can  never 
eslertain  the  abstract  question  between  parties, 
whether  they  are  man  and  wife  or  no.    The 

away  it  can  be  taken  up  is  iocidentally ; 
if  tlie  authorities  are  good  to  shew,  that 
wbere  an  inddeotal  question  arises,  if  it  has 
hmi  determined  by  a  court  having  original  jn- 
riiiiction,  it  ought  to  he  conclusive,  that  will 

£y  to  the  case  now  before  the  Court.  For 
e  reascns,  and  for  those  that  have  been 
■ore  weightily  argued  by  the  gentlemen  who 
hive  gone  before  me,  1  hope  your  lordshi|Hi 
will  not  think  proper  to  recede  from  the  esta- 
HUied  and  legal  principles,  or  make  a  pre- 
cident  on  this  occasion.  But  if  whatever  has 
Irb,  was  upon  the  strengfth  of  former  deter* 
ninatioos  ;  and  if  there  is  good  ground  in  law 
ti  My  that  this  sentence  ooght  to  be  conclu- 
m  to  the  point  to  m  hich  it  is  now  offered  ;  I 
tnin  your  lordships  will  be  of  opinion  that  the 
paiecotion  ought  not  to  be  permitted  to  go  into 
aiy  e?  idence. 

Dr.  Wynnt.  Notwithstanding  there  has  been 
wnmcb  and  so  ably  said  upon  this  question,  I 
bope  that  the  duty  1  owe  to  the  noble  person  at 
y^r  lordships*  bar,  will  plead  my  excuse  for 
<)Aering  a  few  words  upon  the  same  side,  in 
wpiMit  of  the  sentence  of  the  Ecclesiastical 
Cooit,  of  the  effect  with  a  view  to  which  it  is 
Mw  produced  before  your  lordships. 

My  lords,  the  ductless  of  Kingston  is  now 
■poa  her  trial,  upon  an  indictment  found 
igiiost  her  grounded  on  stat.  1  Ja.  cap.  11,  for 
^  being  the  wife  of  Augustus  John  Hervey, 
die  married  the  duke  of  Kingfston,  the  said  Au- 
fTwtns  John  Hervey,  her  former  husband,  be- 
^  then  alive.  The  foundation  of  this  whole 
proceeding  therefore  is  a  marrisge  alleged  in 
(he  indictment  to  hare  been  hail  between  the 
Cachets  of  Kingston,  at  that  time  Mrs.  Eliza- 
^h  Chndleigh,  and  Mr.  Augustus  Hervey. 

That  marriage,  my  lords,  is  the  only  fact 
te  eao  make  any  criminality  in  the  present 


eaie ;  asd  if  it  shall  appear  to  your  lordshipe  a 
fhet,  which  has  been  already  enquired  into  and 
decided  vpon  :  that  it  haa  been  put  in  issue  in 
that  court  which  alone  could  pcoperly  tak« 
cognizance  of  it;  that  that  court  haa  pro- 
nounced its  sentence  against  the  marriage  theft 
put  in  Issue,  or  any  matrimonial  contract  be- 
tween Mr.  Hervey  and  Mrs.  Cbudleigh,  who 
were  the  parties  to  that  suit ;  and  that  Uiis  sen- 
tence still  remaiDS  in  force;  it  is  submitted  to 
your  kMilsbi|Mi  to  he  impossible  that  thoip  who 
are  prosecuting  this  indictment  against  her 
grace,  can  he  allowed  to  go  into  an  examination 


of  witnesses  upon  that  marriage ;  it  being  • 
Act  now'  decided  by  the  leffal  sentence  of  • 
proper  court,  and  consequentTv  not  the  subject 
of  that  kind  of  evidence  which  the  prosecutors 
are,  we  presume,  endeavouring  to  ofler  to  your 
lordships  upon  it,  as  if  it  had  been  a  qoestioQ 
upon  which  no  sentence  had  ever  been  given. 

My  lords,  the  sentence,  upon  which  we  rely, 
wss  passed  in  the  month  of  February  1769» 
and  It  recites  all  the  proceedings  had  in  that 
cause  prior  to  the  sentence,  and  which  are 
sufficient,  as  we  apprehend,  to  found  that  eflhet 
which  we  contend  it  ought  to  have  before  yonr 
lordships.  The  sentence  recites,  that  a  suit 
had  been  brought  by  the  duchess  of  Kingston 
sgainst  Mr.  Hervey  for  boasting  that  he  wai 
h«r  husband;  that  Mr.  Hervey  appeared  in 
that  cause ;  that  he  admitted  and  justified  tho 
jactitation  ;  and  alleged,  that  he  waa  well 
warranted  in  making  such  jactitation,  for  that 
he  was  actually  married  to  the  lady :  bj  that 
means  they  were  at  issue  upon  the  fsct  Tho 
sentence  goes  on  to  sayi  that  he  had  entirdy 
failed  in  the  proof  of  the  marriage  which  ho 
had  pleaded  and  propounded ;  in  consequence 
of  which  the  Court  pronounce^  Mrs.*Cbudleigh 
to  be  entirely  free  from  all  matrimonial  con* 
tract,  and  particularly  with  the  said  Mr.  Her- 
vey, *  so  far  as  to  us  as  yet  appears ;'  and  upon 
that  goes  on  to  admonish  him  to  cease  fimn 
farther  jactitating  in  that  behalf.  The  cues* 
tion  now  for  your  lordships'  consideration  there- 
fore is,  what  is  the  effect  of  that  sentence?  And 
I  contend  that  in  the  way  in  which  this  cause 
was  proceeded  in,  it  is  as  decisive,  as  absolute  a 
sentence  against  the  marriage,  as  the  Eccle- 
siastical Court  has  power  to  give. 

If  the  party  who  is  accused  in  such  a  suit 
does  not  justify  the  jactitation  by  pleading  a 
marriage,  it  is  otherwise;  for  in  that  case, 
whether  the  fact  of  jactitation  is  admitted  or 
denied,  tbe  sentence  is  only  upon  tlie  jactita- 
tion, not  upon  the  marriage,  if  the  jactitation 
is  admitted,  and  is  not  justified,  the  party  is 
admonished  to  do  so  no  more ;  if  the  jactita- 
tion is  denied,  the  only  question  before  the 
Courtis,  did  the  party  jactitate  or  not?  and  if 
tbe  jactitation  is  proved,  the  sentence  is  the 
same,  viz.  a  monition  to  cease  from  doing  so 
for  the  future.  But  if  the  party  cited  con- 
fesses the  jactitation,  and  justifies  it  by  plead- 
ing that  he  or  she  was  and  is  sctuaify  and 
lawfully  married  tu  tbe  other  party  who  has 
bronglit  the  suit,  it  is  no  louder  a  cause  of  jao- 


431] 


16  GEORGE  III. 


Trial  of  the  Duchess  ofKingstotif 


[43 


titaiion,  it  is  as  much  and  as  directly  ft  mar- 
riage  cause  as  a  cause  of  nullity  of  marriage, 
or  a  cause  for  resriiution  of  cotijugal  ri)i;liti. 
Ik  is  as  absolute  and  de«-istve  pritof  of  (his,  in 
my    humble  apprehen^i<m,  that  if  tht*  pnrfy 
cited  in  a  cause  of  jactitation  pleads  and  proves 
a  marriage,  the  court  dues  not  in  that  case  dis- 
miss, and  say,  The  party  it  is  true  jactitated, 
and  had  a  ground  fur  jaVtitating,  therefore  we 
dismifefs :  no,  the  conrt  pronounces  for  the  mar- 
riage.     And   I  take  it  to  he  must  clear,  thai 
aoch  a  sentence  having  been  pronounced  in  any 
ecclesiastical  court,  if  the  party  cited  should 
immediately  pray  refctitulion  of  conjugal  rights, 
the  court  wdl  grant  its  munition  grounded  upon 
tliat  sentence,  that  the  parties  who  were  prored 
to  have  been  lawfully  married,  should  cohabit 
and  perform  the  duties  of  their  marriage.     It 
will  not  1  presume  be  contended,  that  any  court 
can  deal  so  very  unequal  a  measure  of  justice 
between  parties,  as  to  say,   If  a  marriage  is 
proved,  we  will  pronounce  for  it ;  and  yet  in  a 
cause  of  exactly  the  same  nature,  if  a  party 
pleadft  a  marriage,  and  fails  in  the  proof  of  it, 
we  will  not  pronounce  against  it.    The  suppo* 
aitioo  is  absurd  and  shocking  to  common  sense ; 
and  it  is  impossible  that  such  a  cause  as  a  cause 
of  jactitation  could  ever  have  been  in  use,  if 
the  party  who  brought  it  might  lose  his  cause, 
and  be  engaged  in  a  marriage  he  was  desirous 
to  avoid,  but  could  never  oblain  any  sentence 
against  the  party  jactitating,  that  would  have 
anv  legal  effect.     It  is  impossible,  with  great 
deference  to  your  lordships,  that  such  doctrine 
should  ever  have  obtained ;  but  the  truth  is  di- 
rectly the  reverse,  and  in  all  courts  where  these 
■entencea  against  a  marriage  in  a  cause  of  jac- 
titation have  been  produced,  they  have  been  al- 
lowed to  be  as  deciHive  as  any  sentence  in  an 
ecclesiastical  court  in  a  marriage  cause  could 
be.     Jn  the  case  of  Jones  and  Bow,  reported 
in  Carthew,  it  is  expressly  said,  that  it  was  a 
aause  of  jactitation.     Jn  the  case  of  Clews  and 
Bathurst,  which  has  been  mentioned  to  your 
lordships,  it  was  a  cause  of  jactitation  ;    and  I 
rather  rely  upon  that  case,  because  it  appears 
by  the  report  uf  it  in  the  book  iniilled  CsMes 
in  lord  Hardwicke's  time,  p.  It,   Hil.  7  Cieo. 
3,  tiiat  it  was  attended  by  as  able  a  civiliiin  as 
any  of  his  time,  Dr.  Lee,  atlterwards  dean  of 
the  Arches:    he  argued  in  that  cause,  that  a 
sentence  against  a  marriage  in  a  cause  of  jac- 
titation is  an  absolute  and  decisive  sentence. 
And  it  appears  from  the  report,  that  lie  quoted 
another  case,  which  was  that  of  Melliseirt  and 
Mellisent;  in  which  it  had  been  so  held  in  the 
Court  of  Delegates,  which  your  lordsliips  know 
is  a  court  of  appeal  in  ecclesiastical  causes,  in 
which  there  are  both  judges  of  the  common 
law  and  civilians.     The  case  which  was  last 
alluded  to,  and  which  was  in  the  Prerogative 
Court,  your  lordships  vVrU  allow  me  to  state 
a  little    more  fully,    because    it'  will    shew 
the  opinion  of  the  great  judge  who  now  pre- 
Btdes  in  that  coort.    It  was  upon  the  right  of 
adminiftratioo  to  one  Mrs.  Gertrude  Brown. 
The  questioD  was  between  Stephen  Brown,  who 


alleged  himself  to  be  the  b^isbandy  and  th 
lady  viscountess  Ma\o,  the  daughteroi'ibe  d( 
ceased  by  a  former  husbaiid.  The  roarriag 
betHeen  Brown  and  Mis.  A^lemore,  winch  ws 
the  deceased's  former  name,  wai  not  denied 
but  lady  Mayo  insisted,  that  at  the  tim^*  ol  ih 
marriage  with  Mrs.  Aylemore,  Mr.  Brown  ha 
another  wilie  at  that  time  living,  whose  nam 
was  Eleanor  Cutis.  Mr.  Brown  to  that  re 
plied,  that  he  had  brought  a  cause  of  jactitatio; 
m  the  oonsistory  court  of  London  against  Mn 
Eleanor  Cutts,  and  that  sentence  bad  been  pre 
nounced  exactly  as  in  the  present  cane,  nm 
that  he  was  free  of  all  matrimonial  contract 
with  said  Elizabeth  Cutts.  Lady  Mayo  tbei 
offered  an  allegation,  in  which  she  pleaded 
that  the  sentence  in  such  catise  of  jaotitatioi 
bad  been  obtained  by  collusion ;  and  annexo 
to  that  allegation  she  exhibited  many  letter 
between  Siepben  Brown  and  Elizabeth  Cntti 
by  which  it  appeared,  that  after  the  date  of  tbi 
sentence  they  nad  corresponded  together ;  tba 
he  had  ackiiowledged  himself  to  m  her  bos' 
band  in  several  of  these  letters,  but  told  ber  i 
would  be  exceedingly  inconvenient  to  bie  af 
fairs,  and  entirely  destroy  his  claim  to  the  ad^ 
ministration  of  Mrs.  Aylemore,  which  was  o( 
some  considerable  value  to  him,  if  his  nMU-- 
riage  with  Mrs.  Cutts  was  known,  and  there 
tore  desired  ber  to  be  silent,  and  not  give  bin 
any  further  trouble:  that  waa  the  effect  of  ladj 
Mayo's  allegation.  The  moment  that  allegn- 
tien  was  brought  into  court,, the  proctor  fbi 
Brown  desired  that  the  proctor  for  lady  M«y< 
might  be  asked,  whether  he  conleaaed  or  ife. 
nied  tlie  subscription  of  the  officer  who  autlraO' 
ticated  the  copy  of  the  sentence  given  in  thi 
cause  of  jactitation  ?  which  being  confeaaed, 
and  the  sentence  by  that    means   regtilarlji 

C roved,  the  judffe  said  he  could  go  no  farther  i 
e  could  not  enquire  upon  what  sj^rounds  thai 
sentence  was  fi^iven,  but  would  give  a  time  tc 
the  party,  if  she  thought  it  for  her  interest  to 
apply  to  the  consistory  court  of  London,  and  sec 
whether  Uiat  sentence  could  be  reverned  ;  bnl 
it  was  held,  that  so  long  as  it  remained  in  force, 
it  was  decinive  upon  the  question  of  the  mar- 
riufie,  and  ahsolutely  binding  u|>on  the  judge 
of  the  Prerosrutive  Court. 

ThiK  heiu^  xUv.  CH8e  then,  the  question  foi 
your  lordships*  consiileiaiion  now  is,  what  ef^ 
feet  the  sentence  t:<vt^n  lu  the  consistory  court 
of  London,  in  1769,  in  the  catise  of  jartitation 
of  marriHge  hrouKt>t  b\  the  du.  iiev«<  of  King- 
ston, then  Mtn.  LliZ.irxfth  ('hudiei^li,  atrainst 
Mr.  HtTvey,  shonhi  h.ive  in  the  I'rfSt'Ui  caiiM 
hpforeyoiir  lordships?  ^1}  lonK,  ii  itouht  U*  a 
vi'iy  uiipunioiiahic  WHste  ot  your  iord*>iii|Mt' 
time,  utlhis  hoiir  of  the  •'a\,  f'lr  me  to  takf  up 
a  moment  of  it  in  iir>.iiiiiitr,  iliai  marriage  im  by 
the  law  and  consfituiion  of  tins  countiy  ot  ec- 
cIcsiaNtical  coeni/.n  «•«•.  Theic  raiinoi  lit*  n 
doubt,  that  if  theie  he  nii\  iiti|ieili.iifu<  to  tbe 
marriage  uf  tuo  pcopie  livinu  i«i«reiher  an  iiiaa 
and  wite,  that  if  one  ol  ilif  p4iii*"i  lieuitrKet-ber 
the  fact  or  validity  of  (he  mi'iib^e,  that  if  one 
of  the  parties  refuses  to  perlorm  the  duu^  ol  it 


far  Bignmp  ^  . 
lijreaMMlUiim,  that  iroaeof  the  parties  treata 
rfae  i^lier  wiih  jriol^ralile  severity,  that  it',*  [ler- 
>na  bnaatv  <tf  a  marria^  which  he  t»uiinl  jiia- 
urj,  Ar  it'  suinc  kio<l  of  contract  or  M>leinnil,v 
p»Tijil  betwMo  psrliea  which  may  occasion  > 
difoM  whcihrr  it  am'iiinis  to  ■  UmI'uI  mBrriaufe 
or  DOI  ;  in  eiery  one  ol'thne  cases  the  Kircle- 
•:ai>iiral  Cunrt  has  co|fniz«uce  to  cl«cic1e  u|ion 
tIi»  i|uc«li<j[is  tlial  arine  ;  and  it  i*  aileiiial  of 
ikiiceio  rc^u■^it,  anil  woiilJ  ht!  sju<l  gruiiiiil 
-  r  a|>pc«l  lo  a  siiiieriur  cqurl. 

1 1  is  triv,  that  m  some  ciuefi  where  a  r 
,   ■•fe  is  hiniiehtnolilireelly,  hut  ci>l laterally 
ci>nan|ui-uliaily  in  quMIion,  as  uhere  il 
^ii«s)iun  iif  legiliinacy  in  oiiler  lo  tnoke  a 
ID  an  intwrilaiure,  it  may  originally  commence 
in  ibe  temporal  cnurls,  and  aomeliineii  is  finally 
drinuiineil  lliere;  Hi  in  the  use  of  what  is  hy 
«(MiitDOD   Nw  called  special  haainrily,  lliat  is, 
nlt^rc    there  ia  no  doubt  alionl  the  matriatie, 
inil  ^b<i<(i  I  he  priorily  or  uoMeriorily  iif  the  Inrih 
I-   i<  X  ly  who  la  cUimini;  the  ialieniaoce 
<     I  riai:e;  lliere,  it  lieiiiGf  a  mere  ranter 
'iieiher  tlie  person   was  horu  hrliire 
^.   ..I  alter,   it  U  |>ro|iertar  the  Jury  lo 

_^ Ill'  ;  lad  theru  is  no  nreil  uflhainlrriiu- 

aiuoB  al  tile  Ecolniiiulivnl  Cunrt  al  all.  I>u  iu 
•Act  obbc*.  wbere  Ihe  matter  be^ina  ■»  a  ifucs- 
Anb  Mpon  all  ioherilJince.  A  person  niaheaa 
oMm  to  cn  >nbcriiane«  as  bein^  the  Ian  liil  son 
ar-  A  bikI  B.  If  the  parties  lo  the  tnarriafte  or 
•■B  of  limn  \ie  dead,  the  applicaiiun  niui>l  be 
■■rfe  oviginatly  iti  this  ciiae  lo  the  lem|ioral 
«Barl>,  Mid  ijtey  will  |iroceed  io  it,  auil  will 
ettiKT  •i«Cn'mrne  il  finally,  or  ilireui  a  case  lo 
Ibv  anltnary  to  cenily  a\ioa  the  iiiHrnaKe.  hu- 
c«»tiiit^  as  ihey  And  it  necesMry  tu  do,  and  ac- 
oonbDi;  ua  any  qnvalioa  arisen  u|ioa  tbe  lefra- 
Sty  ai  tlie  inarria^ceor  not.  Bui  even  in  iliis 
caar,  *•  hicli  ia  merely  a  queslion  upon  a  riifbl 
ta  aa  III  herila lice,  and  nol  between  parlies  tu  a 
■aafTiaice,  hul  between  parlies  claiming;  nnder  a 
Harikii;*-,  if  oiie  of  ibeni  priHlnces  a  aerilPiice 
fannert^  i;i*eii  upon  the  iiiarriikk;i:  by  the  lic- 
dcnaaiical  Court  in  the  l-fe-lime  of  ilie  |iiir(it:« 
»  ciach  tnaniiire.  the  inumeni  Ihal  senlence  i« 
fii»Jili  ■  it.  the  court  olcommoDlan  iaeslopjied  ; 
§■4  ■DlwithslaDdiii);  ih«  urii;iual  parlies  lo  llint 
■iKniicg  are  dead,  the  parties  tu  the  anit  upon 
Ihc  Mtlicriiance  miibt  aiill  hare  reoourse  lu  ibe 
Ecdeaiasiical  Cuun  to  re|ieal  Ihe  aejiLence  for- 
B*Hy  giieii  upon  llie  wtrruge,  before  the 
MniparU  courlcat)  proceed  a  iiep  lurlber :  attil 
if  tbi*  »eoience  of  Ibe  E(!cleaiaHiic«l  Court  Is 
•M  srI  aude.  the  ju'lgiDenl  of  Ihe  lemporal 
cCTurt  mo«t  br  aijreeabte  to  lliai  seoleuce.  The 
tm^  al  tiuMiag  anil  Lepoiogwell,  anil  Keoii'B 
«MF.  rt^ioiled  by  lorifCnlie,  are  deciiive  Ujnn 
Ihrt  puiiii  ;  anil  il  wouM,  I  should  cunceiie,  in 
ftammu  jaurnpitiinn  upuolliecriiilildue  to  llic 
Jecliiiie  laid  iIvhu  in  ihese  cases,  he  wnrlh  one 
BMMH-in'acoiiMderBliiiu  at « hat  lime  Ihe  lateal 
«f  ilw*n  iraa  deterniuied.  Kean's  cose  was  io 
Ibc  fitlh  uf  king  Jaines  the  iirsl.  Vour  lord- 
ihipa  know  etiremely  well,  that  was  a  lime 
■hoi  the  differeui  jurisdictions  ofllie  temporal 
mi  fcawiaaiicat  ceiirts  ivcre  not  id  camplelely 

you  XX. 


A.  D.  1779. 


[434 


lellled,.  or  at  least  itiai  selilrmcDl  naa  not  «o 
completely  acqniewed  in,  nn  ihe  pan  of  ibe  ec- 
I'lcEiaklicnl  couiK  then,  aa  it  has  been  Nince: 
ihey  did  Ireqiieatly  desire  lo  arrn|[aie  lo  ibem- 
leliea  mOre  jurisdiction  ihan  ihe  lemporal 
courts  were  willing  lo  allow;  and  the  cana&- 
queiice  of  that  vtns,  they  were  very  frequently 
nilhsluuil.  This  produced  a  complaint  to  ihit 
privy-councilin  the  3rd  of  kinif  James  \,  when 
archbishop  Uancrofl,  in  the  name  of  the  wbobt 
cleri^y,  exiiibited  a  set  of  ariicles  a^insl  tha 
jniliri-B  of  ihe  realm  (as  lord  Coke  rxpre^'uiea  ii, 
!<d  Inal.  COI,)  enlilled,  'certain  arlicln  of 
'  abusea  which  are  desired  tu  lie  relbrnied  in 
*  gtantiitg  prohibitions.'  Tbeae  urticlea  vtttm 
delirereil  la  the  judges,  who  iu  the  41b  of  king 
Jame«  made  ibeir  reply  lo  tliem;  in  wbica 
they  iuslified  Iha  proceeJiogs  objected  lo  by  Ihc 
afciibishop  in  etery  particular,  and  ibai  not 
wilhaui  some  coi>siiJerah:e  degree  of  narmlb 
and  reBeiitmenl.  Nnw,  withgreat  dettrencotit, 
your  Inrdahips,  I  abould  conceiiA,  that  a  reso- 
lution solemnly  and  unanimously  made  by  the 
itao  chief  jimiicea  auil  tive  otlier  juiltfes  of  Lbs 
coinuion  law  in  ihc  very  next  year  alttr  such  a 
dispute  aa  this  bad  been  carried  no  belwo-n  the 
two  jiirisdiclionii.  cannot  well  be  auspccled  of 
pailialily  lo  the  Ecctesiaslical  Court  i  and  lord 
chief  jUBlice  Cake,  who  was  one  ol  ihe  conri, 
was  not  a  Jud^e  that  would  at  any  lime  bav« 
stood  lip  ^r  their  encroachments ;  aod  there- 
fore ilivre  is  not  Ibe  leaai  riium  lo  apptebeod, 
that  there  was  any  undue  or  iinprO|ier  degrn 
uf  Biilhoriiy  attributed  by  that  resolution  uf 
the  jud(,'es  lo   senteucea  of  the  ccclesiaslical 

My  lords.  Ibis  case  of  Ketin,  which  is  re-  . 
purled  7  Coke,  43,  has  been  already  0|iened  lo 
your  lordships:  hut  il  being  in  my  a  p  pre  ben - 
■ion  extremely  material  io  this  cause,  cntitain- 
ioi;  the  whole  learning  tbal  b  lo  he  met  with 
in  Ibe  huob  upon  the  subjecl,  and  going  the 
wiifile  lenslh,  as  I  bumbly  suhniil  iu  your 
lurdsbi|is  it  lilies,  Ibat  it  is  our  bui>iiiets  lo  i;on- 
lead  firt  io  liebalf  of  th«  noble  person  at  lh» 
bar,  your  lordsbi|)s  will  not  perbapt  think  il 
mis-s]ienl  lime  in  me  in  state  it  more  parlicu- 
lurly.  It  waa  a  case  in  the  court  uf  Wards, 
in  Hbich  Tliiimns  Kohertson  and  BlizaWb  bis 
wife  were  plaintiHii,  and  Florence  tady  StaU 
lenge  defeodaul,  The  case  was,  thatC%ri«lo> 
pbei  Kenn  defaclu  look  to  wife  Elizalielh  Slo- 
H  ell,  and  had  isiiue  hy  her  Martha  ;  soun  nncr 
this,  Ibcre  appears  lo  barcfieea  a  suit  brought 

the  oouil  of  Audience,  in  which  ibe  judg> 
roeni  given  was  in  these  words :  "  prostenaum 

Eliz.  Slowel  in  minnre  Blale  eoruoLlrm  aut 
eornm  alleriua  babilum  fuisee  :  eosilemqua 
Cbr.  et  Eliz.  tarn  tempore  aoleinnizalinni* 
dicii  mairimonii  quam  etiam  cootinuo  posiea, 
etdem  malrimonio  diasensisse,  ac  eo  prKlexIu 
ijusmodi  raatrimuaium  irrilum  el  iuralidum 
fuisse:  necnoo  aniedicios  Chr.  Kenn,  el  Eliz. 
Stowel  ab  ilicto  maliimonio  separandosei  di- 
vorciandos  fiire  pronunclamus,  eosque  separs- 
lus  et  divorciamiH,  iisdeintiue  Cb^.e^  E^\%, 
3F 


4S5] 


16  GEORGE  III.  Trial  of  the  Duchess  o/Ksngstan,  [4Sf 


libertatem  ad  alia  ?ota  ooDfolandi  concedimua 
per  banc  aeotentiam  nostram  deftnitivam." 

My  lordfi,  after  this  Kenn  married  another 
wife,  Eliaabetli  Reckwith  ;  and  after  this  it 
ftppeara  that  Elizabeth  Beck  with  brotin^bt  a  suit 
before  the  commissioDera  ecclesiastical  to  en- 
quire again  into  the  validity  of'  the  marriage 
betvreeo  Chriatopber  Keon  and  Elizabeth  8to- 
well :  there  that  marriage  was  again  pro- 
noimced  against,  and  the  marriage  of  Christo- 

Sher  Kenn  with  Elizabeth  Beckvrith  vraa  af- 
rmed.    Then  Elizabeth  Beckwitb  died,  and 
Christopher  Kenn  married  Florence,  by  whom 
he  had  iiaue  Elizabeth,  and  then  died.    At  last 
the  question  came  on  between  the  issue  of 
Christopher  Kerni  by  Florence,  and  Martha 
'the  issue  of  said  Chri8tO|dier  Kenn  by  his 
>  first  wife  Elizabeth  Stowell,  who  desired  she 
might  be  permitted  to  a?er  against  the  sentence 
formerly  gi?en  against  the  marriage  between 
Christopher  Keon  and  Elizabeth  Stowell,  de- 
claring that  she  coold  pro? e,  that  the  whole 
wis  founded  on  an  abitolote  falsehood ;  and 
that  those  parties,  who  are  declared  by  the  sen- 
tence of  the  Ecclesiastical  Court  to  have  been 
marrieil  in  their  minority,  and  to  have  dis- 
sented to  the  marriage  in  the  moment  it  was 
solemnized,  and  e?er  a^er,  had  cohabited  as 
husband  and  wife  for  ten  years,  and  had  isstie 
Martha,  the  party  before  the  court.    This  the 
said  party  averred,  and  undertook  to  |>rove  in 
Ihe  eonrt  of  Wards,  in  order  to  avoid  the  effect 
of  the  sentence  of  the  Ecclesiastical  Court 
against  the  marriage  between  her  fiitber  and 
mother.    But  it  waareaolved  by  all  the  jus- 
tioea  and  barons,  that  the  said  sentence  should 
conclude  as  long  as  it  remained  in  force.     And 
in  answer  to  the  averment  that  the  sentence 
was  founded  upon  false  facts,  they  said,  that 
though  the  ecclesiastical  judge  shewetli  the 
cause  of  his  sentence,  yet  forasmuch  as  he  is 
judge  of  the  original  matter,  the  loyalty  of  ma- 
trimony, we  shall  never  examine  the  cause, 
whether  it  were  troe  or  not :  for  of  things  the 
cognizance  whereof  lielongeth  to  the  Ecclesias- 
tical Court,  we  must  give  credit  to  their  sen- 
tences, as  they  giie  to  the  judgments  in  our 
courts.    In  that  same  case  it  wa9,  that  loni 
Coke  quoted  the  case  of  Corbett,  and  tliere 
there  had  been  no  sentence  in  the  Ecclesiastical 
Conrt :  that  ori^nall  v  liegan  upon  the  question 
of  a  right  to  an  mhentance ;  and  the  party  who 
claimM  the  inheritance  was  advised  to  bring  a 
suit  in  the  Ecclesiastical  Court  then  against  a 
woman  whojactitated,  as  he  said,  of  an  undue 
marriage  with  his  elder  brother.  'The  party 
agaioat  whom  this  suit  was  brought  in  the  Ec- 
cwsiaatical  Court  applied  for  a  prohibition,  and 
the  temporal  court  granted  it ;  for  they  said, 
there  is  no  sentence  of  the  EcclesiasticVt  Court 
in  this  case  for  you  to  reverse,  no  sentence  has 
been  given  ;  therefore  we  will  enquire,  as  far 
as  we  see  we  can  do  without  interfering  in 
matters  of  mere  ecclesiastical  cognizance,  re- 
sp^ecting  the  loyalty  of  the  marriage ;  and  we 
may  direct  the  ordinary  to  certify  liereafW,  if 
tkere  h  a  nccccritj  fbrit ;  but  there  is  no  need 


to  apply  to  the  Ecclesiastical  Court  in  the  pre 
sent  state  of  the  case. 

f  n  exact  conformity  to  thia  principle,  it  wi 
resolved  by  the  judges  of  the  common  law  i 
the  case  of  Bunting  and  Leppingwell,  4t' 
Coke,  99,  forasmuch  as  the  cognizance  of  tb 
right  of  marriap;e  doth  belong  to  the  Ecclc 
siastical  Court,  and  the  same  court  hath  give 
sentence  in  this  case,  the  judges  of  our  \v 
ought  (although  it  be  against  the  reason  of  oa 
law)  to  give  faith  and  predit  to  their  prooeeil 
ings  and  sentences,  and  so  always  have  th 
judgea  of  our  law  done:  and  so  it  was  n 
solved,  that  the  plaintiff  was  legitimate  arid  n 
bastard. 

Thia  is  the  light  in  which  the  sentence!  i 
the  Ecclesiastical  Courts,  given  in  matters  pn 
perly  within  their  cognizance,  were  coninderc 
in  the  courts  of  common  law  at  the  time  wbe 
the  cases  f  have  just  referred  to  were  detn 
mined  ;  and  there  is  sucb  a  train  of  caaes  ei 
artly  conformable  to  them  down  to  very  mi 
dern  tiroes,  which  have  been  already  quote 
and  therefore  I  will  not  trouble  your  lordabii 
with  re|ieating  theAi,  that  I  cannot  help  thiol 
ing  it  must  1^  looked  upon  as  a  point  aboi 
lutely  settled  and  at  rest. 

But,  my  lords,  not  to  rest  the  matter  mere! 
upon  authority,  however  atrong,  if  your  Ion 
ships  consider  the  grounds  upon  wliich  the 
determinations  were  made,  I  apprehend  tht 
will  be  founded,  not  only  in  justice,  but  in  al 
solute  necessity ;  and  that  the  confusion  woo 
have  been  so  infinitely  great,  if,  admitting  di 
ferent  courts  to  take  coffuizance  of  difiere 
matters,  their  sentences  should  not  be  allow< 
to  take  effect  when  they  were  given,  but  tl 
matter  might  be  examined  over  again,  and  a  di 
ferent  sentence  given  in  another  court,  the  In 
mer  sentence  remaining  unrepealed,  that  tbei 
would  be  no  possibility  of  enduring  such  a  prai 
tice.  Consider  for  a  moment  wliat  effect  it  wou 
have.  Suppose  a  man  to  have  brought  a  so 
for  jactitation  of  marriage  against  a  woman  i 
the  proper  Ecclesiastical  Court ;  that  al 
should  plead  her  marriage  by  way  of  justif 
cation,  and  obtain  a  sentence  for  it :  the  nu 
dies  intestate  after  that,  And  she  applies  to  tl 
Prerogative  Court  for  an  administration  as  tl 
widow :  the  next  of  kin  of  the  deceased  appea 
there,  and  denies  her  to  be  the  lawful  widow 
in  proof  of  which  she  produces  the  sentence 
is  the  Prerogative  Court  to  give  credit  to  tli 
sentence  or  not  ?  If  it  is  to  give  credit  to  i 
(as  it  does  daily)  the  reason  is  because  it  bin 
universally  as  long  as  it  is  in  force ;  for,  thoog 
they  are  both  Ecclesiastical  Courts,  there  is  i 
more  privity  between  the  Prerogative  Court  ai 
the  Consistory  Court  of  anv  diocese,  iban  b 
tween  the  Prerogative  and  the  court  of  King 
Bench.  The  Prerogative  Court  has  the  me 
cognizance  over  pndiate  and  admiuistratioi 
and  therefore  if  universal  credit  is  not  due 
the  sentence ' of  the  Court  which  pronounc 
for  the  validity  of  the  marriage,  the  Prero|t 
five  Court  must  in  the  case  supposed  go  in 
the  question  over  again,  whether  the  partj  4 


1  Iha  pKily  claiming  to  be  liia  widow 
Dtuktried.   The  Preroga lire 
Conrl  i>  KD  ecclniaslical  court,  and  procecils 

tvUe:  It  proceeds  in  Ibe  sams  manner  by 
klicgaliMi  and  by  written  erideiice;  tbejudg^iv 
a  |w*aim  Wd  in  tbe  same  proreaniaa  ;  and  tlie 
>r»<iIMn«  are  the  same  wnh  those  that  prac- 
'  •?   ia   ihe  CoaBJBlory  Cuuri  of  Loudon  ;  aail 

.  refore  ilivre  ix  a  |irobability  that  tbe  Prero- 
.  itiie  Cuiiri  in  iUi«  case  oiigbt  agree  with  llie 

<  '£B  •>!*  Ilie  Cousislory  iu  opinion  tbat  llie 
<rna|re  Mas  «  (good  one,  and  contequenlly 

^L  ri^  llie  ttdminialralion  lo  the  parly  praying 
.,  ihe  witlon.  What  woiild  be  the  coiiW' 
..nee  of  that?  Why,  ibe  parly  would  have 
-.111  (WO  l>w-suita  insieail  of  one,  and  hare  got 
by  tbcni  iwd  piecea  of  paper  called  lenlencea 
ftrbcr  tnarriaKe,  and  lellera  ol' administration, 
hM  abe  vonbl  nut  be  a  bit  tbe  iieoier  getting 
pMwaaion  ol  the  deceased's  effecti.  For  these 
lAv  na»l  apply  lo  a  court  orr:nmmon  law ;  and 
lbar«i  ftccnrdiiiK  lo  this  doctrine,  the  Gnl  per- 
tmt  abc  )■  obliged  to  brinir  an  sRiion  against 
wUltE  al  \AfTty  to  lay.  H'lioare  you?— The 
irfMnMaaraiiiit  and  widow. —  No,  I  deny  that; 
kiatiue,  yoa  have  oblaii'etl  a  sentence liiryour 

pftaraCvuiias  iho  widow  ;  but  those  sentences 
««t«  fuuiuteil  U|ion  false  laela:  therefore  1  ob- 
jeM  la  iliMit,  and  ditire  there  iii:iy  be  u  ihiid 
mKtta  liatv  ilruquiredintointbiscourt,  whether 
Ihew  waia  real  inarriagB  or  oui.  Nu'v,  «up- 
pannr  that  in  thin  third  auit  a  Jury  should  he  of 
a  Udfrrrul  •piaiuii  Iruin  lhe,twa  former  courts, 
wWl  wuuM  be  ihe  cuiisrquence  ?  Why,  that 
lb«  p«Tly  who  broiighi  ■  suit  for  a  debt  would 
br  ■ou-«uil<-d;  au  Uiat  here  womIiI  he  a  legal 
admiaiBtraiiiiu  aubsiatiDg  (unlesa  the  court  in 
which  the  auliua  was  brought  could  repeal  it 
as^i'raui  a  new  one,  a  power  which  I  belleie 
■o  Ka>|iaTBl  court  bss  eier  yet  CKerciied)  but 
tbe  banili  of  the  admioiEtraior  would  be  ahso- 
loaely  li*d  "p,  ibe  effects  coubl  neter  lie  admi- 
awi^cd,  the  debts  of  the  lewalor  could  iierer  be 
caltod  in,  ibe  Mate  coubl  neter  be  dialiihiiled. 
Your  lorilahipi  see  plainly  that  ibe  Coiifusinn 
iKMilil  be  so  eilrenie,  if  tbi»  doctrine  was  to 
pretait,  that  no  ern>r  in  a  aenleoce.  howeier 
B^aivni.  nor  any  iiiciinvenience.  arising  Irnni 
it  to  particular  penoua,  however  great,  can  be 
•  auSoirDt  cauiie  for  any  cou 
iha  naenlH  <■('  a  sentence  giren  in  a 
which  iiaell  ha«  no  legal  cogoizancc: 
there  U  the  uimosi  wisilom  in  ibose  reiolution; 
«hieb  declare,  that  (here  is  an  implieil  credit 
4m  frnw  all  other  courts  to  tbe  Henlencea 
qawm  haviog  tlie  proper  Jurisdiction  over 
■aULf  in  vrbich  Ihe  aenleuce  bai  been   p 


Hy  lord*,  Ihe  cases  that  I  have  hithi 
nanllviiFd  and  alluded  lo  hate  been  all  in  c 
jumn.  Will  it  be  said,  tbut  Ihe  question  now 
bfarcyourlnrdsbipa.beingioa  cniuinalci 
ihal  tann  ibe  case?  and.  ibat  alihnugb  a 
iMce  ul  (lie  Bculesiasiical  Court  woul 
Indauc  and  iwacli»i«e  eoideuce  in  a  ciril  ci 


A.  D.  1776.  [4S8 

yet  in  a  criminal  cause  it  wsuld  not  have  ihe 
aame  eflectf  Hy  lords,  Ihe  aame  eiTecl  I  can 
»ery  reuilily  agree  that,  accorilinq^  lo  mv  poor 
nuiioos  of  law  and  justice,  it  would  notliaTe  ; 
but  I  Biiuuld  think  it  would  hore  ten  limes 
greater :  and  1  cannot  conceive  il  possible,  that 
it  can  tte  held  io  any  case,  or  in  any  couolrj 
in  the  world,  Ibal  a  seolence.  wbicb  would  bie 
held  Id  be  conclusive  evidence  la  avoid  a  civil 
<leLnand  agaititt  a  person,  would  not  be  held  (a 
be  conclusive  evidence  and  defence  against  a 
criminal  protecniion;  I  cannot  cooceire  that 
10  be  poKsible.  '  In  panalihus  cansis  benignius 
'  inlerprel  anil  urn  est.'  is  a  maxim  of  universal 
Undoubtedly  it  ia  the  business  of  all  ci ' 


id  which  are  legally  proved  ;  but 
courts  of  law  do  not  alrain  points  iu  order  to 
make  crimes,  and  intticl  punishments  ;  it  never 
was  (0  contended:  and  Idurouceir^ thai  many 
instances  might  be  enumerated  by  tliMe  wbo 
are  converaant  in  tbe  praclice  of  ibe  criminal 
law,  which  I  am  nol  in  the  len*l,  in  which 
parlies  proseculed  are  iiidulgeil  with  peculiar 
privilege*.  I  believe  thai  Ihey  aie  not  boond 
by  their  tirst  plea.  If  a  party  ban  beeu  ill* 
advised  in  bia  jilen,  he  is  booud  down  by 
thai  in  a  civil  cautu;  bul  in  criminal  pro- 
secutions Ibe  prisoner  tray  plead  over  and 
over  again,  and  is  allowed  to  avail  bimaelf 
of   every    nicely   in    ibc    Uw   to   avoid   con- 

Upon  these  grounds  therefore  I  hope  it  will 
appear  to  yunr  lordships  to  he  luoal  clear,  ibat 
Ihe  srolence  of  the  Ecclesiaslical  Cnurl  aiwaya 
has  been  ebleemed  and  must  be  alluwed  to  b« 
final,  to  be  the  only  evidence  lliat  can  be  re- 
ceived concerning  the  fact  upon  which  it  has 
heen  prooouoced,  and  thai  tbe  fact  is  no  longer 
the  legal  object  nf  enquiry  by  any  other  court. 
I  do  apprehend  Ibis  lo  b«  so  clearly  and  fully 
eslabliKhed.  Ibnt  I  cau  scarce  conceive  that  tha 
genllemen  will  deny  it ;  hut  I  up|irehend  and 
do  ei|ieci  that  they  will  endeavour  to  find  a 
dislinction.  And  they  will  aay.  Though  we 
sliould  admit  your  rule,  thai  the  Bentence  of  ^ 
an  ecclesluslical  court  ia  binding  so  long  ■■  it 
sobaisis  in  general,  yet  if  that  aenleuce  wKa  ob- 
laiueil  by  collusion  and  fraud,  it  ia  oiherwiae  ;  ■ 
and  if  it  can  In-  proved  lo  have  been  ao  oblaitf 
ed,  it  will  iiniiieiliHtely  lose  iis  eRVct.  I  expect 
we  shall  he  so  told;  and  I  do  admit,  that  lo 
mninlain  our  present  |H>inl,  which  is,  Ibat  lb* 
sentence  is  conclusive  evidence,  we  muK  say 
Ibat  it  i*  a  mle  >viihniil  any  excrpliou ;  wa 
must  say,  that  colluHun  in  ul)raioing  tha 
seulenc  would  nol  give  your  kirdahipH  any 
Jurisdicli'in  lo  enquire  inio  ihe  fact:  and  1  do, 
with  gteai  submisaiun,  cnmenil  bal'ire  your 
lorilslil|is,  ihatnocoiii'l  which  has  not  an  ab- 
solute and  no  entire  jurisdictiua  over  a  tact,  aa 
much  as  Ihe  lornier  court  bad,  cau  lake  cognU 
zance  of  »  mailer  ibai  baa  been  already  drcided 
upon  in  ihai  former  couri,  uixin  a  sugifFsiion 
iir  even  proof  ibat  colliiMnn  Ha-  used  in  ob- 
tainiug  the  Ibrmer  seatence.    1  (nayi  and  I  uk 


4S9] 


16  GEORGE  III. 


Trial  of  the  Ducheu  of  Kingston, 


[44C 


afraid  I  shall,  talk  very  ipfnorantly  re6|>GCtin|r 
tliiwe  cases  in  which  the  courts  of  commoo  law 
take  cognizance  of  matters  which  have  been 
alreii<iy  «lecicle4  ufM)'n  ^  other  conrta,  upon- 
pruol  that  tlie  decision  was  obtained  by  fraud 
and  collusion  of  the  parties  at  that  time  li^bre 
tlie  court.  Town  I  am  by  no  means  master  of 
that  subject ;  but  I  appreheud  they  are  only  in 
auch  cases  where  eacu  court,  suppose  the  court 
of  KingVbeoch  and  Common  Pleas,  or  any 
other,  has  an  entire  concurrence  of  jurisdiction ; 
ivhcre  there  was  an  option  in  the  panics  to 
commence  the  suit  ori^oally  either  in  one  court 
or  the  other,  and  where  the'  effect  of  tiie  sen- 
tence of  the  two  courts  would  be  perfectly 
equal.  In  such  a  case,  if  after  sentence  ^ven 
in  one  of  those  courts  application  should  be 
made  to  the  other  to  reliear  the  matter,  on 
jin^of  that  the  former  decision  was  not  fairly 
obtained,  this  mi^ht  be  a  just  ground  for  the 
court  to  which  proof  of  the  fraud  is  offered,  to 
aay.  We  will  hear  the  matter  over  again,  which 
we  had  a  right  to  have  heard  as  well  as  the 
other  court  had,  had  it  not  been  that  the  cause 
was  commenced  with  them :  but  I  apprehend 
BO  court  can  do  this,  the  sentence  of  which, 
when  it  is  given,  will  not  have  tlie  satne  legal 
efiect  to  the  full  as  the  sentence  of  the  former 
eourt.  Nor  can  it  be  said  that  this  court,  high 
and  august  as  it  is,  or  any  other  court  of  cri- 
minal jurisdiction,  can  give  a  sentence  upon  a 
marriage,  which  will  have  all  the  effects  that 
the  sentence  of  the  Ecclesiastical  Court  will 
have.    Strip  the  question  of  its  circumstances. 


^nd  let  it  be  asked  simply,  Has  the  House  of  -terial,  to  shew  the  extraordinary  and  unusua 


Lords  a  power  to  try  the  validity  of  a  marriage  P 
Every  body  will  say  at  once,  It  has  not.  Al* 
low  me  to  consider  what  would  be  the  conse- 
quence if  ^' our  lordships  were  to  takecosfni' 
aance  of  this  matter,  and  were,  notwithstanding 
the  sentence  of  the  Ecclesiastical  Court,  upon 
the  suggestion  of  cullusion,  or  any  other  sug- 
gestion, to  say.  We  are  not  barre<l  by  it,  we 
will  go  into  it;  and  that  the  party  tried  under 
such  circumstances  should  be  convicted  of  po- 
lygamy: what  would  be  the  coiise<iiience  of 
that  ?  Would  it  set  aside  the  second  marriage? 
I  take  it  most  clearly  it  would  not.  Suppose 
that  aller  the  wife  had  been  cuovicted  uf  poly 
gamy  for  marryin;jr  \\^  in  the  life-time  of  A, 
her  former  husband  (a  sentence  agoinst  her 
marriage  with  A  having  first  been  obtained  in 
the  Eccleiiastical  Court)  she  should  by  any 
meaus  become  entitled  to  a  fortune,  by  legiti- 
macy or  otherwise,  would  not  B  have  a  ritj^ht 
10  demand  the  legacy,  orauy  other  effects  that 
came  to  the  woman  subsequent  to  the  convic- 
tion? 1  submit  to  v'tur  lordships,  he  cerlQinly 
would.  Suppose  u  to  die  intestate,  mi^ht  not 
the  uife,  notwithstanding  such  a  conviction  as 
this,  pray  the  administration  to  bin  effects?  and 
if  her  interest  as  widow  was  denied,  as  having 
been  tlie  wife  of  A,  at  the  time  she  married  B, 
and  she  in  reply  to  this  shoald  produce  the 
sentence  in  the  Ecclesiastical  Court  against 
her  mairia^  with  A,  bearing  date  prior  to  her 
noyuriage  with  0,  the  Court  ^otflti  PVt  refuse  lo 


grant  administration  to  her.  Suppose  thstsftei 
ihe  conviction  the  parties  to  the  second  mar- 
riage should  continue  to  cohabit,  and  ahoalt 
have  children,  would  not  they  be  entitled  tothi 
inheritance  as  the  legitimate  issue  of  the  se- 
cond  marriage  ?  I  take  it,  that  under  the  Sutho 
rity  of  the  cases  of  Bunting  and  LeppingweU 
Kenn,  and  the  rest  that  have  been  since  de* 
terroined  conformably  to  those  cases,  then 
cannot  be  a  doubt  that  they  would,  if  a  questioi 
should  arise  upon  the  right  to  the  inheritsno 
in  a  court  of  common  law,  so  long  as  the  ce 
clesiastical  sentence  against  the  first  ipafriagi 
remained  in  force:  in  short,  the  convictioi 
would  have  no  operation  at  all  u|)on  any  cifi 
effect  of  the  second  marriage.  The  consequeno 
therefore  of  proceeding  to  convict  for  polygaitaj 
for  a  second  marriage,  in  a  case  where  iben 
had  been  a  sentence  of  the  proper  ecclesiastics 
court  against  the  first,  would  be,  that  a  woinai 
who  had  been  convicted  of  felony  for  marry 
ing,  might  under  that  criminal  act  (as  it  woimi 
then  be  pronounced  to  be)  derive  to. herself  al 
the  privileges  and  advantages  that  accrue  to  i 
wife  in  tlie  fortune  of  her  husband  by  a  lawfa 
marriage,  and  convey  a  title  to  her  issue  to  thi 
greatest  lionours  apd  estate  in  the  kingdom 
These  are  such  glaring  contradictions  and  ab 
surdities,  as  I  should  with  great  deference  ap 
prebend  that  neither  your  lordshifis,  nor  auj 
other  court  of  justice,  woultl  give  occasion  to 
without  the  utmost  reluctance.  There  is  a  csm 
or  two  which  have  not  yet  been  mentioned 
and  which  appear  to  me  to  l»e  extremely  ma 


steps  that  have  been  sometimes  taken  by  cooru 
and  id  cases  extremely  similar  to  the  present 
to  avoid  a  contrariety  of  sentences  of  coorti 
having  difftrent  aud  distinct  jurisdiction.  Ii 
the  case  of  Bo^leand  Boyle,  in  the  Kinff's* 
bench  in  16B7,  reported  3<1  Mod.  164,  a  libe 
was  admiltrd  in  the  spiritual  court  against  I 
woman  '  caiis:'\  jactitationis  mniitagii.'  Th< 
woman  prayed  a  prohibition  to  the  Ecclesias* 
tical  (yourt ;  and  the  sugirestion  was,  that  thii 
person,  who  now  libelled  a^rHinst  her  in  a  catiai 
of  jactitation,  had  been  in<ticti*d  at  the  sessiooi 
in  the  Old-Bailey  for  marrying  her,  he  having 
a  wife  theu  living ;  tliat  he  was  thereupon  coo- 
victi'i),  and  had  judgment  to  be  burnt  in  thi 
hand ;  that  therefore  they  had  no  right  to  jirO' 
ceed,  and  therefore  a  proiiibiiion  was  prayed 
Serjeant  Leviuz  in  that  case  niove<l  for  a  con 
sultation,  because  uo  court  but  the  Eccleiiias 
ticfil  Court  can  examine  the  marriage.  U|ioi 
the  contrary  it  was  said,  that  if  a  pndiibitiei 
should  not  ^o,  then  the  authority  of  these  tw« 
courts  would^nterfere,  which  mit^ht  lie  a  lhin( 
of  ill  cousequtince:  that  if  the  lau fulness  o 
this  marriage  had  been  first  tried  in  the  cmif 
Christian,  the  other  cunii  ut  the  Old-Baile^ 
would  have  given  credit  to  their  sentence,  an 
upon  this  ground  and  this  principle  merely 
that  there  might  be  a  contrariety  of  asB 
tences,  which  would  be  mischievous.  Tb 
court  went  certainly  a  great  way,  for  it  prnlu 
bited  the  ficclesiastipal  Court  from  proceed 


Jhr  Jiigami/. 


&lv  lonl«,i.tio 

'-■ij  I'umiMg,  Hhicli  begi 
'  >>iirt  a/  Eieler :  It  wa*  n  cause  uf  reslllution 
:~  emijo^\  rigbU  biougitt  by  III 
I  ii£  lUiel  WW  i^iliiiittnl  ;  und  then  lliere  was 
'  1  afifieBt  lu  liie  caurl  ol'  Arclii-s.  The  jililge 
■  ■aouncpil  liir  tliu  >|>peiil,  auit  was  |iriife«I- 
1^  upon  ilie  nierlts  of  ttie  <9Uie ;  lint  U|>uii  the 
.11  of  Noveielifr  1727,  Iib  wob  ssrveil  wiiti  • 
;  I  i>)irl>>iiun.  Au(]  tlit  ({round  for  nblaiDiuK  this 
I  .".Irrxiiiiri  wa$,  iliBl  Sanli  Furamsn  prpteiiil- 
1:  -  <  '  i>e  tile  lawful  wilt-  cf  the  iidil  FiirsiiiBO, 
ita.'i  ii..li<ieil  bim  Inr  Ui|{iiny  in  marrying  ano- 
•  \  ■  '  1 .1-  ,  .111(1  I'aiUJ  iu  proof  oC  lier  own  mar- 
.>  iitn-upun  ilie  Mid  FurKinaD  was  ac- 
.:iLil  ilier«rure  it  wbi  siiil  the  Kccle- 
^  <iLiri  xhuiilil  not  procofil.  Nnw,  my 
■  ,1  i-ri'T  judgment  girtn  by  a  court,  id 
s  mailer  in  whicit  it  can  iiave  unl^  an  inci- 
4ttt»l  pBrtial  juriiMliclioD,  ia  ■  RafBcient  csuw 
ftr  Moppinij  kll  tubsequent  proceeding  iu  tbe 
~— -  tia«e,  vren  in  tberaurl  wbich  has  llieea- 
lirc  ordioMy  jiirttdiciioii  orer  tl>e  question,  on 
MBMiol  oi  Llie  ill  conaequeuce  that  would  eaaae 
(n^  the  iDlerference  ol'  tbe  auilinrily  uf  llie 
ti»o  eoana ;  aurely,  by  all  parity  of  reasoping, 
ia  ac»se  where  i^ippearsiliat  the  court,  wbich 
iIm  law  and  conitiliition  hate  entrualed  with 
die  etiiire  juriwlicliuD  over  tbe  milter  in  quea- 
tiao,  baa  already  takeu  cognizance  of  it  and 
■«v»<Hii>ce<l  its  BcnieoM,  the  court  of  incidental 
jarad*cliaa  will  give  credit  to  aucb  seotence. 
Mid  otmtnrm  it*  ono  senleuce  to  it. 

If  I  he  ill  cnaseuiienceE  ariiing  fVam  claibing 
•ad  (Mutndiclory  judgments  ol'  dilTerent  cuuna 
taay  be  allowed  to  have  any  influence  upon 
jout  totdthips'  jadgmenl  in  ibis  lualter,  thei'e 
■  Hi>  need  10  rack  Ifae  invention  lur  r.ircum- 
aUMees  llial  migbl  happen  :  tlie  case  bel'nre 
your  Ufdabip*  o«ed  but  be  pbinly  stated,  to 
■fciw  ibuile  iDcon*enieDceB  in  lliu  elrongeit 
%fil.  The  KtniF'iice  of  tbe  Ecclraiuiical 
C*«rt   prtmnunciiig   and   ilecUrini;  ibe  noble 

IrvcW  with  Hr.  Herf^y,  was  given  in  Febrnary 
1769 :  soon  after,  sbe  married  tbe  duke  of 
KiligaWn  under  Ibe  dis|iensatiuu  ibst  i«  usually 
pwiled  Tor  the  marriage  of  persons  of  thai 
ra«k.  Under  Ibis  marriage  Ibe  duke  and 
cobubiled  between  four  aud  five  years 
rife;  at  lbeexf>iraiiun  of  which 
•  of  KitigilDn  died,  having  Hist  made 
by  whicb  be  gave  Ibe  moat  afTec- 
nd  tniisl  li'iiiourable  lestimnoy  of  bia 
as  bis  wife.  At  last,  in  July 
1775,  <iODie>  a  bill  of  indiclmenl,  wbich  is  to 
Mt  Ike  •enlcnce  of  tbe  Ecclesiastical  Court 
mCitely  al  nougbt,  and  to  brand  this  open 
snd  •ntamn  marriage,  confirriied  by  a  cobabi- 
tadon  and  repuMlion  of  so  many  yean,  with 
Ibe  Dame  of  a  letony. 

My  lordi.  if  lliia  indiclmeni  should  be  pro- 
eidlr>l  ufion,  and  tbe  fuel  of  tbe  tirsl  inarriiue 
hami  dttferaiil/  iioiii  what  a^itearad  to  tue 


A.  D.  me.  [4tf 

chancellorof  London  at  ibeiiiiie of  pmnoBDcing 
bia  arnteoce  upuii  it,  Ibe  i^onfiisliin,  tbe  seaodal 
(I  ibiub  1  may  venture  lu  vail  ii)  that  would 
I  arise  from  the  contrariety  of  the  two  lenteneea 
that  would  then  be  proiinuDced,  and  both  still 
in  force,  would  be  sDcb,  thai  I  caiinut  cunceiva 
ibal  any  court  of  jnstice  would  busard  il,  upon 
niiy  siiggrBtioD  or  apprehensiiin  nl  error  in  ibc 
lurmer  iienience,  or  fraud  in  obtaining  il,  and 
wbicb  Has  irremeiliabte  by  soy  otb^r  means, 
or  any  olber  the  raoat  sinking  or  plausible  ar. 
guinent  that  could  be  urged  lo  induce  them  lo 
il.  But  Ihe  plea  of  ibe  npcessiiy  of  doing  sn 
extraonlinary  act  In  ant  asiile  an  improper 
sculence,  or  the  eB*ect  of  sucb  a  sentence, 
is  certainly  leas  applicable  lo  Ibe  Eccleaias~ 
lical  Court,  than  tu  any  other  court  known 
in  this  kiDgiluiu;  and  least  of  all  is  il  ap- 
plicable Id  tbeir  pruceeedings  in  raarriags 
causes.  There  is  a  course  of  appeal  in  tbe 
ecclesiaatical  courts,  a  deliberalion  in  their 
proceedings,  that  is  unkuuwn  lo  auy  court  in 
this  kingdod) ;  from  the  arc bidi aeon nl  court 
(if  the  cause  be  originally  inatiiuied  there)  to 
tbe  consistory  of  the  diocese ;  from  thence  to 
Ihe  uietiupoliiical  court,  wjiiiih  is  the  court  of 
ArcheB  ;  from  thence  tu  the  king  in  his  court 
iif  Ciiancery  ;  from  tvbicb  a  commissioo  of 
Deleifates,  to  brar  aji;ieals,  isaues  ci  debito 
jtutilit :  in  every  uue  u\'  these  courts  the  par-, 
lies  ore  not  liaunodown  lu  what  has  beengifen 
in  eiidence  in  tbe  court  bttuw  ;  it  is  uol  mere- 
ly error  in  law,  but  error  in  fact  likewiie  may 
tie  correoleil  upon  appeal  in  the  Eccteaiastical 
Court ;  and  if  ibere  are  any  facts  material  to 
the  puiut  iu  issue,  that  have  not  been  pleaded 
and  examined  to  in  Ihe  inferior  court,  they  may 
be  pleaded  and  given  in  evidence  io  Ihe  Court 
of  Appeal ;  and  so  down  lo  the  laal  court. 
Besides  this,  iu  every  one  uf  these  courts  il  ia 
nol  a  matter  confined  to  Ihe  two  parties  thai 
ioitiluie  tbe  suit,  and  therefore  may  carry  it  od 
coljusively ;  for  in  any  pprind  of  tbe  cause  a 
third  person,  that  baa  any  interest  in  tbe  matter 
in  question,  if  be  sees  that  tbe  two  original 
parlien  are  colluding,  or  ihst  one  nf  them 
19  negligent,  or  if  he  has  any  other  reasou 
tu  be  diisatlslted  wilb  the  manner  in  wbicli 
Ihe  busineu  is  conducted,  he  may  intervene 
tor  his  intereal,  and  the  court  must  tj  dehito 
jaitiluc  admit  him  lo  do  sn  ;  he  may  give  in 
a  plea,  if  he  intervenes  before  Ibe  cause  is 
cDOcluiiH  ;  he  may  examine  hia  own  wit- 
nesaea,  and  act  in  all  respects  as  a  party  in  Iha 
cause.  M'hal  puSKJble  human  means  of  pro- 
viding against  collusion  and  surprise  is  omitted 
out  uf  this  method  of  proceeding!  Bui,  my 
Horda,  even  this  is  not  all  ;  for  when  the  cause 
has  run  Ibis  great  teugtb,  application  may  ba 
made  lo  his  majesty  in  council,  who,  if  be  ii 
advised  that  ibere  isa  ground  for  it,  has  a  power 
ex  gratis  lo  grant  a  commission  lo  review  iha 
whole  matter  over  again.  Prom  this  view  of 
Ihe  method  of  proceeding  io  ecclesiastical 
cDuriB,  1  apprehend  it  will  appear  lo  your 
lordsbijis,  that  ibey  are  nut  so  ill  provided  with 
eilbet  to  avoid,  ot  lorefuciu  en<m\«\!tiw 


443] 


16  GEORGB  IlL 


l^rial  of  the  Dttchess  ofKing&ton^ 


144^ 


jadgpnehtf,  at  to  stand  in  need  of  the  txtraor* 
diaary  inteqiositiofi  of  other  courts,  in  aoy 
matters  that  are  pro|>erly  withio  their  juris- 
diction ;  but  least  of  all  is  this  necessary  in  a 
marriage  cause,  for  a  marriage  cause  is  never 
at  an  end :  let  the  cause  ha?e  been  argued  e?er 
80  often,  let  it  have  been  sifted  with  the  most 
scrupulous  exactness  and  attention,  let  there 
have  been  one  or  more  apfieals,  let  every  step 
Kave  been  taken  that  can  be  taken  to  gi?e  a 
final  conclusive  judgment,  still  the  same  party 
may  come  before  the  court,  and  say.  The  court 
has  been  imposed  upon  ;  1  desire  this  matter 
may  be  examined  over  again.  The  court,  upon 
such  application,  would  and  must  take  cog- 
niianceofit. 

I  will  trouble  your  lordships  with  quoting 
but  one  authority  for  this,  which  is  that  of 
Saachez  in  his  treatise  de  Matrimonio,  lib.  7} 
disp.  100,  c.  1,  uho  lays  it  down  in  these  posi- 
tive and  explicit  terms :  <*  Id  in  matrimonio 
spectale  est,  ut  sententia  in  coiijugali  caus^ 
lata,  quacunque  circumspectione  pnemissa,  sive 
bis  ah  eft  provocatum  fuerit  confirmataque  sit, 
sive  lapsus  terminus  ad  apn^landum  sit,  nun- 
quam  transeat  in  rem  jumcatam,  ac  proinde 
non  ita  efficacem  auctoritatem  sortiatur,  quin 
retractanda  sit,  quoties  compertum  fuerit  earn 
errore  quodam  latam  fuisse."  And  the  reason 
assigned  for  making  this  material  and  singular 


of  Kingston,  enters  upou  the  examiiuitiuo  oi 
distinction  between  marriage  caiises  and   all  |  certain    objections   to    his   conclusions, 
other  causes  is,  that  in  general  the  consent  of  '       ' 

the  party  who  does  not  appeal  from  a  sentence 
which  is  given  against  him,  gires  force  and  au- 
thority to  the  sentence,  though  there  might 
otherwise  be  a  ground  for  him  to  complain  of 
it.  But,  says  the  author  before  quoted,  **  sen- 
tentia per  errorem  lata  in  causft  conjugali, 
transiens  in  rem  judicatam,  foveret  peccatum, 
separando  veros  coojuges,  vel  uniendo  eos  qui 
tales  esse  neqoeuut:  at  nullum  vinculum 
qnantulumcunque  multiplicatum,  potest  fir- 
mare  actum,  ex  quo  peccatum  cnnsurgit." 

The  same  doctrine  is  laid  down  in  a  multi- 
tude of  other  writers  upon  the  canon  law,  of 
which  there  are  waggon  loads ;  but  they  are 
unanimous  in  establishing  the  maxim,  **  sen- 
tentiam  in  causa  matrimoniali  nunquam  tran- 
sire  in  rem  judiratam ;"  which  1  am  sure 
vour  lordships  will  not  hear  denied  or  disputed 
by  the  other  side. 

Prom  hence  it  will  appear  to  your  lordships, 
how  little  (ground  there  is  for  that  notion  which 
aeemato  ha\e  got  abroati,  that  the  proceedini^s 
of  tlie  ecclesiastical  courts  in  canses  of  jactita- 
tion, or  any  other  causes,  are  such  as  tend  to 
loosen  the  bonds  of  matrimony  (which  both  in 
a  civil  and  a  relit^ious  light  without  doubt  is  the 
roost  essential  bond  of  society)  and  give  parties 
an  op|K)rtunity  of  dissolving:  it  at  their  pleasure. 
The  court  in  these,  ns  in  all  otlier  ca^es,  must 
determine  *  secundum  allegata  et  probata,'  ac- 
cording to  the  evidence  l>efore  it :  but  %vhere  is 
the  encouragement  given  to  par<  ies  to  collude, 
or  what  security  can  they  have  umfer  a  sen- 
tence obtained  by  fraud,  when  that  fraud  mny 
at  any  future  time  be  detected,  by  briiigiog  for- 


ward that  evidence  -which  was  before  withbeU 
and,  upon  proof  that  the  former  eentenoe  wa 
erroneous,  another  of  a  direct  contrary  ten 
deney  will  be  given  f 

My  lords,  the  marriage,  which  is  the  ool 
fact  m  dispute  in  the  present  case,  has  man 
years  ago  been  put  in  issue  in  the  proper  mat 
ner  in  the  proper  court,  and  a  sentence  give 
against  it  as  decisive  as  any  that  court  can  giv 
in  a  marriage  cause :  upon  trust  aud  confidenc 
in  that  sentence  it  was,  that  the  act  was  doi 
for  which  the  noble  prisoner  is  now  accuaed  bi 
fore  your  lordships  ;  the  sentence  is  prodocci 
remaining  in  full  force;  and,  for  the  reaaoi 
that  have  been  urged,  we  humbly  hope  yoi 
lordships  will  be  of  opinion,  that  it  ia  the  onl 
legal  evidence  that  can  now  be  given  reaped 
ing  the  fact  upon  which  the  accusation  i 
founded,  and  that  \ our  lordships  will  tberefm 
receive  it  in  bar  of  any  other.* 

*  Mr.  Hargrave,  in  hisTreatiae  *  Conoen 
<  ing  the  Effect  of  Sentences  of  the  Courts  £c 
*  clesiastical  in  Cases  of  Marriage,'  &c.  afts 
having  stated  the  numerous  authorities  si 
which  he  founded  his  conviction  of  the  coodn 
sive  quality  of  sentences  by  courts  having  i 
peculiar  jurisdiction,  and  of  the  application  e 
that  general  doctrine  to  the  case  of  the  ducbca 


1.  That  the  sentence  in  this  case  being  conki 
matrimonium  hath  not  the  effect  of  a  tblig 
finally  adjudged ;  or,  according  to  tiie  langosfi 
of  the  civilians  and  canonists,  *  non  transit  ii 
*  rem  judicatam  ;'  and  that  as  it  would  noth 
conclusive  to  a  spiritual  court,  thereibre  i 
onght  not  to  be  so  to  the  temporal  one.  9 
That  though  the  sentence,  so  long  as  it  renisia 
in  force,  may  bind  tlie  lady  and  gentleaw 
who  were  the  parties,  strangers  ought  not  S 
be  affected  by  it.  3.  That  the  interest  of  tb 
king  is  not  bound  by  judgments  on  sentences  il 
suits  between  private  persmis ;  and  therelw 
that  the  sentence  ought  not  to  be  ef»nclusivsii 
proceedings  to  which  he  is  a  party,  as  he  isii 
an  indictment.  4.  That  sentences  of  the  ac 
clesiastical  courts  in  matrituonial  cases  ar 
not  conclusive  in  the  temporal  courts  ;  becam 
in  them  the  suit  is  diverso  intuitu,  5.  Tba 
the  act  of  the  1st  of  James  the  1st,  on  wbid 
the  lady  is  indicted,  having  given  to  the  tefl 
|M>ral  courts  the  trial  of  polygamy,  the 
ought,  so  far  as  regards  that  offence,  to  1^  coi 
sidered  as  having  a  concurrent  jurisfliction  ovc 
questions  of  marriage  with  the  spiritual  court 
and  that  if  they  are  concurrent,  the  infereac 
from  the  determiiKMl  cases,  which  chiefly  di 
pends  on  the  supposition  of  a  |>eculiar  junadic 
tion,  wholly  fails ;  and  then  it  will  only  remai 
to  shew,  that  the  sentence  wouhl  not  coodiJ 
a  spiritual  court  of  concurrent  jurisdiction. 

Having  set  forth  his  reasons  for  thinking  thi 
the  preceding  object  ions  are  invalid,  Mi 
Harin^ve  terminates  this  branch  of  his  invmli 
gation  thus : 

«<  The  only  other  olyectieD,  .whieh  eeetMl 

1 


^453 


Lord  Pra.  of  the  Council.  My  Innls,  I  nioie 
war  lvrtlB<ii|>s  lu  a<ljntirti  lo  Ihe  Cbauilxr  ot 
^rKanMnt. —  Lordw.  Ay,  By. 

X.  H.S.    Tli»  Holisc  is  acljoarned  to  Uie 

~       "  n  of  Pnrrumcut. 


t44G 


Tbe  l.Drdi  tnil  olbera  relurnrd  lo  iheCliBm- 
kcr  of  i*arliBinnil  in  ibe  BimeOrilcr  Ihey  c<me 
in»n,  rxrrpt  llie  Lrml  HlL'li  SLewunl,  who 
valk^d  at'ler  Itii  nival  l>ii(hn«fis  the  duke  ol' 
CambrrlaDd ;  »nd.  (ne  Hnuse  leJui^  llius  re- 
•MtAMl,  Tcvolred  lo  proceed  rtirllier  in  ilie  trial 
wf  EU*abelh  diicbca-ilciwH^er  ot'KingstOD,  in 
WBltn>>i-irr-r>ill,  la-iuomxr  Bt  ten  uf  the 
clock  in  the  moritlng. 


lm>e  been  heretut'ore  cileil  t'ur  lliat 
;  Itinogli  1  do  oot  see  that  tliey  in  any 
•«T*B  ■Iiply. 

••  Oik-  id  llie  rose  of  HInks  end  Harris,  iu 
Mkhrh  m  fnirhilHtinn,  ti>  stay  suit  iu  the  eccle- 
■^rtieal  court  Bi.ilustuae  for  incest  in  marrying 
ku  first  w  ilie 'a  ti  Bier,  wasgrauletl  ijuoad  tanul- 
tlmg  the  marriage ;  becauae  tbe  aecond  wife 
««i  4ettH,  nnd  there  wna  iisue  ol'  the  niBrriagp, 
M»J  canaM|unitty  baBtardiaing^  the  iaaiie  naiild 
hwaa  be«i  cantradicting  a  rule  i>l*our  law,  that 
df  facto  Bball  not  he  aiaided  alter 


|ir«tes  B  right  to  controul  the  apii  ilual  courti, 
■facre  lliey  proceed  in  oppoaitioD  to  the  com- 
BDon  Uw  in  a  poiol  in  which  It  predontiimteB 
ner  lh«  lair  ecclesiaitical. — Anollier  cage  is 
Hiltwil  and  Pbaly,  in  which  the  llieu  lurd  chief 
jBBlic«  or  the  Kinu'i-bench  on  an  issue  from 
Chaacvry  lo  try  ■  marriage  refused  even  lo  re- 
amt  ■«  etideuce  a  sentence  against  ibe  8up- 
powd  husband  fur  fornication  with  llie  aup- 
faaed  wife,  and  his  payment  of  money  iocom- 
■atalion  tor  liie  penance  enjoined.  Bui  this 
OM  ii  a  ungle  one  against  all  the  oihel'  aulhO' 
ikka,  and  is  unsiip|iorteil  by  nny  reainuing  ; 
Md  Itie  r^eclion  of  the  evidence  was  greally 
fidfiprafed  of  by  lord  chaneelJor  King,  when 
Iha  nailer  came  before  him  again,  lliough  it  is 
BM  nenlioneii  wbeiber  lie  granted  a  new  trial. 
Btm  8  Mod.  180. — Ab  to  Eniinerlon  and  Hide, 
which  w^  before  lord  Holt,  and  is  ciieil  in 
Combrrb.  72,  and  Rbinn.  4^5,  bul  most  fully 
ia  S  Mod.  161.  it  only  pro*es,  thai  in  on  ejeci- 
«cM  Ibe  temporal  court  may  incidentally  try 
A*  kwfuloess  of  marriage,  which  ianol  denied. 
—Tbe  ram  of  Pride  and  tbe  enri  of  Itath  in 
3  Lev.  ■\  to,  is  liable  to  the  same  observalion." 
Hut  though  Mr.  Hargraie  thought  that, 
nippoung  llie  tenleace  in  the  case  in  quesiiun 
la  hatir  been  pronouoced  in  ■  suit  really  ad- 
nrv,  Mirb  sentence  was  conclusire ;  yeth« 
Ihaofbt  llial  pmof  of  collusion  between  the 
ptAoB  wiMibl  take  from  the  sentence  its  whole 
■dvcL    Am  to  his  diKiiuion  of  thi 


The  Second  D*r. 
Tuesday,  April  16. 


Munday,  eKcepl  the  Lord  High  SlewanI,  who 
walked  after  his  ruyal  bighnew  ihe  duke  of 
Cumberland,  and  the  Peers  were  there  seated, 
and  the  Lord  High  flteward  in  bis  chair. 

L.  H.  S.  My  Turds,  Ibe  House  is  resumed. 
Is  it  yonr  lonlships'  pleasure  that  Ibe  judg«s 
may  be  cotered  ? — Lords.  Ay,  ay. 

Then  the  Serjeam  at  Arms  maile  proclama- 
tion for  silence  as  usual ;  and  Ihe  duchess  of 
Kingslon  being  conducted  to  ihe  bar, 

L.  H.  S.  Mr.  Attorney  General,  yoa  may 
proceed. 

All.  Gen.  My  lords,  I  And  myself  en gageil 
in  a  fery  singular  debate;  upon  a  point  per~ 
tectly  new  in  e)l|<erience,  analo;;oiiE  to  no 
known  rule  of  proceeding  in  similar  cases, 
founded  on  no  princijile,  none  at  least  wbid) 
has  been  slated. 

Tbe  prisoner,  being  arraigned  upon  no  in- 
dictment  for  ie\auy,  pleaded  iioi  guilty  ;  upon 
which,  issue  was  joined.  In  Ibis  stale  uf  lite 
business  she  hath  moTed  your  lordships,  that 
no  etiifence  shall  be  giren  or  stated  in  proTC 
Ibat  gudi  upon  her,  nhicb  she  hath  denied  and 

Tbe  only  case  cited  in  support  uf  so  cxlraor- 
(linary  a  motion,  that  ol  Junes  and  Bow, 
Carth.  225,  hears  no  relation ur  proportion  to  it. 
In  the  ii'IhI  of  «d  ejectment,  the  defendant,  ad- 
mitliog  tbe  plaintiffs  lille  lo  be  olbrrwise 
clear,  avoided  it  by  a  sentence  against  the  pre- 
tended matrimony  of  his  mother  with  sir  Ro- 
bert Carr;  after  which  both  parties  married 
with  other  persons  ;  a  sentence,  unimpeadied 
in  form  of  substance,  against  his  own  mother, 
from  whom  he  was  lu  derive  title  to  his  state  ; 
decisive  consequently  as  a  iiiie  with  non-claim 
or  any  other  perfect  bar,  and  submitted  to  a«- 
cordingly  ;  for  the  plainlilT  was  called,  and  did 
not  appear.  Here,  if  the  sentence  should  ever 
come  properly  under  examiualiou,  it  will  aii- 
pesr  to  difier  in  all  those  resjtects. 

In  the  mean  lime,  instead  of  defending,  Ihia 
motion  is  only  putting  quesiioos  lo  your  lord- 
abips,  hypntbelically,  for  opininu  and  adiice 
how  to  order  tbe  defence.  If  ihis  sentence  be, 
as  Ibey  argue  it,  a  definiliTe  and  preclusive  ob- 
jection lo  all  enijuiry,  llie  priiuner  ought  lo 
have  pleaded  it  In  bar,  and  to  bare  put  ihe  pro- 
secutor upon  dealing  wilb  her  pies  as  he  thnnld 
be  BitvisiKl ;  or  she  may  still  rely  upon  Jl  in 
esidence  of  not  gnilty.  But  niiiinui  placing 
any  such  confidence  in  il  themselves,  iliey  call 
uiwn  your  lordsliips  to  make  il  tbe  tuiinitalioii 
ol  an  order  lo  slop  Ibe  trial. 

My  lords,  lo  say  that  this  ia  wholly  unpre*. 
cedented,  goes  ■  great  way  lu  conclude  against 
il.  To  say  ihil  such  a  mte  would  be  iucuit- 
sistenl  with  tbe  plea,  and  repugnant  lo  the  re- 
cord DB  il  now  stands,  seems  decisive.     AAcx 


MT\ 


16  GEORGE  III. 


Trial  of  the  Duchas  ofKingtlon, 


[* 


lordships,  she  beseeches  you  not  to  hear.her 
tried.  Out  I  shall  not  content  myself  with 
this  answer ;  because,  as  your  lordships  have 
thought  projier  to  bear  counsel  in  support  of 
Ibis  extraordinary  motion,  I  am  bound  to  sup- 
pose it  a  fit  subject  for  ar((umt*nt,  and  to  lay 
before  your  lordships  my  thoughts  upon  it  as 
they  oociir. 

Before  I  go  into  particular  topics,  T  cannot 
help  observing  with  some  astonishment,  the 
general  ground  which  is  given  us  to  debate 
upon.'  Every  species  and  colour  of  guilt, 
within  the  compass  of  the  indictment,  is  neces- 
sarily admitted.  So  much  more  prudent  it  is 
thought  to  leave  the  wont  to  bo  imagined, 
than  even  to  hear  the  actual  state  of  her  of- 
fence. Your  lordships  will  therefore  take  the 
crime  to  be  proved  in  the  broadest  extent  of  it, 
with  every  base  and  hateful  aggravation  it  may 
admit ;  the  first  marriage  solemnly  celebrated, 

Eerfecily  consummated  ;  the  second  wickedly 
rought  about  by  practising  a  concerted  frauci 
upon  a  court  ot  justice,  to  obtain  a  collusive 
sentence  against  the  first;  a  circumstance  of 
great  aggravation.  When  Farr  and  Chad  wick 
defendeda  burglarious  breaking  and  entering, 
under  a  pretence  of  an  execution,  upon  a  judg- 
ment fraudulently  obtained  against  the  casual 
ejector,  it  was  thought  toagerairate  their  crime, 
and  tiiey  suffered  accordingly.  1  allude  to  the 
case  in  kelyng,  43. 

My  lords,  1  take  the  ground  so  given  me 
with  this  reser? e^  not  that  I  wish  to  have  her 
crime  implted,  from  the  conduct  sbe  is  advised 
t)  hold  here,  to  all  purposes  and  conclusions ; 
but  that  the  necessity  or  the  argument  obliges 
me  to  assume  it,  as  plainly  and  distinctly  con- 
fesse<l,  while  this  sentence  is  urged  as  an  irre- 
fragable bar  to  the  trial,  whatever  may  be  the 
degree  of  her  guilt,  however  such  a  sentence 
may  have  been  obtained,  and  whether  it  tends 
to  aggravate  that  guilt,  or  to  extenuate  it.  The 
proposition  looks  so  enormous,  that  it  requires 
great  abilities  to  give  it  any  countenance,  and 
tiie  most  irrefragable  argument  to  force  the 
conclusion. 

I  must  also  remind  yotir  lordships  again, 
that  the  sentence  has  been  read  in  this  stage  of 
the  proceedin;^,  by  the  consent  of  the  prose- 
secutor,  and  under  the  express  reservation  of 
his  right  to  object  to  the  competence  of  it,  as 
evidence  on  the  issue  joined,  unless  he  should 
think  tit  to  make  it  part  of  his  own  cause ;  at 
present  it  stands  admitted  merely  as  the  ground 
of  this  previous  motion.  The  sentence  being 
collusive  is  a  imllity.  If  fair,  it  could  not  be 
admitted  against  tlie  kin^,  who  was  no  party 
to  the  suit.  If  admitted,  it  could  not  conclude 
in  this  sort  of  suit,  which  puts  both  marriages 
in  issue.  The  objections  arise  from  the  general 
nature  of  the  sentence  propounded,  which 
is  ne%'er  filial ;  from  the  parties,  who  could  not, 
by  their  act,  bind  any  but  themselves,  or  those 
who  are  represented  by  them,  or  at  most  those 
who  might  have  intervened  in  the  suit ;  from 
the  nature  of  the  present  indictment,  which 
puts  the  nuuriago  directly  in  iatne  ;  fron  the 


circumstances  peculiar  to  this  tenteDce,  wb 
prove  it  to  be  collusive. 

Without  adverting  much  to  those  particuli 
the  learned  counsel  for  the  prisoner  aflected 
lay  down  an  universal  proposition,  that  all  « 
tences  of  peculiar  jurisdictions  are  not  only  f 
missible,  but  conclusive  evidence ;  and  reten 
to  many  cases,  of  which  1  shall  controvert  i 
thing  but  the  application. 

The  case  of  Burroughs  and  Jamineaa,  S  S 
733,  is  nothing  to  this  purpose.  That  was  a  ai 
posed  contract  by  accepting  a  bill  of  exchan 
at  Leghorn ;   which  acceptance  was  void 
the  peculiar  laws  of  that  country,  because  t 
drawer  had  failed  without  assets  in  the  ban 
of  the  acceptor;  and  was  pronounced  to  be 
by  a  competent  court  in  Liegborn.    The  plai 
tiflT  insisted  upon  it,  because,  if  the  acceptan 
bail  been  made  here,  it  would  have  bound ;  bi 
accunling  to  the  law  of  the  place  where  it  m 
made,  the  acceptance  did  not  constitutti  a  co 
tract.    The  plaintiff  might,  if  he  had  been  s 
vised  otherwise,  have  defended  that  suit ; 
acquiesced  in  the  decision. 

Courts  of  Admiralty  sit  between  nation  a 
nation.  They  proceed  in  rrm,  and  they  bl 
the  property,  not  only  against  the  appart 
possessor,  but  all  the  world  ;  or  else  the  ve 
existence  of  the  Court  would  be  subvertc 
Any  body  may  claim  ;  and  proper  mnnitk) 
issue  fiir  that  purpose  :  therefore,  in  the  ca 
of  Hughes  andConielius,  the  plaintiff  failed 
his  action  of  trover  ;  alihough  the  venli 
found  his  property,  and  consequently  the  st 
tence  of  the  French  Admiralty  erroneous  ;  bi 
cause  the  Court  had  no  such  jurisdiction  ovi 
that  sentence.  For  the  same  reason,  in  Grei 
and  Waller, -the  sentence  of  the  Admiralt 
could  not  be  gain- said.  There  is  no  appeal  bi 
to  the  sword. 

The  same  principle  governs  as  to  seizort 
in  the  Exchequer;  where  any  person  ms; 
come  in  and  claim;  which  if  they  neglec 
they  tacitly  assent  to  the  condemnation.  S 
of  seizures  tried  before  the  commissioners  o 
Excise. 

8o  in  the  case  of  Moody  and  Thurston,  • 
Str.  481,  where  an  act  of  parliament  gave  af 
action  (on  a  certificate  of  commissioners  thai 
money  was  due  from  an  agent  to  ofiicers  of  tlu 
arm^-)  the  agent  could  not  defend,  by  cootrS' 
verting  the  truth  of  the  certiBcate.  It  wai 
contrary  to  the  act,  and  he  might  have  bct-n 
heard  before  the  commissioners. 

Where  a  soldier  had  complained  of  his  mt^fl 
for  undue  correction  to  a  court-martial,  whidi 
dismissed  his  petition,  he  could  not  maintain  ai 
action,  for  he  had  been  heard  in  a  court  com* 
petent  and  final  to  that  purpose. 

No  temporal  remedy  lies  to  recover  possei* 
sion  of  a  benefice  forfeited  by  deprivation 
while  the  sentence  of  a  court  competent  to  de 
dare  the  forfeiture  remains  in  force. 

The  same  rule  holds  as  to  derivative  claiml 
Therefore  the  judgment  of  ouster  against  < 
mayor  is  good  evidence  against  the  corpontoi 
who  olaims  under  him. 


449] 


for  Bigamy. 


t] 
•I 


"'I 

^1 


TbOM  who  enter  into  colletriatc  Mtablish- 
oeoti  airree  to  Bohmit  themKelVei  to  the  laws 
and  maifirttmiea  appointi'd  by  the  founder ;  and 
coMequently  eannut  reclaim  against  them. 
This  wasall  wliich  wa^  delermineil  iothe  Vi\u% 
ami  New-Colleife,  aud  many  other  cases  nliich 
nisfht  have  been  reterre<l  to  under  the  same 
head.  In  rooHt,  if  not  all  the  cases  citeil,  the 
paities  had  actually  been  heard  belbre  the  pro- 
per tribunal. 

The  office  of  ip^ntincf  probate  and  commit- 
tin^  administration  in  a  special  authority  com- 
aitied  to  the  Ecclesiastical  Courts,  where  all, 
who  claim  interest,  may  be  beard ;  so  thfre 
eui  be  no  defect  of  justice.  Therefore,  in  a 
fast  abunilance  of  cases  from  Noel  and  Wells 
•oeo  af\er  the  Restoration,  to  Barnsley  and 
PiBvell  en  lord  Hard  nick 'a  time,  the  temporal 
•ourti  ha?e  refused  to  take  cognisance  of  the 
light  of  personal  representation.*  All  the  cases 
•mier  this  head  prove  no  more. 

Cases  were  also  cited  to  prove,  that  issues 
jmed  upon  the  lawfulnesi  of  marriage,  pro- 
fcswMi,  general  bastardy,  and  so  forth,  must  be 
tried  by  the  bishop,  and  to  infer  thnt  his  juris- 
Moo  is  exclusive ;  and  the  statute  of  9  H.  6, 
«.  11,  was  cited  to  prove,  that  it  is  final  not 
oaly  to  parties  and  privies,  but  to  strangers. 
The  effect  of  that  statute  is  rather  to  prove,  that 
ill  the  world  nre,  or  may  be,  parties  or  privies. 
The  only  public  object  of  it  is  to  provide  sufli- 
Mt  notoriety  to  make  them  privy  in  fact,  as 
idl  as  in  law.  It  provides  a  great  variety  of 
fnclamatioos  to  the  end  **  that  all  persons,  pre* 
todin^  any  interest  to  object  against  the  party 
vliicb  pretendeth  himself  to  be  mulier,  may 
m  le  the  ordinary,  to  whom  the  writ  of  certi- 
iate  is  or  shall  l>e  directed,  to  make  their  al- 
kfitions  and  objections  against  the  party  which 

Cfendfth  him  to  be  mulier,  as  the  law  of 
y  church  reqnireth."  For  thereat,  the  sta- 
IMe  teems  to  have  betru  an  act  of  violence  mid 
friod,  by  the  powerful  pretenders  against  lady 
Audley.  The  mischief,  they  affected  to  dread, 
nald  not  happen.  A  certificate  is  utterly  void, 
■nlns  made  apon  process,  at  the  instance  of 
the  parties.  The  certificate  of  mulierty  binds 
the  parties  to  the  suit  (as  iu  all  reason  it  ought, 
Hile  sochft  trial  is  tolerated)  but  nobody  else : 
Mi  so  it  had  been  often  decided  before ;  and 
yn  the  statute  provided  that  every  such  writ 
Hd  certificate  at  the  suit  of  lady  Audley  fthould 
WfoiH.  On  the  other  hand,  no  such  issue  as 
folessinD,  bastardy,  or  lawful  matrimony, 
CMld  be  tried  by  the  bishop  between  strangers; 
lad  when  tried  by  the  country,  it  bound  only 
iWic  who  were  parties  to  the  trial  and  attaint. 
Kor  was  an  infant  bound  to  answer  a  plea  of 
roeral  bastardy.  But  whether  the  conclusion 
^too  extensive  or  not  in  these  cases,  still  it 
^  only  in  respect  to  a  civil  right,  and  tried 
V  a  competent  jurisdiction,  sitting  for  the 
iiprefs  purpose  or  deciding  upon  it,  the  juris- 
Vbon  being  created  and  established  by  the 
WiiL 

Benlenees,  which  are  given  by  the  bishop  or 
■I  official  of  fain  own  mere  aatbority  in  matri- 

VOL.  XX. 


A.  D.  1776.  [450 

menial  caiises,  have  the  least  pretenee  of  all 
others  to  bind  or  infiufnce  any  question  which 
may  arise  aUerwardK  in  •  judicature.  Siieh 
causes  punixh  no  erii^te,  try  no  right,  proceed 
to  no  civil  effect.  They  prucee«l  '  pro  Kalnte 
anim«  rei,'  to  reform  some  enormity  or  neglect 
in  religious  life ;  *  in  qua'  («Hys  Covurruvias  in 
his  epitome  of  the  4ih  iKMik  of  the  Decretals^ 
par.  9,  c.  8,  s.  .19,  n.  1,)  *  de  msximo  Sacra- 
mento agendum  est.*  The  process  is,  *  sim- 
pliciter,  de  piano,  sine  stre|Ntu  et  figurft  juiii* 
cii.'  Clement,  lib.  3,  t.  1,  s.  9.  From  the 
very  nature  of  such  a  cause,  it  must  follow, 
that  the  judgment  cannot  be  final.  No  con- 
sent of  parties,  or  .omission  to  appeal,  or  re* 
peated  affirmation  of  the  same  judgment,  given 
it  any  force.  <*  Quia  sententia  ilia  transiens  in 
rem  judicatam  fuveret  pecoatum,  senarando, 
veroi  conjuges,  vel  aniendo  eos  qui  tales  essd 
ncqueunt.  At  nullum  vinculum,  quantvlbm* 
cunque  multiplicaturo,  potest  firmare  actum^ 
ex  quo  peocatum  consurgit.'*  8anch.  de  Ma* 
trim.  lib.  0,  disputat.  100.  In  the  same  di»r 
putatioD  Sanchez  says,  *<  potest  etiam  judex, 
ex  officio,  parte  invita,  procedere  ad  retractan- 
dam  hojusmodi  sententiam  ;  imo  ad  id  teneri 
judicem  probat  texius;  quia  sui  interest  pec* 
cata  auferre.  Hinc  deducitnr,  certft  regulft 
prescribi  miniroe  posse,  quoties  audiendus  sit 
volens  prsedictam  sententiam  impugnare."  H^ 
illustrates  the  doctrine,  by  observing,  that  in 
costs,  which  is  a  civil  interest,  a  matrimonial 
sentence  is  binding.  **  Ratio  est  aperia  •  sen- 
tentia  eniro  matrimonii  ideo  non  transit  in  rem 
judicatam,  ne  foveretur  peccatum,  instinendo 
matrimonium  irrituro,  aut  dissolvendo  validnm  | 
quae  ratio  in  expensarum  condemnatione  oea<* 
sat;  et  ideo  sortitur  natnram  aliamm  aenten- 
tiarnra,  que  in  rem  judicatam  transeunt.'* 
Gain,  in  his  Observat.  107,  nnd  Obs.  113,  hotdt 
exactly  the  same  language. 

The  same  rule  obtains,  for  the  same  reasons, 
in  all  sentences  *  i>n>  salute  animoe.'  A  sen^ 
tence  is  inconclusive  (sa^'s  Vulteius  in  his  trea- 
tise de  Judiciis,  lib.  d,  c.  13,  s.  38,)  **  ex  quali* 
tate  causte ;  putik,  quod  est  matrimonialis,  vel 
alia  qufecunque,  in  quH  anims  pericolum  Terx 
aatiir."  Kcaccia,  a  very  authoritative  writef 
on  the  eflfect  of  senteneesi  in  his  book  de  Hen- 
tentiu,  gloss.  14,  quest.  S,  D.  44,  observes  as  a 
general  rule,  '•  sententia,  in  quft  Tertitur  ani- 
moe perlculnm,  nonquam  transit  in  rem  judi« 
eatam."  The  sum  of  their  maxims  is  gi\  en  by 
Oughton,  tit.  205,  which  is  taken  almost  lite- 
rally from  Consett,  and  by  him  extracted  from 
the  books  of  practice. — "  Although,  generally, 
witnesses  are  not  admitted  after  publicBtion, 
yet  in  a  matrimonial  cause  they  are,  even  with* 
out  oath,  that  they  are  come  to  the  knowledge 
of  the  parties  alter  publiontion.  And,  suppos- 
ing that  sentence  has  {wssed  against  the  plain- 
lifl^,  that  be  has  failed  in  proof  of  bis  libel,  and 
the  defendant  is  acquitted;  yet  the  plaintiff 
may  eithir  in  the  same  cause,  or  in  anotlier, 
raise  a  new  suit  against  the  same  person,  not 
only  on  a  new  or  second  contract,  but  on  ihn 
former,  and  produce  proofs  known  or  unknowa 

8U 


451] 


16  GEORGE  m. 


Trial  of  the  Duchess  of  Kingston, 


[48 


to  him  before :  and  be  is  not  bonnd  by  the  *  ex- 
eeptio  rei  judicatie,*  or  that  tlie  former  sentence 
has  passed  *  in  rem  judicatam  ;*  because  a  sen- 
tence ^iven  in  a  matrimonial  cause  neter  passes 
*  in  rem  judicatam,' and  has  many  privilegfes. 
IV hen  the  church  is  deceived  in  promulging 
sentence  against  roatrilpony,  the  sentence  may 
be  revoked  by  new  proofs,  and  even  by  the  same; 
and  tiie  reason  is,  to  eecheiv  sin  and  danger  to 
the  soul,  if  a  wrong  sentence  should  prevail." 

<  So  far  as  it  appears  to  us'  is  therefore  no 
idle  form  ef  woras,  but  an  express  reservation 
of  a  necessary  power  to  alter  the  sentence 
whenever  it  shall  appear  to  the  bishop  that  a 
different  rule  of  life  is  necessary  *  pro  salute 
animce  rei.' 

The  mistake  seem  to  have  arisen  from  con- 
■idecing  the  bishop  as  a  court  of  civil  judica- 
ture, and  liis  sentence  as  pronounced  upon  the 
trial  of  a  civil  right.  In  this  perverse  view, 
those  maxims  are  absurd,  and  those  rules  mere- 
ly veiatjous,  which,  tried  by  the  real  nature 
and  end  of  a  matrimonial  suit,  are  founded  in 

fiety  and  zeal  for  the  discipline  of  religion, 
n  all  civil  causes  the  maxim  is  universal, '  ex- 
pedit  reipublicc,  ut  finis  aliquis  sit  litium.'  In 
proceeding  *  pro  salute  auimoc,'  the  reason  of 
the  thing  is  altogether  on  the  other  side. 

Even  in  the  moment  of  stating  these  sen- 
tences to  be  conclusive,  one  of  the  learned 
counsel  could  not  forbear  to  give  your  lord- 
ships a  lively  representation  of  the  frivolousness 
of  their  proceedings  and  the  vanity  of  their 
decrees.  The  doctors  have  been  at  the  paius 
to  write  (says  my  learned  friend)  some  wag- 
gon-loads of  volumes  to  prove,  that  these  ma- 
trimonial causes  procee<l  to  no  end,  ond  termi- 
nate in  nothing.  All  parties,  all  privies  to  the 
suit,  all  who  have  interest  in  the  matter  of  it, 
may  prevent  its  efloct  by  inteivention,  by  cita- 
tion to  hear  the  decree  reversed  by  original  libel. 
The  sketch  was  drawn  with  a  great  deal  of  hu- 
mour, bordering  upon  ridicule :  a  vivacity  na- 
tural enough  within  the  walls  of  their  own 
college.  *  Vetiis  illud  Catonis  adinodum  scituni 
est ;  qui  mirari  se  aicbat,  quod  uon  rideret  Ha* 
ruspcx,  Uaruspicein  cum  vidisset.'  Yet  it 
seemed  rather  astonishing,  that  so  very  judi- 
cious an  advocate  should  think  this  picture  of 
futility  the  best  recommendation  of  the  sen- 
tence to  your  lordships  as  uu  absolute  conclu- 
sion u|H)n  all  your  proceedings.  Here  all  the 
H'orld  shall  be  bound  by  that  judgment,  which 
the  Court,  who  pronounced  it,  hold  for  no  judg- 
ment, and  will  suffer  to  bind  nobudy.  But 
such  was  the  necessity  of  the  argument,  to 
give  it  any  effect,  they  were  forced  to  assume, 
that  this  sort  of  sentence  is  the  judgment  of  a 
civil  judicature  upon  a  civil  subject,  which  is 
not  true ;  and  to  give  it  effect,  against  others 
than  parties,  they  were  forced  to  admit,  that 
•nch  others  may  set  it  aside ;  which  is  true, 
tfnly  because  it  is  no  such  judgment. 

^  In  support  of  this  loose  proposition,  they 
cited  from  our  own  books  several  cases,  in 
which  the  temporal  oonrts  suffered  themselves 
to  be  coacludea  by  nidi  senteuces. 


If  it  were  necessary  or  allowable  at  this  da 
to  reason  against  so  many  authorities,  1  shoul 
incline  to  think>  that  those  cases  proceedc 
upon  the  mistake  I  mentioned  before,  naoielj 
that  tiie  Ecclesiastical  Court  try  and  proDpnni 
upon  the  civil  right  of  marriage,  or  ever  mes 
to  do  so,  except  when  authorised  by  writ  of  tl 
king's  courts.  But  for  the  purpose  of  the  m 
gument,  I  will  suppose  that  they  do ;  even  the 
the  effect  of  all  the  cases  will  amount  to  b 
more  than  this.  First,  the  ecclesiastical  juris 
diction  has  (exclusively)  conusance  of  the  rigl 
of  manisge.  Secondly,  the  secular  jnrisdi< 
tion  has  conusance  of  the  temporal  interes 
which  are  incident  to  marriage,  and,  in  ordi 
to  decide  upon  them,  must  try  the  fact  of  mai 
riage,  as  part  of  the  question.  Thirdly,  bi 
the  judgment  of  the  ecclesiastical  jurisdicii<] 
on  the  principal,  viz.  the  right  ot  marriagi 
wherever  it  occu(iv,is  final  upon  the  trial  of  th 
incident.  Fourthly,  this  conclusion  extends  I 
all  who  were  i>arties  or  privies,  or  who,  in  do 
tion  of  law,  have  committed  laches  in  not  io 
tervening  or  reclaiming.  This  I  take  to  be  tb 
utmost  extent  of  the  cases  cited. 

The  earliest  case  referred  to  was  Corbett*! 
Fitz.  tit.  Consultation,  pi.  5.  Sir  Robert  Coi^ 
bett  had  issue  Roger  by  liis  wife  Matilds ;  ii 
whose  life  he  married  liCtitia,  and  had  issm 
Robert.  Roger  sued  in  the  Court  Christian  li 
avoid  the  second  marriage,  but  was  prohiUtcdi 
for  that  court  had  no  original  jurisdictioi, 
**  Otherwise,"  says  Catesby's  Justice,  **  if  ray 
father  and  mother  were  divorced,  married  is 
others,  had  issue,  and  died,  then  I  grant  well 
that  I  shall  have  my  suit  originally  in  tlit 
Court  Christian,  because  I  cannot  have  ny 
action  in  the  temporal  law,  as  heir,  during  tht 
divorce  ;  and  also  the  divorce  Is  a  spiritual 
ju-Jgment,  which  shall  be  reformed  in  the  ipi* 
ritual  courts."  So  it  was  doubted,  whether 
**  the  brother  of  a  monk,  who  abandoned  hit 
habit  and  vows,  could,  as  heir,  libel  to  try  hil 
hrother^s  profession,  and  hold  him  to  obedi- 
ence; for  he  iiii^ht  have  his  action  by  tb^ 
temporal  law,  and  object  hia  profession."  Bol 
it  was  agreed,  **  that  if  the  monk  hud  been  de* 
raigned  for  false  or  unjust  cause,  the  brother 
might  have  citation  to  revoke  his  defaignmeat' 
If  this  proves  the  effect  which  a  sphitual  seo* 
tence  u|)ou  the  principal  matter,  the  right  sf 
marriage,  or  profession,  has  io  cases  whers 
these  come  incidentally  into  qaestion,  it  sli0 
confines  the  extent  of  that  effect  to  those  per- 
sons who  may  rescind  the  principal  sentence; 
and  proves  the  reason  of  it,  namely,  that  thcj 
are  not  wronged  by  the  conclusion,  becaiiM 
they  may  always  be  heard  against  it. 

The  next  case  was  Bunting  and  Lcppiiigwcll] 
4  Co.  29|  a,  and  Moor  169;  which  was  tbM 
found  by  special  verdict.  Tiiomas  Twede  mar 
ried,  defucto^  .Agnes  Adinghall,  but  under  tin 
impediment  of  a  pre-contract  between  her  aoi 
John  Bunting.  Bunting  sued  in  the  jCoar 
Christian  on  this  pre-contract,  obtained  sientenei 
for  celebration  <  in  facie  ecclesiee,'  married  her 
and  bad  Lbsoe  two  lonsi  Charles 'mud  Robert 


453] 


fur  Bigamy. 


A:d.  1776. 


[I&i 


lUchsrd  the  father  of  John,  grave  laDds  to  Ro- 
Wrt,  for  life  only.  Hubert,  niistakiug  liis  title, 
Mttled  them  on  £inina  his  wife,  and  died. 
Charles  brooj^ht  an  ejectment,  as  heir  to  Rich- 
ard, his  i^randfather.  It  waa  objected  that 
Twede  had  been  no  party  to  the  fiuit  in  the 
Coart  Cbristian.  Bat  Twede  mi}fht  have  in- 
tfrrened,  ur  reclaimed,  all  hit*  lite  \^Xi^,  So 
night  Lmma,  if  it  could  hare  availed  her  to 

Cife  hiT  husband  illegitimate,  which  would 
re  destroyed  her  title.  But  Twede  had  aban- 
doned his  pretensions.  The  sentence  was  siib- 
initted  to  by  Affnes.  The  marriacfe  was  so- 
leutiily  rclfliralMl,  and  remained  uninterrupted 
ksnxi)i  lile.     The  qiieNtiou  was  between  two 

Iinuvs.  It  recjuired  little  argument  to  sustain 
liif  h^itimary. 

The  next  was  Kenn's  case,  7  Co.  68,  Cro. 
Jl  186.  An  English  bill  was  brought  in  the 
court  of  Wards,  praying  leave  to  traverse  an 
tSee,  whereby  I^lizaltf  th  was  found  the  infant 
Mrof  Christopher  Keon,  and  whereupon  the 
vtrilthip  had  been  granted  to  Florence,  the 
flMlber  of  the  infant.  Christopher  Kenn  had 
Barried  Elizabeth  Stowell,  by  whom  he  had 
ime  Martha,  who  left  issue  Elizabeth  the 
pitintift',  hia  heir  at  law,  if  the  marriage  had 
Mood ;  but  in  the  Ist  and  Snd  of  Philip  and 
Nary,  the  court  of  Audience  pronounced  the 
Mrriage  void  for  want  of  age,  and  gave  sen- 
dee of  divorce.  Christopher  Kenn  nrarried 
Sfaibeth  Beclcwith,  in  the  5th  of  £lizal>eth. 
She  libelled  him  for  jactitation  before  thecom- 
■iaionere  for  eccletsiastical  causes,  alleging 
Ui  furmer  marriage.  Elizabeth  Stowell  in- 
Ineoed  for  her  interest.  The  first  marriage 
*ti  a  second  time  pronounced  void,  and  sen- 
ttioe  followed  *  ad  excquenda  conjiigalia  oh- 
'a^oia.'  After  the  death  of  Elizabeth  Beck- 
«illi,  Christoplier  married  Florence,  by  whom 
Ik  bad  the  wanl.  This  matter  was  referred  to 
til  the  judges,  who  pronounced  the  sentence 
cndiisivc,  so  long  as  it  should  remain  in  force. 
Ai4  lord  Coke  relied  upon  Corbett's  case,  the 
.  tictriae  of  which  has  been  explaineil  before. 
^'  fte  point  had  been  twice  tried  with  Elizabeth 
^ell,  the  grandmother  of  the  plaintiff,  and 
^lenteures  remained  open  to  litigation,  but 
Mkmhted  to. 

The  case  of  Jones  and  Bow,  Carth.  235,  it 
*  hubeen  observed  before,  was  of  exactly  the 
fiae  sort.  The  plaintiff  claimed  under  the 
■oeof  sir  Robert  Carr  by  Isabella  Jones,  be- 
tviCB  whom  a  sentence  had  obtained  against 
Ae  pretence  of  marriage,  which  then  stood  un- 
i%ated. 

la  Jessum  and  Collins,  2  Salk.  437,  there 

^  a  sentence  against  the  plaintiff  in  the  Spi- 

'itaal  Court,  at  the  suit  of  the  defendant,  on 

Ihat  very  contract  for  which  he  brought  his 

aeuon  on  the  caae,  without  disputing  the  sen- 


B- 


Tbe  case  of  HatBeld  and  Hatfield  waa  also 
;  a  judgneDt  of  your  lordships  in  the 
1795.     No  authority  is  more  conclusive 
thejadffineiit  of  aucb  a  court,  when  the 
fiiatdtCM&N  k  well  oBderatood:  butnotbiog 


is  more  unciTtain  than  the  stale  of  a  point 
drawn  from  the  piloted  cases,  where  each  party 
takes  care  to  state,  at  least,  a  probable  case ; 
and  in  the  multitude  of  the  reasons,  good  per- 
haps in  law,  if  they  were  true  in  fact,  it  isdiffi- 
cult  to  divine  what  the  House  went  upon.  If 
this  judgment  dependetl,  as  the  counsel  fur  the 
prisoner  contended,  upon  the  goodness  of  tlia 
marriage,  it  carries  the  matter  no  further  than 
abundance  of  other  cases;  namely,  that  the 
sentence  of  a  Court  Christian,  while  nobody 
contests  it,  binds  the  right  of  marriage  between 
parties  disputing  elsewhere  an  incidental  in- 
terest under  it.  There  was  an  attempt  to 
make  it  prove  a  collusive  sentence  available, 
which  I  shall  have  occasion  to  examine  here- 
after. 

In  Cleeve  and  Bathurst,  2  Str.  960,  and 
Annaly  11,  the  sentence  was  against  the  very 
plaintiff  in  the  cause,  and  remained  uncontro- 
verted. 

So  Da  Costa  and  Villa  Real,  2  Str.  961,  or 
Mendez  and  Villa  Real,  Anualy  18,  was  a  sen- 
tence uncontroverted  between  the  same  parties* 

The  like  observation  occurs  upon  Mr.  Her- 
▼ey's  case. 

In  Blackham's  case,  1  Salk.  290,  the  sen- 
tence was  not  held  to  be  conclusive ;  and  as  to 
lord  Holt's  doctrine,  that  must  suppose  the 
marriage  put  in  issue  between  the  same  par- 
ties ;  for  otherwise  the  sentence  would  not  have 
concluded;  the  court,  which  grants  adminis- 
tration, having  no  direct  jurisdiction  in  matri- 
mony. 

In  Millesent  and  Milleaent,  cited  by  Dr.  Lee 
in  lord  Annaly  1 1,  which  I  take  to  have  been 
an  appeal  from  the  Prerogative  Court,  a  sen- 
tence of  the  Consistory  Court  against  a  mar- 
riage was,  white  it  remaine<l  unlitigated,  a  bar 
to  the  woman,  who  had  been  party  to  that  sen- 
tence, from  claiming  administration  as  wife. 

Upon  ail  these  cases  I  shall  repeat  but  one 
observation ;  namely,  that  they  bound  only 
those  who  had  been  parties  to  the  former  sen- 
tence, or  who  derived  under  such  parties.  If 
they  had  extended  to  such  as  might  have  be- 
come parties  by  intervention  or  citation,  the 
same  principle  would  equally  have  borne  them 
out.  The  fifeneral  peace  aad  happiness  require, 
that  there  should  be  some  resort  to  hear  and . 
determine  upon  rights ;  the  same  peace  and 
happiness  require,  that  litigation  should  have 
some  end.  The  line  seems  to  be  fairly  drawn, 
where  every  claim  to  every  right  has  had  the 
full  opportunity  of  being  heard.  But,*  among 
all  the  cases  cited  or  referred  to,  I  believe 
none  is  to  be  found,  where  a  sentence  has 
been  taken  for  conclusive  against  persons, 
who  neither  had,  nor  could  possibly  have  agi« 
Uted  it. 

It  is  not  enough  therefore  to  establish  the 
proposition,  that  such  sentences  bind  all  who 
nave  or  could  have  interposed,  unless  it  had 
been  shewn  that  the  king  could  have  interposed 
tor  the  public  good,  iu  order  to  s<fe  that  no 
fraud  should  be  practised,  which  might  tend  to 
defeat  the  execution  of  hia  lawi  or  police:  but 


4W] 


16  GEORGE  m.  Trial  of  the  Duchess  oflSngsion, 


[49 


it  is  not  preteniled  that  ihe  kiog  can  interpose 
iu  sncli  causes. 

It  is  not  enough  that  a  court  of  exclusive 
.civil  jurisdiction,  pronouncing  upon  liie  prin- 
cipai  ri(;lit,  biudsall  the  derivative  or  incidental 
Imerests.  It  should,  be  shewn,  that  such  a 
conn  hi  mis  also  to  criminal  conclusions :  non- 
Ibis  I  take  to  be  impossible,  because,  on  the 
irery  state'  of  the  proposition,  the  court  has  no 
eriniinal  jurisdiction. 

Jt  has  often  been  attempted  in  argument  to 
■hew,  that  their  courts  have  no  nwre  than  a 
oetisorial  jurisdiction  in  their  proceedings  '  pro 
*  saluie  animie,  et  reformatione  roorum ;'  and 
to  infer  from  thence  that  tbeir  judgments  ought 
Bot  to  bind  in  questions  touching  civil  rights ; 
as  in  Mendez  and  Villa  Real  in  Annaly:  but 
our  courts  liave  taken  the  fact  to  be  otherwise, 
and  considered  their  sentence  as  a  juilgment 
upon  the  civil  right,  whicii  is  the  reason  why 
it  binds  all  incidental  interests  in  other  courts 
of  civil  jurisdiction.  Tlie  true  reason  why 
such  judgments  have  no  effect  in  a  criminal 
court,  seems  to  be  this :  that  there  is  nothing 
in  common  between  the  jurisdictwns,  so  that 
they  csn  never  clash.  A  jndgment  in  a  civil 
suit  will  hind  to  all  Its  consequences,  although 
every  fact,  upon  which  it  proceeded,  should  be 
evidently  false ;  and  though  a  criminal  court 
should  have  found  a  crime  upon  an  opposite 
state  of  the  case.  An  actioo  and  an  indictment 
for  a  trespass  may  have  contrary  issues,  and 
yet  both  must  stand:  so  it  wonid  be  if  the 
crime  were  assigned  in  the  very  falshoods  by 
which  the  civil  court  was  deceived;  as  In  in- 
dictments for  perjury  or  forgery.  A  judgment 
unon  a  deed,  after  verdict  on  non  ett  ^factum 
pleaded,  is  no  Imr  to  an  indictment  for  forging 
or  publishing,  or  swearing  to  the  deed .  The  cane 
would  be  the  ssme  iu  respect  to  a  will  of  lands 
establisheil  by  verdict,  or  to  a  will  of  personality 
idler  probate. 

It  was  in  this  last  instance  they  attempted  to 
shew,  that  the  authority  of  the  Ecclesiastical 
Court  had  been  interposed  between  pnlilic  jus- 
tice and  the  crime  of  forgery.  For  this  pur- 
pose they  have  cited  the  case  of  the  King  and 
Vincent,  1  8tr.  481.  it  is  very  short :  «  in- 
dictment for  forging  a  will  relating  to  personal 
estate ;  and  on  the  trial  the  forgery  was  proved ; 
but  the  defendant  producing  a  probate,  that 
was  held  conclusive  evidence  in  support  of  the 
will.'*  Now  the  support  of  the  will  was  not  in 
question.  It  was  proved  in  common  form, 
which  is  not  binding,  even  in  the  Spiritual 
Court.  iRo.  Rep.  21.  More  particulars  of  this 
case  may  probably  be  known  to  some  of  your 
lordships ;  but  I  cannot  find  any.  Stated  thus,, 
it  certainly  requires  a  great  deal  of  considera- 
tion, before  it  be  admitted  as  law.  Here  the 
Juestion  was,  not  wbetlier  the  sentence  shall 
ave  credit  in  respect  cf  the  understanding 
which  the  spiritual  jiidffes  have  in  the  rules  and 
0nir«e  of  their  own  law,  but  whether  a  probate, 
Ipamed  of  course,  on  the  oatli  of  the  very 
party  ehaigird  with  the  forgery,  shsll  be  a  full 
f     g^d  'pofpctaiive  bar  !•  the  |>roMciilioB.    This 


is  too  monstrbuN  to  be  left  upon  the  anthori 
of  a  short  and  single  case,  without  coiidesceii 
ing  to  explain  what  consistency  with  publ 
justice,  wliat  respect  to  common  sense,  will  s 
low  the  crime  of  forgery  or  peijiiry  to  be  d 
feuded  by  the  allesatioa  of  that  very  frai 
which  the  indictment  meant  to  punish ;  ■ 
stating  any  trial  or  judgment  upon  it,  but  mer 
ly  that  it  had  been  practise<l.  if  the  pretendi 
executor  had  repelled  the  olijection  of  forger 
even  in  that  court,  it  would  have  borne  aon 
countenance  at  least;  but  the  fraud  pass 
without  examination,  where,  in  the  nature 
the  proceeding,  none  could  be  had. 

The  other  case,  in  1  Str.  703,  of  the  &h 
and  Rhodes,  proves  nothing,  for  it  was  mere 
a  question  of  direction,  whether  the  cou 
wouhl  proceed  to  try  the  forgery  of  an  instr 
meat,  while  the  property  to  be  affected  by 
remained  tub  judice. 

This  is  a  matter  of  great  consequence 
public  justii^e ;  at  the  same  time,  it  is  the  m 
of  case  which  most  happen  frequently.  Tl 
fraud  was  commonly  practised  in  the  *late  w 
upon  the  saik>rs  ;  and,  if  this  rule  had  existc 
could  never  have  been  nunisbed  :  but  it  w 
frequently  punished ;  and  although,  wiiere  i 
point  of  law  arose,  it  is  difficult  to  recover  cas 
at  the  Old- Bailey  or  on  circuits ;  yet  an  a 
cidental  publication  of  cases  in  the  Old-Bailc 
without  any  apparent  selectiou,  has  produe 
three  or  four  msiances.  One  Stirling  w 
convicted  and  hanged  for  forging  a  will ;  an 
so  little  were  either  prosecutor  or  court  a] 
prised  of  this  notion  of  law,  the  probate  mat 
part  of  the  evidence  against  him.  He  In 
registered  it  (as  it  was  necessary)  in  the  Sout 
sea-boase.  I  am  not  anxious  to  state  the 
cases  with  more  particularity  ;  because  I  eai 
not  bring  myselt  to  imagine  it  will  he  ente 
tained  aa  a  serious  opinion,  that  the  mere  pe 
pet  ration  of  a  crime  may  be  pleaded  in  bar  i 
a  prosecution  for  it.  This  is  certainly  not  k 
the  interest  of  justice,  nor  for  the  bonoiir'i 
the  Spiritual  Court;  because  it  would  tak 
away  from  that  jurisdiction  one  guanl  agaiM 
falshood  and  fraud,  of  which  every  other  i 
imssessed. 

Thus  much  concerning  the  general  propos 
tion,  that  sentences  in  the  ecclesiastical  couHi 
upon  civil  rights  within  their  conusance,  haff 
conclusive  force  upon  public  prosecutions  k 
crimes;  although  it  be  confessed  withal,  thi 
the  public  has  no  means  to  intervene  or  revie 
those  sentences,  and  although  the  civil  ttki 
of  such  sentences  is  not  touched  by  the  eve 
of  such  public  prosecutions.  If  this  grosi 
fails,  tliere  is  an  end  of  the  present  rootioi 
het  tliere  is  another  view,  in  which  it  has  bei 
urged  upon  your  lordships,  which  seems  totoi 
out  more  decisively  sgainst  it. 

Whatever  may  be  t^aid  in  the  instances 

forgery,   perjury,  and  other  frauds  upon  tl 

spiritual  court,  where  the  criminal  court  hm 

seem  to  impeach  the  foundation  of  their  ssi 

tences,  without  assuming  any  jurisdifllioD 

the  BMtter  of  them ;  ip  this  case  it  is  {bm 


i  » 


jr  m 


■M>'«l  ■ifcift.  Ibal  the  criminBl  court  ii  nol 
laHjr  c<HDfi«»iil  (0  deuile  ii|Hta  the  xliule  niat- 
Urof  ilaeiadii.'liDeni ;  paniculirly  on  liotli  llie 


■be|irM«ier,  itilarin«l  )iniiT  loriliilii|i»,  lliil  ihii 
^tmtr  was  liiriiier'y  |>uni«lti-J  bjrtlie  canon  law, 
«mI  id  the  Eoclesiatlical  Court;  Miit  lusivlett, 
UmI  trail ulaiTi II k  iI>f  |iiin<klin]Mit  of  il  limn  tlie 
•ocUaMtUcal  lo  ilie  lein|i(>raJ  jurisilii.'ljaii  nliouM 
■M  (Hpjuilice  any  'Irlcncei  wliicli  ibc  |jurtj> 
■  Mi^bt  'i"c  *vt  U|l  111  lIlP  firvr  cuurl. 

la  onlvr  IB  nnkp  iliut  nbiEttaliun  bear,  lome 
(WOofBlHuIil  bate  tteraiidilFJ,  that  ihiaseDlmce 
w«iihl  l>Mv«  liartnl  tuch  u  xtiil,  howerer  pro- 
naieil,  '  rxerpiiiMie  rci  jtidicatc'  Then,  «up- 
ptaMtff  ihi>  JurisdicrHiD  nil  betler  tban  ounciir- 
trot,  ihrs  oiart  minllt  lia*e  lieen  barrtd,  pari 
raimK.  But  your  liinUltipt  faa>«  already  bail 
Ilx:  iroiilili:  nf  lieariMt;  it  e<itabli«hc(t,  bti(  loo 
niucli  ■!  Ieni[(li,  Iriim  Uinr  book),  tliat  no  such 
01,-^iDii  wuuld  He  111  Ihrir  hiw. 

Tli«  unii-  ihiag  is  nu  1*M  true  in  our  Uw, 
e  Ux-  C<i«rt 


<i»acc  ol  ihr  riiglil  ut  r 


Thus 


Id  tlur    I 


tWtl»»n 


the  Comnian  Pleas,  l>v  writing 
Kip,  L-Hi)  »t:ll  try  lite  lanl'iilima  ul 
UP,  « itenunc«  i»  nu  p\ea.  Tliia  wb* 
lif  t-AJw  ot'  Uoliins  uid  Crulcliley, 
18,11?.  IV  ik^mindaBt  CDimird  as 
of  IbF  vDiluumi'iii  ul'  HobioE :  the  i«ntntx 
ylvadp-l,  lliKl  ihe  waa  nol  accuupled  tu  KidiinH 
M  tawlul  matrinioiiy.  i'lieid-inamlant  replied, 
Aat  on  ilie  ISth  nf  Pebrairy  ITM,  air  William 
WaUelv  lilielled  her  iia  his  wife,  in  the  bishop's 
taan  iiT  LitcbHihI.  lot  adultery  with  Rubins  ; 
(kal  alw  |ib«iled  a  RiarHa)^e  with  Robins ; 
tbu  lite  niiitp  Wat  remoted  into  ibe  Arcliei ; 
ihal  Riibiosdied  ;  aiiil  that  allei'wardaaentence 
yi-il  far  Ibe  inarriaKe  with  Robins,  which 
lb««  rcoiainnl  in  force.  The  teoftnts  demur- 
rad:  and  bad  jiiil|fn)enl.  The  deiiiandaol 
OMd  many  of  tl>«  case*  your  lurdaliips  have 
WW  beanl.  loprov*,  thai  asetilence.by  a  cnurl 
>>fdii«clJaTiMlii7iiDn,uutj[bUo  conclude  anoiher, 
whacb  hM  but  meidetilal  mnuiance  of  Ihe 
««ni>»  inatlw.  Hut  theae  irere  nol  Ihouglit  auf- 
iTuid  anoiber  Irial  of  the  wme  mar- 
■  court,  which,  by  wriiinn  to  lhi> 
ig^t  weU  decide  ijpaii  llie  lawf'ulnesi 
n  oinar,  itial  Ibc  tantence  would  ant 
Ill-led  in  llif  trial  befnre  the  bishop, 
le  teryalatuGe,  on  which  the  indict- 
cineil,  praiei  thesame  Ihin^.  Il  ex- 
(.-Bcea  where  ibe  foriner  roarriage  h 
or  itrdariil  toid  by  aeutence,  or  was 
tier  a^  of  conseiit;  all  which 
■uuld  olhccKiie  bnte  beeu  liiable  under  an  iu- 
fawtcDl  for  lelony- 

l»  m-drr  to  profe,  ihMany  sentence  in  the  Ec- 
«laaaiical  Court  would  bar  an  indiclmcnl  upon 
>M  aamF  mailer,  the  case  ot  Boyle  and  Buyte 
••■  ntod.  )l  it  re|innmt  in  3  Slnd.  164,  and 
^•Conib^rbaicb  7t.  la  ibaloa^eaprnhibltinu 
kwvniail  to  alop  the  trial,  in  the  Ei'cleai- 
Cauti,  of  a  marriage  there  claimed  by  a 
HI  a  auit  ul'  jaoiitaiioo ; 
/ 


ficmit  u 


A.  D.  1776.  [458 

which  marriage  had  been  found  bwl  on  an  in- 
diciment  liir  uolygamy,  for  which  the  man  wii 
coiiiicted  and  hutni  in  the  hand.  The  iwaaon 
ai>ai|nied.  here,  liir  ibis  judgtneot  was,  for  fear 
Ibe  spirilual  ceurt  abuuld  not  take  noLiee  of 
Ihejiidtfrneotpronuuncediii  the  temporal  court. 
Bill  (bis  would  have  been  extremely  irr^ular ; 
partieuUrly  if  hy  the  courae  of  the  ipiritual 
rourt  BHch  a  jud^eni  would  have  been  cod- 
cluiive.  Prohibilioii  iierer  goe*  npon  an  ap- 
prehension, thai  the  spiritual  court  will  do 
wroii|r';  but  where  their  rulei  of  trial  are  con- 
trary IB  liie  coalman  law,  a«  in  prescription,  or 
requiring  two  wilnesaea  to  a  releaie ;  or  when 
Ihey  excied  their  jurisdictinu,  by  holding  plea 
of  temporal  tnatlera,  as  debts,  freehold,  or  lem- 
poral  olfences.  The  rcaann  for  granting  this 
probibliion  was.  because  the  Court  Chriitian 
could  not  like  any  conusance  of  a  malter  ad.  .' 
jiid|>edTnlhe  temporalcourl ;  which  thereupon 
became  tempDral.  Ho  in  the  case  of  Webb  anil 
Conk,  Cfo.  jamei,  £35,  633,  prohihiiioo  went 
to  tlieCourl Christian  aiNurwiirhrarenlertajn- 
int;  a  libel  for  dehinatimi,  in  sayiuK',  that  one 
had  a  hattard,  who  wsk  adjodi^ed  (he  putatifff 
father :  "  for  lliiil  jiidirmeut  hein^  under  the 
authority  of  the  aiatute  law,  shall  not  be  im- 
peached in  Ibe  spiniiial  court,  or  elsewhere; 
and  all  are  canchiiled  to  say  the  contrary." 
Upon  the  aulhiiriiy  ul  this  case,  the  ^kkm  |ioiat 
wai  ruled  again  in  Thornion  and  Pickering, 
3  Keb.  300.     The  Eccleiiaiaical  Court  has  n«    *t 

■lely  belbre  that  of  Boyle  and  Boyle,  pmbibU 
lion  went  to  stop  ttsuil  Iberr  tbr  writing  a  libel  ; 
liecauie  an  indictment  wdl  lie  fur  it.  In  Ssrla 
and  VVilhims,  Hob.  388.  thia  matter  is  fully 
treated.  Th*  ordinary  has  n0|H)wer,  CTeuover 
clerfrymen,  in  a  crime  or  offence  uiuclring  iha 
crown.  Purgation  itself  wai  by  penniaaioB, 
and  ciiuld  not  be  ail  ministered,  il  tlie  lemportl 
court  delivered  '  ahsijiie  piirffatione  faciendl  ;* 
nor  belwern  theconiictiou-and  aentence;  nor 
beture  It.  In  all  these  cases  pmhibiiion  would 
lie.  And  iu  cTery  other  ewe,  if  utter  trial  of  ■ 
felon  they  (irove  or  dispntre  any  Ihuig  agaiust 
a  verdict,  priihihilion  lies,  tin  in  Hig^ron  and 
(.'oppiiigei-,  air  William  Jones,  S30,  probibiiioa 
went  In  stop  a  libel  tor  calling  one  •  aodomiie, 
"  For  as  they  cannot  find  the  principal  uSenee, 
it  nut  bein^  saved  lo  tb^m  by  the  sistula,  they 
shall  not  bold  plea  of  the  defamatioD.  Ana, 
where  any  tiling!  determinable  by  the  Bcole- 
siaalical  Court  is  made  felony,  or  ireason,  and 
the  power  of  the  Eccletiastical  Court  is  not 
Kaied  toil,  there  Ihey  shall  not  meddle  wilh 
the  offence,  or  tile  defamation,  which  arise* 
out  of  il."  The  true  reason  iberefore,  why 
they  were  prohibited  in  the  principal  case,  was, 
because  the  plea  depeodingbefore  them  was  out 
of  their  conusance. 

Another  case  wa«  cileil,  where  pmhibiiion 
went  to  the  Cooaisinrisl  Court  of  Exeter,  afler 
acquittal    upm  an  imltctment  fur  polygamy  i 


1 


It  been  I 


:o  find  it 


It  I  II 

Mure   jierTerse   iQleienoes  w«re   never  e« 
lorled  tram  aaj  cuw,  thkik  ftOA  Uwn. 


«5DJ 


16  GEORGE  III. 


T'ial  nftke  Ducheit  o/Khgfton 


[4* 


It  nf  Oyer  ami  Terminer  is  lo  delerniine 

'   wilhout  liparlo^,  Ibr  tliU  special  reason,  ilial  it 

,  'vill  beHoal.     A  caaci  of  direct,  <;om|ileIe,  aod 

f  cxcluilve  jurinliolioii,  ia  to  be  bouoil  anO  go- 

»».Tef  Bed  by  one  ctf  do  Juriidiction,  eilber  direct 

ri  or  indirect,  on  ibe  matter.     A  court  wliicli  de- 

•  oDce  Tor  eter,  ii  to  lie  bound  by  one  i* hicli 

_    iicTer  deciites.    The  Ecnience    remains  ogjeti 

(''for  fnrlber  eiaminalion  ;    let  il  iberelbre   be 

Jiiplt^  wilbaut  cvaminalioD,  in  order  Ibat  il 

lay  never  be  examined. 

Bat,  tu  conreM  llie  truth,  all  ivliicb  I  bare 

hilliertg  (aid  seems  to  bare  been  imnecesBary. 

Tliis  might  bate  been  pertinent  ar^metit,  il' 

(here  bad  really  been  a  sentence  lo  combat: 

but  there  is  none.     Il  has  been  virtually,  if  not 

exjiresaly  admilled,  lliat,  for  the  ]iur|M)ge  of 

drriilini;  u|ion  the  preeent  motion,  ytmrlord- 

nhipsinusiukeilfbr  panted,  that  the  aenlence 

ii  culliiiiTe  and  friuduleni  in  every  (iew,  sod 

lo  cieiT  degree,  which  ininKitialion  citn  repre- 

•eut:  fur  voiirlflrdsbips  will  nnl  put  iia,  in  ihii 

•U)[e  af  the  businen,  in  take  sejnrale  issiiea 

npuD  erery  auifgeftidii  which  maylie  made  for 

llie  primner.  In  tnilh.brr  counsel  hare  argued 

il  80  ;    etprfSily  conlendinir,  ihet  a  colhinire 

eenlence    xhall    bind    tlie  judgment    of   the 

Unule. 

Hut  nhal  kind  of  caie  has  been  made  or  at- 
tempted ?  What  aulliority  bai  betrn  cited,  IJiut 
a  cultusite  sentence  shall  prrjmllce  'itliers,  lliln 
the  parlies  to  il  ?  In  every  book  1  have  seen, 
il  is  Irealed  oa  a  mere  nullity.  The  only  dif- 
ference bftween  no  senlcace,  and  •  collutite 
one,  ii,  that  in  the  lirtt  case,  ynu  plaad  '  nul 
liel  record,'  generally  ;  in  the  last  you  plead, 
that  il  was  Mtaiueil  by  coiin  ;  consequently  il 
is  watte  paper.  ]f  the  Caiirl  was  inlDrmeil  of 
the  corin,  il  would  commit  the  parlien  lur  ihe 
contempt,  and  cancel  the  record.  This  could 
only  he  dune  upon  the  idea  of  tl)e  whole  pro- 
oeedinfr  bein^  a  nullity. 

In  the  44  E.  3,  ii,  b.  in  assize  of  norel  dis- 
seiain,  by  a  ilowresi,  Ibe  teniot  admitted  her 
title  lo  dower ;  hul  disputed  her  assize,  because 
she  had  been  endoHcd  by  one,  who  abated  u|>on 
his  pnsieasion  by  covin  with  her.  She  argue'), 
■hat  the  abator  gained  a  fee-simpie,  whereby 
be  might  lawfully  endow  her;  thai  recovery 
of  dower  o^iost  an  alialor  is  sufficient,  and 
thai  endowment  '  in  pals,'  to  one  who  hna  right, 
is  equal  to  recovery.  Tlie  tenant  replied,  that 
auch  endowment  was  but  disseisin  ;  therefare 
bJB  entry  was  congeable;  and  that  the  recovory 
tvould  have  been  in  Ihe  same  plight.  All  the 
judges  hehl  clearly,  that  "  if  one  has  artioh  lo 
certain  lands,  and  by  his  assent  and  covin  Ihe 
tenant  is  ousted,  and  be,  who  has  the  action, 
bringi  it  BgainBlthe  disseisor,  be,  who  in  ousted, 
shall  have  assize ;  and  Ihe  possession  of  him, 
who  recovered,  shall  be  adjudged  by  abatement, 
and  not  by  recovery  ;  because  be  was  a  dis- 
seisor. '£t hoc adjudicabalur coram  KniveL'" 
.The same  point  is  laid  down  in  many  books; 
and  in  3  Co.  78,  it  is  taken  as  a  general  rule, 
"  tliat  the  commun  law  so  abhors  fraud  and 
cotin,  tbat  all  acU,  ai  well  judicial  as  others, 


and  which  of  themseltes  are  just  and  ItvrfnlgK 
still,  being  mixed  with  fraud  and  deeeii,  are  H 
judgment  of  law  tortious  and  illegal." 
il  takes  away  Ibe  priiilrge  of  coverlurt  .^^ 
iofancy  ;  for  the  act  is  merely  void.  InlH 
case  in  Coke,  Ibe  hue  (a  judicial  acl)  was  bel 
for  none,  liy  reason  of  ibe  covin,  tio  Fan-  an 
Chadwick  were  both  hangeil  for  burglar] 
though  they  etilered  hy  an  '  hnbei'e  facins  poa 
sesiioneni ;'.  beciuise  it  issued  upnn  a  fraudai 
lent  judgment.  This  tvBs  thought  lu  heighlei 
the  offence.  •• 

The  principle  of  the  rule  applies  equally  tl 
tbejudgmenlaof  the  Ecclesiastical  Court;  an4 
so  Ihe  rule  was  applied  in  Dyer  339,  where  i 
revocation  of  lellers  of  admini 
void  for  covin.  Thus  too,  in  Garraii  an 
lioach,  1  Ves.  I.i7.  Lord  llardwiek  sayi  ( 
sentences  in  the  Ecclesiastical  Court,  that  ca|a 
lusion  will  overturn  \h 

fl  would  be  idle  a 
cases  on  this  head,  whii^h  indexes  would  fub 
nisb.  The  books  are  full  of  them,  from  l|i| 
annals  of  Edward  ihr  Sil  lo  ilie  Rei>orta  uf  ■ 
James  Biirron,  Indeed  there  never  was  ■  pa 
riml  of  lime,  in  which  Ibit  maxim  was  so  ooni 
liiinally  in  the  mouth  of  the  Court,  as  Ihe  IbM 
Bright  and  Eynon,  and  abundance  of  caia 
more  might  be  ciled  lo  prove  Ibis.  The  Cow 
seems  to  have  thongbl  il  Ihe  principal  and  mM 
capital  pari  of  its  duty,  the  '  nobile  otGciufl 
'Judicis,'  to  suppreu  and  exlinguish  evcir' 
species  of  fraud. 

9Iy  lords,  Ihe  language  of  the  eiviliana  an 
canonists  is  exaclly  the  same,  Scaccia,  in  bi. 
book  de  Sentenli^  Gloss.  14,  Quest.  13,  atal«i 
ibis  position,  ■■  ex  vulgst^  regull,  rem  inui 
alios  actam  alHs  non  nncere."  Upon  thi*  B 
makM  many  hiniialious ;  upon  all  of  whid 
lie  adds,  amongiil  olhers,  Ihis  sublimilalina| 

quando  senlentia  essel  lata  per  colluaioDein ; 


fraus 


'I  dohi.s 


alterius  prsjudici 
per  collusionem,  habelur  pro  nonsenlenlia;  ■ 
aliis  non  nocet ;  quarovis,  sublalA  cojliwioai 
Docerei."  The  same  thing  is  laid  dowa  b 
Covarruviaa,  in  bis  Practical  Questions,  «a| 
15,  n.  2.  He  qiiolca  this  text  of  the  D^a 
"  Si  bwredilalis  judex  contra  hnredeiD  proatu 
ciaverit  non  agenlem  causam,  vel  colluiiM 
agentem,  nihil  hoc  noceliil  legatariit,"  1 
Uerahlus  de  rejudicalA,  lib.  1,  e-ap.  S,  n.  1,  It 
same  rule  is  given  upon  the  same  autboritjr. 

Nay,  their  couris  ivill  receive  an  alleKMial 
fl^inst  a  judgment  at  common  law,  thai  jl 
was  by  cuvin  ;  and  righlly  loo ;  for  il  ia  a  duI 
Illy  ;  and  Ihe  aulborily  of  Ihe  Court,  in  whM~ 
fraud  is  practised,  is  never  in  question.  Ii 
Lloyd  and  jVIaddox,  Monr  017.  One  toed  ■ 
IheCourt  Christian  for  a  legacy.  TbeeKecuIsi 
pleaded  recovery  in  debt,  which  exhausted  a^ 
sets.  The  legatee  replied,  that  the  recnren 
was  by  covin.  This  allegation  was  admitted^ 
and  the  King's-beuch  refused  to  award  prtriiti 
billon.  Here  both  courts  agreed,  Ihal  to  allf^fli 
a  fraudulent  Judgment  was  lo  allege  nolhin^f 
aad  the  inferior  jurisdiclioa  was  (XfreMly  pei< 


461] 


for  Bigamy. 


A.  D.  1776. 


[461 


N 


mitted  to  try  this  sort  of  nullily  in  the  judg- 
Beat  of  the  superior. 

Tliere  is  a  f^i^eat  abundance  of  casefl  more, 
whicb  I  shall  ha?e  occasion  to  cite  to  your 
Ionl«hip«,  if  the  actual  fraud  of  the  present  sen- 
tence should  ever  be  disputed ;  cases,  in  which 
much  weaker  grounds  of  imputation,  thsn 
those  which  occur  here,  have  been  thought 
lafficient  to  avoid  a  judgment. 

But,  my  lords,  what  arguments  have  been 
Med  on  the  other  side  upon  this  part  of  the 
esse  ? 

First,  it  has  been  insinuated,  that  certain 
Hslutes,  made  against  covin,  account  for  the 
naoy  judgments  to  be  found  in  our  books ;  and 
pore,  that,  without  such  statutes,  they  could 
not  have  obtained.  But  many  of  the  cases 
Wits  before  the  statutes  referred  to.  The 
principle,  avowed  by  the  judges,  is  independent 
of  ihem.  They  ail  provide  either  additional 
noctions  against  fraud,  or  new  precautions 
•CiiDSt  the  opportunity  of  practising  it.  And 
it  would  be  a  very  mischievous  construction,  if 
a  statute  against  a  particular  fraud  were  to 
pnitect  every  other. 

Secondly,  the  fraudulent  sentence  must  be 
KDt  back  to  the  Court  where  the  fraud  was 
iraetised,  in  order  to  be  corrected.     Why  soP 
if  the  thing  alleged  against  a  sentence  were 
ffror,  mis-judging  either  the  law  or  the  fact,  it 
BMt  bo  reversed  m  the  same  jurisdiction,  ori- 
fisal,  or  appellate.    But  the  Court,  in  which 
ibe  sentence  is  uleadeil,  must  determine  on  the 
nality  and  application  of  that  plea,  just  as  it 
voald  on  auy  other  matter  pleaded.    Fraud  is 
a  fact.    The  conclusion  is,  that  it  puts  a  total 
«4  to  the  cause.    The  Court,  in  which  such 
OBse  depends,  roust  be  as  competent  and  ner- 
fecta  judge  of  that  fact,  as  tlie  Court  in  which 
&e  fraud  was  perpetrated.    I  say  as  competent 
ami  perfect;    because  the  Court,  where  the 
iraud  has  been  practised,  which  has  overlooked 
neh  circumstances  as  appear  on  the  v^ty  face 
•f  these  proceeilings,  docs  not  seem  to  me  the 
Krj  place  to  which  one  would  send  a  question 
•f  collusion  to  be  tried.     All  the  authorities 
Rfcmed  to  before,  and  the  numerous  instances 
if  icplying  fraud  to  pleas  of  judgments  by 
Mber  courts,  on  which  it  was  practised,  con- 
tradiet  this  notion,    fiut  cases  are  cited  on  the 
ilher  ade..    Kcnn's  cuse,  it  was  said,  proves, 
spn  the  state  of  it,  that  the  sentence   was 
nadolent.    The  bill  in  the  ccturt  of  Wards 
staled,  that  the  sentence  was  false,  and  with  a 
deal  of  aggravation.    But  whoever  referred  to 
■a  English  bill  for  the  true  state  of  any  case  ? 
Tbeqocstion,  referred  to  the  judges,  says  no- 
thing of  the  collusion.    The  case  of  Morris  and 
Wcfaber,  in  Moor  225,  was  also  cited  to  prove, 
that  collusion  apparent  in  an  ecclesiastical  sen- 
ICDce  did  not  binder  it  from  concluding  in  a 
Caart  of  common  law.    A  man  divorced  *  prop- 
kr  impotentiam,'  married  another  woman,  and 
had  coihlreo.    The  last  circumstance,  it  was 
laid,  disfiroved  the  cause  of  the  divorce ;  and 
"      're  tlie  judgment  was  apparenily  collu- 
Bui  lliAi  dr^umslaaca  did  not  even 


r 


prove  t|ie  judgment  false :   for  one  may  be 
*  habilis  quoad  banc*    The  law  presumes  the 
children  of  a  marriage  legitimate :    but  that 
does  not  prove  the  fact  of  generation  to  any 
other  purpose.     If  the  ground  of  the  sentence 
was  false,  it  would  not  follow  that  it  was  collu- 
sive.   Collusion  was  not  even  alleged  in  the 
case  ;  and  consequently  maftes  no  part  of  the 
judgment.    In  the  seme  manner  they  referred 
to  the  appellant's  printed  case,  in  this  House, 
in  Hatfield  and  Hatfield,  for  an  averment,  that 
the  sentence  was  fraudulent.    But  tliere,  as  it 
happens,  the  slate  of  the  case  disproves  the 
collusion  :    for  Porter,  the  defendant  in  the 
Ecclesiastical   Court,  was  in  the  appellant's 
•power.    They  cited  also  the  case  of  Prudham 
and  Phillips,  from  a  most  inaccurate  note  in 
the  margin  of  Strange,  961 ;   who  certainly 
knew  nothing  of  the  case  he  referred  to.    I'ho 
case  in  tnith  was  this :   Prudlwim  broughi  as- 
sumpsit against  Constantia  Phillips.    She  gave 
evidence   of   her    marriage   with    Miiilman. 
Prudham  produced  a  sentence  of  the  Ecclesi- 
astical Court  annulling  that  marriage,  b(>cause 
she  was  already  married  to  Delafield,  wJjo  was 
then  alive.    She  said,  that  sentence  was  frau- 
dulent.    But  the  Court,  admkting  that  the 
objection  would  have  buen  good  in  the  mouth 
of  a  stranger,  would  not  suffer  her  to  allege 
fraud  in  herself,  for  her  own  avail.   The  learned 
doctors  also  cited  a  case  of  a  lady  Mayo  and  a 
Mr.  Brown,  in  the  Prerogative  Court.    There, 
a  sentence  in  a  matrimonial  cause  being  plead- 
ed,  the  adverse  party  alleged,  that  it  had  been 
obtained  by  collusion.    One  learned  gentleman 
said  the  allegation  was  repelled  ;    the  other, 
that  it  was  not  admitted.    I  am  informed  the 
last  is  nearest  to  accurate ;  for  nothing  was 
done  in  that  matter.     The  cause  is  still  de- 
pending.   The  first  argnment  promised  all  that 
length  of  erudition,  which  your  lordships  were 
favoured  with  yesterday  :  in  view  to  which  the 
judge  asked,  whether  they  had  not  lielter  agi- 
tate the  question  of  fraud  where  it  was  com- 
mitted; an  issue  more  natural  for  the  judge  to 
wish,    than   proper  for  the  Conrt  to  award. 
The  most  loose  and  unconsidered  notion,  es- 
caping in  any  manner  from  that  able  and  ex- 
cellent judge,  should  be  received  with  respect ; 
and  certainly  will.     But  it  is  unfair  to  him  to 
call  this  his  judgment.    If  the  quesiinn  were 
my  own,  with  the  choice  of  my  court,  I  should 
refer  it  to  his  decision. 

Thirdly,  among  other  reasons  against  hold* 
ing  plea  of  the  collusion  before  your  lordships, 
they  insisted,  that  it  was  not  worth  while ; 
their  sentences  are  so  open  to  repeal  at  the  suit 
of  any  body,  that  whoever  finds  tliem  o1>j(H:ted, 
has  nothing  to  complain  of  hut  his  own  remiss- 
ness. Their  proceedings  are  so  frivolous  and 
ineffectual,  their  judgments  so  inconclusive  aud 
harmless,  that  nullity,  however  established, 
makes  no  material  difference  in  them. 

Such  were  their  particular  arguments.  In 
a  more  general  way  they  pressed  upon  your 
lordships,  with  much  earnestness,  the  consi- 
deration of  the  unhappy  case,  to  whicii  they 


463] 


16  GEORGE  III.  Trial  of  the  Duchess  of  Kingston,  [404 


wid  we  wonld  drif  e  the  prisoner.  The  sentence 
has  deprived  her  of  all  conjugfal  chums  upon  Mr. 
Hervey ;  and  we  acknowledge  it  to  be  conclu- 
sive upon  her,  while  we  insist  that  it  is  merely 
▼old  against  all  the  rest  of  the  world.  8he  is, 
therefore  aooording  to  us,  a  wife,  only  for  the 
purpose  of  being  punished  as  a  felon.  This 
strange  apology  was  not  insinuated  in  mitiga- 
tion of  the  punishment,  or  to  the  compasaion 
of  your  lordships ;  but  directly  and  confidently 
addressed  to  your  justice.  Do  not  proceed  to 
try  the  crime,  because  the  purpose  of  com- 
mitting it  is  totally  frustrated  ;  and  many 
other  inconveniences  have  ensued.  In  other 
words,  the  crime  has  been  detected.  These  dis- 
appoinlments,  these  inconvenient  consequences 
of  guilt,  arc  the  bars  which  God,  and  the  order 
of  nature,  have  set  against  it :  hut  they  have 
sot  been  found  sufficient.  It  demands  the  in- 
ler|iosition  of  public  authority,  whh  severer 
checks,  to  restrain  it.  Why  is  she  thus  ham- 
pered with  the  sentence  she  fabricated?  Be- 
cause she  fabricated  it;  because  justice  will 
not  permit  her  to  allege  her  own  fraud,  for 
her  own  behoof,  nor  hear  her  complain  of  a 
wrong  done  by  herself. 

In  short,  mv  lords,  the  motion  is  wholly  in- 
admissible. It  is  inconsistent  with  all  order 
and  method  of  trial  for  us  to  debate  imaginary 
topics  of  defence,  before  hearing  the  charge, 
and  for  tlie  court  to  resolve  abstract  questions 
upon  hypothetical  grounds.  Is  a  sentence  nro- 
nouoccHil  between  two  certain  persons  admissi- 
ble evidence  against  others ?  Is  this  species  of 
sentence  so  ?  Is  either  admissible  against  the 
king^^n  any  public  prosecution— in  this  par- 
ticular sort  of  prosecution? — Is  such  evidence 
probable  only,  or  cooclufetive— against  the  parties 
to  it— -against  strangers — against  the  king — 
and  in  what  cases?  What,  if  it  were  obtained 
by  collusion?  What,  if  by  her  collusion ?  Will 
it  serve  her?  May  she  oflTer  it  safely?  How 
much  will  it  |Nt)ve  sgainst  her?  What  evi- 
dence will  do  to  prove  the  collusion  ? — There  is 
DO  end  of  such  questions.  At  the  same  time,  I 
was  not  soiiciiuus  to  prevent  any  part  of  the 
argument.  Were  it  possible  for  your  lordships 
to  stup  this  prosecution  here,  I  have  no  desire 
to  wound  the  mind  of  any  person  unnecessarily, 
or  if  so  painful  a  duty  may  l>e  dis|»ensed  witii. 
But  I  have  rather  woiidere<l  to  hear  such  \in\iea 
as  these  thus  farencourai^'cd,  or  even  entertain- 
ed, on  the  part  of  the  prisoner,  with  coiifiJence 
enough  to  make  it  worth  her  while  to  avow, 
in  this  stage  of  the  business,  that  she  had  ra* 
ther  have  every  thing  presumed  against  her, 
than  hear  any  tfiing  pro«ed  ;  and  to  disclose  to 
your  lonlships,  not  an  anxiety  to  clear  ner  in- 
jured innocence,  but  a  dread  of  the  enquiry  : 
a  wish  to  submit,  in  silence,  to  the  charge. 
Was  this  her  solicitude  to  bring  the  question 
here?  Of  what  avail  would  it  In*  to  any  body, 
in  any  condition,  to  appear  in  any  court,  and 
defend  Ihns?  But,  in  such  a  court,  before  so 
venerable  an  audience,  to  bear  nothing  pleaded 
against  a  charge  (»f  infamy,  but  a  frivoioot 
objactiiMi  to  autoriag  upon  tne  coqiiiry  |— no- 


les8  topics  atronger,  more  pertinent,  and  poml* 
ed  could  have  been  urgeo,  I  am  execcaiBgly 
sorry,  upon  every  account,  that  the  tioM  of 
your  lordships  has  been  thus  taken  up,  and 
that  we  did  not  go  directly  into  the  examine 
tion  of  the  matter  before  you. 

Mr.  Solicitor  Generid  Wedderbum  (allerr. 
wards  successively  lord  chief  justice  of  the 
Common  Pleas,  and  lord  chancellor) : 

Mv  lords ; — There  are  two  quest iont  at  pr^ 
sent  before  your  lordships :  the  one  turns  mn 
the  effect  of  a  sentence  obtained  fnim  tho  Ec- 
clesiastical Court  in  a  caae  of  jactitation  ef 
marriage,  which  the  counsel  for  the  priantr 
have  maintaineil  to  be  a  conclunve  bar  Ki  the 
inquiry  now  instituted  in  a  court  of  crimiorf 
justice :  the  other  is.  whether  that  argumeal 
ought  to  be  admitted  in  this  period  of  the  pro» 
ceeding. 

My  duty  requires  me,  in  the  first  plaee,  ta 
submit  to  your  loidKhips  some  objections  It 
admitting  that  sentence  m  anticipation  of  tba 
charge,  after  a  plea  of  Not  Guilty  to  the  is* 
dictment. 

The  plea,  which  is  the  defence  upon  the  rs- 
conl,  denies  the  charge;  but  the  argomnl 
contends,  that  the  change  oui^ht  neither  to  k$ 
stated  or  proved.  To  proceed  first  to  coosiikr 
the  merits  of  a  defence  without  a  charge  dla* 
blisbed  either  by  proof  or  admission  of  lbs 
party,  is  at  least  a  very  great  novelty  in  a  cri* 
minal  proceeding,  ani  a  very  wide  deviatita 
from  the  ancient  course  of  trials ;  and  it  ii 
'a  presumption  of  some  weight,  that  a  moda 
of  trial,  which  has  prevailed  for  ages,  is  Kit 
founded  in  folly  nor  injustice 

In  the  regular  and  onlinary  course,  a  pri' 
soner  who  has  any  special  matter  to  allege 
which  ought  to  bar  the  enquiry  into  the  eriintr 
must  state  it  in  the  form  of  a  plea  of  tbe  n* 
dictment.  U|>on  the  pira  of  the  party  every 
court  of  criminal  jurisdiction  must  form  a  jfl' 
dicial  determination :  a  pardon,  a  former  ae« 
quittal  for  the  same  charge,  are  defences  which 
preclude  an  enquiry  into  the  crime ;  hot  llK 
party  can  only  insist  upon  such  defences  by 
pleading  them,  the  court  can  only  take  cogaii' 
ance  of  them  n  hen  pleaded. 

The  present  proceeiling  would  oblige  tbi 
court  to  try  the  vahJiiy  of  the  charge,  by  flitt 
hearing  the  defence ;  in  the  course  of  that 
hearing,  not  only  the  state  of  the  charge  i* 
supposed,  but  a  reply  to  the  defence  by  ne0 
facts  is  also  taken  by  sup|>osition ;  and,  thvAi 
such  a  metlioil  be  permitted,  your  lordsfaifi 
would  be  placed  in  a  situation  yery  differcn 
from  the  exercise  of  judicial  authority:  fef' 
courts  of  justice  are  not  instituted  to  deddt  * 
diFpuiation  upon  a  thesis  of  law ;  their  pro* 
viuce  is  to  decide  upon  real  fact,  not  upon  f^ 
neral  or  hypothetical  propositions;  nor  fl^f 
they  pronounce  the  law,  till  the  facta,  fllli 
w  hence  that  law  arises,  are  first  ntablialwd. 

Tilt-  counsel  for  the  priiODer  ara  Mif^ 
state  their  argument  ilm:  laaaaw  aa«  * 


4' 


4 
* 


i 


fir  Bigamy. 

1  inslitoted  lo  ioiiirach  thkt 

suit,  >  sentence  jirotioiiiiced 

ifae  Diarriagf: ;  Eiip|>i)se  ihkt  suit  and 

loe   Ifi   lime  Iteeo   framliilent,  jel  eien 

a  sentence  DU|{lil  la  be  coiicluilire,  anil  to 

ikr  all  iuuirj'  hito  the  crime  of  ■  secunil  mar- 

riVB.     Ttie  only  aoiKer,  whlcli  1  suLiniLt  lo 

jfMr   lordship}  Bucb  an  sr^umeul  at  present 

•Vmsod*,  is.  tlitt  a  court  of  justice  caanol  lup- 

[•■m  the  fad  uf  the  marriaKc,  Dor  ihe  suit  to 

ii,->eacb  tbe  leiralitjr  of  il ;  on  suppositiou  can 

■J  runoeil,  w  heiljor  tlie  proceeilini;  iii  that  suit 

.■■  Iraii-lulrnl  or  wu  fair,  Ihe  senteDce  real  or 

iiTirmlite  ;  the  partiei  inust  ai^rce  iijion  the 

.  It  bf^lbre  the  court  can  be  asked  Iv  declile 

.'-'  lai*  ;  il'  Ihey  do  nut  admit  Ihe  facts  ujhiii 

rro'rd,   il  remains  for  bulh    parties   la  pruie 

tthu  iliey  >l>iiik  nialerial ;  then,  ami  uot  Ull 

■batt,  U  IS  tbe  duty  ul'  the  court  to  jirouuuace 

Ibrlaw. 

Na  )»r«ce>lenl  has  been  quoted  Id  shrvv,  that 
k  aioular  urucerding'  was  ever  adtnitted  lu  a 
taoTt  of  cnnfinal  juTiidiction.  One  ca»e  only 
«aa  raimtjr  alluitnl  lo,  by  the  leained  gentle- 
■iiQ  who  f poke  finil  yealerday.  The  eaie  of 
Jonta  anil  B>n*,  cited  Irani  Carlliew ;  where 
tfae  reiiorier  ■■>«,  that,  "  hy  way  of  antiaijia- 
ijmt  III  ihe  rii-lvoce  Ihat  Ihe  plainlilT  vrus  aJwut 
t»  gi*r.  t\K  delenilBni  priMluceU  a  tcntence  of 
the  Etcte«i«Biic»l  Court  in  a  cause  ol'  jaclila- 
liuD;  a  debate  aro^e  upiin  Ihe  eiTecl  of  thai 
•estPDCi;,  and  the  court  beiiij;  of  opinion  Ihat 
Ibeaentrnce  waacaneluaive,  the  cause  beliveeo 
tbe  pafUea  rudedi" 

That  cauae  was  an  action  nf  ejectment  to 
bj  tbe  title  to  an  esliiie,  A  proueeding  by 
tjcctinent  ii  well  hnomi  lo  he  entirely  tii'Iiti- 
•Bk  In  a  ami  Tuunded  u|ian  a  lei^'al  ficlinn 
to  try  a  ijuestiDn  of  riuhl,  where  the  jud|[nienl 
a  DM  euiictusife  on  either  party,  there  may  he 
■a  aiisclii«f  in  pressing;  forward  10  Ihe  Cunclu- 
■M  williout  an  exact  atteuitnn  lo  fornla.  The 
tttm  dierelore  does  not  prove,  that  In  a  citil 
Mtion,  wbvre  jud);meni  it  jfiven  upon  Ihe 
■era  right,  aucb  prnceedinff  could  hare  been 
Atwfd :  but  a  criiuinal  proceeding  requires 
iUII  tain  precision  than  a  citil  tuil,  and  a-de- 
rislian  from  tlie  I'urmx  would  lery  seldom  he 
^tourable  to  the  accused,  If  the  prisoner  is 
BM  cuiiBiieil  to  ihe  dt^fence  jileaded,  neither 
ibe  proacculur  be  confined  to  the  luailer 
'  charge ;  Ihe  jndtje  and  the  Jury  would 
illy  encroach  upon  eacli  iiiher :  nor  could 
din){eruus  source  of  error  and 
to  permit  a  loined  eousirleia- 
kofUw  and  of  fact,  of  bypolhesis  and  uf  ar- 
lenl.  to  be  inlrudiiced  into  criminal  trials, 
mily  plei  tu  the  present  indictment  ta,  nut 
audtv:  Ibe  argument  your  lordships  hare 
Aeari)  ■iip|<u«es,  iliat  such  a  plea  ought  not  to 
Irtte  been  put  in  j  iliil  there  is  a  iiinre  jirudent 
ud  cautious  method  of  defeucc  which  you  are 
fcaired  to  hear  upon  suppoiilians,  wiihoul  the 
form  or  Mibstaiice  <il  a  plel. 

Tb«  counsel  for  the  prosecution  arelioond  lo 
^iWi   tbis  exptriiiient.     It  wonM  ill  become 
£a,  a^ng  in  iba  cbaractar  of  «  public  ac- 
VOL.  XX. 


A.  D.  n7«.  [4C5 

GUser,  to  advance  any  doctrine  which  they  did 
nol  believe  lo  he  founded  in  law,  or  to  aupiirtat 
an  objection  to  a  proceeding  which,  as  i(  ia 
norel,  cannot  pass  into  a  precedent  witbont 
frrtat  danger  and  mischief.  Should  that  ob- 
jection prove,  that  the  arKumenI,  which  in  tbis 
Blage  of  the  business  the  counEel  in  defenca 
have  been  permilled  lo  urge,  is  inadmisrible, 
your  lordships  will  however  have  no  resaan  tik 
regret  Ihe  deby  it  has  occasioned,  nor  (o  deeta 
that  time  mis-spenl,  which  bas  been  employed 
in  the  present  enquiry,  since  tbe  object  ot  it, 
Ihoiigh  frulllesi.  has  been  directed  lo  the  relielf 
nf  a  parly  accused.  Supposing  Iben  the  de- 
bate upon  the  effect  of  Ihe  sentence  urged  ia 
bar  of  the  trial  lo  be  proper  at  this  time,  I  shall 
proceed  to  thr  consideration  of  the  argument. 
— The  proposition  advanced  is  this ;  that  in  an 
indictment  upon  (he  statute  of  James  1,  foe 
marrying  a  second  husband,  living  the  Grst,  a 
sentence  of  an  eccTesisslical  court,  in  a  cause 
uf  JHi'iitaiioa  of  marriage,  pronouncing,  that  It 
does  not  as  yet  appear  lo  that  cuuvl  that  tbera 
hath  been  a  nrsl  marriage,  is  a  conclusire  evi- 
dence Ihat  no  tuch  marriage  ever  was  had. 

In  order  tu  make  out  Ihis  prnpusilion,  tha 
counsel  contend,  first,  that  it  ia  an  universal 
rule,  Ihat  ihe  decree*  of  courts,  having  compe- 
teoi  juriadictiuu,  bind  all  persuus,  anil  concluda 
in  all  eases,  in  any  mauoer  Inuching  the  mailer 
decided;  secondly,  they  maintain,  ihat  Iha 
senlence  of  the  Ucclesiastical  Court  In  quaa- 
liou  is  a  decision :  Ihey  urge  in  the  third  place, 
that  tbe  rule  first  laid  down  admlls  of  no  ex- 
ceptions, but  applies  wiili  more  force  to  cri- 
minal, than  to  civil  cases.  In  the  last  ptaca 
ihey  insist,  that  supposing  Ibis  sentence  to  ba 
the  effect  of  fraud,  collusion,  and  agreement 
between  the  parlies  to  tire  supposed  suit  in  tba 
spiritual  court,  il  is  notnitbstanding  conclusira 
upon  ttit  other  courts,  and  the  fraud  can  only 
he  examined  in  Ibut  court  whose  justice  haa 
been  thus  ensnared.* 


"  Mr.  Chilly  (Trenii'e  on  the  Law  relalira 
lo  Apprentices,  Ac.  chap.  4,  p.  105),  in  treating 
uf  tbe  operation  of  an  order  by  four  justices  to 
discharge  an  apprentice,  says,  "  No  case  ha* 
occurred  in  which  the  settleiueDl  has  depended 
npnn  Ihe  validity  of  such  an  order  of  discharge. 
The  power  of  a  quarter  seMioni  over  it  when 
liy  ing  a  qiieillnn  of  settlement  is  therefore  un- 
deciiled.  Bui  il  may  perbaps  he  concluded 
from  anilngy  to  tbe  proceedings  of  ecdesiav 
liual  [4  Co.  29.  Ciitb.  SUS.j  and  admiralty 
courts  [3  Bat.  end  Vut.  499,  5  East  tSS]  ibat 
being  a  direct  judgment  upon  Ihe  fact  by  a 
i-niirt  not  only  of  competent  bul  exclusive  ju- 
risdiction, it  IS  conclusive  of  the  question  be- 
tween contending  parishes  although  they  are 
not  immediately  parties  tu  tbe  senietice,  unless 
il  hfti  been  obuioed  by  fraud  fAniM.  T63)  or 
appears  altogether  told,  [Sir  T.  Rr.vMi,  40S. 
8  Tertn.  Hep.  QSa.  Case  of  the  Plud  Oven 
ih.  276,  D,  B.  1  RubiasoQ's  Ailm.  Rc^.  ISS-l 


VI67] 


16  GE0K6E  III. 


Trial  of  the  Duchess  of  Kingston, 


pnipnsitions ;  and,  were  f  only  engaged  in  a 
dis|iiitufioii  M'itli  tlie  learned  cfentlemen  upon  a 
nyeve  tiiesis  in  law,  I  should  be  inclined  hy  a 
deiii<il  to  insist  upon  better  {irirafs  tliao  have 
been  oflered  jn  siipiiort  of  ihtse  propositions.  I 
Teel  inyseir  however  under  a  very  diflTerent  im- 
pre^Nion  of  duty,  as  one  of  the  counsel  for  the 
jirosectition.  Tiie  prisoner  may  take  every 
advaiila'^e  that  the  laiv  will  allow;  from  us 
youv  lordships  h^ve  a  right  to  expect  every 
concession  that  justice  requires.  I  siiall  (here- 
fore  admit  (as  far  as  in  my  conscience  I  think 
them  admissible)  the  several  propositions  urged 
by  the  opposite  side,  state  with  as  much  fide- 
lily  as  I  can  the  true  limitations  of  the  doc- 
trines attvanoed,  and  aslsert  no  point  but  what 
1  h<»ld  to  be  clear  hiw,  supported  by  undoubted 
authority. 

It  is  contended,  in  the  first  plare,  to  be  a  uni- 
Yersal  rule,  that  sentences  of  courts  of  compe- 
tent jurisdiction  are  binding  upon  all  other  ju- 
dicatures, in  which  any  inquiry  arises  into  the 
matter  determined :  that  proposition  Iconceive 
to  be  much  loo  largely  stated.    The  rides  and 

frinciples  that  I  have  learnt  upon  that  subject, 
will  very  briefly  submit  to  your  lordships, 
not  meaning  to  argue,  but  only  to  state  them. 

It  is  a  general  maxim  of  law,  that  the  sen- 
tence of  a  competent  court  binds  the  parlies, 
and  all  persons  deriving  any  right  under  them  ; 
as  to  third  persons,  it  neither  prejudices  nor  be- 
nefits them. 

Another  maxim,  equally  true,  is,  thnt  a  aen- 
tenceof  a  court  having  competent  jurisdiction, 
if  it  comes  collaterally  before  another  court  in 
another  suit,  shall  be  presumed  just  till  the 
contrary  appears.  One  court  has  do  authority 
4o  direct  the  judgment  of  another;  but  it  is  a 
fair  presumption,  that  what  hath  been  decided, 
hath  been  justly  decided ;  it  is,  however,  but  a 
jiresuiiiption,  and  in  most  cases  it  obtains  only 
till  the  contrary  is  provc<i. 

1  admit  at  the  same  time,  that  there  are 
cases,  in  which  that  presumption  may  amount 
to  a  conclusion.  Where  (he  sentence  has  been 
pronounoed  in  rrm,  by  a  judicature  having  a 
peculiar  and  exclusive  jurisdiction  over  the 
aubject- matter  of  the  cause,  the  effect  of  such  a 
decision  is  not  to  be  controverted  in  any  other 
jCivil  suit.-l-  Tliese  propositions  are  founded 
in  the  consent  of  all  lawyers,  who  have  treated 
'  of  general  law,  and  arc  proved  by  a  series  of 
judicial  authorities:  to  quote  them  would  lead 
mto  an  iinnecessarv  detail  upon  a  |Mirt  of  the 
argument,  which  does  not  immediately  apply 
to  the  decijiion  of  the  point  in  question. 

The  cases  cited  on  (he  other  side  agree  with 
the  distinction  I  have  mentioned.  A  sentence 
'of  a  court  of  Admiralty  u|)on  the  forfeiture  of  a 
ahip;  tbejml;rinentof  the  court  of  Exchequer 
con^leiimin;;  Koods  as  forfeited ;  are  each  of 
th»m  c-oiicliihive  upon  this  principle,  that  the 
.  aenteoce  is  in  retn,  the  court  has  pronounced 
upon  the  property  itself.    The  cases  quoted  of 

t  Pake's  Law  of  Evidence,  pt  1,  c.  «, 
••  %,  g.  80.  Note. 


sentences  of  an  ecclesiastical  conrf,  are 
matters  of  which  that  court  has  the  pc 
and  exclusive  cognizance.    The  Ecclesii 
Court  has  the  sole  jurisdiction  of  caacf 
mentar^,  and  of  cases  matrimonial,  to  i 
tain  eflvct ;  if  therefore  a  question  arifes, 
is  entifled  to  the  personal  estate  of  a  mi 
ceased  wi(h  or  without  a  testament,  the  pi 
of  the  will,  or  a  grant  of  administration, 
the  tide  to  the  property  in  qufstion  ;  the 
of  it  cannot  be  contested  in  other  courts 
terally  and  incidentally,  because  no  other 
has  power  to  controvert  the  act,  no  otbi 
thority  can  confer  the  title  to  the  thing  ii 
pute.    Such  sentences  are  en  rem. 

The  case  is  very  difl*erent,  where  the  de 
is  upon  a  personal  contract,  or  any  n 
arising  out  of  the  various  civil  relations  o 
sons,  in  which  the  original  cognizance  c 
cause  uiitrht  have  come  before  the  < 
Where  that  decision  is  ofi*ered  as  an  evi 
of  right,  there  the  judgment  of  the  fo 
court  can  only  have  effect  so  far  as  it  is  jus 
authority  belongs  to  it  but  from  its  iutemi 
tice ;  for  the  court  in  which  it  is  produced 
DO  obedience  to  the  court  which  pronouns 
and  is  equally  competent  to  give  the  law  i 
parties.  The  effect  of  the  sentence  is  bene 
however,  for  the  party  who  has  obtaini 
because  the  justice  of  it  is  presumed,  the 
of  the  facts  on  which  it  proceeded  is  adn 
without  proof,  and  the  adverse  party  is  ol 
to  demonstrate  the  falshood  or  iniquity  of 

In  support  of  this  distinction,  1  wdl 
mention  to  your  lordships  one  authority 
late  dale,  which  I  select  from  a  multitti 
cases,  not  merely  because  it  is  a  determit 
in  the  last  resort,  but  because  the  rule  of  1 
stated  in  the  judgment.  The  case  I  allu 
was  decided  by  your  lordships  on  the  4 
March  1771,  u])on  appeal  from  the  Coi 

Session  in  Scotland,  by  Sinclair  against  Pn 

■* _    --   -  - 

•  See  Dougl.  Kep.  4,  (Note  to  2nd  ed. 
and  a  brief  account  of  the  cases  of  Crawfi 
Whittal,  and  Plaistow  v.  Van  Uxem,  ii 
same  Note.  How  far  a  judgment  of  a  fo 
court  having  com|ietent  jurisdiction  is  evii 
of  a  right,  was  discussed  in  (he  cases  nc 
by  Mr.  Peake  in  his  Law  of  Evidence,  chi 
§  2,  and  lately  (a.  d.  1810,)  in  Scotland,  i 
case  of  Kinlocli  and  Sohs,  attornies  of  CIn 
Arnachella  Chitty  against  Iiiverarity,  see 
sions  Papers,  and  Dictionary  of  Decii 
From  Mr.  Douglas's  report  of'Walfcer  r.  \ 
ter,  and  his  Notes  (o  it  (it  is  the  first  case  i 
volume)  a  difference  appears  between  the 
nions  u|M)n  this  point  of  lord  Mnnsfield  an* 
Just.  Bnller,  and  of  lord  Keiiyon.  In  an  i 
on  a  foreign  judgment  our  courts  will  exi 
into  (he  judgment,  and  for  that  purpose  rf 
evidence  of  what  the  law  of  the  foreign 
is,  and  whether  it  warrants  the  judgi 
Per  Eyre,  Cb.  Just.  C.  B.  2  H.  Blackst 
cit.  Peake^s  Law  of  Evidence,  part  L 
§  S,  which  see  for  more  on  the  ~  "^' 
also,  S  ly  of  the  MflM  diaplflr. 


l^- 


♦  -■ 


f  • 


4G0] 


'fir  Bigan^. 


A.  D.  1776. 


[470 


.1 


The  oucf  lion  there  wai,  what  shoald  be  the  ef- 
fed  oT  a  jodgment  obtained  by  the  appellaot  in ' 
Jamaica  P  "nie  peraoo,  against  whom  tliat  jadgf- 
ment  waa  directed,  wag  sued  upon  it  in  Scot- 
land.   It  happened,  that  the  Court  of  Session 
refaaed  to  give  any  eflTect  to  it,  and  held  the 
party  bound  to  prove  the  ground,  the  nature, 
the  extent  of  his  demand.    From  that  deter- 
mination an  appeal  was  taken  to  your  lordships, 
the  judgment  of  the  Court  of  l^ession  was  re^ 
f  ersed,  and  the  words  of  the  order  of  reversal 
weve,  **  that  the  judgment  complained  of  he 
lereraed  ;*'  and  oeclare  **  that  the  judgment 
of  the  court  of  Jamaica  ought  to  be  received  as 
evidence  prima  focie  of  the  debt,  aoti  that  it 
lies  on  the  defendant  to  impeach  the  justice  of 
it,  or  to  shew  that  it  was  irregularly  and  unduly 
sbtained." 

Ily  lords,  the  authority  that  I  quote  to  your 
brdshipa  will  have  considerable  enect  in  a  sub- 
irf|oent  part  of  the  argumenl:  at  present,  I. 
wljr  urge  it  as  a  proof,  that  though  in  cases 
where  the  sentence  is  in  rem,  where  the  Court 
Inia  peculiar  and  exclusive  jurisdictiim  to  de- 
termine the  title  to  the  thing  in  question,  the 

foreign  lawyers  be  permitted  to  give  testimony 
that  a  decision  made  in  their  country  by  judges 
having  com |»etent  jurisdiction  was  not  agreea- 
ble to  the  law  uf  such  country  ? 

Under  what  circumstances  and  to  what  ex- 
tent a  judgment  given  by  a  court  of  competent 
jarisdiction  in  one  suit  shall  be  c<Miclusive  as  a 
har  or  as  evidence  in  another  suit,  was  much 
Mated  in  the  case  of  Maingay  v.  Gahan,  ire- 
liod  1793,  in  which  the  court  of  Exchequer 
Chamlier  (lord  Clonmell.  C.  J.  K.  U.  lord 
Csrleton,  C.  J.  C.  B.  and  lord  Fitzifihboii  lord 
ehaocellor)  decided  (in  opposition  to  a  judg- 
IBent  of  the  court  of  Ex<:lier|uer)  that  evidence 
of  a  conilemuaiiou  of  exciseable  goods  pro- 
munceil  by  sub-commissioRers  of  excise  and 
afiimed  by  coumiissioners  of  api>eal,  is  coii- 
duvive  in  an  action  of  trespass  brought  against 
the  seizing  officer  for  taking  such  goods. 
Ridgeway,  Lapp  and  Schoales'n  Irish  Term 
HeiKirts,  vol.  1,  p.  1.  In  this  case  ui  Maingay 
V.  Gdhan,  great  use  was  made  of  I^Ir.  Iiar- 
gravv's  Treatise,  to  which  I  have  so  ircqiiently 
leferreil,  anil  of  the  cases  and  other  anthoriiies 
oiled  by  him,  partiruiar'y  of  the  contradictory 
deeisiuns  m  R«iberls  v  F«irtuiie,  and  Henshaw 
V.  PUi>c.ince  Of  these  the  former  is  re|H)rled 
bf  Mr.  Jiisi.  Blackhtone,  \ol.  2,  p.  1174;  and 
t(e  latti-r  K  ill  us  ifiven  by  Mr.  (largrave  from 
Mr.  Ford's  MS.  Note. 

**  In  inivcr  lor  64)b.  of  tea;  it  appeare<l  in 
evidence,  that  plaintiff*  sent  the  tea  for  one 
Ij'iyd,  with  a  permit;  but  the  porter  in  his 
Hsy  calleil  at  the  house  of  one  llochrlid'e,  where 
bating  sei  do<«n  his  liuilhen,  the  defendant, 
Hhii  was  an  exci^e  offict^r,  spi/t*il  ii  as  forl'i'itwl 
an  bring  brought  to  li^K^hclifle^s  hou'^e  for  U*s 
isr,  without  a  |>ermit  to  that  place,  according 
iMho  10th  .Geo.  1,  c.  ^0,  §  \6.  Upon  Not 
^ftiHty  plndrd,  defendant,  to  bUew  the  property 
*;l||Mltf  1^  fUiotiffy  ^roduoed  a  coudemna- 


presamption  iq  favour  of  the  judgment  ia  ad^ 
milted  to  be  conclusive;  yet  where  the  jiidg« 
ment  is  applied  to  personal  rights,  to  matters  of 
which  other  courts  have  equal  cognizance,  th^ 
party  against  whom  it  is  urgeil  is  at  hberty  tQ 
impeach  it,  to  shew  that  it  is  not  just,  or  that  it 
haa  t>een  irregularly  and  unduly  obtaint'd. 

This  beinur  the  distinction  in  civil  cases,  the 
question  arises,  how  far  these  rules  are  applica* 
ble  to  criminal  suits  ?  what  effect  ought  the 
sentence  of  any  civil  court  to  have  ax  a  ha*"  tq 
the  justice  of  the  state  in  the  trial  and  punish* 
ment  of  crimes? 

The  counsel  for  the  prisoner  argue,  that  if 
the  civil  right  is  destroyed  by  the  sentence  of  i| 
competent  court,  to  examine  into  the  crime  if 
an  absurd  inquiry  ;  where  there  is  no  relation, 
there  is  no  duty,  and  there  can  be  no  breach  of 
it.  Is  this  so  r  Is  it  then  competent  to  a  pai  ijr 
bv  anv  act,  destructive  of  the  civil  reiaiion.  If 
bolish  the  duties  of  that  relati«)n?    Persons 


a 


may  deprive  themselves  of  the  lienefit  of  any 
civil  right,  may  dispense  with  the  ailvantagep 
of  any  relation  of  life,  may  be  iniitleil  to  daim 
neither  as  wife,  mother,  nor  child;   but  can 

tion  by  the  commissioners  of  excise  upon  an  in- 
formation against  Kochchffe  for  receiving  thin 
tea  without  a  permit,  which  it  was  iu*«i>ted  was 
c<iuclusi\e  evidence  of  that  fact,  Iteing  a  jiula;- 
ment  before  a  proper  jurisdiction.  On  tne 
other  side  it  was  insisted,  that  plaiutiff  was  no 
party  to  the  suit ;  that  Kochchffe  had  nothing 
to  do  with  the  tea ;  and  that  if  she  made  a 
feigne<l  defence,  or,  as  the  case  was,  made  de- 
fault,' yet  plaiuiifY  uus^ht  not  to  he  affected  by 
that,  but  ahould  ahew  this  was  such  a  case  as 
no  forfeiture  arose.— But  per  Lee,  chief  jusfir^ 
thejudgmentof  forfeiture  is  a  jud;riiient  on  the 
thing  itself.  How  the  tea  came  t(»  Rochfliffe^fl 
house  was  a  matter  proper  for  the  consiileration 
of  the  coinmissionera ;  and  if  >1rs.  UoImtis,  the 
plaimifT,  was  willing  to  have  defended  the  suit, 
she  might  have  come  in  pro  interetxe  uio,  Mhieh 
not  doing,  her  property  is  biMind;  and  that 
there  is  no  more  in  this  than  the  co  iimon  t-use, 
viz.  thiit  com  Is  of  law  pay  such  d«'ference  lo 
the  judgments  of  each  other  in  matters  witliia 
their  jurisilict ion,  that  the  iir.it  deierfnin|iiiop 
by  a  pro|»er  authority  ought  to  prevail.  So 
then  the  tea  being  forfeited,  the  property  coulil 
not  be  in  the  plaintiff,  wno  was  therefore  non- 
suited.— Roberts  against  Fortune  at  sitiinga 
after  Easter  term  at  GuiMhall,  1742."  /tnd 
Mr.  llargrave  refers  to  Bull.  N.  P.  ed.  of  1775, 
p.  244. 

Upon  a  lihel  in  the  Consistorial  Court  for  dis- 
lurijance  in  the  plaintiff's  right  to  a  |»eiv,  the 
Court  adjudged  the  riiffit  to  be  In  the  plaintiff, 
and  admonished,  the  <lefendant  not  to  sit  in  the 
pew  ;  the  Court  of  .4i4:hes  reTer^etl  that  sen- 
tence, but  admonished  the  di'feiulant  noi  tnu^ 
the  pew  attain  ;  th<*^e  sentences  were  hehl  nut 
to  l)e  conclusive  evidence  of  the  plHiniiff  s  n:;ht 
in  an  action  for  a  disturhancp  hetween  the  Naron 
parlies.  Cross  v  Salter,  Pasch.  90  Geo.  3. 
3  Term  Rep.  639. 


471]  16  GEORGE  IIL  Trial  of  the  Duchea  oj  Kingston,  t^T^ 


they  alwoWe  therotel? ei  from  the  dotief  that 
belongs  to  the  natural  relation  P  Can  they,  by 
their  ovrn  act,  abiolTe  themsekes  from  the  aa- 
cred  datiea  of  those  civil  relationa  which,  in  a 
■tate  of  society ,  are  natural  relations  P 

My  lords,  the  proposition  1  eonlend  for  is 
■0  lar  from  absurd,  that  the  contrary  of  that 
proposition  would  involve  in  it  the  most  mani- 
fest absurdity:  the  civil  interest  is  important 
only  to  the  parties  themselves.  Whetner  an 
estate  lielong^  to  one  person  or  another,  whether 
k  party  is  entitled  to  rank  and  distinction,  to 
whom  related,  whose  wife  she  is  ?  the  question 
is  of  great  indifference  to  society :  hut  if  the 
estate,  the  relation,  the  rank,  is  obtained  by 
Criminal  means ;  If  the  situation  which  a  per- 
son chuses  to  relinqarsh  is  attended  with  duties, 
the  advantage,  bnt  not  the  duties,  may  be 
waved ;  the  peace  and  order  of  society  must  be 
maintained,  and  no  violation  ol*  them  can  pass 
with  impunity. 

If  there  is  an  universal  proposition  of  law,  I 
take  this  to  be  so,  that  no  determination  be* 
fween  party  and  party  can  preclude  public  jus- 
tice from  enquiring  into  the  criminal  tendency 
of  their  actions.  Daily  exfierience  proves  this 
in  the  most  trivial  instances.  An  action  is 
brought  for  an  assault,  the  parly  fails  in  it,  there 
it  a  verdiot  against  him ;  it  does  not  prevent  a 
prosecution  by  inilictment,  upon  the  very  same 
Tact,  against  the  very  same  party.  In  such  an 
indictment  was  it  ever  pleaded,  that  an  action 
had  been  brought  against  the  party  for  that 
mlledged  trespass  and  beating,  and  that  he  had 
been  acquitted  upon  that  action  ?  The  learned 
mnd  reverend  judges  will  inform  your  lordships, 
that  there  is  not  a  sitting  or  an  aasize  without 
•ome  instance  of  this  sort,  A  question  may 
mrise  in  an  action  upon  property,  to  which  of 
two  persons  a  thing,  a  horse  for  example,  be- 
longs. It  is  decided  to  belong  to  A  and  not  to 
B. :  would  that  decision  bv  an  indictment 
against  A  for  stealing  the  horse  P  It  is  no  an- 
swer to  public  justice,  that  he  has  acquired  that 
property,  when  the  object  of  the  criminal  en- 
quiry is,  whether  he  has  committed  a  crime  in 
acquiring  it. 

The  pro|io8ition  advanced  on  the  other  side, 
that  a  sentence  in  a  civil  suit  is  conclusive  in  a 
criminal  proceeding,  was  not  so  much  pressed 
upon  any  deduction  of  argument,  as  asserted 
on  the  authority  of  a  case  cited  from  Strange's 
lleports ;  in  which  it  was  said  to  have  been  de- 
termined, that  the  grant  of  the  probate  of  a 
will  by  the  Ecclesiastical  Court  was  a  bar  to 
an  indictment  for  felony  in  forging  that  will. 

In  the  (irKt  place,  your  lordships  will  give 
ine  leave  to  a^K,  does  it  enter  into  the  imagi- 
nation of  any  lawyer,  that  the  same  rule  would 
take  place  with  re^rard  to  a  will  of  real  estate? 
Had  such  a  will  been  produced  in  judgment, 
the  witnesses  to  it  examined,  the  validity  of  it 
canvassed,  a  judgment  in  favour  of  it,  even  a 
decree  of  the  court  ot  Chancery  establishing  it, 
]  do  presume  it  will  not  be  maintained,  that  all 
'  those  proceedings  would  prevent  a  prosecution 
for  the  foigery  of  that  will.    The  same  thing 


might  happen  in  the  case  of  a  deed  ;  a  deed 
may  have  been  established  by  a  decree  ;  tbar 
property  of  an  estate  settled  by  it,  irretrievably 
perhaps ;  would  there  be  no  ponbhment  for 
the  crime,  if  it  should  be  discovered  afterwards, 
that  that  deed  was  a  manifest  forgery  P  The 
estate  might  be  held  iiidefeasibly  by  the  party 
who  had  obtained  it ;  but  I  do  not  conceive 
that  hist  having  got  possession  of  that  estate, 
having  obtsineit  an  advantage  of  which  homav 
laws  could  not  deprive  him,  would  be  an  answer 
to  human  justice  why  he  should  not  be  pa- 
nished  for  the  crime  by  which  he  had  gained 
that  advantage. 

It  is  supposed,  however,  that  there  has  beea 
a  decision,  that  a  probate  of  a  will  of  peraonal 
estate  bars  an  indictment  for  for|j;lng  that  will 
Is  the  grant  of  a  probate  then  an  act  of  so  high 
a  nature,  requiring  so  much  judicial  accuriieyv 
that  it  is  not  to  be  questioned  ?  A  probate  ra 
common  form  is  not  even  a  judicial  act,  it  it 
merely  oflrcial ;  there  is  no  Inigation,  no  en- 
quiry ;  the  conscience  of  the  judg^  is  not  en- 
gaged in  it.  What  is  the  purpoiie  of  forging  a 
will  of  personal  estate  P  To  obtain  a  probate ; 
for  without  it  there  might  be  a  criminal  iotcn« 
tion,  but  no  prejudice  could  ariNe  to  any  perssa 
from  that  intention  :  ahall  it  he  aaid  then,  that 
the  accomplishment  of  the  crime  is  to  aflbid 
protection  for  itself?  The  authority  relied  oois 
a  note  in  sir  John  Strange's  Jteportv,  under  the 
name  of  the  Ring  and  Vincent ;  that  a  persoa 
being^indicted  tor  forging  of  a  will,  upon  pio- 
ducing  a  probate,  a  probate  in  the  f^ommoa 
tbrm  was  held  a  bar  to  the  proof  of  the  fbrgeryi 
and  he  was  by  the  judfpe  acquitted.  This  u 
the  whole  note.  It  is  a  great  misfortane  that 
notes,  very  often  taken  upon  loose  informatioo, 
are  given  to  the  world  under  res|>ectable  names. 
The  collections  of  a  lawyer,  made  only  for  his 
own  use,  must  abound  with  errors ;  in  pub- 
lishing such  collections  msny  of  these  wilt 
escape;  and  this  is  not  the  only  instance  of 
mistake  in  that  collection.  I  conceive  it  to  be 
impossible  at  any  period,  at  any  time  of  the 
day,  by  the  oegligeuceof  any  iuilife  who  might 
happen  to  be  present  at  the  Old  Bailey,  that  a 
prisoner  could  have  been  acuuitted  of  a  charge 
of  forgery  upon  such  a  defence.  I  say  this 
with  conHdeiure ;  because,  in  the  inquiry  that 
hath  been  made  into  the  cases  determined, 
maay  have  been  tbum),  where  partiea  have 
been  tried  and  convicted  for  forging  a  wiH  of 
personal  estate,  ami  the  evidence  to  prove  the 
publication  of  the  forged  will  has  been  the  pro- 
bate, produced  by  the  officer  of  the  Court,  and 
his  testimony  that  the  piisoner  was  the  person 
who  obtained  the  probate. 

Mr.  Attorney 'General  quoted  to  your  lord- 
ships the  case  of  the  King  and  Murphy.  Tho 
prisoner  there  had  the  double  villainy  to  turn 
the  charge  upon  his  prosecutor.  The  trial  waa 
attended  ny  counsel  who  do  not  usually  go  to 
the  Old- Bailey;  it  is  stated  very  fulhr  byn 
short- hand  writer  in  the  State  Trials.*    Thn 

'Ueeityvol,  19,p.694. 


for  BigaMy. 

if  ih«  K[d^  and  Bietting  wu  b1«u  m«n- 
""  u  trry  maoireM  that  tlial  im- 
Ermo  win  unjusUv  hHtiffed,  if 
Slranee  \»  law.  Sterling'*  rant 
^■iiliiii:  he  wu  indicled  far  littini;  lurfrvd  a 
will,  of  wliicb  will  he  had  oblainnl  a  |irunslc, 
■od  sndcr  that  tille  had  Iranifertnl  sunie  MDck. 
Thaperaon  wlioiewill  hesaid  it  was,  wBsahve, 
and  tirodiK^  as  (be  nilii(i>  i^inxt  hiui,  and 
«f  eognv  lu  iaip«ach  the  prolnte  of  her  own 
mil,  Alwurd  nv  it  may  atein  to  doubt  »  helhttr 
Ihatnidence  wm  co(n|irlcnl,  if  ihecaieuflhe 
King  and  Vinrcnl  wm  law,  iindoubifdly  tliat 
"itnrta  oii^hi  Dot  tu  bare  been  permitted  in 
pmnher  own  txinlence  ;  ahe  waa  dead  by  ir- 
trfragable  Ireal  ar([Unicnt ;  but  the  event  was 
fb{!rtrat,»Di  Mr.  Sterling,  natwillialandinif  the 
[iriibale,  lufTered  fur  hia  crime. 

ihniitet  ihaae  oawa,  there  vaa  aoolher  in  no 
toy  remeie  period,  tn  which  a  party  wei  tried 
(at  lb*  rnrifery  of  a  will,  jo  September  aeaaiom 
I ISJ.  at  the  Oiil-Dailey .  Uoe  Ricbanliou  and 
Carr  were  indicted  for  baiinj;  fur^d  a  re- 
t  for  the  payment  of  innney,  wilb  latent  to 
frauda  particular persoci,  who  wai  aieamsD, 
'I'litled  lowafcea:  the  comniQD  caaea  of  for- 
;--i_v  of  wills  have  been  in  the  cue  of  seamen. 
i-a  the  trial  it  appesreil,  that  the  receipt  waa 
;:<iea  in  the  lume  of  Jane  Steward,  who  waa 
U>»  aappoaetl  executrix  of  a  will  of  ihia  leaman, 
*Ueh  bad  been  prared  by  the  detendanl  Carr, 
^OB  tbc  Mlh  of  the  other  defendant  Richard- 
«■.  The  learned  judM,  Mr.  Itaron  Ferrot, 
VktIiMdthem,  waa  ol  npinioo,  that  the  pri- 
tanara  OUg:ht  to  be  aciiuitled  of  the  charnre  of 
ftlKli^  a  recdpt  for  the  money  ;  but,  bein^ 
HMftcd  from  the  evidence  that  llichardsun  liad 
ftqpKl  ibe  will,  nolwilhilanding  it  had  appeared 
b  Ibe  trial  before  bim  lliat  a  probate  had  been 
plolfd  of  that  will,  he  remanded  Kicbard»on 
lanal  to  lake  liia  trial  for  the  forgery  of  the 
VU.  RichtrdaoD  waa  accordingly  tried  in 
Ottabrr  mhmdi  1765,  far  forging  ibe  will  of 
Ma  Steward.  ■  mariner:  (he  officer  of  Ibe 
IWntive  Court  uroted  upon  that  Iria),  that 
ll*«Hl  WM  brougrit  to  his  office  by  Hichard- 
■■.and  a  prahale  of  that  wilt  granted;  and 
«r^  H-at  pinof  he  was  con»icled,  and  exe- 
cMri.  The  flnl  learnetl  jud|;e  had  remanded 
im  to  priwn  In  Uke  bis  trial  nl  tbe  eniuing 
wwiiiin  Ibr  the  forgi-ry  of  a  will,  the  probate  of 
artdrii  wa«  then  ia  court ;  and  upon  tlie  aecuud 
Uktnienl,  which  was  tried  by  the  noble  lord 
•ba  praai'lM  in  the  cuartof  King'a-bench.lbe 
piinijrr  vrit  convioied  nutH  11  h Standing  tbe 
■  i  .  ■  ■  -11  piDved.  Other  cases  hate  been 
"<  lour  lordahifia  to  the  same  ellvct 
H  liich  Uifficicnlly  refute  that  *in- 
'■t  ilie  King  and  Vincent,  the  only 

'- <ii  Mippotl  ihe  argnmcnt.  thai   Ibe 

b-ui.ii..    ,>|   ■()  BcclesiBslicaTCourt iaa  bar  10 

lliimi.'  ')>»■  removFi)  the  only  ahatacle  to 
It>e  |>ni[ii>Ntiun  1  meaat  to  rrly  upon,  ihal  in  a 
otaimal  imitor  a  aenlence  of  a  cit  d  court  (lUttbt 
-nel  I*  be  canclnaiTr  ■gainst  a  publio  accuaatioo, 
I  AMT  pncecd  ut  a  more  limited  and  close  ea- 


A.  D.  1776. 


t*74 


quiry,  what  effect  the  sentence  of  jaclitaiioii 
oiij^ht  tu  have  in  thin  pruceeding,  an  indictment 
for  bigamy  ? 

It  is  of  no  imporlanre  lo  ilie  preseni  nii|iiiry 
(0  invesiigalc.  by  what  nienns  lhe,coi,'niziine« 
rtf  causes  mntrimmiial  and  testa  men  larv  he- 
longs  not  lu  the  sovereign  of  the  slate,  but  ia 
Ifiieu  Id  id  order  of  men  dcilicaled  to  tbe  ser* 
tice  uf  relifrioD.  Tbe  loal  is,  thai  in  the  juris* 
prudence  of  ihie  coiin try.  causes  matrimonial 
and  leslaineatary  are  or  ecclFvlHBiicit  cnffni- 
zance.  The  right  lo  try  then)  it  not  drrived 
fbiui  the  king  aa  the  founlain  of  justice,  nor 
exercised  by  the  kini;'a  court;  but  wherever 
Ibe  royal  aulburiiy  tnterposrs,  it  iv  nnt  as  so- 
vereign of  lbcsiuie,bulasiu)'reinebead  uf  ihs 
church.  The  law  did  niM  even  inivrfrre  la 
pnniah  the  violation  of  the  matrimonial  lighla, 
and  adultery,  which  in  mnsi  couniries  uf  Eu' 
rope  is  treated  si  «  eiiros,  but  was  not  consi* 
dered  in  England  as  an  offence  pnnisbable  by 
the  ma^istrale,  but  left  to  tbe  correciion  uf  ec- 
clesiastical eeninre.  At  length  howeter  Ibe 
riolation  of  conjugal  duty,  accompanied  with 
tbe  circnmstaoce  of  an  open  atiack  upon  the 
order  of  society,  by  a  second  marriage,  wan, 
by  special  statute,  made  a  crime :  u  hen  I  say 
made  a  crime,  I  d»  not  mean  it  wss  msde  mure 
imniorsl;  but  it  was  made  a  subject  of  criminal 
cognizance  by  the  maaiislrale.  The  learned 
counsel  who  spoke  secimd  yealerduy  contended, 
that  this  staiuip  gaie  no  jiiHsdieiiun  to  Ibe 
temporal  courts  tupronnnnce  upon  the  Ipgility 
of  the  marriage;  bul  that  the  jurisdiciinn  of 
the  Ecclesimtical  Court,  as  lo  the  trial  of  tba 
marriage,  remained  atill  abioluie.  It  waa  ne* 
ceasary  fur  bis  cause  to  attempt  thisarguneoli 
bul  lo  maintain  this  proposiliot)  is  a  very  ililG- 
cull  task.  Tbe  legislature,  fifiy  yeara  al^er 
the  Relbrmalion,  has  declared  thai  tbe  crime 
of  bigamy  aball  be  pnnisliable  aa  a  lelony  by 
tbe  magistrate.  To  cnntict  a  person  nf  that 
crime,  must  not  the  mngistrate  try  him? 
Has  be  not  Ibe  power  to  acquit  or  condemn 
him  t  Has  be  only  an  authority  to  intlict  Iba 
punishment,  an  in  old  limes,  r  ben  Ihe  church 
delireretl  over  the  olTeoder  to  Ilie  secular  arm  i 
and  is  the  sentence  of  the  spiritual  court  to 


dcaiastical  Court  in  the  prf>*eni  c< 
be  against  ihe  firal  marriage,  and  ibereliire  it  la 
urged  ih'  prisoner  ouehl  lo  be  prniecinl  by  il ;  ' 
but,  if  tbeartiurneni  IhJusi,  ilraiul  hold  ci|UBlly 
where  the  eentrnce  is  tiir  the  marriage:  il 
loundi  leaa  harsh  lu  eontend  that  ■  parly,  de- 
clared  nut  to  be  married  in  Ihe  Hist  inatsoce  by 
Ihe  K|iirituBl  Ciiurl,  aball  not  be  qiiesliooeal  far 
the  aecond  marriage.  But  by  the  satne  rule 
we  mUKi  conclude,  that  if  the  Spiritual  Court 
had  determined  for  tbe  marriage  in  the  flrst  in- 
■tnnce,  and  Ihe  fact  of  a  second  raamage  had 
beeu  proved,  il  would  cot  have  been  oonipelent 
for  Ibe  prisoner  in  an  indiclmrnl  lor  bigamy, 
so  circumstanced,  lu  have  ms'le  any  drfence  : 
be  it  concluded  by  the  scutince.  the  judge  and 
jury  are  bouod  to  belieee  il,  and,  upon  tlut 


ft75] 


16  GEORGE  in. 


Trial  of  the  Ducheu  of  Kingston, 


[47( 


■entoDCc,  ^thout  evtniiiilioii,  to  eoowd  tiid 
to  puoith. 

The  effect  of  the  statute  I  take  to  be  veiy 
ilifferetit :  it  has  created  a  new  offence,  aoil  for 
the  trial  of  that  offence  the  cognizance  of  the 
lawfulness  of  marriaji^  is  Ki^^n  ^  ^®  temporal 
courts.  As  to  all  criminal  consequenoea,  that 
courl  has  oo^izance  to  determine,  as  well  as 
the  Ecclesiastical  Court,  what  is  and  what  is 
iH)t  a  legfal  marriage  between  the  parties. 
That  it  has  so,  the  caso  of  Boyle  and  Boyle» 
quoted  to  your  lordsiiips  for  another  purpose, 
is  a  clear  proof:  that  was  a  probibilion  issued 
to  the  £cciesia8tical  C!onrt  to  enter  into  an 
•lamination  into  that  cause  of  marriage,  which 
the  Court,  In  trying  the  indictment,  had  deter- 
mined. The  other  case  mentioned  by  the 
learned  doctor  is  to  the  same  effect.  The  two 
cases  differ  onl;^  in  this,  thai  in  one  the  party 
was  convicted,  in  the  other  acooitted ;  but  the 
Court  was  of  opinion  in  both,  tnat  the  Ecclesi- 
astical Court  could  not  interim. 

It  is  unnecessary  however  to  have  re- 
course to  authorities,  for  the  Matnte  itself  has 
decided  this  question.  The  legislature  seems 
to  have  bad  it  in  view,  that  a  jurisdiction  being 
newly  given  to  the  temporal  courts  in  the  trial 
of  marriage,  questions  might  arise,  as  between 
oancurreot  jurisdictions,  what  should  be  the 
eflfect  of  sentences  prooounce«l  by  the  Eccleai- 
flstical  Court.  It  was  a  wise  foresight  in  those 
who  compiled  the  statute,  to  define  in  what 
cases  the  sentences  of  tbe  ecclesiastical  courts 
oocht  to  preclude  any  enquiry  for  the  crime ; 
cod  it  ir  defiiieil  in  tlie  words  of  the  exception, 
*^  tliat  this  act  sliall  not  extend  to  any  |»ersons 
divorced  by  the  sentence  of  the  Ecclesiastical 
Court,  nor  to  any  pers<»ns  where  the  former 
marriage  has  bef  n  by  the  Ecclesiastical  Court 
declared  void  and  null."  There  are  two  cases 
then  put  by  the  statute,  in  which  the  sentence 
of  the  ficclesiasliral  Court  protects  the  partf 
against  a  criminal  enquiry;  sentence  of  di- 
vorce, ami  sentence  of  nullity  of  marriage  :  if 
Iheretbre  the  Eoclesiaslical  Court,  having  com- 
petent jurisdiction,  has  either  divorced  the  par- 
ties, or  if  it  has  pronounced  sentence  of  nullity 
of  marriage,  the  sentence  in  these  two  instances 
is  conclusive :  but  the  atalute  has  no  exception 
in  favour  of  a  sentence  in  a  cause  of  jactitation. 
There  is  no  pretence  to  argue,  that  a  sentence 
in  c  cause  of  jactitation  is  either  a  sentence  of 
divorce,  or  that  sentence  which  makes  the 
marriage  void  and  of  no  effect :  no  lawyer,  no 
civilian  can  make  that  mistake.  What  then 
does  the  exception  prove?  Two  sentences  of  tbe 
Ecclesiastical  Court  are  recited  in  it«  the  third 
is  omitted ;  and  it  is  a  general  rule  of  law,  that 
wherever  a  statute  excepts  particular  cases,  the 
exception  of  those  cases  extends  the  statute  to 
nil  caaes  not  excepted.  That  proposition  is  too 
dear  to  require  authorities  to  be  cited  in  sup- 
fort  of  it.  The  law  therefore*  which  aaya  tlie 
trial  of  polygamy  shall  proceetl  in  all  cases, 
exeept  where  a  sentence  of  divorce,  and  except 
where  a  sentence  of  nuUity  of  marriage,  has' 
mter? cued,  don  firtmily  iay»  thct  a  mtcBoe 


in  c  cause  of  jactitation  of  marriage,  which  i 
neither  of  divorce  nor  of  nullity,  shall  not  be 
the  -trial.  I  conceive  therefore  tlie  atainte  t 
have  decided  this  question. 

The  argument  on  the  other  side  ia  pat  in  i 
more  plausible  form,  by  stating  the  defrace  ti 
be  founded  upon  a  fact,  of  which  the  aeoteeci 
of  tbe  Ecclesiastical  Court  it  the  beat  evi 
deuce :  there,  can  be  no  double  marriage,  it  i 
said,  because  the  sentence  disproves  the  fin 
marriage.  This  mode  of  stating  the  argumaci 
makes  it  necessary  to  examine  the  nature  a 
a  suit  for  jactitation  of  marriage,  in  order  II 
see  what  credit  is  due  to  the  sentence  when  of 
fered  as  evidence  to  disprove  tbe  first  manisf  e 

A  suit  for  jactitation  of  marriage  is,  mm 
beginning  to  end,  totally  singular.  ^  SoM 
writers  on  the  canon  law  derive  its  origin  froa 
the  doctrine  of  pre-contracts,  which,  by  tbi 
ecclesiastical  law,  constituted  a  marriage:  aa4 
till  that  very  mischievous  prejudice  was*  d^i 
stroked  by  the  late  Alarriage  Act,  it  is  not  sar* 
prisnig  that  any  attempt  to  lessen  ibe  evil  ahonM 
mt^t  with  encouragement.  The  form  of  A^ 
suit  is  this:  the  supposed  husband  or  wi^ 
complains  to  the  ecclesiistical  judge,  that  ha 
or  alie  is  a  person  free  from  all  matriinoaiil 
contracts  or  engagements  with  tbe  advciap 
party,  and  ao  esteemed  by  all  i^eighbooia, 
friends,  and  acquaintance;  that  the  ailvenfl 
party,  notwithstandinci:  the  knowledge  of  tbilb 
has  falsely  and  maliciously  boasted  of  a  OMT^ 
riage  with  the  parly  complaining ;  it  condwlci 
then,  by  such  tklse  assertions  au  injury  iacopf 
mitled,  and  prays  that  right  may  be  done  kjt 
declaring  the  |Mrty  free  from  all  matrimaaitt 
engagements  with  tlie  other,  and  by  enjuraiBg 
that  party  perjietual  ailence.  The  party  de- 
fendant may  either  Siiy,  1  have  not  WMSted,! 
deny  that  tact ;  or,  it'  he  admits  that  he  bM 
boasted,  he  is  then  to  go  on  and  allege  dfr 
cumstantialiy  a  marriage,  which  the  otbsi 
party  denies,  under  the  circumstances  allejpf^ 
If  the  marriage  is  not  pruve«l,  then  tlie  cmM^ 
pronounces,  that  so  far  as  )et  appears,  tlie  paitf 
complaining  is  free  from  matrimonial,  coutraci 
with  the  other  party,  and  enjoins  perpetual  ii« 
lence.  i 

Aiier  this  sentence,  so  gravely  prooouoecfti 
your  Icfrdships  are  told  by  all  the  learneil  daor 
tore,  and  all  the  b<N>ks  (»f  practice  agree,  tbaf 
this  injunction  of  perpetual  silence  cimtioiNI 
no  longer  than  till  the  party  cliuses  to  ta^f 
again ;  and  the  person,  to  whom  he  may  with 
the  most  perfect  safety  re|ieat  his  assertions,  il 
the  judge  who  enjoined  him  silence ;  for,  it ) 
agreed  on  all  hands,  that  the  pany  may  at  an] 
time  inform  the  court,  that  though  it  did  MM 
appear  formerly  that  be  was  married,  he  ca^ 
make  it  appear  now ;  and  such  proof  ia  ad; 
missible. 

The  forms  of  all  courts  had  probably  a  gcai 
original,  and  this  suit  may  have  been  intrc 
diiced  to  prevent  a  greater  mistrhief;  bat  ilj 
impoaaibie  to  avoid  collusion  in  aiicli  a  ffo^ 
oeedittg,  .which  has  no  avowed  object,  bvl  il 
ooncct^thc  indiacretion  of  a  aappQccd  tf^ 


:7T] 


Jar  Biganuf. 


A.  D.  ifre. 


[478 


Aiirw :  ind  which,  as  the  learned  doctort  oo 
Im  other  aide  truly  state,  has  do  termiDatioif ; 
uid  befween  the  parties  themselves  never  ob- 
aina  the  best  eflert  of  a  judgment,  to  nut  an 
end  to  litigation.  In  modern  times,  sucli  suits 
liafeseMumbeencommence<l  but  lofkvour  some 
indirect  pur|Ki8e ;  and  were  the  sentences  aN 
la«ed  to  have  the  effect  that  is  now  contended 
for,  were  they  to  be  a  bar  to  all  criminal  en- 
fwry,  it  mifirhtbe  expected  that  suits,  which, 
M  tlie  learned  doctom  state,  may  be  carrieil  on 
without  end,  would  very  frequent! v  aprin||f  up. 

Nothing  can  be  fun  her  from  the  temper  of 
■jmind  u)>on  the  present  occasion,  than  to 
■K a  ludicrous  argument:  but  when  the  un- 
cmtroUible  effect  of  such  sentences  as  these, 
m  contrived  and  framed  for  fraud,  was  urged 
ynlenlay ;  and  while  to  lessen  the  objection 
li  Ihem,  it  was  grravely  argued,  that  no  great 
Biiohief  could  happen  from  the  decision,  l>e- 
cnse  vop  may  reverse  this  sentence  to-mor- 
lav,  that  the  next  day,  and  a  third  after  that, 
Md  that  the  suit  was  in  its  nature  eternal ;  an 
iwenioaa  person  among  the  bystanders  was 
oleolating,  how  many  wtveara  man  that  had  a 
iMe  lor  polygamy,  might  marry  with  impu- 
■ity ;  and  1  think  he  made  it  out,  according  to 
Ibc  protiable  duration  of  such  a  suit,  that  a 
■HnbetweaD  twenty-one  and  thirty-five  might, 
with  good  industry,  marry  seventy-five  wives 
by  tenteoces  of  the  Ecclesiastical  Court,  each 
•BBtence  standing  good  till  reversed,  and  all 
icversible  by  that  judicature. 

My  lords,  the  argument  is  serious,  though 
k  presents  a  ludicrous  idea,  for  one  conaeqoence 
would  probably  attend  a  decision  in  support  of 
the  authority  of  such  a  sentence.  The  Mar- 
riage Act  put  an  end  to  that  terrible  disgrace  of 
i  civilized  country,  Fleet  marriages:*  while 
Ihcy  subsisted,  it  was  a  common  practice  for  in- 
digcnt  women  of  easy  virtue  to  get  a  Fleet 
httliand  to  protect  them  from  their  debts.  If 
i  sentence  of  the  Ecclesiastical  Court  is  to 
kve  effect  against  all  but  the  parties,  a  cause 
*f  jactitation  will  supply  the  place  of  a  Fleet 
Kiarriage,  and  furnish  an  husbaml  by  sentence, 
^fihom  the  lady  may  remove  whenever  he 
j^oves  inconvenii-nt.  This  is  but  one  i  nstance, 
'■ad  in  the  lowest  olass  of  the  evils,  that  would 
^low  from  allowing  such  sentences  to  be  iiiter- 
FMcd  against  public  justice,  or  the  fights  uf 
iMrd  persons.  SVhal  guard  can  there  be  against 
HeertaiD  isjme,  unceitain  rank,  lyid  all  the 
^oineroua  ini«chiefs  that  arise  from  doubt  and 
cftHuMoa,  introdiiceil  in  itie  relations  that  foiin 
Hm  bonds  of  society  ? 

Were  all  conbiderations  of  the  consequences 
itteading  such  a  decision  to  be  laid  aside,  the 
*try  form  of  the  sentence  argues  against  its 
king  coQcliisive.  W  hat  says  the  Ecclesiastical 
Oiart  in  that  sentence  f  '*'  As  far  as  yet  ap- 
^rs,  nu  marriage  is  proved."  The  verdict 
vpou  an  indiclment  will  say,  **  it  does  now  ap- 
|Mr,  fliat  a  marriage  is  prove«l."     The  two  pro- 

*  See  aomelhiog  concerning  them  in  vol. 


piaiUoiii  do  not  clash  with  each  other ;  there 
19  no  oootradiction  in  them  :  to  the  party  it  is 
said.  You  have  not  proved  the  marriage ;  a 
piblio  accuser  does  prove  the  marriage  ;  the 
luatioe  of  the  country  baa  brought  out  the  evi- 
^ce  of  that  fact,  which  the  party  either  did 
not  incline,  oc  was  not  able  to  produce.  There 
fa  BO  repugnance  in  the  different  propositions^ 
no  incengruitv  in  supposing  that  the  sentence 
anay  stand  «a  between  the  parties,  and  yet  ahall 
have  Ae  cenclusioii  either  as  to  the  public,  or 
as  to  third  persons. 

The  argument  in  favour  of  the  sentence  was 
supported  by  this  dilemma.  What  beeoroea  of 
this  sentence,  if  the  indictment  for  bigamy  goef 
on  P  Is  ii  null,  or  has  it  any  effect  f  Is  the 
party  a  wife,  or  no  wife?  I  answer,  to  all  civil 
effects  no  wife ;  the  party  baa  bereaved  herself 
ef  any  right  to  benefit  bv  the  relation ;  to  all 
criminal  effects  a  wife,  because  that  relatioD, 
the  duties  consequent  upon  it,  and  the  respond 
sibility  for  the  breach  of  those  duties,  cannot  be 
destroyed  by  the  act  of  the  party.  I  could 
quote  to  your  lordships  other  cases,  where  the 
party  takes  no  benefit  from  his  act,  where  he 
holds  the  situation  only  to  make  himself  amen- 
able to  the  justice  of  his  country.  I  refer  to  a 
known  case :  a  man  had  committed  an  act  of 
bankruptcy  by  collusion  with  a  creditor,  and  a 
commission  of  bankruptcy  *  was  taken  out 
against  him,  the  object  of  which  was,  to  pro- 
cure a  discharge  from  his  debta.  He  chose  to 
conceal  a  part  of  his  effiscts,  for  which  he  was 
indicted  upon  the  statnte  making  it  a  capital 
feH>ny  for  a  bankrupt  to  be  guilty  of  any  wilful 
concealment:  it  came  out  clear  as  the  light, 
that  he  was  no  bankrupt,  that  is,  no  bankrupt 
to  any  civil  effect ;  he  could  not  avail  himself 
of  that  commission  of  bankruptcy  against  any 
creditor  that  had  a  mind  to  dispute  it,  except  the 
creditor  who  had  colluded  with  him ;  but 
though  he  was  in  fact  no  bankrupt,  he  was 
trieft  and  convicted  as  such. 

My  lords,  af^er  the  indulgence  with  which 
your  lordships  have  been  so  good  as  to  hear  me 
soiong  upon  this  subject,  1  am  sorry  to  be 
obl^ed  still  to  trespass  a  little  longer  upon  your 
patience,  when  I  consider  the  fourth  proposition, 
which  certaiuly  is  not  the  least  material ;  that 
'  is,  that  a  sentence,  infected  with  fraud,  to  which 
collusion  mav  be  objected,  is  no  bar  in  anv 
cause.  My  lords,  upon  that  head  the  principle 
is  so  plain,  that  the  illustration  of  it  will  not 
run  into  much  length,  and  the  authorities  are 
so  decisive,  that  1  shall  only  state,  and  not 
argue  upon  them. 

A  senieiice  obtained  by  fraud  and  colhiajoo  is 
no  sentence.  What  is  a  sentence?  It  is  not  an 
instrument  with  a  bit  of  wax  and  the  seal  of  a 
court  put  to  it ;  it  is  not  an  instrument  with  the 
signature  of  a  person  catling  himself  a  register ; 
it  is  not  such  a  quantity  uf  ink  bestowed  0|)Oii 
such  a  quantity  of sfainped  paper:  a  sentence 
is  a  judicial  determinatiou  of  a  cause  agitated 
between  real  parties,  gpon  which  a  real  inte- 
rest has  Ineen  settled  :'  in  order  to  make  a  sen- 
tence, there  most  be  a  real  interest,  a  real  ai^- 


«79] 


IS  GEORGE  III. 


Trial  nfthe  DuchtM  nf  Kingston 


[48^1 


ineni,  *  retl  pnweciilion,  ■  rral  Jef«DC«,  ■ 
decisiua.  Orall  l(i«iR  requiailps,  not  imp  tsbrs 
place  ill  the  CBK  of  b  rrsuilukul  anil  rollimve 
■ml:  Itiere  U  anjuil)[p;  bul  >  pi^rson,  inn 
willi  lliv  (miiiini  ot'a  Jiiiliciiil  uflice,  ii  niii 
pinyeil  in  liiirainif  Id  a  Hclilinus  cbuh  iirojioied 
tn  lijm :  lliere  ii  no  parly  liligaiing,  liirre  ii 
|Mny  ilelcufUnt,  du  reul  iiilereal  lirouglit  igto 
queslion ;  aiul,  lo  uw  the  words  of  >  very 
•Muilile  civiliui  od  lliis  (Kiint,  "  t'tliuli,  dod 
-  judioiiim,  tiDC  ett ;  in  sccDJt,  Don  iu  I'oro,  re« 
■{riliir." 
.  Tlie  BT-ound  Ihen  upon  wliicli  1  con(?Dil, 
'  lliat  a  callutiTr  wnlecict;  is  no  bar,  is  slmrtly 
thii;  Ihit  stii^li  at»nlerc«  is  a  mere  Dullily. 
'*Buti[  i*  iDsibted,  (hat  llie  cnurl  wliiuh  pro- 
DOUDCed  llie  a«ni«nce  can  alune  deckre  the 
'  Builily  «f  il.  and,  till  re|M-iilcd,  jl  inuil  stinil 
good  BDdtalid.  Tlir  aulLorillm  to  vliidi  I 
mean  lo  refer  upon  lli>«  lirad,  will  rWule  ihal 
',  .irgiitueat,  al  llie  ume  lime  ibat  Ihey  prore  ilie 
.  general  doclrine. 
I  I  The  first  ia  my  InrJ  Cnke'a  regmniug  in 
>  rerinnt'k  case,  3  Cuke  71 :  lie  coacliides  (he 
rewUiiloii  of'lliecnaeiiiiliia manner:  "  Tbcre- 
;  upon  it  was  concluded.  lliBt  if  a  recovery  in 
dower,  or  oilier  real  acliuo,  if  a  reiiiitur  lo  a 
feme-cutert  or  an  infant,  \i  a  wananly.  if  a 
(ale  in  market  OTerl,  if  lellrra  putent  of  the 
kinif,  if  prs«nlulions  and  admitlancea,  lliBt  is 
lo  fay,  if  all  acli  lempartil  and  spirituBl  should 
be  atuided  by  cnvin,  for  the  same  reainn  a  fine 
in  Ihe  princi|Hi1  case  ieviid  l>y  fraud  and  corin 
■ImII  not  bind."  NolhiOiC  can  be  mute  explicit 
(ban  lliese  wordi  lo  alirw,  that  iliere  is  do  ne- 
cessiiy  that  llie  covin  should  be  prosecuted  in 
Ihe  eowX  in  which  ilie  judnmeot  was  obtained, 
Tlie  case  of  Llotd  and  AlaJdoi'ba  ill  IVloore, 
S17.  is  a  direi-l  and  a  plain  auibiirily  :  there  k 
fiiudulenl  jodtcment  was  let  u|i  againil  a  ple^ 
of  a  l<:!|f*tee  In  lli^  Spirilual  Cuuri.  The  quea- 
liou  in  lh«  ciiurl  of  ttiuit's-ticDch  was,  whellier 
itie  Spiriiual  Cnurl  should  be  nrohibiled  lo  enter 
into  tiie  cuoaideralion  of  Ihe  fratld  of  the  jud^- 
meul,  whicli  il  certniuly  nut  a  mailer  of  ei:cle- 
■iastical  co|[nlxanoe  ;  but  the  Court  w^is  of  opi- 
uinn,  ihai  ibe  covin  mbs  aptly  examinable  in 
tt  court  Chrialiao  to  that  effect,  aad  therefore 
tlie  jirHhibitinn  was  denied. 

My  lords,  the  olher  uulboriliea  are  more  inn- 

dero,  though  nut  more  decialie  upon  llie  piiini 

than  this.     The  first  I  uieniioutu  your  lordships 

'  .b  Ibe  caie  nf  Priidham  and  fbjllipi :  there  is  a 

f'  very  bad  and  •  very  inaccurate  note  of  ii  in  sir 

'   John  Strange :  the  note,  from  which  I  cite  It, 

fS  a  tnanUBcript  note  of  Ur.  Ford.*     In  that 

Which  is  ibuH  printed  by  Hr.  Har^rave, 
'    10  his  Diieourse  mentioned  in  a  Note  at  the 
beginning  of  ihis  Report: 

"  Assumpiit  brought  against  defendant,  who 
''  tate  ia  evidence  a  inarriage  with  one  Mr. 
"JIuiloiRn.  PluinlifTiheMed  a  KDleoce  in  the 
•Spiritual  Court  annulling  that  inarriagr,  tiir 
that  at  the  time  of  lolemnizing  il,  defendant 
wu  married  to  one  Delalicid,  alias  Duval, 
j^iuDb  Ihe  jiIaiDliff'a  couukI  relied  ujwa  a* 


case  it  was  detennine<l  by  lord  chief  jufliM 
tVilles,  tliBl  a  fiaudulent  and  collusive aenteiieq 
against  Hrs.  Conslaiitis  Phillips  was  binding 
upon  her ;  but  he  cDni:lodei  it  waa  binding 
upon  no  Olher  party  :  the  fraud  was  a  maUet 
oi^  fact,  which  if  used  in  obtaining  judgmeol 
was  a  deceit  upon  the  court,  a  fraud  upon 
strangers,  who  as  Ihej'  could  not  come  in  lo  re- 
verse il,  they  could  only  allege  it  wbs  fraudu- 
lent, tie  said  in  that  case,  that  any  creditM; 
of  hers  might  reply  Ihot  il  was  fraudulent,  anit 
■void  the  effect  of  it.  The  other  cases  1  refer  1 
to  are,  my  lord  Hardwicke's  authority  in  "' 
case  of  Roach  and  Garvin,  Isl  Vi'zcy  " 
and  in  tlie  c»sf  of  Brunnsword  and  Eilv 
£d  Vezty  aiii.  In  the  case  of  Roach  and  Gav 
rin,  the  ijiieslinn  wis  upon  Ihe  effect  of  a 
riage,  said  lo  be  established  by  the  lentence  oT 
a  court  in  France.  Lord  Hirdwicke  enters 
into  Ihe  coniideratinn  uf  it  thus :  "  The  4u«»> 
lion  is,  whether  this  is  a  proper  sentence,  in  a 
proper  cause,  and  between  proper  parties  ;  whe- 
ther a  marriage  is  had  in  fad,  or  any  coniract 
in  praienii,  as  a  sentence  in  Ibe  Ecclesiastical 
Court  would  be  cunclutiive,  unlets  there  be  col- 
lusion, uhich  would  overtuin  the  nhole."  Ia 
the  Olher  case  the  ground  is  exactly  the  same. 
From  these  cases,  1  conclude  it  to  have  bee* 
the   uaifurm  opinion   ol'  all  the  great  judgM 


1  refer     1 


conclusive  evidence  of  the  nullity  of  siicll 

tended  marriage.     And  so  it  was  agreed  ui 

dvlendani  could  be  adinilted  lo  slieu  great  frkof 
in  nbtaining  the  senlence,  and  so  aioii)  it,  m 
judgments  are  daily  nroided  by  replications  tt 
fraud.— Bes aired  on  great  debale,  that  the  Mk 
clesiaitical  law  was  jiarl  of  the  law  ol  the  lan^ 
end  senlencei  by  their  judges  were  therefore  is 
niallen  of  spiritual  jurisdiction,  of  eiiual  BBi|, 
the  same  force  with  judgments  in  vnurta  m 
record.or  in  courts  of  equity.  Whatever  oUcc» 
tiona,  therefore,  would  ivuid  a  judgment  ir  ~ 
court  of  common  law,  would  be  siifficicDt 

none  others:  that  fraud  was  a  matter  of  fi_ 
and  if  used  in  obtaining  judgmeuls  was  a  di 
celt  on  the  Court  end  hurtful  lo  stranger^  wt 

aside  the  judgment,  must  of  necensiiy  be 
initled  tnaver  It  was  fraudulent  1  and  ibis  was 
reason  why  vxecutors  mti^hl  hate  such  ati 
tnents.   But  whoever  knew  a  defendnnt  pte 
that  a  judgment  obtaineil  against  him  was  fr_ 
dulent .'    He  must  apply  to  the  Court,  and 
Iwth  parties  colluded  in  the  cheat  upon  '' 
Court,  it  nag  never  known  that  either  of  ll 
could  vacate  Ihe  judgment.     Here  defei 
was  parly  to  the  sentence,  and  whether 
was  unpolled  upon,  or  she  joined  in  deceifii 
Ihe  Court,  this  is  not  the  lime  or  place  for  h 
to  redrem  herself.     Uhe  mny  if  she  has  oc«a- 
sion  appeal,  or  apply  oiberwisi!,  to  the  prnper 
judge.     Nnte.Uelufield  died  about  M) 
tiffure  action  brought. — Prudam  et  al, 
Phillips,  alias  MuiVman  alias  Del*A«ld,  cota; 
VVillFS  chief  justice,  sittings  in  Middi 
C.  U.  after  KLtcbaelmu  lenu,  1737.'^ 


iihi    . 

i 


481] 


fir  Bigamy. 


whn  Mt  ill  WntiniDSter-hall,  from  the  time  vf  | 

lord  Coke  dovrn  to  the  prenent  time  (anil  the 

coiiria  were  never  more  ably  tilled)  that  fraud  j 

and  oulliMioo  not  only  ▼itiaies,  but  absolutely 

aaniilft ;  and  that  a  sentence  obtained  by  fraud 

if,  literally,  no  sentence  at  all ;  Hierefore  the 

objeetjon  of  such  an  inurnment,  of  so  much 

piper  and  writmt;,  is  the  objection  of  a  mere 

Bul-iiy,  and  can  have  no  ftfi^ct  eiiher  in  a  civil 

or  in  a  criminal  suit.     Hat  ing*  troubled  your 

lonkbipa  so  very  lont;,  I  will  take  up  no  mure 

of  your  time,  even  to  recapitulate  the  heads  of 

the  anrmnent,  but  hasten  to  return  my  humble 

thanks  for  the  great  indulgence  I  have  already 

operieuced. 

Mr.  DuTiniTi^.  My  lords,  I  purpose  to  give 
par  lordships  very  little  trouble:  indeed,  I 
ikoQid  be  without  an  apoloc^y,  if  J  had  thought 
«f  civing  yon  much,  fiiidiog,  in  the  station 
'il  which  I  hold  in  this  cause,  the  subject  com- 
\  pktdy  exhausted ;  and  I  cannot  but  suppose 
ysar  lordships'  attention  in  a  great  measure 
tired,  notwithstanding  the  ocranional  relief 
which  the  entertaininv:  parts  of  the  cause  have 
tSbnleil,  has  given  you.  I  have  the  less  in- 
cfatijon  to  give  your  lordships  much  trouble, 
M I  %¥ft\  a  degree  of  surprize,  that  it  should 
lave  been  thought  necessary  for  the  counsel 
•B  the  part  of  the  prosecution  to  give  your 
M^bips  any. 

Hj  lords,  the  subject  for  immediate  conside- 
Mioa  is,  the  competency  of  obtruding  this 
Matence,  in  this  stage  of  the  cause,  to  stop  the  | 
tiaw  here,  and  t»  require  of  your  lordships  to 
Mde  it,  without  any  regard  to  the  truth  or 
Ike  justice  of  the  case :  such  however  it  is  con- 
Mvd  it  the  effect  of  this  paper,  that  is  offered 
iiyoar  lurditbips  under  the  name  of  a  senteoce 
<f  the  Ecclesiastical  Court. 

The  novelty  of  the  attempt  it  is  not  my  in- 
^Btioo  to  expatiate  uf>on :  it  has  been  truly  ob- 
Nrved  to  your  lordships,  that  some  prejudice 
tt  least  may  be  expected  in  the  minds  ot  your 
hrishipa  against  an  attempt  so  novel ;  for 
Aough  1  am  not  so  blind  an  admirer  of  an- 
li|aitj  as  to  take  for  granted,  that  every  thinif 
Ibt  IS  new  is  therefore  wmng ;  sure  1  am,  I 
!■  warranted  in  expecting  your  lonlships*  con- 
carrence  in  thinking,  that  those,  who  propose 
it  this  time  of  day  to  introduce  into  the  judi- 
Mare  of  this  country  a  new  practice,  ought 
Il  be  prepared  with  such  reasons  as  should 
•Mpel  your  lonlships'  a^^sent.  This  I  think 
feiybe  fairly  insisted,  upon  the  head  of  no- 
trftf. 

My  lords,  the  gentlemen  undertake  to  main- 

^,  ftrst,  that  this  evidence  is  competent  and 

tdninihhe;    secondly,   that  it  is  conclusive; 

tii  thirdly,  they  insist  on  this  ronctnsion,  not 

<lly  apoo  the  supiMMitioo,  tliat  it  is  a  s<'ntenre 

ftiny  obcained  between  real  parlies,  afler  an 

agitation  of  the  question,  Mhieh  it  is 

to  ha? e  decideil ;  but  though  all  these 

shnnid  lie  totally   wnntintf,  and 

llw  ooolrary  of  them  a. I  should  lie  the 

rihe  caaa,  IheaoiteDce  ii  insisted  on  aa 


A.  D.  177(5.  r*8» 

eqnaHy  conclusive.     In  that  extent  it  is,  that 
the  geutlemeu   have  undertaken   to  maintain 
this  proposition  ;  and  a  very  considerable  task 
it  seems  to  me  they  have  undertaken.     Illy 
lords,  I  consider  the  sentence  as  read  only  dt 
bene  esse,  merely  that  your  lordships  may  know 
what  the  contents  of  it  are,  that  jon  may  have 
the  assistance  of  that  knowledge  in  judging  not 
only  of  the  ultimate  effect  of  it,  but  of  the  pro- 
priety of  receivini^  it  ut  all  in  this  stage  of  tha 
business.      At  the  first  blush,  to  he  sure  it 
seems  a  little  absunl,  that  your  lordships  should 
be  to  decide  the  caiise  before  you  have  the 
smallest  know!etlge  of  what  the  case  is,  that 
is  to  be  stated  upon  the  part  of  the  proserutiou. 
It  is  certainly  necessary  for  those  that  are  to 
jiid^e  of  this  paper,  to  know  what  it  is.     It  is 
a  st^ntence  in  a  court,  of  which  your  lordshipa 
heard  yesterday  abundant  commendation.    It 
was  observable  that  those  who  were  most  lavish 
in  that  commendation,  were  least  acfjiiainted 
with  the  practice  of  that  court.    The  first  of 
the  learned  ilortors  spuke  with  a  very  becom* 
ing  modesty  of  the  court  in  which  he  prac- 
tises.   The  oiher  explained  to  your  lordshipa 
the  nature  of  a  jactitation  suit  as  concliidin(jf 
nothing,  being  to  be  revived  at  any  time,  and 
consequently  having  no  end.     It  was  contended 
by  all  the  gentlemen,  that  this  court  was  en- 
titled not  only  to  what  on  the  part  of  the  pro« 
spcutor  we  should  have  had  no  difficulty  per* 
haps  to  have  admitte<l,  to  co- equality  with  the 
courts  of  temporal  jurisdiction,  but  to  some- 
thing superior;   it  was  contended  that  there 
was  something  in  the  nature  of  this  subject 
that  made  it  peculiarly  the  province  of  that 
court  to  judge  of  and  decide  upon :  not  that 
they  have  better  means  of  information,  not 
that  they  have  better  rules  of  decision  ;    but 
from  f^omething  unexplained  in  the  constitution 
of  the  court,  it  was  rather  assumed  than  at- 
tempted to  be  proved,  that  to  that  court  exclu- 
sively belong  matrimonial  questions,  questiona 
on  the  rights  of  marriage,  ami  even  of  the  facta 
of  niarriaiie.     I  am  persuade<l  your  lordships 
all  go  before  me  in  feeling  a  conviction,  that 
there  is  not  in  that  extent  a  foundation  for  that 
claim  :  yet  this  peculiarity  of  jurisdiction,  and 
the  consequential  necessity,  in  order  to  get  rid 
of  the  sentence,  to  resort  again  to  that  juris- 
diction, apiieared  to  me  to  be  the  points  princi- 
pally insisted  on.    Neither  of  them,  I  trust, 
your  lordships  will  think  are  made  out  at  pre- 
sent.    I  am  Considering  the  first     That  to 
certain  purposes,  and  with  a  vie^  to  certain 
consequences,  the  Spiritual  Court  is  the  only 
court  in  which  qoeations  of  matrimony  can  l!c 
agitated,  is  most  true.    There  alune  it  i<(.  that 
the  party  deprifcd  of,  and  complaining  of  the 
want  of  conjugal  ricliti,  must  resort  to  snk 
them :  there  it  ia,  where  the  party  s  pposeJ  :• 
be  injured  by  a  false  claim  of  a  inarriije.  wbea 
none  exists,  can  obtain  rei!res<(  r>r  \\,\x  i.\i-«7  * 
but,  toother  purpoae^,  amf  ^arinis  i"^  "*^ 
porpoaet  in  wbieb   tbe  que^ii'^n  «'?'  juj*—    ' 
arises,  whether  it  is  to  he  ex^miceJ  a*'  *"' 
view  10  icoipofal  or  spiritual  aJvx&: 

Ml 


-ifl 

▼31 


483] 


16  GEORGE  III. 


Trial  of  the  Dvdiess  ofKifigstoitf  [484 


tber  it  is  (o  be  examined  into  with  tr  view  to 
rififbti  derived  from   it,  or  ponisbmeDts  for 
crimes  committed  iu  relation  to  it,  to  tbe  tem- 
poral and  not  to  the  spiritual  courts  be1on(|^,  1 
conceive,  tbis  question  of  marriage.    My  lords, 
to  suppose  otherwise  would  be  to  deny  m  fact, 
that  your  lordships  sit  here  with  any  jurisdic- 
tion at  all ;  for  if  it  were  true  in  tbe  extent  in 
which  it  was  contended,  that  to  tbe  Spiritual 
Court  exclusively  belongs  tbe  consideration  and 
decbion  of  tbe  question,  marriage  or  no  mar- 
riage, it  will  follow  )»y  a  necessai'y  conse- 
quence, that  if  there  were  no  such  sentence  as 
tlie  present  to  be  thrust  in  our  way,  and  to 
create  this  temporary  difficulty,  for  such  I  trust 
it  will  prove  to  be,  if  there  bad  been  no  decision 
in  tbe  Spiritual  Court  at  all,  your  lordsbifis 
would  only  have  been  in  the  possession  of  tbis 
cause  for  tbe  purpose  of  writing  to  tbe  bishop 
Co  know  bow  toe  fact  stood,  and  from  his  certi- 
ficate to  take  yoor  ideas  of  tbe  question  which 
you  are  to  decide  upon.    The  gentlemen  must 
maintain  not  only  that  there  was  not  at  tbe 
common  law  any  thing  like  a  jurisdiction,  but 
that  this  statute,  which  means  in  terms  to  give 
a  jurisdiction,  has  not  in  point  of  effect  ^ven 
any.    I  am  at  a  loss  to  find  a  way,  consistent 
with  what  tbe  gentlemen  have  maintained,  to 
deliver  them  from  that  consequence.     If  they 
insist,  that  no  temporal  -  court  has  a  power  to 
enquire  into  a  question  of  marriage,  it  will  go 
to  that  extent.    They  have  made  a  distinction 
between  those  cases,  in  which  tbe  questiou  is 
tbe  point  of  the  cause,  and  in  which  it  arises 
incidentally.    Tbe  question  does  not  arise  at 
all,  uolesrit  arises  materially :  if  there  be  any 
thing  in  tbe  distinction,  let  us  see  a  little  bow 
it  will  help  this  argument.    Was  tbe  marriage 
tbe  gist  of  this  cause  in  the  Spiritual  Court  ? 
Ko :  tbe  lady  applies  to  tbe  Spiritual  Court,  as- 
suming that  there  was  no  marriage,  complain- 
ing of  au  injury,  which  consists  in  the  circum- 
etance  of  a  man  who  was  not  her  husband 
taking  to  himself  and  boasting  (as  a  man  would 
be  apt  to  boast  in  such  circumstances)  of  tbe 
honour  of  bearing  that  relation  to  her. 

This  cause  is  not  in  its  nature  a  question  of 
marriage,  but  of  defamation.  If  that,  which 
the  laav  suggested,  bad  been  admitted  to  be 
tbe  truth  of  the  case,  be  would  have  been  to 
excuse  or  extenuate  his  offence,  iust  as  the  na- 
ture of  bis  case  would  enable  him  to  do,  by 
either  denying  that  he  bad  boasted,  or  stating 
^bat  had  led  him  into  it :  but  tbis  defendant 
•ays,  No :  1  have  held  that  language,  which 
you  call  boasting :  I  will  not  dispute  with  you 
tbe  propriety  of  that  appellation  :  I  have  called 
this  lady  my  wife ;  because,  whether  it  be  my 
good  or  ill  fortune,  she  is  my  wife.  It  is  for 
that  reason,  and  that  reason  alone,  that  I  have 
held  this  language,  which  is  imputed  to  me  as 
a  crime:  I  am  no  criminal  in  holding  tbis 
language,  for  that  is  my  situation,  and  this  is 
my  detence.  Thus  it  is,  that  tbe  question  of 
marriage  is  Uitroduced  into  tbe  cause :  it  is 
insisted  upon  as  a  defence ;  ai  a  matter  ma- 
tttSal  to  her  defence  it  ia  that  the  questioii  of 


marriage  in  this  cause  arises.  Is  it  len  inci-  . 
dental  or  more  direct  than  the  same  quettioa 
arising  in  the  ordinary  way,  in  which  it 
arises  iu  temporal  courts?  A  person,  claim* 
ing  to  be  the  legitimate  son  of  bis  fiither, 
commences  an  ejectment,  in  which  tbe  ques- 
tion of  legitimacy  turns  out  to  be  the  oolj 
question  in  the  cause :  it  is  essential  to  bia 
supporting  bis  claim,  that  the  court,  who  are  to 
juoge  of  it,  and  the  jury  that  are  to  decide  upon 
it,  should  be  satisnecf  of  tbe  facts,  that  tbe 
claimant  is  the  eldest  and  the  legitimate  eon  of 
tbe  father.  The  point  of  marriage  ia  not  tbe 
point  of  tbe  suit  directly,  immediately,  osten- 
sibly, and  upon  the  face  of- the  recora  in  that . 
cause ;  but  incidentally,  materially,  and  neces- 
sarily that  point  becomes  a  point  in  tbe  cause. 
Just  thus,  in  my  apprehension,  tbis  cause 
stands ;  and,  as  applied  to  this  cause,  the  gen- 
tlemen cannot  avail  themselves  of  the  distinc- 
tion between  tbe  jurisdiction  to  be  exercised  in- 
cidentally, and  to  be  exercised  directly,  upon 
tbe  subject  of  marriage.  One  of  the  learned 
doctors  represented  bis  ideas  of  this  jurisdiction 
exercised  in  the  Spiritual  Court,  as  if  it  was  a 
jurisdiction  to  decide  upon  an  abstract  question. 
I  am  persuaded  the  learned  doctor  in  tbe  use 
of  that  word  meant  only  to  say,  that  in  their 
forms  of  proceeding,  and  in  some  of  these 
causes  which  are  instituted  in  their  courts,  tbe 
right  of  marriage,  in  contradistinction  to  the 
fact  of  marriage,  was  more  immediately  perti- 
nent than  in  some  of  the  proceedings  in  tem- 
poral courts  ;  which  to  be  sure  it  is.  In  any 
other  sense  of  the  word,  the  learned  doctor 
used  it  inaccurately  ;  for  that  court,  any  more 
than  this  or  any  court,  has  no  jurisdiction  to 
try  abstract  questions  of  any  sort.  No  question 
ought  to  be  agitated  in  any  court  wbateveri 
unless  it  be  a  real  question  springing  from  a 
real  interest,  and  between  real  parties.  To 
agitate  any  other  question  is  an  insult  to  tbe 
Court.  TUere  is  a  sense  in  which  the  Court 
may  be  said  to  have  agitated  this,  in  the  nature 
of  an  abstract  question  ;  for  it  is  certainly  true, 
if  our  instructions  have  any  foundation  in 
truth,  no  one  circumstance  of  the  actual  case 
of  the  parties  was  before  the  Court,  or  made  any 
part  of  their  euquiry.  I  trust,  1  shall  be  thought 
to  have  done  enough  at  least  for  the  Ecclesias- 
tical Court  in  admitting,  that  their  sentencce 
are  equal  to  our  judgments ;  that  they  are  not 
entitled  to  more,  I  may  safely  contend,  when 
I  am  admitting,  that  they  are  entitled  to  as 
much  attention  as  is  due  to  a  decree  of  a  court 
of  equity  or  a  judgment  of  a  court  of  law.  In 
such  an  admission,  at  one  time  I  should  have 
been  thought  to  have  gone  much  too  far :  I 
trust,  the  learned  doctors  will  forgive  me,  if  I 
cannot  carry  nsy  civility  any  fartMr.  God  be 
thanked  we  live  at  a  time,  when  a  better  «n* 
derstandin^  of  the  subject,  and  a  more  liberal 
way  of  thinking  upon  every  subject,  has  lo 
far  abolished  the  ancient  differences  between 
tbe  different  judicatures  in  tbis  country,  that, 
we  and  tbe  learned  doctors  auiy  meet  to- 
gether without  quarreUifig.    Their  prooeiAifi 


J.jr  Bigamy. 
Mia  wfaieb  il  it  eotniielenl  lo  ibem  lo 
proerol,  itttnt  llie  nme  atlention  and  failh 
**  tfioae  or  («m|)nrd  mitrti.  Tliii  ii|i|>eari  In 
toe  t«  reduce  the  daim,  iipon  lite  pirl  uf 
itiwe  ihai  are  tn  lupporl  lhi«  lenience,  |ire- 
cnwly  Id  this  tiluition  i  iDit  il  it  im|iowible  la 
carry  il  one  joi  Turtlier:    il  it  ao  opinion  nf  ■ 

-)iltnirin)f  iU)Krioror  excluiivG,  butbat- 

incurrent  juriEdicliao  of  ihii  queilion ; 
Ing  eompetenl  power  lo  decide,  gnd  hiving 
~~iwcn  10  exclude  innlher  decision  eUe- 
;,  where,  for  other  purpufes,  criminal  or 
nil  il  may  conie  lo  be  diicussed,  aocordinj;  to 
tli«  farm]  ntiicb  thaw  ilifTereiil  judicntures 
usuatly  obaerve  in  Ibeir  iiroceeillnga,  toully 
vnObtiTUcled  or  mislsled  by  any  atienlion  to 
«Hut has  j)ined  in  any  iillier judicature:  this, 
I  trutt,  Hill  be  your  lurdsliips'  Jud^rnenl  upon 
the  queilion  agiiaiod  betweeu  us,  if  it  should 
be  material. 

Hy  lonli,  I  laid  in  my  claim  lo  object  to  Ihe 
trfmiMibility  of  tbii  piece  nf  eiidence,  upon 
tthieli,  if  I  ihould  have  the  good  tbrtuoe  lo 
line  your  Inrdthips' concurrence,  Ihe  subie- 
<]iirat  ciiniirtcralion  nf  the  efllecls  of  il,  if  ad- 
miiled,  •rill  become  tulally  immileriil.  I  deny, 
1h*llhis  iiadniinible  ins  cuurt  like  this,  a 
«iUTt  of  llie  liigheat  criminal  Juriidiction  in 
Ihit  country, 

Hy  lorda,  it  w  ao  fBrniliar,  IhnI  it  would  be 
iopMineut  la  Ihal  pan  of  the  Court  lo  which 
1  Mt«  the  hooaur  to  adJreas  myself,  which  is 
t/m  particularly  cnnversanl  in  the  forma  of 
ineceitiitg  in  cuuris  of  juilice,  to  be  Inbour- 
Wld  prove,  that  when  a  aubjecl  is  examined 
k&tn  Ibe  course  of  ■  criminal  enquiry,  uoder 
At  form  of  an  indiclmeni,  or  of  nn  informa- 
tiW|  wbat  has  passed  or  may  pass  in  the  course 
Wadril  enquiry  upon  iheaame  subject  and 
IklMne  question,  is  not  only  not  regarded,  but 
HMidroiltcd.  In  the  instance  lli at  was  put, 
ail  luaay  others  that  may  occur  to  some  nf 
lordships,  il  is  [lerfeclly  notorious,  and 
bre  neither  requires  argument  nor  proof, 
the  practice  is  certainly  so.  Lei  a  man  ' 
^goiHed  io  a  court  of  criminal  juriidiction, 
iBoi  preclude  a  party,  complaining  of  an 
'ciog  from  thai  act,  which  in  a  crimi- 
his  been  preaeuteil  aa  a  crime,  from 
jp{  rrdreu  for  Ihe  ciiil  injury  ;  and  vice 
-  '*'  fate  of  suuh  an  action  cannot  be  en- 
jBuch  lem  cannot  it  preclude  the 
siubseqnent  crimmal  enquiry, 
'ram  (be  same  aci.  It  baa  been 
^b  •  court  of  one  deacripltQn,  il 
to  in  a  court  ofuMther 

.  *sy  loru^,  one  reoMO  (there  are  oiheri,  but) 

•M  fciaoii  wby  courts  of  criminal  jtiriadiclion 

Si  aOI  admit  any  accnunl  nf  h  hnt  has  passed 

'"   i  iT:i  ;i<,'ilalion  of  the  question  in  a  court  of 

1. 1  dun  may  he,  Ihe  liability  to  fraud 

'  I'll.     I  am  not  nou  artfulni;  upon  the 

.!.ii-rnn  in  thin  case:    but  it  ii  obvious 

t.  Mould  do,  if  Ihe  sentence  of  s  court 

ncli  juncdiction.  wlieitier  ecclesiaslical  or 
wral,  will  preclude  a  crimiuul  enquiry,  tbe 


A.  D.  1776.  [48C 

receipt  is  of  ample  use ;  and  all  men  may,  if 
they  please,  cover  Iheinselvea  aifainst  the  penal 
conseijuencei  of  their  crimes  by  inatitutmg  a 
friendly  suit.  Some  such  we  have  kuown  lo 
have  been  .«n  conducted  ai  lo  escape  the  alieo- 
lion  of  the  judges,  who  have  nui  liiuiid  out,  tdl 
afier  the  cause  has  been  decided,  that  the  cause 
has  been  collusive.  Cases  of  this  sort  are  »0 
open  to  fraud  and  collusion,  that  fur  lliis  rea- 
son, if  there  were  do  other,  the  courts  of  cri- 
minal jurisdiction  will  always  reject  such  evi- 
dence. I  do  not  knoiv  that  case  has  yet  ex- 
isted, where  any  person  ha*  dune  so  siraniie  ■ 
thin^,  as  to  put  it  in  the  power  of  llie  Court  to 
receive  or  rpject  by  offtriog  such  evidence. 
Your  lorilsbi|>e  hate  hud  cited  lo  you  a  case, 
vrhich,  having  been  treated  as  it  deserres,  need 
not  be  repealed  by  me ;  the  case  of  Ibe  King 
■ud  Vincent.  If  it  were  possible  lo  suppose 
thai  case  could  he  law,  that  lupposilion  is  ri- 
iDOved,  when  your  lordships  are  told  thai  a  dit- 
ferenl  opiniuu  npoa  the  same  point  has  bceu 
lield  by  the  judges  that  hare  succeeded  in  the 
same  court,  and  to  whose  knowledge  or  ability 
uobody,  that  knows  who  they  are,  would,  I 
believe,  object.  The  last  of  these  cases,  the 
King  and  Stirliog,*  I  am  aware,  may  be  at- 
tempted lo  be  dislinguished,  and  for  what  I 
know  Ibe  Rrst  of  them  maVi  by  saying  that  the 
question  did  not  occur,  the  objection  was  not 
taken  in  either  of  these  cases ;  but  your  lord- 
shi)js  knowiotf  before  whom  those  criminals 
were  tried,  will  believe  Ihal  no  such  objection 
would  i^e  escaped  lbe«ejudges,if  it  had  been 
founded  in  law,  although  no  counsel  objected 
lo  il,  or  alihough  Ibe  criminals  perhaps  hud  not 
Ihe  aniatance  of  counsel ;  therefure  I  consider 
thit  case  as  fairly  dismissed,  and  llie  subse- 
quent cases  as  carrying  an  authority  upon  our 
side  that  more  than  overturns  il ;  hul  I  clo  not 
conceive,  Ihal  even  this  was  wanting ;  fur  the 
instrument  in  Ibe  case  of  ibe  King  and  Vincent 
has  no  resemblance  to  the  sentence  now  offer- 
ed ;  it  was  an  official  instrument,  ut-cessury  to 
give  sanction  to  a  legal  right.  Letters  of  ad- 
ministration, or  a  proliaU,  may  be  admiiaible; 
hul  il  does  not  by  any  means  folluw,  that  a 
sentence  hke  this  is  admissible  here  ;  if  it  be,  it 
musi  be  equally  admiuiible  on  all  sides.  The 
gentlemen  argue,  that  your  lordships  shoulJ 
receive  it,  should  act  upon  it,  should  conclude 
upon  it.  Why  i  Because  il  is  a  sentence  re- 
scinding the  marriage,  declaring  that  there  waa 
no  marriage;  that  is  the  import  of  this  sen- 
tence, and  therefore  it  operales  in  their  Ibvour, 
id  therefore  it  happens  that  they  produt'  *■ 


Let  n 


t  the  c 


;  lei  Bi 


.UpiH 


^  ilist 


when  this  lady  instiluted  that  suit,  the  parly, 
who  was  Ibe  object  of  it,  had  supported  that 
defence,  oa  we  conceive  he  was  very  well  able 


*  See  Ihis  casein  Leach's  Cr.  Cases,  Anil 
note  the  remark  adopted  hy  him  from  Ur.  Cal- 
vert's  argument,  infra,  p.  m,  that  in  thai 
case  Ibe  probate  had  no|  at  the  time  of  Iho 
trial  been  recalled.  See,  alto,  East's  PI.  Cr. 
cb.  19,  t.  tf . 


487] 


16  GEORGE  III. 


Trud  of  the  Ducheu  ofKingtton, 


[488 


to  hare  done,  arid  that  io  oonsequenee  the 
caiice  ba«l  eo'Ied  ia  a  dccUratioo  or  a  seDteooe, 
that  there  was  a  marriasre  :  in  that  case,  would 
it  have  been  ef  idence  upoo  the  part  of  the  pro- 
secutor? IVou!d  it  have  beco  attended  with 
those  cooseiuences  which  they  are  claimlo;^ 
Ibr  it  oAvr  ujicid  the  part  of  the  person  proie- 
ciitel  ?  Wutild  your  lonlsbipa  bm?e  endured, 
that  the  proiecutor  should  bate  come  here  to 
support  this  indictfD»ni  by  do  other  evidence, 
than  the  production  of  a  sentence  in  a  suit  hke 
this  in  the  Spiritual  Court,  by  which  thzit  court 
had  deteroilned  Air.  Herrey  and  the  lady  he 
had  married  werv  husband  and  wife  ?  Can  I 
possibly  state  it  to  any  mind  that  comprehends 
It,  that  does  not  at  the  same  time  re?olt  at  Uie 
apparent  hardship  and  injustice  of  such  an 
iufS?  And  yet  is  there  any  thiiifi^  more  true, 
than  that  a  record  cannot  be  evidence  of  one 
side,  which  would  not,  if  it  had  imported  the 
reverse,  have  been  evidence,  and  with  equal 
force,  of  the  other  ?  1  conceive  it  to  be  one  of 
the  fundamental  rules  to  determine  what  evi- 
dence of  tliis  nature  is  or  is  ni>t  ailmiKsiMe,  that 
if  it  could  not  have  been  admitted  ou  behalf  of 
the  party  objf  ctinj^  to  it,  supposing^  its  import 
had  been  favourable  to  him,  so  neither  shall  it 
be  admitted  on  the  part  of  the  person  pro|K>s- 
Inff  it.  I  trust  I  may  be  warranted  in  pre- 
•umini^that  your  lordships  think  as  I  do;  that 
in  order  to  su|i|>ort  tiiis  mdictment  somethinir 
inore  than  such  a  sentence  would  be  required 
from  us ;  and  that  the  le<;islalure  in  makinj^ 
this  new  provision  meant,  that  the  fu§t  Nhould 
be  enquired  into,  as  ail  other  (act<i  are  enquired 
inio ;  tbat  the  relation  should  he  proveil  by 
those  who  were  witoeKses  t«i  it,  by  those  ulio 
can  prove  the  confesMnn  of  the  parties  to  it,  or 
by  tiio<ie  who  can  ts'ive  such  oilier  eviil#^nre  as 
courts  of  criminal  jnrisdiclion  aie  auibori>ed  to 
act  upon.  Cm  any  tliini;  tlien  l>e  more  ob- 
Tioiisly  unsuttaMe  to  any  idea^i  of  justicv,  than 
that  the  enquiry  should  be  piffcludi'd  by  a  re- 
cord in  favour  of  one  of  the  parties,  which 
ini'^ht  have  been  as  favournhle  to  the  other 
tmrty,  and  which,  if  it  bad  been,  Hould  not 
Lave  been  rei^rdfil  ? 

If  your  lordships  think  fit  to  admit  this  evi* 
dence,  hw\  by  so  doin<(  to  raise  a  question  upon 
the  eifi.'ct'i  of  it,  the  t^eiitU  men  ar;^ue  with  some 
apjieiiiancc  of  triumph,  that  this  kind  of  sen- 
tence is  citnclusive,  for  that  there  are  various 
instnnci'S,  in  which  sentences  of  these  courts, 
in  which  judifments  of  other  courts,  have  hf  en 
held  conclusive.  For  this  purpose  your  lord- 
ships are  fLM-nished  with  a  g^reat  slrin|{  of  cases, 
some  of  condemnations  in  the  court  of  Exche- 
quer, some  even  from  boards  of  £xcise,  some 
from  courts  of  Admiralty,  some  from  domestic 
and  some  Irom  foreij^n  courts.  There  has 
existed,  and  fiily  existed,  such  a  comity  in  the 
practice  of  one  court  towards  the  proceedin<>s 
of  another,  that,  whether  the  court  be  loreit^u 
or  domestic,  the  courts  presume,  that  what  is 
done  is  riifhtly  done,  that  there  has  been  no 
Cfdlusion,  that  there  has  been  no  fraud,  that  the 

judgiueot  imd  decree  ii  wbitt  it  ougbt  to  be,  the 


'effect  of  an  adverse  suit  between  adrcne  par- 
ties. Presumin;''  the  effect  of  such  seoteQces, 
such  decrees  and  judi;iDeiits,  to  t-iftil  causes  to 
have  been  what  it  hjs  been  stated  to  be,  it 
must  have  been  upon  the  supposition  and  opon 
the  presom{jtion  that  the  sentence  or  the  decree 
has  been  fairly  and  rij^htly  obtained  ;  but  if 
this  decree  of  conclusiveness  were  allowed  to  it 
in  criminal  cases,  if  snch  a  sentence  were  al- 
lowed to  be  conclusive,  where  the  parties  are 
unprepured  in  point  of  evidence  to  impeach  it, 
and  it' such  were  allowed  to  be  the  effect  of  it  in 
such  a  case  in  courts  of  criminal  jurisdictioo,  it 
would  obstruct  the  course  of  justice  in  a  thou- 
sand instances,  and  in  effect  operate  to  the  re- 
Eeal  of  this  and  many  other  wholesome  laws, 
n  this  instance  the  mischief  would  be  too  great 
if  the  |iolicy  of  this  Idw  be  questionable,  if  that 
which  we  call  a  crime  is  an  innocent  action. 
If  there  is  no  impropriety  in  the  practice  now 
brought  under  yonr  lordships'  cnnsideratioo,  if 
poly:,:  amy  deserves  encoura|pement  instead  of 
a  check,  then  in  another  character  your  lord- 
shi|is  will  do  well  to  repeal  tlie  act  ;'but  do  not 
do  it  in  your  judicial  character. 

My  lords,  cases  may  be  supposed,  and  we 
are  in  a  situation  that  authorizes  us,  nay,  not 
only  authorizes  but  requires  un  to  suppose,  tbfl 
l^^russest  cases  that  our  imaginations  can  for- 
niNh.  It  is  not  difficult  to  supp<»se  a  case,  in 
M  hich  the  directest  traud  u|ion  the  Conrt  may 
t»e  practi!fed  by  means  of  the  {grossest  peijury, 
and  yet  through  the  c«illusion  of  the  parties  il 
may  lie  maua^^ed  with  so  much  dexterity,  that 
it  uould  he.impossiliie  to  get  at  them;  and  ia 
all  these  instances  tlie  effect  I  am  now  depre- 
catiu',^  ivouhl  be  of  course  let  in  upon  the  cri- 
minal juriiulictioo  of  this  country. 

My  lords,  I  am  |>ersuailed  your  lordshipa 
will  not  do  this.  In  uhat  I  haiesaid  upon  this 
point,  I  have  anticipated  in  part  the  question 
which  I  stated  as  the  third  in  the  order,  in 
which  I  purposed  to  cousitler  the  ar^rnment  on 
the  part  of  the  lady  at  the  bar.  All  her  coun- 
sel have  attempted  to  contenil  for  the  conclu- 
siveness of  this  sentence;  and  they  all  mean,  i 
presume,  to  insist  upon  it  as  precluding  an  en- 
quiry into  the  mode  of  obtaintu^jr  ii.  The  other 
learned  gentlemen  will  excuse  me,  if  1  seem  to 
have  been  less  attentive  to  what  fell  from  them, 
than  to  the  second  counsel  on  the  part  of  the 
lady.  The  fact  is,  I  heard  him  more  distinctly 
than  those  who  preceded  or  followed  him.  He 
chose  to  consider  this  act  as  not  ha vinf^  created 
a  new  off<;nce,  hut  as  having  simply  varieil  the 
punishment  anil  modeoftiial  of  a  known  of- 
fence, which  existed  as  the  law  stof»d  then.  I 
am  at  a  loss  to  comprehend,  io  what  sen^  this 
can  be  considered  as  haviufy  not  created  a  new 
offence.  This  act  declares  souiethiuy^  to  be  • 
felony,  which  before  was  no  felony.  This  act 
creates  that  to  be  a  felony,  enquirahle  into  ia 
the  way  In  which  other  felonies  are  by  law  fu^ 
quirable  into,  in  a  case  that  was  before  only 
cognizable  as  an  offence  ajrainst  the  canon  law, 
and  eoquirable  into  in  a  suit  which  had  no- 
thio|^  for  iu  object  but  the  spirituai  iattiresl  af 


459] 


far  Bigamy. 


A.  D.  177ft 


[490 


the  party.    I  coneeive  it  to  be  a  new  offence  in 
the  same  sense,  in  which  alnoott  all  the  statut- 
able offences  in  this  country  are  new  offences. 
This  act  has  not  only  created  a  new  offence, 
but,  as  I  conceive,  abolished  an  old  one ;  for  1 
doubt  whether  it  be  now  competent  for  an  ec- 
clfsiastical  court  to  proceed  to  enquire   into 
offences  of  this  sort,  if  it  were  (as  has  been 
8U)iposed)  their  practice  before  this  act.     By 
the  custom  of  London,  a  certain  species  of  de- 
famation is  actionable  there;   and  uj)on  that 
{ground  the  temporal  courts  proceed  in  grant- 
ing prohibitions  to  stay  proceedings  of  the  Spi- 
ritiialX^ourt  in  such  cases ;  so  1  apprehend  the 
courts  would  do  here,  if  the  Spiritual  Court 
proceeded  *  pro  salute  animtt*  in  a  case  of  po- 
Immy.     My  learned  friend  assumed,   that 
tiM  sentence  would  stop  the  proceed'mg  of  such 
a  cause  in  the  Ecclesiastical  Court,  but  re- 
ferred to  the  learned  doctors  to  make  it  out; 
which  the  learned  doctors,  I  presume,  not  liki 
iog  the  jeference,  forgot  to   attempt:    so  it 
stands  as  a  point  assumed,  but  not  proved,  that 
the  Spiritual  Court  would  at  this  time  entertain 
such  a  suit,  and  that  its  progress  would  be 
ttopped  by  such  a  sentence.     Your  lordships 
beard  a  very  pathetic  description  of  the  melan- 
choly situation  in  which  the  lady  will  stand 
wider  this  sentence,  if  this  prosecution  nro- 
ends,  and  in  consequence  of  it  she  shoula  be 
tiiated  in  the  disagreeable  way  to  which  the 
act  eiposes  her.    She  will  nevertheless,  it  has 
ben  said,  after  having  been  punished  as  a  mar- 
risd  woman,  be  totally  destitute  of  any  ad- 
vantage in  present  or  future  of  that  marriage ; 
ibe  can  never  claim  any  conjugal  rights,  nor 
(if  ber  circumstances  did  not  preclude  the  ae- 
coftity  of  her  seeking  it)  could  she  compel  any 
aisiotenance  from  this  gentleman  during  his 
life-lime,  nor  can  she,  if  she  survives  this  sup- 
|MHed  hu&band,  support  any  claim  to  his  for- 
tune. 

Ily  lords,  the  husband  is  in  the  same  la- 
aeotable  situation :  it  is  equally  incompetent 
Is  him,  while  this  sentence  stands,  to  derive 
•ay  advantage  in  point  of  comfort  during  her 
lilc-time,  or  iu  point  of  succession  upon  the 
^*h  of  the  lady.  It  may  be  so;  but  if  it  is 
IS,  it  will  not  be  the  effect  of  the  judgment 
}oar  lordshi|fS  will  be  to  pronouuce :  it  is  the 
vffiect  of  those  practices  between  the  parties 
»bich  have  produced  this  sentence,  and  which 
kive  made  this  their  situation  and  their  state. 

My  lonis,  it  will  be  time  enough  to  consider 
tbis  question,  when  the  case  arises.  If  ever 
tbis  lady  should  re- assume  an  inclination  to 
olablish  that  relation,  which  in  this  suit  she 
bss  thought  gooil  to  disclaim  ;  or  if  it  should 
ever  be  the  pleasure  of  the  earl  of  Bristol  to 
coMDcct  himself  again  with  this  lady  under  the 
rcUlion  of  an  husband ;  it  will  then  be  time 
cnoflgh  to  enquire,  what  they  can  or  cannot 
Make  of  such  a  claim,  or  what  the  impe<li- 
iMQts  are,  which  they  will  iiave  to  remove  in 
Nder  Ui  establish  that  claim.  As  neither  of 
Ibcse  cases  jare  very  likely  to  arise,  it  is  imma- 
kdal  10  go  further  into  the  enquiry  of  what 


may  probably  or  possibly  be  the  ooDtequenco 
of  them.  It  occurred  to  the  learned  gentle- 
man to  consider,  that  it  was  very  poseude  bo 
might  be  led  by  this  train  of  reahoning  into  tbo 
consideration  of  the  effect  of  the  collinioo. 
Your  lordshi(»s  will  permit  m^-  to  remark,  that 
the  learned  gentleman  who  spoke  iirtit  upoa 
that  side  of  the  question,  chose  to  l»e  perfectly 
silent  n|»on  this  head.  He  did  not  seem  to 
know  that  it  would  be  likely  to  occur  to  us  ia 
the  consideration  of  this  sentence  to  suggest, 
that  it.  was  collusive ;  for  unless  it  were  by  an 
allusion  to  the  case  of  Hatfield  and  Hatfield, 
the  notion  of  collusion,  as  making  a  part  of  this 
question,  did  not  seem  to  have  occurred  to  him. 
Mr.  Mansfield  saw  the  certainty  of  the  collu- 
sion being  introduceil  into  Uie  argument:  to 
obviate  it,  he  used  three  cases,  two  that  had 
been  mentioned  before,  and  a  thurd  be  intro- 
duced for  the  purpose.  The  first,  io  the  or- 
der of  time,  was  the  case  of  Keon  in  my 
lord  Coke,  which  whoever  reads,  will  see 
that  the  only  point  determUied,  and  the  only 
point  to  be  determined  in  that  case,  was, 
that  it  was  not  oompetent  for  the  psrty  to 
traverse  an  offence  that  had  beoo  found  against 
biro:  all  the  rest  is  that  sort  of  lucubratioa 
which  adorns,  and  in  many  instances  improves, 
the  reports  of  that  learned  juilge  of  the  deci- 
sions of  his  own  time.  And  this  is  the  use  that 
is  attempted  to  be  made  of  this  part  of  the  argo- 
ment;  that  it  was  founded  in  falshood,  and 
therefore  was  U|)on  the  face  of  it  collusive. 
The  falshood  was,  that  the  party  was  in  a  oon- 
dition,  as  it  turned  out  by  subsequent  enquiry, 
to  have  made  a  better  case  than  he  did  make  ; 
and  from  thence  it  is  Io  be  taken  for  granted, 
that  of  purpose  and  design  he  abstained  from 
making  that  case  that  he  did  not  make.  Yodr 
lordships  know  belter  the  nature  of  business, 
than  from  such  a  circumstance  to  infer  a  fraud : 
the  best- bottomed  causes  often  miscarry  for 
want  of  that  evidence,  without  which  they  can- 
not be  supported.  The  next  case,  that  of  Mor- 
ris and  Webber,  from  Moore's  Repoits,  seems 
to  me  to  be  still  less  material  or  useful  to  tbo 
purpose  for  which  it  is  produced :  that  was  tb« 
case  of  a  divorce  *  propter  impotentiam  virL' 
The  parties  marrying  af\erwar<is,  fruit  of  each 
of  these  marriages  was  the  birth  of  children. 
Perhaps  it  may  occur,  tliat  that  circumstance 
did  not  afford  a  very  decisive  and  conclusive 
proof  of  the  negative  of  the  ground  Ufion  which 
that  decree  was  pronounced :  it  is  not  an  im- 
possible case,  that  what  hail  happened  might 
happen,  althouijh  the  divorce  was  perfectly 
well  founded  in  point  of  fact.  But  suppose  it 
were  taken  for  grante4l,  that  the  child  must  of 
necessity  be  the  ifisiie  of  a  man  who  had  been 
divorceil  *  propter  iinpotentiam ;'  yet  that  it 
must  of  necessity  l»e  inferred  from  thence,  that 
this  sentence  was  collusively  obtained,  remains 
to  be  made  out.  I  ctineeive  that  tbis  case,  any 
more  than  the  one  that  prece<led  it,  does  not 
afford  a  col(»ur  to  say,  that  the  question  of  collu- 
sion and  the  com|)etency  of  going  into  the  quea- 
tioo  of  coUufioo  occurred  to  the  court  ia  eithet 


16  GEORGE  III.  Trial  of  the  Duchess  o/Kingstcm,  [491 

alone  he  it  interested  in  doing,  the  party,  wh< 
would  otherwise  be  prejudiced  by  sucb  a  judg- 
ment, is  constantly  and  daily  permitted  to  say, 
that  this  was  a  judj^ment  obtained  by  covin : 
this  allegration  is  usually  formed  into  an  issue 
and  if  that  issue  is  determined  in  bis  fafoor, 
though  the  judgment  stands  as  to  efery  othfi 
person,  quoad  him  it  is  avoided  iu  the  manner  wi 
are  ready  to  avoid  this  sentence,  ft  was  said, 
that  the  reason  why  creditors  are  permitted  so  tc 
avoid  judgments  set  up  to  their  prejudice  bj 
executors  or  administrators,  who  seek  to  covei 
effects  in  their  possession  by  false  judgmentf, 
is,  because  these  people  cannot  be  relieved  in 
any  other  form  ;  it  cannot  be  referred  to  aojf 
other  court.  1  am  perfectly  content  to  tain 
that  as  the  principle ;  then  it  remains  in  nrdei 
to  support  this  distinction,  for  the  learned  ^eo- 
tlemen  among  them  to  make  out,  that  it  ii 
competent  to  his  majesty  to  make  himself  a 
party  to  this  suit  in  the  Spiritual  Court,  or  to 
mstitute  there  by  his  proper  officer,  a  new  suit 
to  get  rid  of  tins  sentence.  The  ^eutlemeo 
have  not  attempted  it ;  it  would  be  ndiculoiis; 
and  I  fancy  1  may  presume  it  will  not  be  at- 
tempted :  it  is  not  competent,  much  lets  ne- 
cessary, for  the  king  or  his  law-officers  to  ^ 
into  that  court  for  a  purpose  so  idle  as  tha. 
Taking  this  then  to  be  the  reason  why  it  is  ad- 
mitted in  civil  causes  to  creditors  to  get  rid  of 
lodgments,  by  which  they  are  attemoted  to  be 
mjured,  by  shewing  that  they  werecdlosiveaud 
fraudulent,  does  it  not  follow  by  parity  of  rea- 
son, that  it  is  equally  |iroper  that  the  same  thing 
should  be  done  here,  supposing  that  your  lord- 
ships should  for  a  moment  forget  this  to  be  io  n 
criminal  cause,  in  which  the  reasons  for  so  dQiog 
are  so  much  the  stronger  ?  Another  distinctioa 
between  this  case  and  that  was  attempted.  Ic 
.was  said,  this  is  not  the  case  of  a  third  person 
complaining  of  an  injury  arising  by  a  sentence, 
and  wishing  to  avoid  it  so  far  only  as  it  affects 
him ;  but  it  is  a  suit  instituted  for  overturning 
the  sentence.  I  apprehend  it  is  not  so ;  we 
contend  for  nothing  but  to  lay  this  sentence  oat 
of  our  way,  as  applied  to  the  present  subject; 
just  as  you  lay  out  of  the  way  a  judgment  be- 
tween A  and  B  where  it  is  attempted  to  bt 
used  to  the  prejudice  of  C.  Af\er  your  iord« 
ships  have  convicted  this  lady,  if  in  the  retolt 
of  the  enquiry  it  should  be  proved,  that  sack 
is  the  justice  of  the  case,  1  do  not  know  that 
the  verdict  or  the  judgment  iu  this  case  will  bt 
evidence  upon  an  enquiry  into  the  same  fact! 
for  another  purpose.  Ir  the  result  of  the  pr^ 
sent  enquiry  is  understood  to  establish  tbt 
marriage,  and  to  nullify  the  sentence,  it  is  be* 
cause  the  sentence  is  in  its  nature,  when  H 
comes  to  be  enquired  into,  really  and  truly  nail 
and  void  :  not  because  that  such  is  the  efllect  vi 
any  operative  power  and  force  that  belong  tt 
your  lordships'  convictiou.  This  is  not  a  pro- 
secution for  the  annulling  of  that  sentence; 
this  is  a  prosecntion  to  subject  the  party  to  tbt 
punishment  which  is  by  law  due  to  the  odfend 
upon  her :  it  cannot  be  attended  with  any  other 
poMible  Gonieqaeoce.    Upon  tbt  Mme  gwoid 


491] 

of  these  two  cases.  In  the  case  of  Hatfield  and 
Hatfield,  a  man,  who,  under  colour  of  being  (he 
husband  of  the  woman,  had  taken  upon  him  to 
release  some  interest  which  she  was  entitled  to, 
and  he  claimed  to  be  entitled  to  in  her  right, 
and  the  question  turned  upon  the  effect  of  that 
notion:  there  was  aflerwards  a  sentence  be- 
tween the  parties  against  the  marriage;  whe- 
ther the  means  to  obtain  it  were  fair  or  foul, 
fhiudulent  or  otherwise,  we  are  lefl  to  guess 
at.  Your  lordships  will  not,  I  presume,  adopt 
all  the  printed  reasons,  good,  bad,  or  indif- 
ferent, that  are  offered  to  your  lordships  at  the 
close  of  your  printed  cases.  Your  lordships' 
predecessors  in  that  case  could  do  no  otherwise 
than  thev  did :  they  saw,  that  the  decision  in  the 
court  below  was  right,and  upon  that  ground  they 
affirmed  the  decree.  Now,  what  was  the  thing 
decreed,  and  the  point  in  controversy  between 
the  parties  ?  The  man,  while  he  passed  for  this 
lady's  husband,  took  upon  him  to  release  an 
interest,  which  it  was  not  competent  for  him 
to  release,  whether  he  had  or  not  that  character, 
the  subject  of  the  release  being  a  legacy,  left 
to  her  under  a  will,  in  such  terms  as  operated 
to  give  her  in  equity  a  separate  interest.  I 
need  not  contend,  that  in  a  separate  interest  of 
the  wife  the  husband  caunot  controul  or  de- 
prive the  wife  of  it  by  any  release  of  his.  A 
court  of  equity  had  decided  against  the  party 
claiming  under  the  release,  which,  according 
to  the  aettled  doctrine  of  courts  of  equity,  It 
was  equally  bound  to  do,  whether  the  party 
releasing  had  or  had  not  married  the  woman 
whose  interests  were  to  be  affected  by  it ;  and 
the  question  (husband  or  no  husband)  was  just 
as  foreign  to  the  merits  of  that  decision,  as  any 
thing  that  could  be  talked  about  in  the  cause. 
Totally  therefore  laying  out  of  the  question 
all  that  had  been  said  upon  the  subject  that 
was  not  necessary  to  the  decision  of  the  case, 
the  House  of  Lords  affirmed  the  decree  of  the 
court,  because  they  saw  it  had  rightly  decided 
the  only  point  in  controversy  netween  the 
parties.  These  then  are  the  cases,  upon  the 
ground  of  which,  and  upon  the  ground  of 
which  alone,  (for  I  have  not  been  able  to 
collect  a  fourth)  your  lordships  are  desired  to 
decline  doing  that  in  this  instance,  which 
we  contend  your  lordships  are  bound  in  jus- 
tice to  do ;  that  is,  to  let  us  into  the  enquiry 
by  what  means  this  sentence  was  obtained. 
The  gentleman,  particularly,  who  made  this 
use  of  these  three  cases,  could  not  forget  the 
familiar  practice,  which  he  is  a  witness  to  every 
day  of  the  year,  of  impeaching  the  judgments 
of  the  courts  of  law,  whenever  thMve  im- 
peachable upon  the  foundation  of  iftnd  and 
covin.  1 1  never  occurred  to  a  court  in  which  such 
a  question  arises  to  refer  the  party  who  makes 
a  c«>mplaint  of  a  judgment  so  obtained,  to  the 
court  in  which  it  was  obtained,  or  to  direct  him 
to  institute  a  suit  to  get  rid  of  it ;  he  impeaches , 
it  just  when  it  affects  him,  and  not  further  than 
at  it  affecta  him ;  beyond  that,  it  is  a  matter ^ 
of  perfect  indifierence  to  him,  whether  it  ttands 
orttfUas  for  tbt  porpow  of  <hMog  4Mt,  which 


» . 


Jnr  Bigamif. 

.. ntlcmnleil  lo  lie  impetubed 

hnv,  it  may  ht  iniuracheJ  eitn'y  where,  except 
ty  ili«  iiwtin,  wlici  may  perhipg  haii;  jire- 
(luileft  t|jeiD«el<rn  hy  llieir  codiIuci  from  iin- 

Aly  lorils,  a*  Ihere  tre  no  aulhariiie*  on  ibe 

line  liiJe,  it  rcniaini  fur  a  ninmenl  only  tu  olt- 

ifT'c,  llist  Iticre  are  oii ill i>ri lies  on  llie  otiicr 

■i>ie  :    «i  Bpplinl  In  civil  cues,  two  liaTe  been 

I  I'litiuDeil.    The  p>od  scnieorboib  llie  au- 

KuiiM,  (liiTtjcularly  of  nue,  I  should  *ppie- 

nii  Fxtabliihes  lliii  propu«ilJ(in  clear  ol    all 

r.irureny;    far,  when  in  the  case  of  the  ac- 

"  •(pioitt  CoriEtuDlia  Phillipa,  of   f'amoug 

■    miry,  it  nas  ilclermineJ,  lliil  whatever  ol>- 

rumiia  law.  would  he  tufiicieni  to  overtuni  a 
loiUiiGeiii  the  Spiritual  Courl,  hut  aoiic  other ; 

L — 1.1  ji^jg  unagineJ  tlial  ibe  propoailioit 

li  it  ao  much  gtmi  senae,  that  ill  the 
Id  feel  il  and  adopt  it.     The  Scutch 
M«  ia  by  Ihe  higlieal  aiilhurily,  and  ihere  the 
tat  naa  tliat  ii  to  he  madii  of  a  jud^meni  in 
wMbtT  court  ia  ascerlained  and  limited ;     It 
«deB«e ;   it  ia  strong  evidence ;  but  il  re- 
n  to  be  explained ;    and  alill  more,  it  re- 
H  to  be  laid  out  of  llie  eaoe  iu  a  cause  like 
■K  and  in  a  case  like  thai  of  Phillips,  where 
>W«  (liated  a  ijTound  to  impute  collusion  and 
Ibnd  to  il.     In  Philltpa'a  caae,  il  was  not  per- 
>kt(d  ta  bcr  lo  avail  herself  of  ihal  collusion 
Odlbal  fraud.      Why?    Becauie  il  was   ■ 
hai  of  W  own.     Ilul   the  learned  judg;p, 
''hta  Im  Tcfuaed   to   permit  her  10  impeach 
MMMnce,  mbich  the  had  obtained  by  col- 
MN  and  fraud,  adds,  according  lo  Mr,  Ford's 
•raMtipl  oole,  that,  "  »h  ai£aiii">  a"  olhert, 
■htner  ubjectiona would  avoid  ajudgnieiit  Id 
tfMHt  of  law,  iruald  hi:  sufFicienl  lo  orerturn  a 
Mace  iu  llie  Ecclesinsiiral   Courl."      We 
44rc  10  ofcrtuiD  this  scnlence  upon  no  oilier 
inpoda,  than   aentcncei    and   jud^menls    in 
<«Ma  <tf  law  are  every  day  overliimed  hv  ; 
Uvj  Aosl  cnulioue  lo  nc  so  oserlurned  Id  Iu- 
aa  hiatf  aa  ibere  ronllniies  to  be  any  ni- 
ls hi  Uulli  and  justice,  in  the  decisions  of 
a  «f  judicature.      I  dn  apprehend,  that 
JfNi  Ii>rdilii|is  will  not  think,  that  1  take  on 
' — nfwr   fretdom  wiih  the  lenience,  or  the 
Bl  wboM  teulence  it  is,  by  desiring  that 
IT  lordabip*  will  by-and'by  ibrm  an  opinion 
I  *(lhepufil3r  of  their  proceeding  hy  ibeapect- 
[  ^fl  lltal  we  sUftll  give  you  of  tbem,  when  we 
I   *«i»*lo  slate  and  |)mTe  the  means  by  which 
I   <kit  atntencc  wia  iirociired  ;  and  then  perhaps 
I   )nr  Wdshipa  will  ire  no  reason  jVir  raising  it 
I  llan  tlia  kvcl  uf  oilier  courts,  on  which  we 
t  lo  leave  il.     Wllb  your  lordships' 
,   1    would    supply  an   omiasioii   I 
U  In  have  atated  in  iu  proper  place ;  the 
k  AaafBAbiuaandCrulchley.     AMrs.Hobins 
'nimmccd  BD  action  of   dower,  claiming  a 
.■fol  tbe  aunoeaaiou  lo  her  supposed  bus- 
-i  Nt.   Itobioa:  ibii  lady  bad  been  claimed 
,.|  >'Wih>iiil«oraair  William  tVolseley.    Sir 
|M|^hB,  afM  ibe  suppotiiion  thai  abt  waa  his 
^^B&M  iuaiilaied  a  snil  in  the  Spiiimal  Court, 


A.  D.  nm 


of  hei?" 


probably  wiih  an  inltDlion  tn  gpt  rid  of 
charging  her  with  having  commitled  adiillery 
with  Robins:  Iu  ibe  course  of  ihal enquiry  in 
Ibe  Spiritual  Court,  it  caroe  out  to  the  sallslae- 
lion  of  Ihe  Court,  that  she  was  ibe  wife  of 
Rohinsand  not  of  sir  William.  Thissenlencc 
was  introduced  in  pleading  in  this  cause  of 
dower  for  the  purpose  of  repelling  a  denial  oa  ' 
ihe  pari  of  the  heirs  of  Mr.  Rubins,  that  sba 
bore  any  relation  to  them  or  to  their  anceslor. 
To  that  replication  there  was  a  demurrer, 
which  broDghl  under  con«ideraliun  of  ibe  court 
of  CommoD  Pleas  the  elTecl  of  iliia  senlpnoe  so 

(leaded.  The  opinion  of  the  courl  of  C*inmoii 
'leas  was  lo  allow  that  demurrer ;  aud  lhnui;h 
ibe  paint  decided  may  perhaps  he  only  ihit, 
that  ibal  sentence  could  nnt  avail  Ihe  party  in 
Ihal  form  of  pleading  ;  yd  I  conceive  ibat 
point  must  be  rery  erroneously  decided,  if  Iha 
lenience  were  ol  the  description  which  baa 
been  allempled  to  be  passed  upon  your  lard* 
ships :  for  if  it  bad  been  uodcrstood  to  he  cod' 
clusiie  and  precluisiTe  of  all  further  emjuiry, 
most  undoubtedly  il  would  have  been  a  propel 
subject  to  be  introduced  in  pleading  as  a  bar  la 
any  farther  enquiry.  Your  lordsbipa,  by  look- 
ing into  the  only  report  in  print  of  thai  casa 
(Mr.  Serjeanl  Wilson's)  will  Bnd,  that  the 
learned  judges  of  the  Common  Pleas,  who  de- 
cided it,  seemed  to  be  agreed  in  thinking,  that 
it  was  very  far  from  an  eslahlished  point,  thai 
Ibis  scnlence  was  cooctuslve,  Ihal  ibe  qoesiioa 
could  only  be  Irietl  upon  the  issue  ue  unyuea 
accouple,  which  your  lordsbijiB  know  lo  li%  iIm 
only  proper  iasue  io  a  queslioD  of  dower,  ami 
that  issue  must  be  determined  by  the  bishop's 
cerlilicalc.  Now  we  aretuld  thai  this  senteiicv 
is  just  eqiiivaleot  lo  the  cerlJGcate  of  a  biihop: 
Ibis  was  so  far  from  being  Ihe  opinion  of  that 
court, thatthey  leave  to  the  bishop  lo  judge  liir 
himself,  what  regard  he  would  pay  to  Ibat  seu- 
lence  on  the  point  which  he  waa  to  cerlily. 

Dr.  Harris.  Sly  lords  j  It  would  ill  becoma 
me  at  this  lime,  alter  the  points  which  hava 
been  proposed  have  been  su  fully  disouised  by 
the  gentlemen  who  have  gone  before  lue,  to 
take  up  much  of  yuur  lordships*  time. 

There  are  two  questions,  as  I  underslanit, 
before  your  lardsbips. 

The  first  of  them  is,  whether  a  sentence  in  a 
cause  of  jaclilalion  can  be  giten  in  evidence,  as 
an  abaolule  bar  to  a  pruseculioa  by  the  kingF 
and  the  other  is,  whether,  on  suppasiiioa  that 
a  seoteuce  in  n  caiice  ofjaclilalion  can  lie  giieo 
in  evidence,  it  will  attbrd  a  coniplele  delence, 
so  Ihal  no  proofs  whatever  can  be  adiniiird 
at^erwards  in  order  to  countcracl  and  inipeaoh 
that  aeotence  ? 

How  these  qurttions  come  before  your  lord- 
ships, wlielher  properly  or  improperly,  is  not 
for  me  lo  argue.  It  isoul  of  my  praressiun  lo 
say  any  thing  about  them ;  bul  as  the  gentle- 
men on  the  other  side  bave  been  permitted  to 
slate  them  and  argue  on  them,  il  is  certainly 
necesmry  tbsi  ibey  should  also  he  discussed  by 
the  counsel  i'or  Ibe  prusecuiiaa. 


495] 


IG  GEORGE  III. 


Trial  of  the  Duchess  of  Ki>igslo« 


In  reftard  to  the  tint  itur^tion.  I  shall  not 
trouble  jrour  Inrclships  lnni{,  becBuse  ihe  (lis- 
Guuiun  nl'  ii  reUle*  |irin«l|>ally  In  the  (iracljce 
of  courts  of  liir,  but  iiliiU  more  (lurlirulRrljr 
attach  oiywlf  to  the  conniUrtlion  of  ibp  se- 
'  eonil ;  bb  I  (hBll  in  flo  dninR-  liate  no  n[i[iorlu- 
'  nily  to  lay  ft  woni  or  two  io  riibwci'  lu  uhat 
'tliegFUllemen  haie  urKed  on  tli^  other  siile, 
who  are  ofihe  same  iirofFB^inn,  anil  iimclise  in 
the  Biime  courts  »bere  1  lioTe  tie  honour  to 
alien  J. 

In  respect  lo  Iha  first  qnealinn,  whether  a 
■enlence  of  jactitation  is  an  absoliile  bar,  and 
can  be  nflereit  as  such  to  a  suit  at  ihe  prnaecu- 
Hoa  of  the  kiiiir,  it  is  lo  be  olnervfil,  that  an- 
cicnily  the  whole  cos^iznnce  nf  mnrria^,  iviih 
llial  of  IhecTimea  Btteudini;  it,  wb«  *esleil  In 
theecclesiaBtical  courts :  but  those  courts  hein; 
•ilher  remiia  iu  the  exerlion  nf  ihrir  jurisitlc- 
lions,  or,  more  probably,  waalini;  irawer  lu  in- 
flict an  adequate  jiuDithtneat  Biimcient  In  stop 
tlieiirowthof  Ihe  iTicreasinfr  evil,  Bill]  Ihe  legis- 
lature, for  conmltutioiiBl  reisons,  liring  hoih 
unwilling  and  unable  to  iniest  ihrm  with  more 
■ulhorily  than  they  then  hail,  ihe  aid  of  nsr- 
tiamenl  became  nbsutulcly  uecesnry  ;  and  the 
Malute  of  James  Ihe  1st,  on  vhich  uie  prisoner 
stauds  indicleil,  was  aceordln|i  made;  by  tvhtrh 
it  was  enacted,  that  if  any  person  bein^  luar- 
ried  shall  marry  another,  the  former  husband 
or  xife  being  elite,  the  nlTrace  shall  be  lelony. 

Before  this  atatule,  the  ecclesiaslical  courts 
bad  the  cof^izance  of  the  crime  of  Ink- 
ing »  sf^conil  wife,  or  a  teconil  hiislwnd, 
'whilst  the  lirst  wife  or  first  husbnTuI  was 
litiag;  but  the  atatule,  an  I  undenlsurl,  lakes 
that  branch  of  the  jiiritiiliclion,  namely,  the 
|H>wcr  of  inHicling'  any  puDishinent  wliaterer 
<m  a  person  guilty  of  poiyifBrny,  eulirely 
from  the  eccletiasiical  oouris;  insomuch,  ihi 


■   if  a 


e  Iron 


■n  Eccleeia«iic»l  Court  in  nnlrr  lu  cull 
pertun   lo   nrcount  fur  hii;amy   or   polygsi 

'   (whiclierer  it  may  be  Icrmed,)  the  panv  ci 

niiy;ht  'ihtaio  a  pruliibition  from  llie  JHdKts  of 
the  leiii|inral  courts  lo  slop  such  a  suit,  in  ihe 
■ame  manoer  a*  a  prnhihiiion  may  he  uhtained 
in  case  of  a  pronecution  in  an  licclesiastical 
Court  for  peQury  nut  ciiDiniittrd  in  that  court, 
or  for  any  other  crime  punishahle  by  a  ststule, 
Now,  my  lords,  it  is  etirleiil,  that  the  one  court 
has  lost  what  the  othei-  has  (rained,  in  respect 
lo  the  offence  of  bi^my ;  sii  that  llie  tcuipural 
court,  or  rslher  your  lordnhipt,  are  ehle  lo 
juJi;e  of  bitcamy,  slid  of  every  rci-lMia>tical 
matter  incident  to  that  branch  of  spiritual 
jurisdiclign.  It  may  here  be  ohterred,  that 
•  jactitatiou  cause  is  deacrilod  io  oar  houkr 
af  praclioi  in  b«  a  ^uuii  detiiiiintnry  suit ; 
and  must  certainly  it  is  su,  and  iiuihing  more 

-  when  a  person  hl)ell*it  n^niiist  in  jaciitatiot 
Gonfesses  the  Imsslinif;  as,  when  a  man  cilei 
a  woman  fur  Loamint;,  and  slie  a  c  know  ledger 
'  Ibejaclitaliun  ;  for  llie  Ciiuse  enili 
Sirtctty  of  a  defanialnry  intiire. 
mean  to  deny,  when  ihe  dflciidnnt  undertakes 
to  justify,  that  the  cbuir  then  becomes  truly  I  legislature. 


malrimonial ;  fur  the  sentence  will  then  Amw*- 
sarily  be,  either  that  Ihe  pailirs  are  man  ami'*  _ 
Hife,  nr  thai  the  plaintilT'a  or  parly  asnii  ia^l 
IVee  from  all  matrironnial  contract 
nobis  conslare  poiuit,'  ur  as  far  as  to  us  as  yfC 
apjiears.  But  though  a  senteoce  in  theaa 
words  may  liaie  treqiirntly  bei-n  adjudged  [at 
in  Jones  and  How,  Csrihew  323 — ami  in  CIcwT' 
and  Bathurst,  Hirange  9G0.]  In  be  binding  a 
the  temporal  courts  in  cases  of  pruprrly,  till 
rerersed ;  yet  it  by  "o  means  Ibllows.  thai 
»{uch  a  sentence  can  amount  to  an  Bci|Uiltal  of 
ibe  plaintiff  from  havinif  any  farther  etideoee 
brought  agninst  him,  the)  cry  words,  >  as  far  aa 
to  us  yet  appears.'  implying'  the  ci 


duced  in  Ihe  proper  court.  Tiie  wnnis  nf  ih* 
sentence  speak  sutficiently  for  Ihrm^Ues; 
there  is  no  occasion  to  hare  recourse  lo  aiitho- 
rilivs  from  boohs.  Let  it  be  sU|i|>o>e(l  for  a 
moment,  that  the  ancient  juri^^dictinn  remained 
in  the  ecclraiK^ticai  courts,  and  that  they  poft- 
sessed  their  foinitr  power ;  is  il  po'sihle  tiO 
cunceive,  that  a  scniei'Ce  like  the  presrnt,  pro- 
nooncing  a  woman  to  be  a  spiiisler,  as  fnr  aa  in 
the  couit  as  yet  appears,  could  be  a  bar  tu  a 
suit  in  the  same  nr  in  another  ecctrsissiiosl 
court  SKainsl  the  same  woman  Ibr  polygamy.? 
If  it  could  be  a  bar,  it  would  amount  to  an  ne- 
quittal,  till  the  sentence  in  the  citil  suit  had. 
been  reversed ;  which  would  he  anbiersive  «l 
justice,  by  making  the  commission  of  at 
diicaverrd  crime  in  one  court  a  shelter  at. 
the  punishme ul  of  that  very  crime  in  sdoiIim', 
If  the  doctrine  ouw  conlendeil  for  should  prtf 
vail,  that  the  aJferiuK  of  a  sentence  in  jaclili< 
tlun,  proDOuncin;  the  parly  agent  free  fra) 
matrimony  as  far  as  yet  appears,  is  an  absola 
har  10  a  ciiminal  proseculion  Ihero  wouM  be  i 
opportunity  on  every  indicimFut  for  polyjjaii 
lu  defeat  the  statute  :  (iir  in  the  case  of  a  w 
man  marrying  two  husbands,  if  Ihe  6rrt  hM 
band  shouUI  consent  lo  a  collusire 
wile  would  have  uolhinc  tn  do  hut  tr 
first  husband  into  an  eccleriiaslical  court  II 
jactitation,  if  she  apprehended  a  prosecHtia 
on  the  statute ;  and  theu,  either  on  coDfearii 
of  the  boasting  by  the  first  hushani),  or  I 
Ills  faiKn){  to  pro*e  his  marriage,  if  he  and! 
took  the  procf,  a  sentence  would  be  ohtaiM 
"which  would  inlirely  defeat  the  statute.  Tl 
this  House  shnuhl  ^^ire  a  countenance  lo  a  di 
trine  of  such  tendency,  is  nut  lo  he  imaninC 
It  would  he  so  far  to  restore  the  '  '  """^ 
courts  to  their  I'urmer  authority,  as  to  put  ill 
the  power  of  eiil  disposed  prrsons  tn  use  tilt 
courts  to  Ihe  defeasance  nf  the  statute,  HtUbt 
giving  hack  lu  the  eccle»iastioal  courts  a  ji 
risdietion  to  punish  the  crime  of  polygi 
which  would  thus  go  unpunished  :  il  wouMl 
lo  render  Ihose  courts  io  ihis  teepecl  liuf^ 
without  affiirdins;  them  anoppnrinilily  of  bi  ^^^ 
useful ;  and  it  woiibl  in  eftrcl  he  lo  deslruf 
law  in  ynur  lordshi|>i>'  judicial  capacity,  w hi 
had  tiH-inirly  on  ihe  inaturest  cnnslderai] 
iblished  in  this  House  u  a  puisf  i 


497] 


for  Bigamy* 


A.  D.  1776. 


[49S 


It  wonid  now  be  improper  for  me  to  detain 
jour  lordships  any  longer  on  this  question, 
which  has  been  so  ably  and  fully  discussed  al- 
ready ;  and  I  shall  trust,  that  your  lordships 
cannot  be  prevailed  on  to  declare  the  sentence 
in  jactitation  conclusive  upon  this  high  court, 
or  to  suffer  it  to  be  read  judicially  as  a  stop  to 
aoy  evidence  which  may  be  brought  as  a  proof 
«ir  the  marriage  of  the  lady  at  the  bar  with  Mr. 
Hervey,  now  earl  of  Bristol. 

But  on  supposition  that  the  sentence  may  be 
permitted  to  be  judicially  read,  it  may  be  ne- 
cessary for  me,  in  contradiction  to  what  the 
geotlemen  of  my  own  profession  have  asserted, 
to  trouble  your  lordships  with  a  word  or  two  in 
Ibe  briefest  manner  I  am  able,  in  order  to  shew, 
that  evidence  of  a  particular  kind  may  be  given 
in  all  courts,  and  at  all  times,  to  rebut  a  sen- 
teoce  in  jactitation  in  disfavour  of  matrimony, 
for  the  purpose  of  relieving  an  injured  party 
lod  of  punishing  the  guilty. 

It  is  a  general  rule,  which  is  not  to  b^  denied, 
that  respect  is  due  from  one  court  in  England 
to  the  decisions  of  another,  and  that  comity  is 
due  to  the  decisions  of  all  foreign  courts ;  and 
it  might  be  more  accurate  and  more  strictly 
true  to  say  in  general,  that  one  court  in  £ng- 
hod  is  bound  by  the  judgments  and  sentences 
tf  auother ;  but  the  generality  of  this  rule  does 
■Qt  exclude  an  exception,  which  in  reality. af- 
fonls  a  proof  of  its  generality  :  for,  under  cir- 
coBistances,  evidence  of  every  sort,  parole  as 
vHI  as  instrumental,  may  be  received  in  one 
coflrt  to  affect  a  sentence  in  another.  Fraud  in 
aiiDgle  person,  and  cullnsinn,  where  there  are 
(vo  or  more,  may  be  given  in  evidence  in  the 
nne  court  in  a  different  suit,  ur  in  another 
eoflrt,  to  affect  the  parties  to  a  sentence ;  and 
tf  course  to  affects  the  sentence  or  judgment  it- 
Klfin  some  degree. 

It  is  true,  that  by  the  ecclesiastical  law,  a 
Kolencein  any  case  obtained  by  collusion  may 
be  declared  void  in  the  same  court  in  which  it 
vat  pronounced,  by  means  of  a  special  suit  for 
that  purpose  \  and  most  certainly  at  the  suit  of 
aperaon  having  an  interest,  who  could  not  eveu 
bare  intervened  at  the  time  \ihen  the  suit  was 
Mdiog ;  and  such  was  the  case  of  lady 
Frances  Meadows,  who  had  no  interest  in  the 
Trars  1768  and  1769,  when  the  suit  of  jactita- 
tion was  pending :  but  it  does  not  follow,  be- 
cauie  a  sentence  obtained  by  collusion  may  be 
iaauUe<l  in  the  same  court  where  it  was  pro- 
MODced,  that  sucli  sentence  may  not  be  im- 
peached by  any  means  whatever  in  another 
cisrt. 

iHhall  not,  in  proof  of  what  I  hare  advanced, 
detain  your  lordships  with  a  repetition  of  the 
pfrticulars  of  Fermor*s  case,  as  reported  in  the 
tM  part  of  Coke's  Reports.  1  shall  only  ob- 
itive,  that  it  was  a  case  depf  ndiug  in  the  Court 
<f  Chancery,  in  the  'l-Uh  of  Elizabeth,  before 
■ir  Thomas  Egerton,  the  then  lord-keeper,  in 
Hicfa  Richard  Fermor  complained,  that  Tho-, 
Vai  Smith  the  defendant  was  his  tenant,  and 
bad  levied  a  fine  with  proclamations,  in  order 
to  bar  him  of  bis  inheritance,  by  covin  and 
VOL  XX. 


practice.  The  lord-keeper,  considerhiff  on 
one  side  the  mischiefs  which  might  arise  from 
such  practice,  and  on  the  other  side  consider- 
ing that  fines  and  proclamations  are  the  gene- 
ral assurances  of  the  realm,  referred  the  case 
to  the  two  chief  justices,  Popham  and  Ander- 
son, who,  ^fter  a  conference,  thought  it  neces- 
sai'y,  that  all  the  justices  of  England  and 
barons  of  the  Exchequer  should  be  assembled  : 
the}'  assembled  accordingly,  and  it  was  at 
length  resolved  by  the  two  chief  justices  and 
barons  of  the  Exchequer,  except  two,  that 
Richard  Fermor  was  not  barred  by  the  fine 
with  proclamations.  The  lord-kee|)er,  sir  Tho- 
mas Egerton,  commended  the  resolution  of  the 
judges,  and  agreed  with  them  in  opinion. 

The  precedents  and  reasons,  on  which  the 
above-mentioned  opinion  was  formed,  have  al- 
ready been  ably  related,  and  are  well  known  to 
some  of  your  lordships :  it  may  suffice  on  my 
part  to  add,  that  a  fine,  the  most  deliberate  (for 
it  is  five  years  in  completing)  and  of  course  the 
most  solemn  of  all  judgments,  was  not  deemed, 
in  the  opinion  of  the  lord-keeper  and  ten  of  the 
judges,  to  be  of  weight  aulEcient  to  protect  a 
colluding  party;  but  was  suffered  to  be  im- 
peached by  the  admission  of  evidence  in  ano- 
ther court  than  that  where  the  fine  was  levied, 
in  order  to  afford  relief  to  an  injured  man. 

It  is  said  by  lord  Coke  in  the  same  Report^ 
that  all  acts  ecclesiastical  at-  well  as  temporal 
shall  be  avoided  by  fraud  and  covin.  And  in- 
deed if  one  temporal  court  is  boodd  in  justice 
and  law  to  pay  no  regard  to  the  judgment  of 
another  temporal  court  under  the  circumstances 
above  described,  can  any  reason  be  given,  why 
the  sentence  of  an  ecclesiastical  court  in  suob 
a  case  should  be  treated  with  more  respect  by 
the  temporal  judges,  than  they  are  obliged  to 
pay  to  the  judgments  of  their  own  courts  P 

But  to  the  honour  of  the  temporal  courts  it 
must  be  said,  that,  as  far  as  it  is  in  their  power, 
they  lend  their  aid  to  the  ecclesiastical  courts 
in  case  of  covin  and  collusion,  by  permitting 
the  ecclesiastical  courts  to  try  such  fraud,  even 
when  committed  in  the  temporal  courts,  as  inci- 
dental matter. 

The  case  alluded  to  is  in  Moore's  Reports, 
page  917,  Lloyd  and  Maddox. 

Air.  Lloyd  a  legatee  sued  Maddox  the  exe- 
cutor of  the  deceased  in  the  Spiritual  Court  for 
his  legacy.  The  executor  alleged,  that  all 
the  testator's  effects  had  been  recovered  from 
him  the  executor,  in  a  court  of  common  law, 
by  a  creditor  of  the  testator.  The  legatee  aU 
leged  in  his  turn,  anil  undertook  to  prove  in 
tiie  ecclesiastical  court,  that  the  recovery  at 
common  law  was  in  consequence  of  collusion 
or  covin  between  a  pretended  creditor  and  the 
executor.  And,  upon  the  admission  of  this  plea 
iu  the  ecclesiastical  court,  the  executor  applied 
to  the  temporal  court  for  a  prohibition,  which 
was  denied. 

And  from  this  it  is  evident  by  necessary  in- 
fercuce,  that  the  temporal  courts  must  have 
deemed  themselves  competent  to  judge  inci- 
dentally of  covin  or  collusion  committed  in  a 

2K 


499] 


16  GE0B6E  HI. 


Trial  of  the  Duckets  of  Kingston, 


[SfX 


spiritual  court,  in  order  to  relieve  an  injured 
party  or  suitor  in  a  temporal  court. 

When  this  liberty  taken  by  one  court  with 
the  apparent  judj^ment  of  another,  under  cir- 
cunaetnncesi  comes  to  he  considered,  it  seems 
to  be  founded  on  the  strongest  reason :  for  when 
a  judjBfment  has  been  procured  by  a  collusion 
of  parties,  thou^^h  it  must  stand  on  record,  and 
may  not,  1  grant,  be  actually  expunged  or 
taken  from  the  file,  but  by  the  court  in  which 
it  was  given ;  yet  it  is  certainly  a  mere  nothing 
to  those,  who,  not  being  privies,  can  shew  it 
false  and  covinous.  It  is  a  sentence  in  which 
the  judge- had  never  an  opportunity  of  doing 
neal  justice — and  is  undoubtedly,  what  it  has 
been  justly  stiled  by  a  writer  on  the  civil  law,  a 
stage- play,  a  protane  mockery,  or  any  thing 
but  a  judgment.  It  is  not  to  the  disrepute,  hot 
to  the  honour  of  a  court,  as  well  as  to  the  bene- 
fit of  the  public,  that  such  a  fraud  should  he 
detected.  The  upright  judge  must  of  all  things 
wish  it. — And  confident  I  am,  that  to  discofer 
such  a  profligate  proceeding  (from  which  no 
human  wisdom  can  protect  the  greatest  judicial 
abilities)  could  never  be  consti'ued  into  a  breach 
of  comity  between  one  judicature  and  another ; 
but,  on  the  contrary,  must  be  construed  by  the 
deceived  court  as  a  vindication  of  its  purity,  and 
a  rescue  from  an  attempt  to  load  it  with  dis- 
credit. 

I  must  now  own,  my  lords,  when  1  was  in- 
formed that  doctors. of  the  civil  law  were,  by 
the  permission  of  your  lordships,  to  attend  on 
the  part  of  the  lady  at  the  bar,  and  a  brief  was 
given  to  me  on  the  part  of  the  prosecutor  on 
that  account,  that  1  was  apprehensive  of  what 
might  he  quoted  from  such  miscellaneous 
Imoks,  as  the  digests,  the  code,  Rinl  the  decre- 
tals, in  favour  of  collusion,  and  to  shew  how 
honestly  it  might  l»e  practised  under  particular 
oircumstaoces.  Nothing  however  ot'  this  kind 
has  been  urged ;  and  I  hate  not  ni\ self,  from 
any  inspection  of  the  titles  and  text  of  the  civil 
and  canon  law,  de  coliusiune  detc^cnda,  which 
treat  principally  of  coilutiiic  causes  between 
masters  and  slaves,  and  bet\%een  certaia  of  the 
clergy  in  order  to  detraud  the  laity,  hopii  able 
to  gather  any  other  idea  than  that  collusion  be- 
tween parties  to  a  suit  is  a  very  hi^li  ofience  ; 
and  such  a  one,  I  make  no  doubt,  for  which 
colluding  parties  might  now  be  articled  a);ainst 
in  the  ecclesiastical  court,  where  ihe  iitsuit  was 


'  sententia  non  prodest  adversns  tertiam;  ve 
'  quia  tertius  erat  citaodus,  et  tunc  victori  uor 

*  prodest  sententia,   etiamsi   earn    obtiooinei 

*  aincer^.' 

And  when  an  executor  [for  example]]  de- 
sirous of  proving  his  testator*s  will,  omits  tc 
cite  one  among  others  of  the  next  of  kin  ;  foi 
in  that  case  the  omitted  |)erson  may,  if  he  thinkt 
it  for  his  interest,  oblige  the  executors  to  provi 
the  will  de  novo  at  a  subsequent  time,  the  sen- 
tence establishing  the  \s  ill  under  the  process 
by  which  one  or  the  next  of  kin  was  omitted 
being  as  to  him  in  the  true  sense  of  the  eZ' 
pression,  '  Ues  inter  alios  acta.' 
The  same  author  proceeds  by  adding, 
*  Vel  non  erat  citandus,  quia  causa  agebatai 
'cum  legitime  contradictore ;  et  tunc  licet,  si 
<  sententia  fuisset  lata  sine  colhisione,  tertic 

*  noceret ;  tamen,  si  fuerit  lata  per  cutlusiooem, 

*  non  nocebit.' 

This  may  he  explained  by  the  following  sup- 
posed case :  if  an  executor  to  prove  his  testator*i 
will  should  cite  all  the  next  of  kin  regularly, 
but  should  collude  with  that  next  of  kin  tc 
whom  the  management  of  the  suit  was  intrust- 
ed, and  prevail  on  him  to  feintplead,  and  not  put 
forth  his  strength  on  account  of  some  private 
barg.\in,  and  by  this  covin  establish  the  will ; 

J^et,  though  Ihe  sentence  in  this  case  would 
lave  bound  the  legal  contradictors,  who  bad 
been  all  called,  and  also  all  other  persons  what- 
ever, if  there  had  been  no  collusion,  it  shall 
nevertheless  not  hiod  the  injured  part  of  the 
legal  contradictors,  on  a  proof  made  of  the 
coucert<*d  fraud. 

It  must  lie  allowed,  that  these  writers  have 
not  (as  far  as  I  have  been  able  to  observe)  made 
mention  of  the  place  or  court  where  a  sentence 
collusively  obtained  is  to  be  set  aside  ;  and  if  an 
actual  celling  aside  or  total  reversal  is  iiioan.t, 
there  is  no  doa)»t  luit  that  this  must  be  done  io 
the  same  court  where  the  parties  colluded,  and 
in  no  other. 

But  if  it  is  only  asked,  where  and  in  wbtt 
court  evidence  is  to  l)e  leceivcd  to  relieve  an  in- 
jured person,  who  \«as  not  a  parry  to  the  collu- 
sion i*  My  answer  is.  that  it  is  plain  from  these 
writers,  as  well  as  from  reason,  that  it  is  to  be 
received  in  every  court. 

The  courts  u\'  civil  law,  known  to  these 
writers,  hear  in  the  same  court  and  under  the 
same  jurisdiction  causes  of  iirnporty,  aod  alM 


offered,  and  t^e  punished  at  discretion  by  eccle-  I  accusations  which  affect  the  tile  of  the  accused, 


siastical  censures.  But  a  paiiicular  discussion 
of  the  nature  of  the  offence  committed  by  par- 
ties colluding  in  a  cause,  how  that  collusion  is 
to  be  treated  when  discovered,  and  what  opera- 
tion the  discovered  collusion  will  have  upon  the 
eentence,  is  rather  to  be  expected  from  later 
writers,  and  such  authors  as  Alenochius  in  his 
Consilia,  or  Scaccia  de  re  judicatfi,  thau  from 
the  laws  in  the  text  of  the  civil  and  canon  law. 

And  these  authors  agree  in  general  in  saying, 
<  quod  lata  sententia  p^r  colfusiooem  habenda 
«  est  pro  Don-teDtentia,  et  quod  aliis  non  nocet, 

*  quamvit,  ■uUat&  collusiodei  noceret.    Nam 

•  fact  coliMione  ctimadfemrio  [says  Scacda] 


exactly  in  the  same  manner  as  our  Admiralty- 
courts  in  £n;^1and  did  before  the  27th  of  llenrj 
8.  And  therefore  %>hen  Scaccia  and  other  wri- 
ters, who  entertain  the  idea  of  the  same  court 
having  both  civil  ^nit  criminal  jurisdiction,  say 
that  a  sentence  obtaineil  by  collusion  is  to  be 
regarded  *  pro  non  sententia/  their  meaning 
fairlv  taken  must  be,  that  such  a  sentence 
would  be  effectually  avoidable,  or  rather  dis« 
regarded  every  where,  on  a  proper  proof  maile 
«f  the  fraud  by  which  it  was  obtained. 

I  am  aware  that  the  case  of  Mayo  aod  Brovfl 
was  quoted  by  the  advocates  on  the  other  ridCi 
aiaJeleiDitMice,  io  which  the  present  ' 


Ml] 


for  Bigamyi 


A.  D.  1116, 


1509 


•f  the  Praroipitire  Court,  lir  George  Hay, 
wbcMe  decrees  will  always  hafe  g^al  weight, 
was  of  opinion,  that  be  could  not  in  his  court 
receive  evidence  of  a  sentence  having  been  ob- 
tained by  collusion  in  the  court  of  the  bishop 
of  London. 
Tlie  case,  in  brief,  was  as  follows : 
One  Bin.  Ailmer  died  intestate,  and  Mr. 
Brown,  as  her  husband,  obtained  the  admi- 
sistratioa  of  her  effects.     Lady  Mayo  bad 
proved  herself  to  be  the  daugrhter  of  Mrs.  Ail- 
oper,  and  had  cited  Brown  to  brinff  in  the  ad- 
Biinistration,  and  shew  cause  why  it  should  not 
be  revokeil,  as  unfairly  obtaiued.  Brown  proved 
kis  marriage  to  Mrs.  Ailmer  beyond  a  doubt ; 
kt  lady  Mayo  then  alleged,  that  Brown  had 
Wen  married  to  one  Ellen  Cutts,  who  was  liv- 
isgat  ihe  lime  of  the  fact  of  the  marriage  of 
Bruwn  with  Ailmer.    Brown  answered,  that 
Ellen  Cutts  did  jonce  make  pretensions  to  biro; 
kat  that  in  a  suit  of  jactitation,  brought  by  him 
against  her  in  the  court  of  the  bishop  of  London 
Id  1732,  she  was  enjoined  silence  by  sentence ; 
nd  be  was  pronounced  free  from  any  matri- 
BOiiial  connexion  with  her.  To  this  lady  Mayo 
Rplied  by  plea,  that  the  sentence  had  been  ob- 
tuoed  by  collusion  between  Brown  and  Cutts, 
isddesireil  to  be  suffered  to  prove  her  alle- 

|UMD. 

Many  of  the  arguineuts  were  then  used 
which  have  been  made  use  of  on  the  present 
•cession ;  but  the  judge  did  not,  as  I  under- 
ttiodj  reject  the  distinction  between  receiving 
eridence  in  favour  of  an  injured  person,  and 
kisg  able  to  annul  the  sentence,  and  absolutely 
<leoy  his  authority  to  admit  lady  Mayo's  alle- 

Siion,  but  only  appeared  to  make  choice  of 
s  method  of  ^ti»ppin^  the  cause  in  the  Pre- 
ngative  Court  till  lady  Mayo  had  applied  to 
Ike  bishop  of  London's  court  for  relief:  and  in 
M  doing  be  laid  great  stress  on  the  note  in  the 
Mrgin  of  Strange's  Reports,  page  081,  where 
it  it  said,  that  the  chief  justice  of  the  Common- 
Pins,  in  tilt?  case  of  Prudharo  and  Phillips, 
kdJ  t  s«*ntence  in  the  Ecclesiastical  Court  to 
be  ffliiclu^ive,  and  would  not  receive  evidence 
bffraud  or  coliunion  in  obtaining  it.     But  it  is 
•vident  from  the  very  able  manuscript  note  of 
the  use  of  Prudbam  and  Phillips  by  the  late 
Hr.  Ford,  whose  learning  and  accuracy  are  too 
veil  known  to  stand  in  need  of  any  encomium, 
Ib4t  the  only  reason  why  chief  justice  Willes 
refund  to  suffer  3Irs.  Phillips  to  relieve  herself 
kj  giving  a  proof  of  collusion  in  the  bishop  of 
LDO'lon*s  court,  was,   because  Mrs.  Phillips 
kerself  was  a  parly  to  that  suit  in  the  Eccle- 
SMtical  Ctiurt :  so  that  in  truth  and  fact  the 
decree  made  in  the  Prerogative  Court  in  Mayo 
Md  Brown,  Bp|>ears  to  have  been  founded  more 
M  the  uncertain  authority  of  the  note  in  the 
■ttigin  of  sir  John  St  range's  Iteports,  than  on 
•av  other  precedent. 

Now  if  m  suggestion  of  fraud  in  a  single  per- 
Mi,  or  collusiou  between  many,  affords  a  foun- 
ditMNi  for  a  court,  in  which  causes  of  property 
•ilj  art  deci«led,  to  receive  evidence  that  such 
hid  or  GoUmiMi  was  used  in  obtainiog  a  sen- 


j  fence  in  another  court  which  has  jurisdiction 
in  cases  of  property,  it  becomes  necessary,  d 
fortiori^  that  a  court,  held  for  the  punishment 
of  criminals,  should  admit  evidence  to  shew 
that  a  fraud  of  forgery  has  been  committed  in 
a  court  of  civil  junsdiction:  and  there  are 
strong  instances  in  the  law  of  England  to  shew, 
that  civil  judgments  have  been  regarded  not 
only  as  of  no  weight  to  exculpate  in  criminal 
prosecutions,  but  on  the  contrary  as  aggrava- 
tions. 

The  case  of  Farr  in  Kelyng*s  Reports  is  one 
of  many  strongly  to  this  purpose. 

Richard  Farr,  having  sn  intention  to  rob  the 
house  of  Mrs.  Stanier,  told  an  attorney  that 
Mrs.  Stanier  was  his  tenant,  and  he  could  not 
make  her  quit  his  house:  the  attorney  pro- 
ceeded regularly  in  a  cause  of  ejectment ;  and 
one  Eleanor  Chadwick,  an  accomplice  with 
Farr,  having  sworn  falsely  that  she  had  served 
Stanier  with  a  copy  of  a  declaration,  judgment 
was  obtained,  a  writ  issued,  the  woman  was 
ejected,  and  her  house  was  robbed  by  Farr  and 
Chadwick,  who  had  got  legal  possession.  Fair 
and  Chadwick  %vere  afterwards  indicted  at  the 
Old-  Bailey  ;  and  on  proofs  given  of  the  facta, 
it  was  agreed  by  lord  chief  justice  Hyde,  sir 
John  Kelyng,  and  Mr.  Justice  Wilil,  that 
though  the  prisoners  made  use  of  the  law, 
and  the  officers  of  the  law,  yet  as  this  was 
done  '  in  fraudem  legis,'  the  course  they  hail 
taken  was  so  far  from  excusing  the  robbery, 
that  it  hei(<htened  the  offence  by  abusing  the 
law.     Kelyng's  Reports,  p.  43,  44. 

There  is  a  sinele  case  on  the  other  side,  the 
King  against  Vincent,  reported  in  Strange, 
431,  where  it  is  said,  that  Vincent  was  indicted 
for  forging  a  will  of  a  personal  estate,  and  that 
the  forgery  wns  proved  at  the  trial,  but  that 
Vincent  having  produced  the  probate,  it  waa 
held  to  be  conclusive  in  support  of  the  will. 

This  opinion  is  said  to  have  been  given  in  the 
8th  year  of  George  1,  and  no  subsecjiient  casa 
has  been  quoted  in  support  of  it ;  but  numbers 
of  other  cases  have  been  quoted  by  the  counsel 
against  the  lady  at  the  bar,  where  the  unfortu- 
nate prisoners  have  been  found  guilty  of  forg- 
ing wills,  in  part  upon  the  same  evidenca 
(namely,  the  probate)  on  which  the  very  ibr- 
tunate  Mr.  Vincent  was  ac«|uitted. 

Among  others  cited  from  the  State  Trials  and 
Session- papers,  the  case  of  one  Stirling  baa 
been  mentioned ;  and  a  stronger  to  shew  the 
alisurdity  of  the  doctrine  huld  in  the  King  and 
Vincent  could  not  well  be  imagined. — One  Mra. 
Shutter,  being  known  to  have  money  in  tha 
funds,  Stirling  forged  a  will  for  her.  He  gave 
considerable  legacies  to  several,  but  to  himself 
he  gave  30/.  only  as  executor ;  for  it  was  suffi-  - 
cient  for  his  purpose  to  get  possession,  in  order 
to  make  her  whole  fortune  his  own.  He  ob- 
tained a  probate  from  the  Prerogative  Court, 
and  endeavoured  to  receive  her  stock  at  the 
South -Sea- house,  but  was  discovered  in  th« 
attempt,  and  indicted  for  the  forgery.  The 
probate  was  produced  in  court,  and  according 
to  the  doctrine  in  the  King  and  Vincent,  the 


603] 


16  GEORGE  III.  Trial  of  the  Duchess  ofKingsiofif 


[504 


sight  of  the  probate  should  have  iDstantly  oc- 
casioned the  acquittal  of  the  prisoner;  for 
though  Mr«.  Shutter  herself  was  alive,  and  ap- 
peared in  tlie  coiirt,  yet  witnesses  must  have 
lipen  necessarily  produced  to  prove  her  iden- 
tity ;  and  such  evidence,  according^  to  the 
doctrine  in  the  King  against  Vincent,  ought 
not  to  have  been  admitted  agaiust  the  probate, 
ivhicli  ought  to  have  been  conclusive.  The 
prisoner  Ii owe ver  was  convicted. 

But  admittini;  for  a  moment,  that  the  case  of 
the  King  and  Vincent  was  legally  determined, 
It  does  not  seem  to  apply  in  the  present  instance, 
unless  it  could  be  shewed,  that  the  prosecutor 
offered  to  give  evidence  of  collusion  in  ob- 
taining it,  and  was  not  permitted  so  to  do ;  for 
it  was  said  by  one  of  the  civilians,  that  the  pro- 
bate issued  in  that  case  by  a  decree  of  the  Ec- 
clesiastical Court,  and  not  in  common  form. 
If  it  did  80  issue,  it  is  to  be  presumed,  that  such 
decree  was  made  l>etweeD  parties  duly  adverse, 
till  the  contrary  is  made  to  appear ;  and  the 
contrary  was  not  attempted  to  be  proved.  And 
It  must  be  confessed,  if  the  parties  to  the  suit 
in  the  Prerogative  Court  were  truly  adverse, 
that  then  the  fraud  either  was  or  might  have 
been  in  proof  before  the  ori(;inal  proper  court : 
■nd  this  might  have  afforded  some  colour  for 
saying,  the  roan  shall  not  be  put  twice  upon 
his  trial  for  the  same  offence ;  though  such  an 
argument  could  only  have  l)een  specious ;  for 
when  the  question  in  a  court  of  civil  jurisdiction 
is,  will  or  no  will,  deed  or  no  deed,  and  a  for- 
gery is  detected,  the  person  who  committed 
that  forgery  must  be  tried  for  it  in  another 
court  and  by  another  proceerling,  or  he  will 
never  be  punished  as  ihe  law  of  England 
directs. . 

It  may  be  here  proper  to  observe,  that  no 
one  case  has  been  mentioned  b}*  the  gentlemen 
on  the  other  side,  where,  in  any  court  of  civil 
or  crimiual  jurisdiction,  a  proof  of  collusion  in 
another  court  had  been  offcrrd  by  a  proper 
person,  and  not  received  or  reji-cted.  The  case 
of  Hatfield  and  Hatfiild  in  the  House  of  Lords, 
in  the  year  J 7 27,  has  been  answered  by  all  the 
tu)unsel  who  have  preceded  me,  by  shewing 
that  collusion  was  not  at  issue  in  that'case.  And 
in  the  cakse  of  Kenn,  7  Coke,  so  much  insisted 
on  by  doctor  Wynne,  there  is  no  mention  nor 
the  least  hint  given  of  fraud,  covin,  or  collusion. 
In  that  case,  Christopher  Renn  had  issue 
Martha  by  Elizubeth  Stowell ;  hut  he  after- 
fvanis  obtained  a  sentence  in  cause  of  nullity 
Against  Elizabeth  Stowe!l,  as  having  been  mar- 
ried to  her  *  infra  nubiles  annos;'  and  the 
marriage  was  pronounced  void  in  an  Ecclesi- 
astical Court. 

Martha,  the  daughter  of  that  mariiage,  in 
order  to  make  good  her  title  to  her  father's 
estate,  was  afterwards  permitted,  and  probably 
through  some  mistake  or  haste  'm  the  court  of 
Wards,  and  without  hearing  counsel,  to  give 
evidence  that  Kenn  and  Stowell  her  father  and 
mother  were  not  *  infra  nubiles  annos*  when 
thev  intermarried.  But  according  to  bird 
CoM'f  Report,  the  court  of  Wards  agreed, 


that  as  tbe  ecclesiastical  jodge  had  decreed  the 
marriage  to  be  void,  his  judgment  should  be 
credited,  altliough  the  parties  were  proved  to 
have  been  of  the  age  of  consent,  and  although 
tbe  foundation  was  false  on  which  the  sen- 
tence had  been  grounded  ;  inasmuch  as  tbe 
court  of  Wards  would  not  examine  into  tbe 
cause  or  reasons  of  the  sentence,  whether  true 
or  false. 

From  all  which  nothing  farther  is  to  be  col- 
lected, than  that  a  sentence  in  the  Ecclesias- 
tical Court  is  to  have  full  credit  given  to  it  as 
long  as  it  subsists  unrepealed  ;  and  that  it  is 
not  to  be  overturned  in  the  same  court  where  it 
was  given,  or  by  any  other,  on  account  ot* error 
and  mistake  in  law  or  fact ;  and  this  is  certain 
hw :  but  it  is  to  be  observed,  that  the  parties 
divorced  had  been  long  dead  liefore  the  suit  was 
commenced,  and  that  there  is  not  the  remotest 
hint  or  suggestion  through  the  whole  ease, 
that  the  Ecclesiastical  Court  had  been  deceived 
by  any  fraud  or  collusion  between  the  parties 
litigant. 

As  to  the  case  of  Prudham  and  Phillips,  tbe 
counsel  for  the  lady  at  the  bar  were  certainly 
led  into  a  mistake  by  the  note  which  I  have 
already  mentioned,  inserted  in  the  margin  of 
Slrangc's  Reports,  page  901,  and  were  not 
aware  of  the  note  in  Mr.  Ford*s  manuscript, 
which  is  of  undoubted  authority,  and  from 
which  it  appears  that  one  Mr.  Prudham,  as  a 
creditor,  brought  an  action  of  debt  in  17J7» 
against  the  well-known  Mrs.  Teresia  Constantia 
Phillips. 

Mrs.  Phillips  gave  in  evidence  her  marriage 
viith  Mr.  Muilman.  ^ 

Mr.  Prudham  produced  a  sentence  annulling 
that  marriage,  in  a  cause  of  nullity,  on  account 
of  a  prior  marriage  with  one  Delafield  ;  and 
this  Mr.  Prudham*s  counsel  relied  upon  as  con- 
clusive evidence  of  the  nullity  of  the  marriage 
with  M oilman  ; — and  so  it  was  agreed,  unless 
the  defendant  Phillips  might  be  admitted  to 
shew  fraud  in  obtaining  the  sentence,  and  so  to 
avoid  it,  as  judgments  are  daily  avoided,  by  re- 
plications of  fraud. 

**  Uesolved,  on  great  delmte,  that  the  ecclesi- 
astical law  was  part  of  the  law  of  the  land,  and 
that  sentences  by  their  judges  were  in  matten 
of  spiritual  jurisdiction  of  equal  force  with 
judgments  in  courts  of  record  and  i;)  courts  nl 
equity :  but  that  whatever  objections  would 
avoid  a  judgment,  the  same  would  be  snifi* 
cient  to  overturn  a  sentence  in  the  Spiritual 
Court,  but  none  other.  That  fraud  used  in  ob- 
taining judgments  was  a  deceit  on  the  Court 
and  hurtful  to  atrangers,  who,  as  they  eouh 
not  come  in  to  reverse  or  set  aside  the  judg< 
ment,  must  of  necessity  be  admitted  to  aver  i 
was  fraudnlent. 

**  But  that  Airs.  Phillips  had  l>een  a  parly  if 
the  cause  in  the  lilcclesiastical  Court,  am 
whether  she  was  imposed  upon,  or  joihcd  ii 
deceiving  the  Ecclesiastical  Court,  this  is  ooti 
time  or  place  for  her  to  redre&s  herself.'* 

Now,  although  Mrs.  Phillips  was  not  in  thh 
case  allowed  to  allege,  that  the  suit  in   tb« 


505] 


far  Bigamy. 


A.D.  1776. 


[506 


Eccleuutical  Court  annulling'  Iter  fnarriage 
WAS  collusive,  yet  the  reason  on  which  the 
Court  refused  to  allow  her  so  to  do,  namely,  her 
harinif  been  a  party  to  the  collusive  suit, 
amounts  to  a  full  proof,  when  joined  with  the 
other  doctrine  laid  down  by  the  Court  and  re- 
lated in  the  case,  that  any  person  not  having 
been  a  party  would  at  all  times  be  permitted  in 
a  court  of  common  law  or  equity  to  allpfife 
fraud  or  collusion  to  have  been  practised  to  his 
iojury  in  an  ecclesiastical  court. 

On  tlie  whole  therefore  it  appears  beyond  a 
4oubt,  from  the  instances  which  have  been 
(iven,  that  in  civil  cases  a  stranger  is  admitted 
in  one  court  to  allege  and  prove  in  his  defence 
tbat  a  sentence  to  bis  prejudice  has  been  pro- 
Boonced  in  another  court  by  means  of  fraud 
tad  collusion ;  and  that  a  prosecutor  in  a 
oiminal  prosecution  is  constantly  permitted  to 
do  the  same. 

Takings  it  then  for  pfranted,  that  this  in  ge- 
serai  must  be  conceded,  it  only  remains  to  en- 
qaire,  why  evidence,  if  necessary,  should  not 
N  admitted  to  destroy  the  force  of  the  sen- 
teace  in  the  present  case,  in  favour  of  the  crown 
•Dil  of  the  public,  who  were  not  parties  to  the 
jictitation  suit  between  Mr.  llervey  and  the 
iadj  at  the  bar,  and  yet  are  interested,  if  it  i«<  a 
crime  to  marry  a  second  husband  whilst  the 
first  is  living ;  or,  in  other  terms,  to  enquire 
why  a  sentence  of  jactitation  of  all  sentences 
fbould  be  so  highly  distinguished  on  account  of 
iti  worth  and  stability,  as  to  be  held  forth  as 
•0  exception  to  the  general  rule,  and  as  the 
ooly  species  of  sentence  which  ought  to  be  so 
hvoiired  and  honoured  by  being  regarded  as 
conclusive. 

That  the  proceedings  in  the  Ecclesiastical 
Court  are  oAen  rather  of  longer  duration  than 
ooold  be  wished,  is  not  to  l>e  denied  ;  anti  that 
tbis  principally  ariiies  from  the  number  of  pos- 
sible appeals  under  particular  circumstances 
from  the  first  hearing  of  a  cause  to  what  in 
pnieral  cases  may  be  termed  the  last,  is  equally 
true. 

When  a  sentence  [for  example]  given  in  a 
ctase  of  jactitation,  in  which  marriage  was  at 
ame,  has  passed  through  all  the  stages  of  ap- 
poil,  the  cause  is  still  liable  to  be  opened  de 
aofo  in  favour  of  matrimony,  as  if  nothing  bad 
been  done.  Was  tbis  possible  prolixity  of  pro- 
ceeding, and  were  these  opportunities  of  ap- 
paliog,  an  impediment  and  safeguard  asfainst 
colluftion  (as  one  of  the  doctors  has  gravely  al- 
leged them  to  be)  I  do  not  deny  that  a  cause 
ofjactitation  must  of  nil  causes  stand  fairest  to 
be  the  most  immaculate  and  most  free  from 
tbe  stain  of  fraud.  Rut,  when  it  answers  the 
^pose  of  parties  to  collude,  is  it  to  be  pre- 
ened that  those,  who  could  begin  a  cause  col- 
Imifely,  would  scruple  to  carry  it  on  from  one 
canrt  to  another,  till  they  en  me  to  the  end  of 
^r  jiNimey,  if  it  was  necessary  so  to  do  to 
obtain  their  end?  The  truth  liowovor  is,  that 
ieveral  appeals  are  not  abNolutely  necessary  ; 
*nd  that,  when  there  is  collusion  in  a  cause, 
tee  b  either  no  appeal,  or  an  ostensible  one 


only,  which  is  always  subducted  within  a  con- 
venient time ;  and  the  gentlemen  b^t  know, 
whether  an  appeal  from  the  sentence  relied  on 
in  the  present  case  was  subducted  or  not.  A 
sentence  in  jactitation  pronounced  in  disfavonr 
of  matrimony  is  defined  to  be  transitory,  and 
not  final ;  and  this  definition  seems  to  be  found- 
ed, as  absurdities  sometimes  are,  on  a  tenet  of 
religion.  The  religion  1  mean  is  that,  which 
aAer  having  been  received  in  this  kingdom  for 
a  long  series  of  3'ears,  was  aAerwards  and  now 
is  with  reason  protested  against.  In  this  re- 
ligion it  is  mointained,  among  other  condemned 
doctrines,  that  marriage  is  a  sacrament,  and 
not  to  be  dissolved:  and  ahhough  it  nearly 
amounts  to  a  certainty,  that  the  rites  of  matn- 
mony  are  not  now  quite  so  strictly  regarded  in 
England  as  they  have  been  heretofore,  and  that 
his  majesty's  subjects  of  almost  every  descrip- 
tion, trom  the  lowest  to  the  highest,  have  % 
shewed  an  utter  abhorrence  of  this  doctrine  of 
the  church  of  Rome ;  yet  it  is  not  to  be  won- 
dered at,  that  the  ancient  canonists,  who  were 
to  a  man  of  the  religion  I  have  just  mentioned, 
and  had  the  framing  of  the  code  ecclesiastical, 
should  so  fabricate  or  bend  the  law,  as  to  ren- 
der it  the  su])port  of  marriage  by  every  possi- 
ble method,  and  should  lay  it  down  as  a  maxim, 
that  a  sentence  in  a  marriage  cause 'should 
never,  in  their  language,  pass  into  rcmjudi- 
cataniy.  or  become  a  final  judgment,  hut  be 
eternally  open  and  liable  to  revision  and  rever- 
sal, notwithstanding  it  may  have  been  esta- 
blished by  appeal  upon  appeal,  and  even  by  the 
judges  of  the  common  law  in  a  court  of  Dele- 
gates under  the  king's  special  commission,  and 
afterwards  by*  the  lord-chancellor,  who  may 
have  refused  a  commission  of  review.  Clarke  a 
Praxis,  title  205. 

To  render  the  privilege  of  a  jactitation  cause, 
in  which  the  proof  of  marriage  has  been  at- 
tempted but  not  perfected,  still  more  extensive, 
the  general  safeguartl  against  perjury  has  been 
entirely  taken  away  in  this  species  of  suit;  for 
the  puldication  of  the  depositions  is  no  obstacle 
to  fresh  examinations,  and  new  witnesses  may 
continually  be  admitted  in  favour  of  matrimony, 
even  after  the  former  depositions  have  been  in- 
spected, and  without  any  proof  made  that  such 
witnesses  are  lately  come  to  the  knowledge  of 
the  producer ;  which  is  a  proof  expected  and 
required  in  all  other  causes  whatever,  and  a 
rule  never  departed  from. 

(>larke,  in  his  book  of  Pradico,  is  express  to 
this  purpose,  and  uses  the  following  words: 
"  licet  generalitcr  non  admittuntur  testes  post 
pnhlicationem,  admittuntur  tamen  in  causd 
matrimoniali  sine  juramento,  quod  testes  no- 
viter  ad  notitiam  pervenrrunt.*'  Tit.  205.  It 
is  allowed  too  in  this  species  of  cause,  that  not 
only  the  party  silenced,  but  that  any  other  per- 
son, interested  to  establish  the  matrimony,  may 
take  up  the  cause  in  the  state  in  which  it  was 
left  in  the  same  eonrt,  and  proceed,  as  I  appre- 
hend, in  another  court,  and  invocate  or  illate 
the  proceedings. 

The  *  pars  citata,'  or  defendant,  is  alio  at 


507] 


16  GEORGE  IIL 


Trial  of  the  Duchess  of  Kingston  f^ 


liberty  to  go  into  aoolber  court  in  a  new  ma- 
trimoBial  cause ;  ai  for  example,  in  a  cause  of 
mtitulion  of  conju^l  rights:  *  licere  parti  ci- 

*  tatas  aut  iu  eodem  judicio,  aut  coram  alio  ju- 

*  dice  (son  obstante  quod  citatio  emanavit  in 

*  caua&  jactitationis)  contra  actorem  iastituere 
'  causam  matrimonialem.^  See  Clarke's  Praxis, 
tit.  t95.  S05. 

This  ambulatory,  indeterminate,  state  of  a 
•eotenee  in  jactitation  must  certainly,  in  the 
appreliension  of  any  man  not  a  lawyer,  be  a 
very  improper  circumstance  to  be  oi^ed  in  or- 
der to  render  this  species  of  sentence  given  in 
one  cause  an  absolute  bar  to  proceeding  to  judg- 
ment in  another  cause  of  a  civil  nature,  and 
more  particularly  to  make  it  a  bar  in  a  cause 
of  a  criminal  nature  in  another  kind  of  juris- 
diction. Taking  thtugs  therefore  as  the^  are, 
and  having  proved  the  law  respecting  this  ex- 
traordinary species  of  sentence  from  the  books 
of  practice  which  describe  it,  can  any  good 
reason  be  assigned  why  such  a  sentence  should 
be  conclusive  in  the  present  case,  and  should 
not  be  revifteil  and  revoked,  if  occasion  should 
require  it,  in  the  high  court  before  which  we 
now  are  ? 

This  sentence  never  passes  into  a  rem  judi- 
catam^  or  final  judgment — it  is  subject  to  be 
revised  in  any  other  court,  having  jurisdiction, 
than  that  iu  which  it  was  first  given.  The  act 
of  James  I,  by  which  the  marrying  of  a  second 
husband  or  second  wife,  whilst  the  first  is  liv- 
ing, is  made  felony,  has,  by  creatinuf  the  felony, 
plainly  transferred  that  branch  of  the  ecclesias- 
tical jurisdiction,  which  before  punished  poly- 
gamy, to  those  courts  where  criminals  are 
tried ;  and  to  remove  even  the  appearance  of 
any  difficulty  which  might  have  arisen  on  the 
riglit  of  the  prosecutor  to  offer  the  sentence, 
the  counsel  tor  the  lady  have  themselves  de- 
sired leave  on  her  part  to  bring  it  before  the 
court,  and  have  actually  introduced  it :  can  it 
therefore  be  possible  that  this  high  court  should 
not  think  themselves  authorized  by  a  com- 
plete jurisdiction  in  every  re8|iect,  spiritual  as 
well  as  tctaporal,  to  (rive  the  prosecutor,  on 
the  part  of  the  crown  and  of  the  public,  the 
liberty,  under  all  the  circumstances  of  this 
f»se,  of  ofiVriu^  a  proof  of  the  nullity  uf  the 
sentence,  by  pointing  out  from  the  proceedings 
themselves,  if  necessity  shuuld  require  it,  the 


.  The  Lords  and  others  returned  to  the  i 
bir  of  Parliament  in  the  same  order  tb«y 
down ;  and  the  House,  being  thus  res 
resolved  to  proceed  further  in  the  Trial  c 
zabeth  duchess  dowager  of  Kingston,  in 
minster-hall,  on  Friday  next,  at  ten  o'ol 
the  morning. 

The  Thiro  Day. 

Friday,  April  19. 

The  Lords  and  others  came  from  the  C 
ber  of  Parliament  in  the  same  order 
Tuesday  ;  and  the  Peers  bein^  seated,  ai 
Lord  High  Steward  in  his  chair, 

Lord  High  Steward.  My  lords,  the  H< 
resumed.  Is  it  your  lordslii|is*  pleaaui 
judges  may  be  covered  ? — Lords.  Ay,  a 

Then  the  Serjeant  at  Arms  made  p 
mation  for  silence ;  and  the  duchess  of  '. 
ston  was  conducted  to  the  liar. 

L,  H.  S,  Mr.  Wallace,  you  may  pi 
with  your  reply. 

Mr.  Wallace.  My  lords,  1  muslbcspeal 
lordships'  indulgence  to  examine  and  d 
the  great  variety  of  arguments  and  cons 
tions,  which  the  counsel  on  the  part  < 
prosecution  have  thought  proper  to  ente 
and  submit  to  your  lordships.  1  ou^rht 
first  place  to  lake  some  notice  of  the  cha 
novelty  imputed  to  myself,  and  those  w 
sist  me,  in  the  attempt  to  introiluce  the 
tence  of  the  Ecclesiastical  Court-  brfoi 
cause  has  been  opened,  or  the  evid^ce  < 
part  of  tlie  prosecution  stated  to  your  lord 

It  miffht  perhaps  be  thoni;iit  a  sufl 
answer  to  observe,  that  no  indk'tn-eDt  ev 
has  been  preferred  un  this  statute,  wU^i 
Kcclesiastical  Court  iiRdifivcu  a  si  oteoce 
the  subject.  The  prosecutor  of  this  indie 
has  had  the  boldness  to  set  at  tlojiance  th 
ccedintrs  in  the  Kcclesiastical  Court ;  «i 
direct  opposition  to  a  sentence  proiio 
there,  to  prefer  in  a  cou:t  of  ciiiniunl  jm 
tiou  a  charge  of  felony  ;  for  aliliouirh  cii 
proyecutious  are  and  must  be  in  the  na 
the  crowu,  yet  in  both  cases  they  are  c 
on  hy  private  individuals  ;  and  your  lore 
particularly  know,  in  the  present  case,  th 


marks  of  fraud  with  which  they  abound  ;  or,     , 

what  is  rather  to  be  expected,  to  (rire  the  pro*  |  a  private  prosecutor,  rihI  one  who  niighl 

secutor  the  liberty  of  adducing  evidence  in  a  I  applied  on  the  score  of  interest  to  the  E 

more  direct   maimer,  both    oral  and   instrii-  I  siastical  Court,  to  have  had  that  seutenc 

ntental,  to  prove  the  marriage  of  the  lady  at  i  examined. 

the  bar  with   Mr.  Ilervey,  the  present  earl  of  j      With  respect  to  the  novelty  of  the  pro 


Bristol ;  by  which  the'  collusive  proceedin<£s 
liefore  the  Ecclesiastical  Court,  and  the  truth 
of  the  principal  accusation,  will  at  one  and  the 
same  time  be  plainly  demonstrated  ? 

Lord  President  of  the  Council,  My  lords,  I 
move  your  lordships  to  adjourn  to  the  Cham- 
ber of  Parliament.— Lor(/j.  Ay,  ay. 

Ijord  High  Slezcard.  This  House  is  adjourn- 
•d  to  the  Cbaiftber  of  Parliament. 


ings,  the  counsel  for  the  noiile  lady  at  tl: 
would  have  found  themselves  standiuff  i 
in  need  of  your  lordships'  pardon,  if  thei 
not  inter))Ose(l  the  sentence  at  the  time  i 
offered.  If  they  had  permitted  a  cause  c 
kind  to  have  proceeded  iuto  evidence,  (n 
from  the  accounts  we  have  heard,  is  to  h 
before  the  Court  by  a  numUT  of  witu 
and  of  course  mtist'^have  taken  up  your 
ships  many  days  iu  the  examinatiou),  and 


509] 


Jirr  Bigamy. 


A.  D.  1776. 


[610 


til,  tbe  sentence  had  been  produced  and  at- 
tended with  the  effect  which  we  hope  it  will 
have,  what  wouM  have  been  the  situation  of 
counael,  who  had  aiifTered  so  much  of  your 
bnlships'  time  to  have  bpen  mis-gpent  in  the 
examinatioif  of  parole  evidence  to  facts  which 
could  not  be  admitted  aj^ainst  the  decision  of- 
fered to  your  lordships? 

But  in  truth  it  is  not  new  in  practice :  the 
caie  alluded  t<i  is  not  only,  as  it  had  been  term- 
ed, a  colour,  but  a  justification  for  what  has 
been  done.  It  is  true,  it  was  an  ejectment, 
which  the  ^ntlemen  have  profierly  calle<l  a 
fictitious  proceeding.  It  was  for  that  reason 
the  sentenre  was  not  interpose<l,  till  the  evi- 
dence was  opened;  for  till  then  the  defendant 
i«  ignorant  in  what  manner  the  plaintiff  inteuda 
to  make  out  his  claim :  but  as  soon  as  it  was 
Mated,  that  he  derived  through  a  marriage, 
abich  had  been  examined  and  decided  in  the 
Ecclesiastical  X3ourt,  the  counsel  immediately, 
without  suffering  evidence  to  he  given,  inter- 
posed the  sentence.  In  this  case  there  is  no 
oecuion  to  wait  for  the  opening  of  counsel ; 
ftr  upon  the  face  of  the  indictment  the  sup- 
posed marriage  with  Mr.  Hervcy  is  staled  as 
ibe  ground  of  the  offence :  the  crime  in  the  in- 
Actment  charged  is  a  marriage  with  his  grace 
the  duke  of  Kingston,  during  tbe  life  of  Mr. 
Henrey,  in  whom  the  noble  prisoner  at  the  liar 
it  alleged  to  have  been  before  married  ;  ai^d 
coosequently  upon  tbevalidity  of  that  marriage 
tbe  question  depends.  The  marriage  with  the 
dakeof  Kingston  was  notorious  in  the  face  of 
tile  church,  under  the  sanction  of  a  licence 
from  tbe  archbishop  of  Canterbury,  and  in  the 
presence  of  many  witnesses,  llie  supposed 
iBuiriage  with  Mr.  Hervey  was  the  sole  ques- 
tioo  in  the  Ecclesiastical  Court :  that  co/urt  has 
^ded  against  it ;  and  as  long  as  that  sentence 
remains  in  force,  the  relation  of  the  parties  as 
baiband  and  wife  is*  at  least  suspended,  if  not 
>bioluteIy  gone. 

Tbe  practice  every  day,  where  one  is  in  pos- 
KMion  under  a  fine,  and  no  claim  has  been 
>nde  fur  five  years,  is  to  interpose  it  imnie- 
diitely.  I  ventured  to  do  it  not  long  ago  in 
the  court  of  Kin<:'s-I)ench  at  a  trial  at  bar  where 
the  claimant  came  out  of  Wales  with  as  long 
>  pedigree  as  that  country  could  furnish.  When 
I  beard  it  stated,  and  nniferstandifng  that  a  great 
pamber  of  witnesses  must  be  culled  to  support 
>ti  I  offered  the  fine  to  the  court,  before  a  wit- 
it^  was  calletl ;  i^hich  instantly  put  an  end 
to  the  cause.  I  did  not  by  that  incur  any  ceu- 
lure  from  the  court,  or  bianu*  from  tbe  coun- 
M.  I  thought  myself  called  upcm  in  duty  to 
inform  the  court  (if  it ;  and  a  cause,  which 
^uld  have  lasted  three  or  four  days,  was  en^Jed 
U  less  than  ten  minutes. 

1  trust,  a  conduct  designe<l  to  prevent  your 
tVe  being  mts-spent  upon  a  fruitless  enquiry, 
(^  whatever  should  be  tlie  result,  yet  thissen- 
Ittce,  if  it  hai  the  effect  we  contend  for,  must 
'toder  it  totally  nugatory  and  immaterial)  will 
BM  be  tbe  aubject  of  yoiu:  lordships'  aqimad  • 


Enough,  I  hope,  has  been  said  in  defence  of 
the  attempt  a^^ainst  the  charge  of  novelty  ; 
but  an  observation  was  made,  to  create  a  pre- 
judice against  the  case  of  the  noble  lady  at  the 
bar,  from  the  conduct  of  her  counsel  in  this 
stage  of  the  proceedings  to  prevent  an  exami« 
nation  of  witnesses,  as  a  proof  of  their  opinion 
upon  the  merits  of  the  cause.  God  forbid  that 
any  impression  should  be  made  against  tbe 
noble  prisoner  at  the  bar  from  tbe  conduct  of 
her  counsel !  Your  lordships  know,  that  in  the 
forms  of  proceeding  she  must  throw  herself 
upon  her  counsel,  and  submit  to  their  manage- 
ment ;  and  no  mistake  of  theirs  will,  1  trust| 
ever  turn  to  her  prejudice.  1  feel  a  happiness 
in  speaking  to  a  court  incapable  of  receiving 
impressions  from  an  insinuation  of  that  kind. 

An  observation  was  made  upon  tbe  form  of 
the  sentence,  which  seemed  to  strike  many  of 
your  lordships,  that  as  far  as  it  appeared  to  the 
Ecclesiastical  Court,  the  parties  were  free  from 
all  matrimonial  contracts  and  espousals;  not 
positively  that  they  were  so  ;  and  therefore  as 
far  as  the  evidence  went  in  that  court,  and  no 
farther,  ought  the  sentence  to  be  regarded. 
Your  lordships  have  heard  from  those  that 
practise  in  tiie  courts  of  ecclesiastical  law, 
from  the  counsel  on  both  sides  of  that  descrip- 
tion, that  it  is  the  constant  uniform  method  of 
drawing  up  sentences  in  causes  of  this  kind  ; 
that  it  is  a  sentence  of  validity  ;  that  it  is  con- 
sidered by  them  as  such  ;  but  that  it  is  open  to 
further  proceedings  in  that  court ;  that  it  falls 
within  the  maxim  which  was  cited  to  your 
lordships  upon  the  other  side,  which  is  not  de- 
nied 'lere,  but  admitted,  nay  mentioned  in  the 
very  opening  of  this  business,  that  *  sententia 
contra  raatrimonium  nunquam  transit  in  rem 
judicatam  ;'  this  sentence,  being  against  a  mar- 
riage, never  passes  into  a  definitive  judgment  of 
that  court:  but  does  it  follow,  because  it  is 
open  to  further  examination,  because  other 
suits  may  be  instituted  which  may  contradict 
this  sentence,  that  wliiht  it  reniuins  unim- 
|)eaclied,  till  other  suits  ar.i  iusiituled,  and  till'a 
different  judgment  is  given,  that  the  sentence 
has  no  effect;  that  it  is  the  words  of  the  judge, 
without  having  any  sort  of  consequence  at- 
tending them  ? 

My  lords,  it  is  too  ridiculous  to  suppose  a 
suit  instituted  in  the  Ecclesiastical  Court,  where 
the  prosecutoc  of  the  suit  (or  the  promoter,  in 
the  language  of  that  court)  has  oblaine<l  the 
sentence  of  the  court  in  his  favour,  that  it  means 
nothing  at  all;  that  it  is  mere  vtaste  paper; 
that  he  might  as  well  never  have  commenced 
the  suit.  Is  it  possible,  in  a. country  where 
the  least  idea  of  justice  prevails,  that  this  should 
he  the  case  ?  On  the  contrary,  the  sentence  of 
every  court  of  competent  jurisdiction  has  been 
considered  in  the  same,  and  everv  other  court 
where  it  has  become  tbe  subject  of  debate,  till 
impitached,  set  aside,  reversed,  or  repealed  by* 
the  court  that  gave  the  sentence,  or  by  tbe  au- 
thority of  a  court  of  appellant  jurisdiction,  to  be 
conclusive. 

Your  lordships  have  heard  from  the  docfort 


511] 


16  GEORGE  III. 


Trial  of  the  Duchess  ofKingstoftf 


[512 


of  the  civil  taw  the  effect  of  a  sentence  in  a  luit 
of  jactitation  of  niarnai|(e.  I  took  the  liberty  of 
staling  to  your  lordships  many  cases  rbferringp, 
where  the  same  doctrine  had  been  adopted  by 
the  judges  of  the  common  law,  and  constantly 
acted  upon  without  an  exception.  The  pro- 
ceeding is  not,  as  has  been  contended,  in  the 
nature  of  an  action  for  words  or  of  slander ;  it 
has  ev^r  been  instituted  upon  some  serious 
daim  of  marriage,  which  calls  upon  liie  party 
for  an  explanation. 

Would  it  be  no  objection  with  a  lady  to  a 
gentleman  payin^jr  his  addresses  to  her,  that 
8omel>ody  claimed  a  marriage  with  him  P  1  be- 
lieve, my  lords,  it  would  at  least  create  a  pause 
in  the  treaty,  if  it  did  not  absolutely  put  an  end 
to  it.  He  certainly  would  be  called  upon  by 
the  lady  or  her  friends  to  satisfv  them,  that  there 
did  not  exist  a  ground  for  such  report.  There 
is  no  legal  course  to  be  taken,  but  by  com- 
mencing a  suit  of  jactitation  in  the  Ecclesias- 
tical bourt.  The  proceeding  calls  in  form 
upon  the  party  who  has  made  the  claim  to  Jus- 
tify it.  If  a  marriage  be  insisted  on,  the  par- 
ties instantly  change  situations  ;  the  defendant 
becomes  the  plaintiff  or  actor,  and  the  original 
plaintiff  becomes  the  defendant,  and  is  called 
upon  to  answer  that  claim  made  in  the  Eccle- 
siastical Court  of  marriage,  not  only  to  answer 
it  in  form,  but  upon  oath  :  the  origmal  plaintiff 
is  obliged  on  oath  to  declare,  wheiher  the  alle- 
gations of  the  parly  respecting  the  marriage 
are  true  or  false.  Ijie  proofs  are  first  made  by 
the  party  insisting  upon  the  marriage ;  and 
the  judge  gives  sentence  upon  them.  The  suit 
in  truth  bocomos,  and  is  admitted  by  the 
learned  doctor  on  the  other  side  to  be,  to  all  in- 
tents and  purposes,  a  matrimonal  cause  ;  and 
the  judgment  is  upon  the  validity  and  lawful- 
ness of  the  marriage,  f  ii  that  light  the  pro- 
ceeding in  the  eccU'siastical  courts  has  ever 
been  received  and  treated. 

But  suppose  the  sentence  has  Iteen  received 
and  considered  as  conclusive  evidence,  it  is 
contended  by  the  counxel  for  the  prosecution  tO 
he  only  in  particular  oases,  namely,  where  the 
person  against  wh(»m  the  sontence  has  been 
given,  or  one  deriving  under  snch  person,  has 
been  a  party  in  the  suit,  in  which  the  sentence 
has  been  offered  in  evidtMice ;  wlijch  is  not  the 
present  case,  as  the  eioun  was  no  party  to  the 
suit  in  the  Kcclesiastical  Court. 

The  distinction  may  he  thought  ingenious 
and  plausilde  ;  hut  there  is  no  foundation  in  law 
to  support  it.  Jn  the  tfrrat  number  of  autho- 
rities cited  to  your  lonMiips,  there  is  not  the 
least  hint  of  such  a  disiinclion  :  the  rule  is  laid 
down  in  the  most  general  ternvs.  and  without 
an  exceptiim,  in  the  case  of  Hai field  and  Hat- 
field before  the  House  of  Lords.  The  person 
against  whom  the  sentence  was  given  in  evi- 
dence, was  not  a  party,  nor  claimed  under  any 
party,  to  the  suit  in  the  Ecclesiastical  Court. 

No  notice  was  taken  of  another  case  which 
]  mentioneid  to  your  lordships,  where  the  per- 
son against  wliom  the  sentence  was  given  in 
«?idence  wai  no  party  to  the  proceedings  iu  the 


Ecclesiastical  Court.  It  was  an  action  against 
Mr.  Thomas  Hervey  fur  a  debt  contracted  by 
his  wife.  Mr.  Hervey  had  a  judgment  in  that 
suit  agiainst  him :  but  in  a  sulMequent  suit, 
afWr  a  proceeding  had  in  the  Ecclesiastical 
Court,  in  which  it  was  declared  that  Mr.  Her- 
vey, as  far  as  appeared  to  the  court,  was  free 
from  all  matrimonial  contracts  ( just  as  it  is  ia 
the  present  case)  the  sentence  was  received  as 
conclusive  evidence  upon  the  fact  of  the  mar- 
riage, and  defeated  the  plaintiff. 

I  am  not  contending  that  such  sentences  are 
to  be  used  as  instruments  of  frauds  upon  credi* 
tdrs.  No ;  if  there  is  no  real  marriage,  but  a 
man  holds  out  to  the  world  a  woman  for  his 
wife,  and  she  gets  a  credit  upon  that  score,  he 
shall  never  b^s  permitted  to  say  they  are  not 
married :  yet  where  the  persons  live  separate, 
where  no  act  of  his  gives  a  countenance  to  the 
demand,  there  a  cr^itor  trusts  the  wife  upon 
the  ground  of  a  le^al  marriage ;  there  the  Ec- 
clesiastical Court  decidiug  upon  the  marriage 
is  conclusive  evidence.  That  case  was  ac- 
quiesced in ;  no  application  was  made  to  the 
court ;  and  I  believe  all  that  heard  it  approved 
of  the  decision. 

A  learned  friend  of  mine  on  the  other  side, 
afler  he  had  as  I  thought  closed  his  argument 
and  sat  down,  rose  again  to  mention  a  case  to 
your  lordships  of  Crutchlcy  ahd  Robins. 

It  must  have  struck  him  that  it  would  appear 
a  little  extraordinary,  after  so  full  a  discus- 
sion, no  case  had  been  cited  to  your  lordships 
to  warrant  or  give  a  colour  to  the  distinction 
attempted.  . 

That  case,  when  stated,  and  the  reasons 
given  by  the  Court  which  pronounceil  the 
judgment  considered,  will  appear  not  to  have 
the  least  application  to  the  present.  It  was  a 
claim  of  dower  by  Mrs.  Robins  upon  the  estate 
of  Mr.  Robins  deceased,  in  Staflbrdshire.  The 
defendant  in  that  case,  the  heir  of  Mr.  Robins, 
pleaded  to  that  cloim,  that  she  never  was  law- 
fully married  to  Mr.  Robins.  The  only  legal 
mode  of  trying  that  fact  is  by  a  certificate  from 
the  bishop  of  the  diocese :  the  pleading  be- 
tween the  parties  is  brought  to  an  issue  ;  it 
is  the  ofEce  of  the  Court  to  direct  a  writ  to 
the  bishop  to  certify  tvhether  there  was  a 
ninrriage  or  not ;  and  upon  the  certificate  the 
judgment  is  gl^en.  Instead  of  suflVrinir  the 
Court  to  issue  a  writ  to  the  bishop,  Mrs.  Robins 
replied  to  that  plea  a  sentence  in  the  Ecclesias- 
tical Court,  in  a  suit  \«  herein  she  was  by  the 
judgment  of  that  court  pronounced  the  wife  of 
Mr.  Robins  ;  the  defendant  put  in  a  demurrer, 
insisting  the  replication  was  not  admissible:, 
and  that  was  the  quesliou  before  the  court  of 
Common  Pleas. 

Did  the  court  of  Common  Pleas  decide,  that 
such  a  sentence  is  not  evidence  ?  No :  the 
court  of  Common  Picas  determined,  that  by 
law  they  could  receive  no  other  evidence  of  the 
fact  than  the  bishop's  certificate;  it  was  the 
sole  proof  which  the  law  in  ih«t  particular 
case  has  required  for  the  decision  of  the  causet 
and  they  could  not  depart  from  it.    But  they 


bis] 


fjr  Bigamy. 


A.  D.  1776. 


£514 


went  farther  in  that  cause:  they  told  Mrs. 
Hohiot  that  the  sentence,  thobtfh  it  coakl  not 
he  received  there,  ml^Ut  be  laid  before  the 
Iwhop,  who  was  to  certify  to  them  the  mar- 
riage.  Ttiat  is  the  language  of  the  court  of 
Coannon  Pleas  upon  the  case:  the  bishop 
■iiiBt  certify  the  marriage ;  the  sentence  must 
be  laid -before  htm,  and  not  before  this  Court. 
Did  the  court  of  Common  Pleas  decide,  as  con- 
tended, that  it  was  no  CTidence?  No  such 
tbiog  is  to  be  found  in  the  case.  All  the  Court 
id,  or  meant  to  do,  was  to  inform  the  plaintiff, 
Ibat  she  had  mistaken  the  time  and  place  to 
mke  use  of  that  evidence ;  that  the  law  had  in 
that  case  appointed  a  certain  specific  proof  to 
ke  given  to  the  Court,  and  they  could  receive 
19  other :  the  bishop,  who  was  to  examine  into 
tbe  matter,  might  or  might  not  be  concluded 
\j  the  sentence ;  the  Court  must  be  determined 
wjf  his  certificate. 

My  kmis,  if  the  bishop  had  rejected  the  sen- 
ttaoe,  he  would  have  done  what  no  bishop  ever 
£i  before ;  yet  the  Court  roust  be  concluded  by 
Iw  certificate;  they  could  not  examine  into 
As  proofs:  nay,  if  the  bisliop  by  fraud  had 
eertified  a  marriage,  the  Court  would  have 
kfo  concluded.  8o  much  for  that  case  which 
kii  been  cited  ;  and  which  is  the  only  case  the 
iidastry  of  the  gentlemen  on  the  other  side 
coold  produce  upon  this  part  of  the  argument. 
Tour  lordships  have  been  told,  that  by  the 
ftteral  rules  of  evidence  in  civil  cases,  no  sen- 
tcsee  or  judgment  can  be  received,  unless  in  a 
oote  between  the  same  parties,  or  who  derive 
Mder  them.  The  candour  of  the  gentlemen 
M  the  other  side  has  admitted  two  exceptions 
^  the  rule:  first,  sentences  or  judgments 
^Wre  the  proceeding  in  in  rem ;  and  secondly, 
ii  caoses  where  the  Court  has  exclusive  ju- 
liidiction. 

I  will  not  state  to  your  lordships  other  ex- 
npiioos  to  the  rule  ;  the  two  admitted  aresuffi- 
^(St;  the  present  case  falls  within  bothexcep- 
<i>as,  though  either  would  be  enough. 

Id  the  first  place,  it  is  a  proceeding;  f  a  rem  ; 
■sniage  or  no  marriage  is  the  point  to  be  de- 
finained.  ft  dues  not  come  collaterally  or 
iMidentally,  hut  directly,  in  question ;  and  the 
^Kiaioa  of  which  was  the  sole  object  of  the 
nsL 

In  the  next  place  it  is  a  sentence  of  a  court 
yving  exclusive  jurisdiction  upon  the  sub- 
let- It  is  admitted  that  the  Ecclesiastical 
^Wts  have  exclusive  jurisdictions  in  probates 
tf  wills,  in  all  testamentary  disputes  respecting 
^ntonal  estates ;  and  having  decided  the  ques- 
^  whcUier  right  or  wrong,  upon  true  or 
'■^  fabe  grounds,  it  is  not  competent  to  any 
*lWr  court,  unless  in  a  legal  way  by  appeal, 
Stater  into  the  matter ;  but  faith  and  credit  is 
li  be  given  to  the  decision  of  the  Ecclesiastical 
Govt.  It  is  also  admitted,  that,  till  the  sUtute 
*fia  which  the  present  indictment  is  founded, 
6  Ecclesiastical  Courts  had  the  sole  and  ex* 
tbttive  jurisdiction  in  matrimonial  causes. 

Bat  it  ia  contenrled,  that  a  concurrent  juris- 
ts given  by  this  act  to  the  kiog'a  tern* 

VOL.  XX. 


poral  conrts :  where  is  the  ground  of  this  notion 
to  be  found  P  Was  it  the  intention.of  the  legis- 
lature to  give  to  the  temporal  courts  a  concur- 
rent jurisdiction  with  the  ecclesiastical  ?  The 
intention  must  be  collected  from  the  act  itself.. 
In  my  own  apprehebfioo,  nothing  is  more  clear 
than  that  the  legislature,  at  the  time  of  passing 
this  act,  meant  to  guard  and  secure  the  juris- 
diction of  the  ecclesiastical  courts  against  in- 
novation from  the  temporal. 

The  act  is  general ;  that  whoever  shall  marry 
a  second  hnsband  or  wife,  living  the  former, 
shall  be  deemed  a  felon,  and  suffer  the  pains- 
i  of  death.  Yet  that  general  enacting  clause  is 
]  restrained  by  a  proviso,  which  demonstratea- 
the  intention  of  the  legislature,  that  the  pro- 
ceedings in  ecclesiastical  courts  should  re- 
main untouched,  and  the  temporal  courts  have 
no  jurisdiction  in  the  case.  The  exception  runs 
thus: — *  Nothing  herein  contained  shall  extend 
to  any  person  or  persons,  that  shall  at  any  timo 
of  such  marriage  be  divorced  by  any  sentence 
had  or  shall  be  hereafter  had  in  ecclesiastical 
courts ;  nor  to  any  person  or  persons—*' 

These  provisions  shew  an  anxiety  in  the  le- 
gislature to  preserve  the  privilege  of  the  Ec- 
clesiastical Court,  and  save  their  judg^enta 
from  an  examination  ;  and  so  far  from  giving 
a  jurisdiction  to  the  temporal  courts  in  such 
cases,  the  act  expressly  declares,  that  where 
the  ecclesiastical  courts  have  given  a  decision, 
the  temporal  courts  must  stop.  The  case  ia 
not  within  the  law  ;  it  is  not  permitted  to  ba 
examined  into.— It  is  pretty  extraordinary  that 
history  i;ives  no  account  of  this  act,  or  the  im* 
mediate  occasion  for  passing  it.  The  preamble 
states,  *  that  evil  diapo&ed  persons  being  oMrried, 
run  out  of  one  county  into  another,  to  ulacea 
where  they  are  not  known,  and  marry  there.' 
If  this  was  the  evil  meant  to  be  redressed,  the 
case  of  a  pers(»n  of  rank,  obtaining  a  sentence 
in  the  Ecclesiastical  Court,  and  acting  under 
the  faith  of  it,  can  never  fall  within  tlie  descrip- 
tion in  €)e  act. 

The  Journals  of  neither  House  furnish  any 
lights  upon  this  subject.  The  act  waa  brought 
into  the  House  of  Commons  in  April,  received 
some  amendments  in  a  committee  therO)  and 
sent  to  the  House  of  Lords :  it  there  also  re- 
ceived amendments ;  and  was  returned  to  the 
House  of  Commons  ag^in  in  June:  but  what 
the  amendments  were,  or  whether  the  provisoes 
were  inserted  by  the  guardians  of  the  rghts  of 
the  church,  as  is  most  probable,  or  came  from 
the  House  of  Commons,  cannot  be  discovered. 
Suppose  a  sentence  of  divorce  pronounced  in 
the  Ecclesiastical  Court ;  would  it  be  permitted 
to  any  court,  under  pretence  of  fraud,  to  exa-. 
«mine  for  the  purpose  of  making  the  parties 
criminals,  when  the  act  has  declared  such  a 
sentence  shall  not  be  meddled  with ;  and  the 
parties  under  such  sentences  are  excepted  in 
terms  out  of  the  act  ? 

Where  a  sentence  of  nullity  of  marriage  is 
given,  it  is  equally  open  to  future  examination 
in  the  ecclesiastical  courts  with  a  sentence  of 
jactitation.    If  this  be  doubted,  your  lordshipa» 

8L 


Triai  of  the  Ducheu  ofKingdoih 


[51ft 


^4 


party  CIO 
be  m  the  pr«diciiiietit 
m— ,  who  »  bj  the 
Ibat  «Mrt  dccfarcd  never  to  bare 
at  all»  Mri  10  befirvie  from  all  ma- 
be  a  feloo?    Sucb  a 
pemal  law  wonld  be  moo- 


of  the  kfuktnre  it  to  me  aa 
dear  aa  laacvace  cao  awke  it,  that  matriroo- 
■sca  thawM  be  still  withio  tbe  aole  juria- 
of  the  ccchiiiHipal  eonrta,  aod  that  the 
iru  should  have  no  authority  to 
into  their  decisMNis,  by  declaring^,  that 
these  aenteocea  obtain,  the  party 
mairyioi^  whilflt  thcjr  are  io  Ibrce,  shall  not  m 
a  fekNi ;  aad  yet  the  former  marria|^,  if  it 
were  a  legal  one,  is  not  done  away  :  it  is  capa- 
ble of  betnif  refived,  and  a  second  marriage 
woqM  be  null  and  void.  And  upon  another 
proeeedin^f  if  the  sentence  should  he  in  Uwont 
of  the  marriaife,  either  partj  may  commence 
a  suit  for  restitution  of  conjusal  rights ;  tbe 
fiiat  marriage  would  be  establis bed,  and  a  se- 
eand  saamage,  pending  the  sentence,  void; 
yet  the  party  would  not  be  in  the  predicament 
of  a  felon.  Thia  is  clear  from  the  act  of  par- 
JiaBMOt;  and  in  this  sense  yuur  iocdsbipa  will 
give  ase  leave  to  use  it,  as  shewing  beyond  a 
BoaNbility  of  doobt  tbe  intention  of  tbe  legis- 
btiue.  Where  then  are  the  argumenta  we 
have  heard,  that  the  legislature  meant  in  this 
case  to  give  the  common  law  courts  such  con- 
corrent  inrisdiciion,  as  to  disregard  the  aeo- 
tences  of  tbe  ecclesiastical  courts  ?  Has  the 
If^atnre  said  so?  Has  not  the  legislature 
•aid  the  contrary  in  express  terms  ?  Wherever 
a  sentence  is  pronounced,  that  person  is  not  to 
be  tried  in  the  temporal  courts.  Is  it  compe- 
tent to  any  tempond  court  ?  Is  it  competent  to 
your  lonlshipa,  the  supreme  temporal  court  io 
the  kingdom  ?  Awful  and  great  as  this  court 
is,  give  me  leave  to  say,  that  the  rules  of  con- 
•iroction  are  the  same  as  in  tbe  most  inferior 
court  of  criminal  jurisdiction.  There  is  not 
one  law  for  Peers,  and  another  for  Commons, 
m  this  country :  the  law  is  tbe  same  for  both  ; 
it  only  varies  in  the  circumstances  of  the  trial : 
tlie  evidence  to  prove  the  guilt  or  innocence  of 
tbe  party  is  tbe  same  in  all. 

There  is  no  doubt,  but  the  temporal  courts 
may  try  marriages  upon  this  act,  where  no 
sentence  has  been  given  in  tbe  Ecclesiastical 
Court;  as  they  do  every  day  upon  titles  to 
lands  on  ejectments :  but  where  a  sentence  has 
been  obtained  agoinst,  or  in  favour  of,  a  mar- 
riage in  tbe  Ecclesiasiical  Court,  tbe  temporal 
courts  are  concluded  by  it. 

The  concurrent  jurisdiction  which  tliey  con- 
tand  for,  if  1  undentand  them  right,  is  this : 


the  ecdcaiastical  courts,  say  they,  it  b  tnwf 
have  a  rig^t  to  try  a  marriage ;  but  the  tem- 
poral courts  have'abo  a  rigiit  to  try  a  marr«agw 
oader  this  act  of  parliameoL  The  aenieocc  of 
the  Ecclesiastical  Court  will  not  satisfy  then; 
thej  will  have  the  evidence;  and  if  thejr  arv 
fatntled  with  the  evidence  that  the  eodesiasti* 
cal  couftN  have  thought  insufficient,  they  will 
pronounce  the  crime,  aod  punish  tbe  oioider. 
Can  there  be  any  aoch  position  wamnted  by 
the  act  of  parliament  ? 

If  the  U*gi»lature  couM  have  Ibnaeen,  that  hi 
any  period  it  should  enter  into  the  head  of  aaj 
man  to  aet  at  notbintf  the  jurisdiction  of  the 
ecclesiastical  courts,  they  vouM  not  in  mora 
positive  terms  have  guarded  against  it. 

If  the  gentlemen  should  be  able  to  eataUish 
a  concurrent  jurisdiction  in  tbe  eocltfaiasiical 
and  temporal  courts,  they  then  beg  leave  W 
advance  a  step  further,  and  lay  dow  n  a  mlc^ 
which  they  hope  your  lordships  will  adopt  to 
entitle  them  to  enter  into  evitleoce,  that  judg« 
menta  only  bind  in  courta  of  concurrent  joria- 
diction,  where  they  are  just. 

I  deny  the  rulein  the  extent  it  has  been  had 
down.  Have  not  the  courts  of  King'*  bench, 
Common  Pleas,  and  Exchequer,  a  coocancnl 
jurisdiction  in  civil  causes?  and  was  it  evcf 
heard,  when  a  judgment  of  one  of  the  courta  ia 
pleaded  in  another,  that  the  propriety  and  recti- 
tude  of  tbe  judgment  can  oe  examined  into? 
Certainly  not :  tbe  party  is  permitted  only  ta 
deny  the  existence  of  the  judgment.  The  caaa 
of  Sinclair  and  Eraser,*  lately  determined  1^ 
your  lordships  upon  an  ap|)eal  from  Scotlaad, 
waa  cited  as  an  authority  for  this  purpose ;  in 
which  your  lordships  ruled,  that  a  judgment  in 
the  court  of  Jamaica  should  not  be  enforced 
uolesa  it  was  just ;  that  is,  if  the  defendant  ia 
the  cause  could  shew  it  was  unjust,  no  conrt 
ought  to  lend  its  aid  to  carry  it  into  execution. 
— Sly  lords,  nothing  is  more  right  or  just ;  bnt 
does  it  apply  to  the  case  before  your  lordships? 

Wherever  the  aid  of  a  superior  court  ia 
wanted  to  give  effect  to  a  judgment  of  an  infe- 
rior conrt,  or  of  a  court  which  cannot  carry  iato 
execution  its  own  judgments,  from  the  parties 
being  locally  out  of  its  jurisdiction,  that  court 
wliose  aid  is  prayed  ou^ht  not  to  give  it,  if  the 
defendant  can  shew  the  judgment  to  be  unjusis 
— they  will  give  so  much  credit  to  the  sentence 
of  every  court  as  to  presume  it  right,  unless  tb« 
defendant  cau  shew  the  contrary.  Not  loa^ 
ago,  an  application  was  made  to  the  court  3t 
lupgVbench  to  inforce  the  judgment  of  tb0 
justices  at  the  quarter-sessions  In  Lancashire. 
An  act  of  parliament  passed  for  the  inclosure  of 
a  common.  By  that  act  the  public  roads  ar0 
directed  to  be  60  feet  wide,  the  common  wa0 
small,  situate  in  a  very  remote  part  of  tb# 
country,  where  very  few  pe<iple  came  hut  tliosv 
interested  in  the  lands,  and  they  tbouffht  ihaC 
niails  of  less  breadth  would  very  well  suffice 
for  the  occasions  of  the  country ;  the  commia- 


■^ 


*  See  this  Case  cit.  Dougl.  pp.  4  and  &,  and 
in  a  Note  to  p.  6. 


517] 


Jixr  B^mnf. 


tioneri  under  thtt  act  of  parliament  aaiif^ed. 
in  the  name  of  prif  ate  roatfs,  what  in  trutli  bad 
before  been  public,  and  allotted  balf  the  dimen* 
tions  required  by  the  act.    There  was  an  appli- 
cation to  llie  aesaions,  who  had  jurisdiction,  by 
appeal ;    and  they  ordered  the  roads   to  M 
opened  to  the  extent  the  act  directed :  bnt  when 
tbey  hati  done  that,  they  were  lefl  without  the 
power  of  enforcing^  their  order :  they  could  not 
compel  a  specific  execution  of  it.    If  they  had 
proceeded  for  a  contempt  against  the  commis- 
sioners by  indictment,  that,  would  ha?e  been 
ledious  and  uncertieiin :  the  proper  method  was, 
bf  an  Application  to  the  supreme  criminal  court 
St  the  kinirdom,  in  which  the  superintendance 
of  all  inferior  jurisdictions  is  loil||ed.    A  man- 
dunos  was  moved  for  in  the  King's- bench,  to 
ealbrce  the  judgment  of  the  sessions.     The 
«sart  of  King's-nench  told  those  who  opposed 
tiM  application.  We  think  ourselves  l>ound  to 
coforce  it,  iinl^s  you  can  sliew  it  to  be  m^ust: 
tsnvinoe  the  court  that  the  sessions  ha?e  done 
viongr,  and  we  will  not  lend  our  aid.    And  on 
that  occasion  a  case  was  cited  by  the  learned 
brd  at  the  head  of  the  court,  which  happened 
li  the  time  of  lord  Hard  wicke.    Upon  a  uecree 
sfthe  court  of  Grand  Sessions  of  Wales,  where 
a  party  had  removed  out  of  the  jurisdiction  of 
that  court,  a  bill  was  filed  in  the  court  of  Chan- 
tny  to  enforce  the  decree  of  the  grand  ses- 
lions;   the  defendant  by  bia  answer  insisted, 
that  the  decree  was  unjust,  and  ought  not  to  be 
orried  into  execution  :  lord  Hardwicke  waa  of 

S'  inn,  that  if  the  defendant  could  satisfy  him 
the  decree  was  unjust,  he  would  not  lend 
bis  aid  to  enforce  it. 

Do  we  apply  to  your  lordshiiYS  for  the  aid 
«f  the  court  to  carry  the  present  sentence  into 
flneotioo?  No;  we  ask  no  favour;  wede- 
■aod  nothing  but  your  justice :  we  produce 
the  sentence :  we  do  not  ask  for  your  assist- 
aace  to  carry  it  into  execution  ;  it  comes  in 
ciQateratly ;  and  in  such  cases,  whether  in  the 
asmrti  of  law  or  in  the  courts  of  eouity,  the 
Matences  of  the  Ecclesiastical  Court  nave  been 
•witautly  attended  to  and  been  received  as  con- 
illrive  evidence. 

But,  mv  lords,  though  sentences  of  the  ec- 
clesiastical courts  have  been  ever  received  as 
Maelusive  evidence  in  civil  causes,  yet  it  is 
CMtended,  they  are  not  admissible  in  criminal 
fmccotions.  Is  it  the  genius  of  this  country 
H  attend  more  to  the  panishment  of  crimes, 
tbn  to  the  administration  of  justice  between 
tkc  parties  in  civil  rights?  1$  the  distinction 
fcmded  in  good  sense  or  sound  policy,  that 
the  sentences  of  ecclesiastical  courts  should  not 
iilf  be  received,  but  be  concluMve,  in  one  case, 
iad  be  no  evidence  at  all  in  the  other  P  Your 
'  Witsbipf  will  expect  very  strong  authorities 
kfbre  you  listen  to  such  a  distinction. 

Suppose  in  a  criminal  prosecution  the  pro- 
^y  of  goods  ohould  come  in  quehiion,  aod  a 
Icateoce  of  condemnation  in  the  court  of  Ex- 
cWqiier  was  prfMluced,  is  there  a  doubt  of  its 
hcing  reoetved  ?  Where  the  proceetliiig  is  in 
in,  the  lentencc  luuat  of  neccaiuty  be  adinia- 


A.  D.  1776.  [518 

sible  and  conclusive  in  all  courts,  between  all 
partiea,  and  on  all  occasions,  aod  to  all  intenta 
and  purposes.  Whhout  it  there  would  be  con- 
trariety of  determinations  upon  the  same  ques- 
tion ;  which  would  be  a  reproach  to  the  justice 
of  the  country. 

I  troubled  your  lordships  with  a  case  from 
sir  John  Strange'a  Reports  to  prove,  that  the 
sentence  of  the  Ecclesiastical  Court  was  ad- 
mianble  and  conclusive  in  criminal  cases :  that 
deetrine  u  abundantly  confirmed  by  a  case  in 
the  King'a-bench  four  years  after;  the  King 
and  Rhodes.  What  is  the  anawer  given  to  the 
case  P  The  reporter  was  a  jyoong  man,  and 
therefore  he  is  not  to  be  credited ;  or,  his  notes 
of  cases  after  his  doith  came  into  the  hands  of 
hia  executors,  who  knew  nothing  of  law,  who 
publish  every  scrap  of  paper  they  can  find,  and 
give  them  to  the  world-— to  make  a  volume  t  lo 
the  authority  is  got  rid  of  by  an  objection  to 
the  yonth  of  the  reporter,  and  the  manner  of 
the  publication. 

Ir  your  kmishipf  were  inclined  to  listen  to 
objections  of  this  kind,  it  wonid  be  a  curiooi 
enquiry,  at  what  period  of  a  lawyer's  life  be 
can  take  a  note  fit  to  be  reported.  1  confess,  I 
am  totally  unacquainted  with  it.  8honld  it  be 
when  he  is  at  the  bar,  a  young  man,  and  attend- 
ing to  every  thing  that  passes  ?  Should  it  be, 
when  he  is  advanced  in  buainessP  and  when 
the  business  he  is  concerned  in  engrosses  his 
timeP  If  the  case  had  happened  later,  your 
lordships  would  have  been  told,  sir  John  waa 
then  a  man  of  buaineaa ;  he  did  not  trouble 
himself  about  Uking  notes;  they  are  verj^  in- 
accurate. If  it  had  been  the  note  of  a  judge 
taken  upon  the  bench,  I  do  not  know  but  it 
might  be  said  of  him,  what  was  said  of  another 
judge, — judges  are  apt  to  sleep  upon  the  bench. 

1  had  the  curiosity  to  enquire  into  the  cir* 
cumsuncea  of  the  Report.  The  case  happened 
when  sir  John  Strange  waa  about  24  or  85  year* 
of  age ;  he  had  been  at  the  bar  4  years.  A 
note  so  taken,  and  preserved  to  ihe  time  of  his 
death,  ought  not  to  be  alightly  treated.  The 
observation  of  the  case  being  published  bv  bia 
executors  would  have  been  spared,  had  the 
gentlemen  gone  to  the  first  page  of  sir  John 
Strange's  book  ;  for  they  would  have  found  by 
a  preface  written  by  sir  John  Strange  himself^ 
when  between  50  and  60,  that  he  had  collected 
these  cases,  and  meant  the  public  should  have 
the  use  of  them  ;  that  he  had  been  at  tlie  |iaioa 
of  selecting  those  that  he  thought  fit  for  puhli- 
calion,  and  of  putting  them  into  onler.  It  ap- 
pearti  he  had  given  some  of  his  notes  to  a  gen* 
tleroan,  whose  servsnt  had  clandesiinety  copM'd 
and  Nold  them  to  bookKelleis ;  and  testlNie  rasea 
so  fturreptitioiiNly  «)l»tiiined  should  be  imper- 
fectly t;iven  ti>  the  public  under  the  sanction  of 
hi««  name,  h-*  wan  at  the  expence  of  liavinic  ho 
notes  traiiNcribeil  under  his  own  e^e:  and  he 
says,  **  if  they  sh<iuhl  not  be  puhlish«'d  in  u»y 
life-time,  they  will  come  perfect  into  the  hands 
cf  my  vxecotom;  aii«l  of  ctourse  to  the  publiv.'* 
He  praciined  in  the  first  criminal  c<»urt  ot  thii 
country  with  the  greatest  honour  and  abdity  ; 


6I9J 


16  GEORGE  III. 


Trial  of  the  Duchess  of  Kingston, 


[59 


be  had  never  heard  in  his  time  that  the  case 
had  tieeo  over- ruled  or  impeached :  if  he  had, 
bis  intei^rity  was  such,  that  the  ca^e  never 
iruuld  have  a|ipeared  in  his  hook  ;  or  if  lie  had 
inserted  it,  it  would  have  been  accompanied 
i»iih  a  note,  that  damned  it,  or  threw  a  doubt 
on  its  authority. 

There  was  another  objection  to  this  case; 
that  it  must  have  been  determined  in  the  time 
•f  the  dullest  alderman  that  ever  sat  in  th«it 
court.  Who,  my  lords,  determine  cases  of  this 
kind  at  the  Old- Bailey?  Not  the  aldermen: 
they  attend  indeed;  they  are  fine  pictures, 
handsome  furniture ;  they  grace  and  adorn  the 
court ;  very  respectable,  of  considerable  trade ; 
but  tliey  do  not  deal  in  law.  If  they  ever  study 
law,  it  IS  to  avoid  it ;  in  which  they  are  not  al- 
ways successful.  The  judges  of  the  common 
law,  of  the  superior  courts  of  Westminster- 
Hall,  decide  the  questions  which  arise  in  trials 
there. 

Your  lordships  have  been  also  told,  that  the 
authority  of  this  case,  if  ever  it  had  any,  was 
soon  put  an  end  to  in  the  year  1753,  in  the  case 
of  the  King  and  Murphy  ;  where  the  probate 
of  the  Ecclesiastical  Court  was  set  at  nought ; 
it  was  nothing  more  than  paper  and  wax,  with- 
out any  effect.  The  case  of  the  King  and  Mur- 
phy was  thrown  in  by  name.  A  case,  the  king 
and  such  a  one,  shews  it  to  have  been  a  crimi- 
nal cause ;  but  it  must  be  from  a  state  of  the 
facts  that  your  lordships  must  discover  the 
9pplication. 

I  will  let  Toor  lordships  know  the  state  of 
that  case.  It  was  an  indictment  for  forging 
Ihe  will  of  one  Wilkinson.  Your  lordships 
have  man)r  of  yon  heard  of  the  great  successes 
of  some  privateers  6tted  out  in  the  year  1746-7, 
called  the  Royal  Family  privateers :  they  were 
very  successful ;  and  they  got  very  soon  into 
many  disputes  in  the  court  of  Chancery  and 
courts  of  law.  Their  wages  and  prize-money 
were  considerable.  Wicked  men  were  tempted 
to  endeavour  to  possess  it.  A  sailor  in  a  re- 
inote  part  of  the  world  is  a  being  not  likely  to 
give  himself  much  trouble  about  money. 
Murphy,  who  was  prosecuted  at  the  Old- Bai- 
ley, knowing  Wilkinson's  title  to  the  prlzc- 
monev,  had  forged  a  will  of  Wilkinson,  had 
got  tiiat  will  proved,  and  had  received  from 
one  Noades,  the  aji^ent,  part  of  the  prize-money 
of  Wilkinson.  All  went  off  very  well.  Mur- 
phy spent  the  money.  But  in  a  few  months 
at\er,Mr.  Wilkinson  was  restored  to  life.  He 
appeared  before  the  agent,  and  demanded  his 
money.  Says  the  agent.  We  have  paid  your 
executor.  S&ys  he,  That  is  pretty  odd  !  I  will 
satisfy  you  1  have  not  been  dead  ;  and  nobody 
can  prove  my  will  till  I  am  dead ;  I  insist  nfon 
my  money.  The  fraud  was  detected;  Mur- 
phy was  apprehended,  prosecuted,  and  con- 
victed. 

Would  the  gentlemen  have  had  him  aet  up 
the  probate  of  the  will  at  the  Old  Bailey  ? 
Would  they  haVe  told  Wilkinson  to  go  to  the 
JScdeaiastical  Court  to  repeal  it  P  What  would 
WilkiDioPi  ignorant  a  be  ww,  say  f   I  htTC 


heard  of  probates  of  wills  of  dead  men,  bi 
never  heard  of  probates  of  wills  of  living  mc 
before :  the  jurisdiction  of  the  Ecclesiajstie 
Court  is  to  grant  probates  of  the  wills  of  tb 
dead,  not  of  the  living ;  and  therefore  the  que 
tion  could  not  arise. 

Another  case  ut  one  Stirlini^  was  mentionei 
Stirling  found  out  that  a  Mrs.  Shutter  hi 
property  in  the  South-Sea  stock,  and^h 
scheme  to  possess  it  was  like  Murphy's:  I 
forged  a  will,  got  it  proved,  went  to  the  Soutt 
Sea-bouse;  there  he  exhibited  the  probate 
they  gave  credit  to  the  death  of  the  party,  ai 
to  his  beincr  the  executor,  and  they  paid  tli 
money.  The  woman,  who  had  nothing  eh 
to  live  upon,  came  to  receive  her  divideni 
The  clerk  says.  Your  executor  has  proved  yoi 
will ;  you  must  be  the  gbost  of  Mrs.  Sliatle 
not  Mrs.  Shutler  herself.     She  was  not  to  i 

Sut  off  in  that  way.  The  company  found  ot 
tirling,  and  brought  him  to  justice.  He  di 
not  say  to  the  court  on  his  trial.  Do  not  bi 
lieve  ber ;  no  law  says  you  must  take  tb 
evidence  of  a  ghost:  she  must  go  into  Doctoi 
Commons  and  rescind  this,  before  you  belief 
ber  evidence.  No  court  would  bear  such  an  it 
suit.  The  jurisdicticm  of  the  Ecclesiastical  Cooi 
does  not  attach,  till  the  party  is  dead :  tba 
is  no  such  thing  as  a  will  for  the  Prerogmtii 
Court  to  give  effect  to,  whilst  the  testator  i 
living.  It  was  said,  the  crime  consists  in  ol 
taining  the  probate.  The  will  has  no  legal  e 
feet  without  it.  It  is  not  necessary,  to  conat 
tute  the  crime  of  forgery,  that  the  will  sboul 
be  proved.  If  the  will  is  exhibited  aa  a  gi 
nuine  will,  and  the  officers  of  the  court  (wbi 
has  happened  in  many  instances)  suspect  a  fo; 
gery,  tney  atop  the  probate  ;  and  many  bai 
suflfered  without  a  probate  being  granted,  tli 
offer  to  prove  the  will  being  a  publication  ( 
the  forgery. 

Two  other  cases,  the  King  and  Fitzgera^ 
and  the  King  and  Carr  and  Richardson,  wei 
also  mentioned  to  your  lordships.  In  neith< 
of  these  cases  was  any  probate  produced  or  ii 
sisted  upon  by  the  prisoner.  One  of  the  get 
tiemen,  who  cited  tiie  cai^es,  suggested  that  ai 
swer  to  them,  which  was  too  obvious  to  I 
overlooked. 

I  trust  your  lordships  are  satis6ed,  there : 
no  ground  in  reason  or  authority  for  the  dii 
tinctiim  attempted  between  civil  and  crimin 
causes  in  the  admissibility  and  effect  of  tk 
sentence  of  the  Ecclesiastical  Court. 

I  am  now,  my  lords,  arrived  at  that  point  t 
which  the  whole  artillery  seems  to  be  directed 
that  the  sentence  was  obtained  by  collusioo^- 
Your  lordships  have  been  told,  that  a  jiidgmei 
by  collusion  is  fnbula  non  judicium;  was 
pnper,  ink,  any  thing  that  30U  will,  but  m 
a  judgment :  the  jud^e  does  itut  act,  the  judg 
is  inip(»sed  upon  ;  it  is  of  no  effect  whatever 
in  no  court,  in  no  light,  upon  no  occasion,  01 
the  most  ingeniouM  imagination  suggest  a  cm 
in  which  collusion  does  nut  affect  the  tranMM 
tion ;  and  being  once  proved,  deatroys  it  nw 
the  beginning,  and  ai  much  ai^pihilatee  it,  m* 


tr  wtiltil  Uw  nf  every  court. 
■i  deny  the  (loctrtDe  in  Ibe 
Tor,  anil  to  iosiit  before 
,  .  le  voltuiion  cannot  be  Kerred 
«l^<iul  lliin  lenlenee,  eiihcr  iijiDn  the  principlec 
oftlw  eucnmoii  law,  nr  the  pmiUion*  of  injp 
•laiiiir.     By  ihn  comrnun  law  of  ibis  couairy. 


Byli 
[irnof  of  cnlhia 
milled  to  rraciod  tr 


»  per. 


Vuiy  itaiutei  bate  been  inade  ti 
l.>aii       *■  ■■        ■      ■ 


nEociinnn :  ibe  niinjdiciljr 
cilcuUleU  for  more  nonest 
limn,  WD*  not  eqiiil  lu  ull  the  art!  of  iojuitice 
wbich  ingeniuuK  nicbeilneas  balb  produced. 

[ty  tbc  princi|iles  uf  the  common  law,  the 

I'lmua   pennilltd  to  rescind  a  transaclion,  on 

III'  kooro  of  fraud  or  I'olhiBion,  must  have  an 

iiii-rrtt  rested  at  llie  time.      Tbia  is  expressly 

1..']  ibwn  by  Ibe  court  In  Tnyne'a  case,  re- 

"tinj  by  lord  chief  juslice  toLe.      Where 

.I'liJa  are  unjnally  taken,  und  auld  in  a  market 

Tl  hy  fraud,  to  chia|;e  the   property,  the 

■     -  r-'-  rr  may  rel»ke  ibem.      So  where  ■ 

■stcotea    his   debtor  to  judgment, 

iiTsdUhiiKOoiU  loaperaou  know- 

iiirigmeol,  with  u  ciew  to  defeat  ilie 

'      '   ,  iIk'  ifuods  may  notwiibilandint;  he 

'.111  )jy  1  lie  .creditor.     In  Imlb  cates  ao  in- 

""'    '    "  "'  le  lime  of  the  Iraud. 

iuppre«a 
id- 
id  last  of  alt 

mof  queen  Eliealwlb;  Ihe  mainobjectof 
■lid)  WM  U>  eaalite  persona  who  became  in- 
(HMlad  ■utieeaucnl  lu  IranMCllona  founded 
in  oillualuo  anil  fraud,  to  impeach  uid  resciod 

libaiuol  Indeed  been  enpreisty  in-^istnl,  Ihal 
'',  the  ciimmnn  law,  ioilejxndenl  of  ilalutnble 
;iu>ii>uii<,  all  fraudulenijudgmeuts  were  loid, 
ud  ihal  it  wai  cuiD|)i;leiil  lo  nuy  peraon  to  de- 
bt ibfu:  the  anthorilies  I  hate  died,  and 
b|irialirD  ilcclHialioDs  ugian  ihe  suhjecl,  prote 
HBOotraTy.  The  aliiule  of  (lib  Henry  6.  c. 
U,  it»  alrMdy  been  iiienlioDed  :  from  iheoce 
k^  dear,  Ibr  certificate  uf  ihe  bigbop.  bow- 
*W  enlltwirely  or  IVnuduttntly  obtained,  wat 
nHtatir*  belweeu  llitt  ^rliet.  And  in  the 
4M  of  bastardy,  a  pmtision  is  made  agalntt 
•■kecftiGcatea  io  fulure :  but  in  ulher  casrs. 
■ii  HUwrilKe,  to  Ibii  day,  and  also  before  ihe 
Ubmalion,  upon  Ihe  paniw  beinf;  uf  a  reii- 
ttim  order,  the  uetlificate  was  coni-lutive,  not- 
jidMlsmKDg  any  frauil  or  coll  usioa.— Cot - 
Mil*  judifineDts  upon  iieoal  statulet  lo  ntu- 
M  aOcndera  tVrquenlly  ovciir  in  practice  i 
•ijHbeu  ihtry  are  uisikred  on,  Ihe  ptaintifl' hita 
'  .1  I  <  nv^r  aucb  juilgmeut*  la  hate  been 
'  >  fraud  and  collutlon.  ThU  dors 
■  III!  Ibe  protiaion  uf  Iheromninn  law, 

11  r>  ui-i  lit  pari iiroei It  made  In  Ibe  4lh 

'I.  J.  V.  ■ii).  The  whole  staliile  is  material  lo 
•■Miuidrd  10.  The  lilte  of  IlieacI  in,  "  aclions 
|l|«krp>**ecaled  by  collltaiun  ohall  be  tin  har 
k  *«••  wbich  be  pursuit  with  |[»od  failh." 
that  if  an  action  popular  tie  com- 

jaJnalanufl'tiidrrhy  gout  faith,  then 

KtlHM^0viHUrYtiil  Udaj  Iht  acljoii  eilbcr 


A.  D.  1778.  fSSt 

by  Don 'appearance  or  hy  trascrve;  and  hang- 
ing ib(^  lamc  action,  the  aame  offender  oill 
cnuae  like  action  popular  10  lie  bruiigbl  a^faiaal 
him  hy  covin  li>r  ilie  aame  cause  and  otTenca 
that  t^e  first  aciian  ««s  lued  :  and  then  hj 
covin  of  Ihe  plainliir  lu  that  eecood  acliou,  b* 
will  be  coDdemned  either  hy  conleMion,  leign- 
ed  Iriut,  or  release;  which  condemnaliau  aod 
rdease  kn  had  by  collusion  and  covin  pleaded 
by  Ihe  said  oHendrr,  &hall  Inr  Ibe  ptainlilf  in 
the  acLun  sued  In  good  failh :  il  a  therefura 
enacted,  Ibat  io  fulure  the  plaintiff  sainff  in 
Kood  failh  may  avpr  Ibe  former  recovery  Io 
have  btren  hy  ciirin  and  colluaiao  ;  but  nu  such 
averment  in  lo  be  received  alter  a  trial  on  tba 
point  of  ibe  action,  or  on  the  covin  or  collusion. 

Here  your  lordahips  find  the  origin  uf  aver- 
menia,  tiiat  Judgmeiila  on  P''>iil  atatuiei 
were  oblaioed  hy  coUuaion.  This  act  attiroM 
the  principle  of  ibe  common  law,  ihat  none 
but  persiins  inleiesled  were  entitled  lo  rescind 
jud^enls  on  the  i[round  of  cnlluaion.  A  pe- 
ually  given  to  a  cuinmon  inliirmer  is  not  vested 
in  any  individual,  till  he  commences  Ibe  ac- 
tion ;  aod  ciinset|ueiitty  he  could  nut  aver  col- 
lusion in  a  former  jud)-meol:  such  judgment 
was  not  llieu  fubuta,  or  waste  parchment,  but 
of  such  effect  and  cuncluainn  aa  called  for  an 
act  of  parliamenl  to  remedy  (he  niiscliief. 

There  cau  he  no  greater  aulhnrily  to  prove 
ibe  cominou  law  of  the  land,  thao  a  purKamen- 
Isry  ileclaralinn  upon  ibe  subject:  t\iia  act  fur- 
nishes a  roust  explicit  and  satiaraclory  one. 
Your  lonlahipfl  will  not  suppuse  an  act  waa 
made  to  reineily  a  minoliief,  or  supply  a  defect, 
which  did  not  txitl.  If  your  loriiships  reli^r  la 
Ihe  acts  of  those  days,  you  will  Hml  theiri 
drawn  with  g-reat  precininn  aud  accuracy,  and 
with  great  knuwled|;e  of  the  sulyect ;  I  h  ill 
not  say  at  much  for  the  ocu  of  ibe  pretenl 

This  act  must  evinee  lo  your  lordships,  that 
colluiiie  jnilgmenis  in  courts  of  law  bound  in 
colluipral  suits.  I«  <i  then  to  be  wnndered  at. 
thai  there  was  no  pi-ovision  by  llie  commou  law 
respecting  fraudulent  aeulencea  in  the  ecclesi. 
astical  conrti,  which  bad  the  sole  and  exclusive 
jurisdiction  i»  ihemseltei  ?  But  it  does  not  fol- 
low, that  collusive  practices  are  lo  have  effect, 
or  the  panics  go  unpunished. 

A  power  is  incident  to  every  court  lo  preveat 
its  proceedings  from  being  made  ihe  instrn- 
meniB  of  fraud  and  iniquity,  and  to  punish  Iha 
persons  concerned  in  Ihe  aliempt.  It  may  b« 
(lone  upon  the  informaliou  of  one  ialerealed  or 
not  interested.  The  Cnurl  is  called  upon  for 
ila  own  honour  lo  examine  into  the  businesi. 
,  Your  loid&hipa  have  been  tuld,  that  tb« 
cruTtn  cannot  gel  at  the  collusion;  that  th* 
ecclesiasiical  courU  will  nut  attend  lo  Ihe  a|k 
plication  of  ihe  crown.  If  that  were  the  else, 
It  would  not  follow  ns  a  necessary  consequence, 
tbat  the  cruwn  abould  be  admuled  to  allege 
collusion  here.  Bill  baa  the  attorney  genera) 
■urmtseil  to  the  Ecclesiastical  ConrI,  ibal  Iber* 
has  been  aucb  an  impnsiiiun  put  upon  them  a* 
i* insinuated r  Haa  ibejudgoof  ibeCogleiiau 


523]  16  GEORGE  III. 

tical  Co6rt  told  the  attorney  general,  I  cannot 
attend  to  the  aufjn^estion ;  no  applicatidn  has 
been  made  to  the  Ecclesiastical  Court,  either 
on  the  part  of  the  crown,  or  bj  the  real  prose- 
cutor in  this  case,  or  any  other  person,  thouiph 
the  duke  of  Kingston  and  the  noble  lady  at  the 
bar  lived  together  five  years  under  the  sanction 
of  a  marriage  solemnized  wilh  the  archbishop's 
liceuce,  in  the  presence  of  friends,  and  known 
to  the  world  ?  Does  the  prosecutor  say,  he  is 
actuated  by  motives  of  justice,  and  allege  the 
supposed  collusion  newly  discovered  P 

A  case  happened  in  the  court  of  Ring's- 
bench,  which  is  known  to  many  of  your  lord- 
ships. Mrs.  Phillips  had  married  Mr.  Muil- 
man — Mr.  Muilman  had  got  rid  of  that  mar- 
riage by  a  sentence  in  the  Ecclesiastical  Court, 
by  proving  a  former  marriage  with  one  Dela- 
field.— It  was  then  the  lady's  turn.  She  me- 
ditates getting  .rid  of  Dela6eld's  marriage,  by 
proving  that  Dela field  at  the  time  he  married 
her  had  another  wife ;  and  so  the  lady  was  to 
fix  herself  upon  Mr.. Muilman  in  order  to  give 
eflect  to  her  scheme.  An  action  was  brought 
for  a  real  demand  against  her  in  the  court  of 
King's-bench  by  a  brewer,  who  had  g^t  a  note 
from  her  for  a  valuable  consideration :  the  in- 
tent of  this  was  to  create  a  rumour  that  Muil- 
man and  she  were  married.  They  might  have 
brought  this  and  a  thousand  such  actions,  and 
no  verdict  given  could  be  evidence  against  Mr. 
Muilman.  But  when  Mr.  Muilmnn  heard  of 
this  proceeding,  and  the  purpose  of  it,  though 
it  could  not  affect  him,  he  applied  to  the  court 
of  Kiog*8-bencb,  not  as  a  party  in  the  cause, 
but  iiit'ormed  the  Court  that  such  a  proceeding 
was  had  by  collusion,  that  it  was  an  abuse  of 
the  Court,  and  ought  to  be  rectified.  Lord 
Hardwicke  was  then  at  the  head  of  that  court : 
he  considered  it  as  a  high  contempt  of  that 
court :  he  attended  to  the  application  of  Muil- 
man. All  objection  had  been  made  by  counsel, 
that  Muilman  was  not  to  be  beard.  What! 
Said  lord  Hardwicke,  to  inform  the  Court  of  a 
contempt,  is  he  not  to  be  heard  ?  Any  person 
as  amicus  curia  may  inform  the  Court  of  a 
contempt  that  has  been  committed.  The 
Court  ordered  the  record  to  be  taken  off  the 
file,  and  punished  the  parties.  If  the  present 
sentence  was  by  colhuion,  the  Ecclesiastical 
Court  vso\\\{\  erase  from  their  records  the  me- 
morial of  the  transaction  at  the  surmise  of  an 
amicus  curia :  and  would  not  the  Ecclesiastical 
Court  huve  thought  themselves  honoured  with 
such  an  amicus  curia  as  his  majesty's  attor- 
nev -general? 

Great,  nnd  perhaps  deserve<l,  commendation 
was  be  stoned  upon  the  marriage-act,  though, 
I  really  confess,  I  did  not  discover  the  applica- 
tion. YtMir  lordships  were  told,  that  i-very 
woman  of  easy  virtue  and  of  indij^ent  circum- 
stances before  that  act  had  an  iiuinediate  re- 
ceipt f<»r  the  payinrnt  of  her  debts  by  ^ettincf 
married  at  the  Fleet.  Has  the  marriHtfe-act 
been  attended  with  such  lieneficial  consequences 
to  make  all  women  virtuous,  aud  all  women 
rich  ?    if  IhaX  be  true,  it  has  much  greater 


Trial  of  the  Ducfiess  ofKingstoUf  [5?4 

merit  than  I  conceived  belonged  to  it.  Did  a 
Fleet  marriage  discharge  the  woman  from  her 
debts  P  The  only  change  it  made  in  her  sitoa- 
tion  was  this:  when  married,  she  goes  to -gaol 
in  company  with  her  husband ;  whereas  if 
single,  she  must  go  alone,  and  trust  to  the  com* 
pany  she  meets  there :  and  as  to  future  debts, 
she  was  not  liable,  because  she  was  a  married 
woman  ;  and  at  that  time  the  marriage  cere- 
mony, if  performed  by  a  priest,  was  valid. 
But  is  there, any  thing  in  the  marriage-act 
which  says,  that  a  woman  who  now  marries 
shall  not  run  into  debt  P  It  wookl  be  Terjf 
happy  for  many  husbands  in  this  coontry,  if 
there  could  have  been  an  effectual  provision  of 
that  kind.  Before  the  marriage-act,  a  woman 
by  her  marriage  in  the  Fleet  was  not  liable 
to  future  del^ ;  a  woman  now  by  her  mar* 
riage  in  the  church  is  not  liable  to  future  debts* 
Has  the  marriage-act  made  it  a  difficolt  matter 
in  this  country  to  be  married  ?  Are  there  many 
obstacles  in  the  way  f .  Is  there  any  delicacy  m 
surrogates  in  granting  licences  ?  In  truth,  it  is 
as  easy  to  get  married  in  a  church  as  belbre  in 
the  Fleet  Suppose  a  marriage  by  banns  at  a 
distance  from  London ;  the  woman  comes  hers 
and  runs  in  debt ;  does  any  body  in  London 
know  of  her  marriage,  though  it  was  in  n 
church  P  She  has  as  much  power  to  run  in 
debt  since  the  marriage -act  as  before,  and  as 
exempt  from  the  pay  men t« 

Your  lordships  are  told,  that  a  man  and  woman 
mav  to  civil  purposes  and  to  civil  duties,  by  a  od- 
lusfve  sentence  of  this  kind,  become  separatedt 
and  no  longer  husband  and  wife ;  but  to  all  the 
public  duties  they  are  husband  and  wife :  Ihey 
cannot  al^lve  themselves  from  public  du- 
ties ;  there  is  no  power  upon  earth  can  do  it 
but  the  legislature  of  the  kingdom  ;  and  that 
the  noble  lady  at  the  bar  is  free  to  all  civil 
purposes,  but  to  alt  criminal  purposes  she  is  a 
wife. 

I  wish  the  gentleman,  who  U8e<l  this  argiH 
ment,  had  explained  himself  upon  the  subject ; 
for  I'protest  to  your  lordships,  1  am  to  be  inlbrm* 
ed  that  there  are  other  public  duties  by  husband 
and  wife  to  be  performed,  but  those  in  a  state  of 
cohabitation :  I  have  noideaof  any  public  duties 
which  the  state  can  exact  from  a  husband  and 
wife  in  any  other  situation :  and  yet,  my  lords, 
nothing  is  more  clear,  tirtin  if  a  man  and  woman 
cohabit  together  as  husband  and  wife  after  n 
sentence  like  the  present,  and  whilst  it  remains 
in  force,  they  are  punishable  by  ecclesiastical 
censures. 

Are  the  public  duties  alluded  to  the  iujonc« 
tions  found  in  the  act  of  parliament,  that  MS 
man  shall  take  another  wife,  or  any  wunsais 
another  husband,  living  the  former  ?  The  act 
does  not  mean  to  punish  all  surh  acts  :  for  iiS 
the  first  plareihe  act  says,  that  it  is  competent 
to  any  man,  without  lieroming  a  felon  ur  the 
object  of  poniHiiment  by  the  act,  to  marry  a 
second  wife,  providt*d  his  first  wife  is  tieyond 
the  seas  for  seven  years  together,  Ihougli  ibt 
liiiithind  knows  she* is  livinir ;  and  yet  tlie  se- 
cond marriage  is  void,  and  Uie  husbuid  may  b* 


BS5] 


fw  Bigamn. 


A.  D.  1776. 


[5S6 


S 

c 
u 
J 
1 

t 


J 
ft 
3 


poBiihed  iu  the  ecclesiastical  ootirta,  bat  ikot 
la  the  temporal. 

Sup[»08e  a  (^otlemao  from  IrefatDJ,  for  in* 
ftaaoe,  sboutd  be  ciril  enoo^  to  leave  hia  wife, 
aad  reaide  teven  yearain  Enf^laDd  ;  tbouflph  be 
bear  from  her  by  every  packet,  though  be 
write  to  her  by  every  packet,  he  may  marry  a 
woman  in  fin^land  without  offending  against 
the  act  of  parhament.  It  would  be  the  same, 
if  a  person  living  at  Dover  could  prevail  on  his 
Wife  to  go  and  reside  at  Calab  for  seven  yeara : 
be  might  marry  another  woman  at  Dover  with- 
aat  any  peril  fropi  this  law,  though  every  vessel 
brongbt  nim  accounts  of  her  good  heafth.  Is 
Ibis  then  that  great  public  duty  which  the  state 
s»  rigoronsly  exacts,  that  none  of  ita  aubjects 
ibali  marry  a  second  husband  or  wife,  living 
Ihefiiit? 

It  ia  well  known,  that  a  divorce  for  adultery 
iocs  not  dissoire  the  bonds  of  matrimony ;  the 
idatioD  of  husband  and  wife  still  exists,  and 
aeitber  party  can  marry  again ;  and  yet  the 
ky  after  that  divorce  is  pronounced,  she  can 
terj  any  man  she  pteasea  without  offending 
igainst  Ibis  law.  It  ia  not  then  in  this  act  of 
psrtiament  we  are  to  find  the  uublic  dutiea 
which  the  atate  exacta  from  a  nusband  and 
iftk  \  for  in  many  cases  a  aecond  marriage  Is 
ait  pooished,  or  even  condemned  by  it. 

Pteaibly  the  gentleman  may  urge,  that  a 
wife's  residing  abroad  for  seven  yeara  may  be 

Scallasion  to  give  the  husband  an  opportunity 
marrying  again  without  committing  felony  ^ 
is  short.  If  your  lordships  vield  to  this  objection 
if  colhiaion,  it  is  impossible  to  foresee  to-  what 
cilmvagant  lengths  you  may  be  carried  in 
■iMrt  of  the  proposition,  that  the  noUe  lady 
It  tbe  bar  is  to  all  civil  purposes  single,  but  to 
iB  criminal  purpoaes  a  wife.    The  caae  of  a 

Kwho  committed  a  fraudulent  act  of 
ptcy,  on  which  a  commission  issued, 
lad  for  a  concealment  of  part  of  his  effects  he 
*ai  tried  and  executed,  has  been  mentioned. 
TIm  case,  so  far  from  maintaining  the  proposi- 
tiia,  la  an  authority  against  it:  the  collusive 
let  of  bankruptcy  was  deemed  equivalent  to  a 
ittl  one ;  it  bound  tbe  bankrupt  to  all  civil  and 
criottBal  purposes;  it  subjected  bis  property 
|i  be  seized  for  the  benefit  of  hia  creditors ; 
il  salgected  bis  person  to  tbe  pnnishment 
wdiined  by  tbe  bankrupt  laws:  there  is 
te  distinction  made  between  civil  and  criminal 


Stoppnse  a  commission  of  bsnkruptoy  issuing 
Cariy  upon  a  real  act  of  bankruptcy,  and  a 
nseealment  by  the  bankrupt ;  and  let  me 
appose  farther,  which  is  not  an  impossible 
Mg,  that  the  commission  by  collusion  be- 
Iwien  the  aasigneea  and  tbe  bsnkmpt  is  super- 
mM,  as  having  improperly  issued,  by  an  order 
If  nnr  lord  chancellor,  and  an  indictment  ahould 
ki  anerwarda  nreferred  for  the  concealment ; 
VouU  anv  judge  suffer  a  man  to  be  tried  aa  a 
^lia  onffor  theae  drcumstanoes  on  a  sugges- 
^oflrmml  in  superseding  the  commission  ? 
(^Cftainlj  sot :  I  am  persuaded  every  judge, 
*bt  ■ow  imiati  your  wrdahipa,  would  tall  tbe 


I  protecntor  be  had  mistaken  the  place'  to  examine 
tbe  fraud ;  that  he  ought  to  have  applied  to  the' 
court  of  Chancery,  which  has  exclusive  juris- 
diction in  bankruptcy  ;  and  direct  the  priaoner 
to  be  acquitted. 

Fermor's  case,  in  lord  Coke's  Reports,  was' 
cited  to  your  lordships  to  prove,  that  acts  tem- 
poral and  ecclesiastical  may  be  avoided  for  col- 
luaran :  doea  that  learned  judge  say  where  such ' 
acts  are  to  be  avoided  ?  No ;  but,  my  lords,  to 
illustrate  that  passage  be  refers  to  a  case  re- 
ported in  lord  chief  justice  Dyer's  Reports; 
and  there  it  appears,  that  the  act  of  the  Eccler 
siastical  Court,  which  was  granting  an  admi- 
nistratmn,  had  been  repealed  in  the  Eoclesias- 
tical  Court  for  collusion.  If  I  wanted  autbori- 
tiea  to  add  to  those  I  have  cited,  I  would  bor- 
row this  to  pot  into  tbe  number ;  because  it  b  a 
direct  proof,  that  the  Eccleaiaslical  Court  have 
a  power  to  aet  aside  their  own  acte  for  fraud. 

A  case  of  Lloyd  and  Maddox  was  cited 
from  Moore's  Reports  to  prove,  tliat  the  Ecde* 
sisstical  Courta  had  a  power  to  examine  into 
the  collusive  means  of  obteining  a  judgment  in 
the  temporal  courts;  and  shall  not,  say  the 
gentlemen,  the  temporal  coorte  toke  tbe  same 
liberty  with  the  sentences  of  the  ecclesiastical  P 
The  case  need  only  to  be  stated  to  shew  the 
fallacy  of  tbe  ailment  A  person  claiming 
a  legacy  auea  in  tbe  Ecclesiastical  Court,  tbe 
proper  rorum  for  the  recovery  of  that  demand : 
the  defendant  in  answer  aays,  I  have  nothing 
to  pay  you  with.  Such  a  one,  a  daughter  3t 
the  lesUtor,  has  sued  me  in  a  court  of  law  for 
a  debt ;  baa  recovered  a  judgment  against  me. 
1  must  pay  that  debt.  I  cannot  pay  yonr 
legacy,  unleaa  I  pay  it  out  of  my  own  pocket, 
and  nothing  can  be  more  nnjust.  Tbe  executor 
is  to  administer  the  effecto  as  far  as  they  go, 
but  not  to  pay  the.debts  out  of  bis  own  pocket. 
The  legatee  in  answer  said.  The  judgment  was 
by  fraud,  and  the  temporal  court  would  not  pro- 
hibit the  ecclesiastical  from  examining  into  the 
matter.  This  is  not  only  within  tbe  principle 
of  the  common  law,  the  legatee  having  an  in- 
terest at  the  time  of  the  fraud  committed,  but 
falls  within  the  statute  of  (lueen  Elizabeth, 
which  ordains,  that  every  judgment  in  any 
temporal  court  by  collusion  is  utterly  null  and 
void,  as  if  it  bad  never  existed  ;  it  is  void 
against  every  person  having  an  interest ;  it  is 
void  by  force  of  the  statute  against  the  crown 
demanding  a  forfeiture. 

A  learned  friend  of  mine,  who  spoke  in  tbe 
cause,  and  who  did  me  tbe  singular  honour  of 
attending  to  me,  not  for-  what  I  said,  but  for 
what  I  omitted,  observed  to  your  lordships, 
that  I  had  avoided  entering  into  the  effect  of 
fraud  and  collusion  upon  the  sentence,  unless 
by  citing  tbe  case  of  Hatfield  and  Hatfield.  I 
knew  it  would  fall  to  my  share  to  trouble  your 
lordships  upon  that  suhjert ;  and  to  avoid  a 
repetition,  I  contented  myself  in  that  stage  of 
the  business  with  relyintr  upon  ilie  case  of 
Hatfield  and  Hatfield,  which  appeared  to  rao 
alone  aufficieotto  answer  every  argument  upoa 
ooUusioo, 


SS7J 


le  GEOBGE  III. 


Trial  ijthe  Duchess  nf  Kingilim, 


l«* 


It  it  pretl;  lin^Ur,  ihat  u  HttfielJ  aod  I  jodge,  nf  high  cbaraclcr  lor  his  abililiei 
HbiKgIiI   wu  a  case  iu  equiiy,  aa<l  Iwo  of  llie     triiei(i it]' :  a  grealcr  man  |ii-rliBp9  never 
si  em  in  eat  fijuiiT-couiitei  in  tii'n  Litiiriloin     the  lieaJ  iil'iliai  court, 


I 


appear  fur  iIim  proMCUlioo.lbat  nHilier  ul'iliem 
tlinui;llt  fit  to  ({'apple  irilb  lliat  caip.  Tliey 
fuuail  in  ibe  principles  of  ilie  court  of  equity. 
Ibat  it  wai  not  tn  be  ansirereit,  nnJ  Iberel'ore 
pruifenily  paued  it  nrer  to  tbose  who  slionlil 
thiak  fit  loeoEail'e  wiih  it.  A  tromtn  cliiimeil 
40f,  a  year,  whicb  was  Tested  in  a  tru«ieo  for 
her  use:  but  there  was  anoilierilef  i«e  of  aa  an- 
nuity of  lot.  a  year  out  of  lands,  and  a  lei^cy 
directly  (^iien  lier.  Tbe  tiirmer  hugband  re- 
leased lo  the  heir  at  law  of  the  secoml  busbtnd, 
nhu  hid  made  these  prorisions   for  his  lup- 

ned  wife.  She  files  her  ImII.  Tlie  first  bus- 
d  in  bis  answer  states  all  tbe  circumtlances 
of  their  raarriage,  the  lime,  the  place,  the  mi- 
nister, and  the  persons  present.  In  arnid  the  el- 
lect  of  the  release.  A  suit  of  jaciilation  is  ia- 
aliluted  ID  the  Eculesiastical  Court  by  colbniion 
wilh  the  second  husband,  afler  proof  of  ibe 
niarriage  in  the  cause  in  the  Excbeijuer,  aud 
ebe  is  declared  a  separate  womaD.  and  the 
vidnw  of  the  deceased.  The  Court  of  Ex- 
cbeqner  received  the  sentence  as  conclusive  evi- 
dence. On  ao  appeal  to  the  House  of  Lords, 
the  decree  i»  iffirined. 

If  it  bad  Blood  merely  upon  Ibe  printed  esses 
in  the  House  of  Lords,  I  should  cvnceive  yuur 
lordsbips  could  not  have  entertained  a  duubt  ; 
but  ibe  caiie  ii  mentioned  in  sir  Juhn  !S(rBii)(e's 
Rpjiorts,  when  be  was  not  a  young  wim ;  and 
Ibe  ground  of  the  del enni nation  is  staled  lo  be, 
Ibat  the  sentence  was  conclusive.  The  case  is 
mentioned  also  by  Mr.  Viner  in  bis  Abriilg- 
menl ;  where  he  adds,  that  the  House  of  Lords 
held,  thst  a  sentence  in  (he  Eircleiiaslical 
Court  could  not  be  impeached.  Ibou^b  the 
proceedings  were  feiut  and  Uy  collusion.  This 
clear  snd  direct  aathorily  is  ti>  be  got  rid  of 
uid  avoided  in  this  roaDner:  Mr.  Viner  is  a 
DODsensical  writer;  you  are  not  to  give  credit 


been  pressed  la  give 
mire  favourable  altenliun  lo  the  wishes  of  ' 
prosecutor,  as  tbt!  present  is  a  criminal  pri 
in^.  h  it  the  principle  or  gYnuis  of  this  c«i 
Iry  10  be  more  active  to  find  out  and  puoi 
criiiite,  than  to  give  effect  to  civil  rights? 

My  lords,  there  is  a  benignity  in  ihe  !■•*■ 
this  country  to  (he  fraihiec  of  mankind.  T* 
judges  are  alleulife  and  epsI'ius  thai  the  c 
justice  of  ihe  country  be  strictly  adminiilei 
and  will  not  suffer  any  cnniritance,  chica 
accident,  or  neijlecl,  lo  delealltj  but  io  i 
minal  prosecutions  they  are  humane,  ll 
make  great  allowances,  and  ore  not  over-ao 
nus  to  discover  criminals.  This  obi^ervatjoi 
verified  by  daily  practice.  In  a  civil  c*bm^ 
the  trial  comes  on  before  the  pUinlilT  ezp  ~ 
it,  if  a  witness  be  out  of  Ihe  way,  if  the  vet 
be  In  favour  ofa  defendant  contranr  lo  the 
dcnce,  Ihe  verdict  is  set  aiide,  and  a  new  i 
ordered  and  justice  done  :  hut  in  a  crim 
prosecution,  if  the  verdict  be  in  favour  of  _ 
defendant,  though  it  ariies  from  the  abaeni 
of  a  witness,  or  from  any  other  accident,  oi 
be  given  contrary  to  the  clearest  and  mosti 
lisfaclory  pmof  of  guilt,  Ihougli  not  one  of  I 
jury  can  shew  his  face  without  a  blush,  yeltl 
vet^'ct  slanila,  and  a  new  trial  is  never  granla 
It  was  even  denied  in  perjury  committed  in  t 
lime  of  kipg  William,  where  Ihe  deliendat 
bad  Ihe  n  ickedneas  to  corrupt  Ibe  witnesses  I 
the  prosecution  lo  keep  out  uf  Ihe  way ;  I 
wheoever,  and  by  whatever  means,  there  is  i 
acquittal  in  a  criminal  pruseculion,  the  icene 
closeil  and  the  curlain  drojis. 

I  cannot,  my  lords,  sit  down  without  t 
minding  your  lordships,  ibat  in  the  course 
the  argument  have  been  cited  many  deWm 
nations  in  the  temporal  courts  by  judges  wl 
bad  no  partiality  to  the  ecclesiattiesi  juriadi 
lion,  Bckniiwledging  their  aulborily,  and  d 
daring  und  voce,  thai  in  all  peases,  where  tb 
have  an  exclusive  jurisdiction,  Ihe  sentence 
final  and  conclusive  ;  there  is  nut  an  eicepii 
tu  be  found  in  the  buak«.  Some  of  these  i 
clarations  were  made,  when  the  judge*  of  I 
temporal  courts  were  exceedingly  jealotM 


I 


tn  what  he  sayif.     I  should  have  hoped  tli 

gratitude  tu  Sir.  Viner's  meiiiury  would  have 

repressed  that  observation  ;  he  has  sliorlened 

the  hours  ul'  the  labour  of  lawyers,  aad  more 

Darticularty  of  those  who  ire  in  great  business. 

But  to  esses  in  themselves  irrefragable,  with 

decisions  upon  the  very  poini,  answers  caonot  ,  „ .,  .  - 

be  given  by  argument  ;  unless  your  lordships  '  the  eccleHisslicBl,  and  when  they  were  evm 

will  dignity  tbose  obserTotions  with  the  naoie 

of  argument. 

The  caw  of  ladv  Mayo  was  cited  from  Doc- 
tors Commons,  w}iioli  is  very  material  tn  the 
cause  now  before  your  lordships,  ll  was  a 
case  of  fraud  and  cnllusian,  discovered  in  the 
Prerogative  Court  upon  the  appeal,  which  had 
been  practised  iu  the  Consistory  Court  of  the 
bishop  of  Loudon.  The  fraud  was  apparent ; 
he  that  ran  might  read  it:  but  what  taid  the 
judge  of  the  Prerogative  Court  ?  You  must  go 
«nto  Ibe  Consistory  Court,  where  the  fraud  was 
commilled ;  1  can  aive  you  no  relief.  There 
the  collusioD  must  be  gone  into,  ihere  redress 
may  be  had,  there  the  honour  ut  Ibe  court  will 
be  tiniljcated.    This  is  the  opinion  of  a  bring 


the  present  case  call  upon  yonrlgi) 
break  down  the  boundaries  which  tf 
Bxed  between  the  tempm 
and  ecclesiastical  courts,  or  lo  invade  Utci 
rules  of  decision  which  have  been  Iransniilt 
from  iheearlieat  of  limesP  Is  there  an  auih 
rity  lo  warrant  your  lordsbipn  in  taking  hi  4 
Ira  ordinary  a  slepP 

Is  it  expected,  that  yuur  lorilshtps  are  to 
more  jealous  in  finding  out  crimes  and  ptinii) 
ing  oifendets  than  your  ancestora  t  and  lo  m 
complisli  thusr  purposes,  thai  yuu  will  clisregK 
the  antbnriiies  of  Ibe  law,  Ibe  practice  of  agi 
sod  the  spirit  of  the  English  constitution  / 

If  Ibe  matter,  iostead  of  being  clear  to  t 


^oT-  Bigatky. 

.^Wn-ofOw  noble  UJy  at  the  l>ar,  as  I  concei 
it  U  W,  bad  been  only  dnubtFul,  1  ua  persuaded 
Jwir  lortlshjix  wouici  |ir(inuunce  an  acquiilal, 
ItUtbeiluly  and  practice  of  every  juil);^  in 
cnBliial  proaeculioQ  to  let  the  jury  know,  ihtil, 
tf'lb*fe  bui^  ■  doubt  in  the  cause,  they  oughi 
ts  fire  the  turn  uf  the  scale  in  liiiour  of  iauo- 
CtBce,  aod  acquit  the  prisoaer. 

Can  your  lordBhipa,  after  an  argutoent  of 
Ibrecday*,  in  wbicb  so  many  rra|ieclable  de- 
Icrtninalioas  in  favour  of  ttiL-  eculesiustioal  JuriH- 
foioD  b*ve  been  cited,  lay  yuur  hands  upon 
jMr  breaslt  and  say.  Here  is  qo  doubt ;  the 
Mience  of  (be  Eccleslasticnl  Court,  ujbon  ibi 
bilh  oTirliicbi  and  by  ibe  adtice  of  a  |ier8ou  of 
Ih*  first  kiiow]ed);e  and  abilities  in  the  ecclesi- 
uueal  lav  the  noble  lady  acted,  is  a  oulUty  ajid 
of  M  avail ;  sod  that  she  lia<  iulcnlionally  vii 
llMd  the  laws  of  lier  country  and  becoule 
Maar 
Hy  lordi,  \  will  not  permit  myself  to 

pect  any  one  of  your  lordsliips  

nch  BD  opiuion ;  and  I  sit  down  wiiu  me  mos' 
prrfect  confidence,  that  by  your  lurdshipi 
jaJgmenl  the  noble  lady  at  the  bar  will  be  dis' 
oined  from  aoy  further  attendance  ui>an  yuur 
bnbbrpa. 

Lord  High  Steward.  A  noble  lord  aiks, 
wtiether  in  ibai  case  you  citeil.  where  an  ac- 
'  '.■•>Ti  WBB  brought  a^inst  Hr.  Thomas  Hervey, 
'  ''  Court  upon  hearing  the  sentence  in  tlieEo- 
.  Mistical  Court  refund  to  proceed  farther  ia 
:  or  nhellier  it  wai,  llial  the  cause  was  then 
.^('codiDg  in  the  Ecclesiastical  CoucL? 
I  Hr.  Wallace.  I  will  give  your  lordsliips  an 
I  aeemint  from  my  memory,  cooiirmed  by  a  note 
ttken  ID  a  subsequent  cause ;  and  if  there  ia 
aay  doubt  upon  thn  facts,  I  am  haiipy  to  ac- 
qwunt  y on r  lordships,  lliat  you  will  Iiate  much 
beCUET  iiiformailou  unon  the  buIijccI  from  the 
0oUe  jud|^  who  irieit  the  cause.  Mr.  Herrey 
hhI  Ibe  lady  bad  lived  srparate  several  years, 
dnnag  which  lime  a  ciedilor,  who  had  fur- 
aiabed  Iter  vin\\  necessaries,  brought  an  action 
•C)UO«l  Mr.  Hervey.  He  denied  bi»  Marriage. 
Then  had  uot  been  a  sentence  at  that  time  in 
iii»  EccIesinBlical  Court.  The  jury  vtere  sa- 
iwftol  vritli  the  etideuce  of  ibe  marriaf;e,  and 
ftuad  a  Terdict  acBinst  Mr.  Hervey. — Another 
ereditiM-,  who  bad  furnixhed  neceasaries  lor  Ilie 
laily  aTtrnvards,  brought  blsBdiuo  against  Ur. 
Ildrey.  and  was  prntidrd  with  the  same  evi- 
Xatcc  which  bad  satisfied  the  former  jury :  but 
WtMven  the  time  of  the  former  trial  and  the 
IfuU  ofthis  cause,  a  suit  of  juclilalion  had  beEO 
uatituieil  in  the  Bcctesiastical  Court  by  Mr. 
i&er*ej  agaiosi  the  lady,  and  a  sentence  pro- 
nauDced  >o  hia  liivour,  which  was  olfered  in 
(•JdeDce.  The  learned  Judge  conceiveil  hrm- 
•rU  bwnd  by  that  sentence,  as  the  judgment 
af  «  oo'i:)  <il  coiopetent  jurlsdiciiun:  there  wa* 
IB  isiirMiiiDu  upon  the  creditor,  no  occasinu 
tar  an  aiariu  by  the  ileciHioD,  the  debt  was  nut 

— >  jm.,Qg  cobabilalioD,  no  actof  Illr. 

had  induced  the  creditor  to  furnish 
la  hec  at  hti  wife,  be 


A.  D.  1776.  [530 

the  relation  ;  the  plaiotifT  gave  credit  upon  ih« 
idarriace itself,  and  theretijre  took  upon  him  to 
salisfyibe  Court  that  llirre  was  a  legal  mar- 
riaae :  the  sentcrrice  of  the  EccleEiasiieul  Court 
liad  determined  the  point:  the  Judge  appre* 
headed  that  the  question  was  closed,  and  that 
lie  was  liuund  to  give  faith  and  credit  to  tlia 
sentence ;  and  the  plalutifT  fuiletl  on  account 
of  the  Ei^nleiice,  though  it  was  atterwards  re- 
versed upon  auajipeBl.* 

Doctor  Cahert.  My  lords,  the  question 
Brining  upon  the  sentence  which  has  luhen  up 
BO  much  of  your  lordships'  lime,  seems  now 
confined  to  a  narrower  compass  iban  we  at  firsC 
apprehended. 

My  lords,  when  the  counsel  fur  the  nobis 
duchess  at  your  lordshiiw'  bar  nll'frcil  the  sen- 
leoce  in  the  EccleEiaitical  Court  to  be  read  ua 
conclusive  evidence,  it  was  desired  by  the 
counsel  on  the  other  side,  that  the  ri-il  of  the 
|)roceedini;s  in  that  cause  might  likewise  b« 
read.  This  raised  a  belief  in  us,  Ihni  excep- 
tion wnuld  be  taken  to  the  nature  of  this  sen- 
tence in  particular,  as  differing  from  seuteacea 
in  other  matrimouial  causes. 

Hy  lords,  we  apprehended  it  wnuld  be  said,  as 
indeed  it  was  by  some  of  the  counsel  on  iho 
otherside,  that  a  proceeding  in  a  cause  of  jucti- 
tation,  when  the  issue  of  it  was,  pronouncing 
fur  the  Jactitation,  and  the  defendant  enjoined 
silence  (let  the  proceeding  in  that  cause  have 
been  what  it  might,)  would   not  amount  to  a: 

Cosilive  decree  against  a  marriage,  hut  it  would 
e  merely  a  dismission  of  Ihe  party  ;  that  it 
would  amount  to  no  more  than  this,  that  no- 
thing had  been  proted  fur  the  present,  and  that* 
the  judgment  never  would  become  decretal. 


My  Fords,  1  take  it  to  be  a 
speak  of  proceedings  iu  such  a 


a  that 


,  .  however,  we  have  it 
dersiand,  iu  concession  from  the  counsel  uo  the 
lier  siile,  and  we  are  perti^ctly  agreed  about 
c  nature  of  the  seuleiice:  ii  has  been  allowed, 
is  as  com plele  a  sentence  against  a  marriage, 
if  it  had  IwcD  proDOUDced  in  acauseof  nultily' 
of  marriage. 

My  lords,  a  coDcessiun  of  this  aort  coming 
rom  the  counsel  on  the  other  side,  your  lord- 
iliipa  will  see,  must  leave  Ihem  much  embar- 
rassed :  first,  by  their  oho  coitceasiuoa  of  the 
effect)!  similar  judgments  hare  hail  in  other 
questions ;  and  likewise  by  Ihe  act  of  parlia- 
uient,  upua  nlitch  alone  this  proseculioD  tiaa 
be  founded. 

My  lords,  it  ia  conceded,  (hut  some  jtidg- 
lents  of  the  ecclesiastical  courts  arc  final  as 
<  matrimony ;  but  if  they  concede  that  sonia 
'e,  there  Is  now  remaining  no  objection  to  this 
I  particular.  Your  lordship*  will  see  how 
luch  this  is  Bupporled  by  the  sUtule  on  whicli 
the  prosecution  is  fouadetl ;  because  the  excep' 
tion*  out  of  tbal  statute  go  directly  to  those  seo- 
ea  with  which  it  is  now  nlloHcd  this  is  tipon 

Penke's  Law    of  l£Fi<Jciice,    c,  S,  J  9, 

p.  80,  Nole. 
3M 


631] 


18  GEORGS  IIL  Trial  of  ike  Duchess  of  Kingston, 


[59! 


a  footiDg^.    Can  it  therefore  with  aoT  propriety  I  against  Vincent,  where  there  was  a  proaecotio] 


be  now  ur^,  that  it  oufffat  not  to  be  rec^ved 
as  cooclusiTe,  because  there  is  a  possibility  of 
setting  it  aside  ?  This  seemed  astonishing  to 
the  learned  gpntleman  who  spoke  first  on  the 
other  side ;  that,  as  it  is  allowed  that  the  court 
who  pafsed  that  sentence  could  at  any  tio\e 
ojM)n  proper  evidence  reverse  it,  it  should  be 
urged  in  this  judicature  as  coficlusive  upon 
your  lordRhipH.  Many  instances  have  heen 
given,  H  here  sentence^  not  more  final  or  irre- 
▼oenble  than  this  have?  been  allowed  in  tiie 
common  law  courts.  If  in  a  cause  of  nullitVt 
a  marriaj;e  be  proDonneed  to  be  void,  it  would 
not  he  contended  a  moment,  hut  that  such  a 
sentence  is  within  the  exception  of  the  act ; 
and  no  person  mar/ying  again  after  soch  a  sen- 
tence could  be  an  object  of  punishment  under 
that  act  Jt  is  surely  therefore  a  very  consi- 
derable concession,  and  sufficient  to  justify  the 
reliance  we  have  upon  It,  that  it  is  a  positive 
and  direct  sentence  against  the  marriage. 

My  lords,  the  ground  of  some  of  the  excep- 
tions out  of  the  act  of  parliament  seems  to  be 
the  notoriety  of  the  stale  of  the  party,  which 
leaves  no  room  for  imposition  on  the  person 
with  whom  the  second  marriage  is  contracted; 
for  the  act  has  not  in  view  merely  the  punish- 
ment of  the  offence  as  against  morslity ,  because 
the  exceptions  are  such  which  allow  in  many 
cases  a  second  marriage,  though  the  first  is 
really  in  force.  The  objet:t  therefore  of  the 
act  of  parliament  seems  to  be  this,  that  there 
should  be  no  deceit  put  upon  the  person  :  it  is 
expressed  by  the  preamble  in  these  words: 
'*  Whereas  many  persons  going  from  one 
county  to  another,  or  into  places  where  they 
are  not  known,  marry  agam ;  therefore  be  H 
enacted  :"  but  when  there  has  been  any  pro- 
ceeding of  this  sort,  when  there  has  been  any 
question  litigated  in  the  Ecclesiastical  Court  re- 
lative to  that  marriage,  and  when  the  sentence 
of  the  Court  is  against  that  marriac^e,  1  believe 
ii  is  no  strain  of  the  interpretation  of  that  act,  to 
suppose  it  is  one  of  those  cases,  in  which  no 
prosecutiott  of  this  sort  ouuht  to  be  carried  on. 

My  lords,  the  variety  of  instances  that  have 
been  produced  to  shew,  that  whenever  any 
sentence  of  this  sort  has  been  produced,  it  has 
been  constantly  attended  to  by  all  civil  jurisdic- 
tions, will  not  bear  a  contradiction  ;  nothin';;' 
can  be  more  clear.  To  all  the  cases  that  have 
heen  quoted  on  our  side,  1  do  not  apprehend 
that  any  answer  has  been  given  to  anect  their 
authority  ;  what  is  more,  there  has  been  no 
case  cited  on  the  other  side :  therefore,  if  a 
series  of  authorities  will  establish  any  point,  it 
is  to  be  conceded,  that  in  all  civil  cases  a  sen- 
tence thus  pronounced  by  a  court  havioe  a 
competent  jurisdiction,  where  the  question  has 
come  before  that  court,  marriage  or  not  mar- 
riage, will  be  received.  The  question  then  will 
come  to  this :  if  it  can  he  established,  that  in 
civil  suits  it  would  be  received,  ought  it  not  to 
have  the  same  effect  in  a  criminal  prosecution  P 

1^1  y  lords,  for  that  purpose  there  have  been 
cited  to  your  lordships ;  that  of  the  King 


for  a  fwgery,  and  the  probate  was  received  a 
conclusive  evidence  against  that  forgery. 

My  lords,  in  answer  to  that  it  was  arg« 
onlv,  that  it  was  a  cas^  that  was  too  stroag 
snd  they  could  not  ic'i^e  credit  to  the  reportei 
That  answer  seems  by  no  means  satisfactory 
e8|)ecially  as  it  does  not  meet  with  support  froo 
any  subsequent  authority,  siuce  none  has  Iimi 
quoted  that  comes  up  to  the  |M>int.  Two  o 
three  cases  have  been  mentioned;  hot  wbei 
they  are  considered,  and  the  circumstance 
they  were  attended  with,  your  lordships  wi! 
find,  it  does  not  appesr  that  they  come  up  t 
the  case  in  question.  In  two  of  these  instaneei 
the  supposed  testators  were  living.  My  lordi 
it  was  a  gross  imitositiun,  and  the  whole  pro 
ceeding  a  mere  mistake,  and  nothing  mom 
The  testator  came  into  court  to  give  evidence 
To  he  sure,  a  probate  under  these  circoin 
stances  could  not  he  attended  to ;  it  could  ns 
be  a  probate  at  all ;  nor  could  it  be  contended 
that  the  probate  of  the  will  of  a  living  pcrwH 
coold  be  received  in  evidence.  I  know  tb 
treatment  it  received  in  the  Court  of  Prerogn 
tive  in  that  case,  where  Stirling  was  execute 
for  a  forgery.  I  enquired,  to  see  how  thi 
stands,  a^  I  do  not  find  there  were  any  pro 
ceedioga  to  reverse  or  revoke  the  probate  ;*  ih 
thin^  was  too  ahburd  to  require  a  judicial  dii 
qnisition.  1  was  informal,  a  pen  was  drawi 
through  tlie  probate,  and  on  the  margin  wa 
wriuen  the  word  '  void.'  Tliere  were  tw^ 
other  cases  mentioned  of  indictments  for  fof)g 
iug  H  ills,  where  it  was  said  that  ther«  was  i 
probate  existing ;  but  it  does  not  appea 
throughout  these  cases,  that  any  mention  wa 
made  of  the  probate  at  the  trial,  or  that  th«  ex 
ception  was  taken  lor  the  prisoners.  We  point 
ed  out  to  your  lordships  the  great  iuconveni< 
ence  that  would  arise  I'rum  going  on  to  eoquin 
into  questions  of  this  sort  in  two  different  judi 
catures.     It  was  asserted 

A  Lord,  Whether  the  scratch  with  a  pci 
throiii^h  the  probate,  in  the  case  of  Stirling, 
was  done  by  any  order  of  the  Court? 

Dr.  Calvert*  Not  by  any  judicial  order,  1 
believe.  I  apprehend  it  never  came  judicisllv 
before  the  Court.  By  whom  it  was  done  I 
know  not :  I  am  not  acquainted  with  that 

My  lords,  it  was  asseiied  by  the  counsel  oa 
the  other  side,  that  no  decision  of  a  civil  nature 
could  be  applied  to  any  crimiual  question :  It 
was  asserted,  but  1  did  not  find  that  it  was  sup- 
ported by  any  principles  or  authorities. 

My  lords,  we,  on  the  other. hand,  did  sobiiiil 
to  your  brdships,  that  the  inconveniences  arii* 
iug  from  such  different  enquiries  miglit  be  ex- 
tremely K^reat ;  for  if  they  produce  difierfst 
judgmenta  upon  the  same  point,  the  peraosli 
who  should  be  affected  and  interested  oodtf 
them,  under  such  a  predicament  might  find  il 
difficult  to  know  what  should  be  their  daty« 


*  See  Mr.  Leach's  adoption  of  the 
tion  as  to  this  ilready  noticed,  p,  4d0. 


iSS\ 


Jbr  Bfgan^. 


A.  D.  ifre. 


[SM 


We  pointed  out,  that  in  case  the  sentence  now 

in  qoestion  remains  in  force,  which  I  trust  it 

will,  notwithstandiofT  sny  judgment  that  may 

he  passed  in  this  Court ;   yet  if  yon  should 

proceed  to  censure  the  person  thus  separated 

from  the  aupposed  former  hushand,  from  this 

eaotrariety  of  judgments  the  greatest  confusion 

would  arise :  mr  you  would  censure  the  person 

for  marrying  again,  as  being  the  wife  of  that 

hosbaod,  of  whom  it  had  heen  direcUy  in  issue 

sad  determined  that  she  was  nerer  the  wife. 

This,  my  lords,  appoars  to  us  a  very  consitler- 

aUe  absurdity.    The  only  answer 'I  heard  to 

that  was   rather  avowing  the  inconvenience 

than  remofing  it     When  it  was  asked,  in 

what  predicament  would  a  woman  stand  under 

IhtfM  circumstances f  it  was  said,  she  would  be 

a  wife  to  criminal  purposes,  hut  not  so  as  to 

dfil   considerations.      What   the   distinction 

■cant,  I  confess  I  do  not  well  understand ; 

bat  it  was  said,  the  noble  lady  at  the  bar  should 

be  ooDsidered  as  a  wife  to  all  criminal  purposes, 

bceanse   persons  cannot   absolve   themselves 

fram  their  publie  duties.     1  never  understood, 

that  with  rigard  to  matrimony  any  party  could 

ibsolve  himself  from  his  private  duties  neither : 

I  always  understood  it,  as  far  aa  his  own  act 

flMid  affect  it,  to  he  an  indelible  obligation. 

Bot  what  are  the  duties  to  the  public,  which  a 

pwiott  in  this  situation  ahould  be  answerable 

ftr?  A  woman  by  law  separated  from,  and 

ifea  pronounced  not  to  be  the  wife  of,  the 

nppoaed  husband,  and  to  whom  she  cannot 

niuro ;  1  do  not  know  what  duties  there  are, 

IbMshe  should  be  answerable  to  the  public  for. 

Ills  contended,  that  of  not  marrying  again  ; 

bat  thb  is  expressly  contrary  to  the  meaning 

if  the  act  itself,  which  provides  that  in  many 

CMCB,  even  where  the  former  marriage  remains 

is  force,  yet  a  second  marriage  shall  not  be 

ciiminal :  as  in  the  case  of  a  sei»arution  it  tnerud 

H  tkoro  there  is  no  d«)ubt,  that  the  parties  re- 

■lia  man  and  wife  as  much  as  if  they   had 

fe^er  been  divorced  ;   nay,  it  is  so  merely  a 

laporary  separation,  that  there  is  no  occasion 

fw  a  judicial  proceeding  to  bring  them  toge* 

Iber  again  ;  for  whenever  the  parties  chuse  to 

cohabit,  they  may   live  together,  and  are  as 

comidetely  man  ami  wife  as  if  no  separation 

bid   hap|ieoed.      It  has  been  obser>ed,  that 

■Mat  inconveniences,  which  were  removed  by 

Ibe  late  marritge-act,    uiitfht  be  introduced 

■gain  under  ihetie  suits  ot  jactitation:    it  is 

certainly  somewhat  unintelligible  how  these 

toils   could    be    applied    to    tliose    purposas. 

Tbe  grievance  mentionnl  is  this,  that  single 

vomen    contracting    debts    did,    before    that 

let  of  parliament,  procure  themselves  to  be 

chmtestiDely  married  to  prnwns  with  whom 

iWr  never   intende<l  to  cohabit,  but  merely 

*itb  a  view  fraudulently  to  pr<itect  themselves 

r'  ist  their  creditors.  Now,  can  it  be  argued, 
by  going  into  the  Erclesiastical  Court, 
lod  abtainiiig  a  sentence,  in  a  cause  of  jsctita- 
liso,  thai  Md  woii!d  be  answered F  What! 
vbcn  a  woDaan  wants  a  husband  to  protect  her 
hm  htf  debts,  ahall  the  get  herKlf  fraudu- 


lentl  V  released  from  her  husband  F  It  seems  it 
woofd  have  quite  a  contrary  effect,  and  cannoi 
answer  the  purpose  for  which  it  would  be  in- 
tended. If  any  of  the  excellent  regulations 
made  by  that  act  are  in  danger  of  being  io- 
fringed  upon  by  undoe  practices,  it  were  worthy 
the  legislature  to  attend  to  it,  and  provide  against 
them  ;  but  a  court  of  justice  cannot  for  such 
reasons  depart  from  ancient  and  established 
mmles  of  proceedings :  and  in  this  case  these 
considerations  ought  not  to  have  the  leasl 
weight,  because  there  is  not  any  ground  for  tbe 
apprehension.  In  the  proceedings  in  this  cri- 
minal court,  therefore,  your  lordships  ought  te 
receive  these  sentences  upon  tlie  verv  sam^  . 

Jirinciples,  or  indeed  broader  than  a  civil  court: 
or  wno  ahall  pretend  to  say,  that  in  a  civil 
question  parties  may  avail  themselves  of  such  % 
suit  ?  But  where  a  person  is  brought  merely  to 
answer  for  a  crime,  and  for  the  purpoae  of  pa« 
nishment,  who  shsll  say,  that  it  is  consonant  t^ 
the  principles  of  law  that  such  a  defence  should 
not  avail  r  So  rigorous  a  determination  in  cri- 
minal cases  has  not  been  supported  on  any  au- 
thority, or  established  on  any  principle.  Upo^ 
the  authorities  therefore  which  have  fa«eii 
quoted,  and  which  remain  unahaken  and  uncon- 
tradicted, we  do  submit  to  your  lordships,  that 
these  two  (loints  are  well  established.  But  it 
has  been  said,  that  we  are  now  arguing  foir 
what  is  not  open  to  he  considered  on  the  ^ 
neral  principles  of  law :  because  this  question 
hss  been  already  decided  by  the  very  act  upoa 
which  the  prosecution  is  now  depending :  for 
when  an  act  of  parliament  makes  some  excep- 
tions, the  true  interpretation  of  that  act  is,  that 
all  cases,  which  sre  not  within  the  exceptioiMl, 
are  within  the  prohibition. 

My  lords,  supposing  that  to  he  a  good  prin- 
ciple of  interpretation,  yet  it  may  very  w«U 
and  with  propriety  he  contended,  that  the  case 
that  is  now  offered,  I  mean  the  sentence  pnn 
nouncing  against  this  marriage  in  a  cause  of 
jacliution,  is  within  the  exceptions  of  tbe  act 
of  parliament. 

My  lords,  the  two  exceptions  are,  that  it 
shall  not  extend  to  any  person,  who  is  at  tbe 
time  of  such  marriage  divorced  by  any  sentence 
had  in  the  Ecclesiastical  Court ;  or  to  any 
person,  where  the  former  marriage  hath  been, 
or  hereafter  rhall  be,  by  sentence  in  any  Eccle- 
sisictical  Court,  decreed  to  be  void  and  of  no 
effect 

My  lords,  it  will  be  difficult  to  explain  the 
latter  words,  connected  with  the  provision  in 
the  former  clause,  without  ukiug  in  the  very 
sentence  which  is  now  under  consideraiioq. 
The  general  words  in  the  6nH  clause  are, 
that  it  shall  not  extend  to  those  cases,  in 
which  at  the  time  of  such  marriage  the  persOQ 
was  divorced  by  any  sentence  of  the  Ecclesias- 
tical Court. 

Now,  my  lords,  the  word  *  divorce'  has  always 
been  applied,  not  only  to  separations  d  mentd 
et  Ihorv  but  to  divorcc%  d  vinculo  mairvHvniu 
The  first  clause  therefore,  under  the  ffener^l 
word  of «  divorce,'  seems  to  take  U  botE  ihcae 


S35] 


id  GEoncfe  III. 


Trial  of  the  Duchtu  of  Kingstattf 


casM,  whether  it  be  t  temporary  feparation 
for  ailullery  or  cruelty*  or  whether  it  be  a 
diTorce  i  vinculo  mmi'rimoniL,  If  that  claute 
applies  to  Ibese  two  caiet,  I  wooU  ask  wlfat  is 
the  meaoin|;orthe  second,  that  upeaks  of  sen- 
tences, declarinff  a  marriage  null  and  void  to 
all  effects  ?  A  sentence  pronounrtn^  a  mar- 
ria^  null  and  void,  an<l  of  no  effect,  is 
the  same  thini;  as  a  divorce  a  rinailo  ma- 
irimonu;  because  if  the  marriai^e  has  ever 
been  a  true  and  le^al  marria^^e,  it  is  well 
known,  that  no  judicial  power  in  this  king- 
dom can  put  an  end  to  it.  In  order  there- 
fire  to  fpve  every  part  of  thiv  act  some  mean- 
ingr,  it  ouf^ht  to  be  understood,  that  the  legisla- 
ture by  those  general  words  roust  mean  any 
aentence  whatever,  by  which  the  Ecclesiastical 
Court  should  have  pronounced,  that  there  is  no 
marrianre,  or  that  a  marriage  is  void  ;  it  being 
the  purport  and  the  general  object  of  this  act 
to  save  not  only  the  jurisdiction  of  the  Ecclesi- 
astical Court  (that  is  not  what  I  am  contending 
for,)  but  it  is  to  save  the  innocence  of  the  per- 
aoiis  acting  under  such  sentences:  because 
where  that  question  has  been  agitated  in  a  public 
court  (for  the  leginlature  Hoes  not  suppose,  as 
^me  of  the  counsel  on  the  other  side  have  un- 
warrantably supposed,  it  to  be  a  private  and 
ielandestine  transaction ;  but)  the  constitution 
supposes  every  court  to  be  open  and  public,  and 
proceedings  there  to  be  before  the  face  of  the 
world :  every  body  may  see  and  know  them, 
Sf  they  please ;  and  whifu  there  has  been  this 
public  sentence  of  any  constitutional  court,  the 
meaning,  the  equity  of  the  act  most  be,  that 
any  one  of  tliene  sentences  shall  juMify  the 
varty  acting  under  it.  To  make  a  distinction 
Detween  a  cause  of  nullity  and  a  cause  of  jacti- 
tation, I  apprehend  can  he  founded  upon  no- 
thing, but  not  considering  the  nature  of  the 
proceeiling^ ;  liecause  I  can  hanlly  put  a  case, 
which  would  be  a  proper  subject  for  a  suit  of 
nullity,  but  it  might  likewise  be  proceeded  to 
the  same  effect  in  a  suit  of  jactitation :  the 
onlv  difference  is,  the  proof  being  put  upon  the 
different  party.  8up|KHe  a  person  means  to 
dispute  the  validity  of  his  marna;;e  ;  he  may; 
if  he  pleases,  proceed  in  a  cause  of  nullity  of 
inarriage;  in  which  case  he  must  Ktate  the 
circumstances  of  his  marriage,  and  the  prayer 
of  his  libel  will  be,  that  under  these  circum- 
stances his  marriage  may  be  pronounced  void  : 
the  sentence  then  would  be  direct  to  that  point. 
Suppose  on  the  other  hand,  he  chuses  to  bring 
m  suit  of  jactitation,  and  charges  that  the 
woman  has  claimed  him  to  be  her  husband  :  if 
ahe  justifies  that  jactitation  by  pleading  her 
inarriage,  it  is  incumbent  on  her  then  to  state 
the  case,  and  to  go  into  the  question,  whether 
it  is  a  marriageor  no :  and  if  in  that  justificatory 
plea]  such  circumstancoft  be  stated,  as  would 
Jiave  been  the  contents  of  the  libel  in  a  cause  of 
nullity,  the  sentence,  I  contend,  would  have 
precisely  the  same  effect. 

My  lords.  I  have  known  more  instances  than 
cue  to  justify  what  1  assert.  The  first  suit 
that  erer  waa  brought  up6a  the  Marriage  Act 


to  avoid  a  marriage  by  reason  of  B 
where  the  party  under  age  was  marric 
cence  without  the  consent  of  parents,  y 
suit  of  jactitation  :  it  was  the  case  < 
and  Waldeck  in  1760.  I  kioked  into 
teoce  that  was  pronuanced  in  that  ca 
it  was  precisely  in  the  same  words  aa  i 
in  question.  tVill  any  body  contend  t 
not  an  effectual  sentence, 'declaring  t 
riage  between  these  parties  void  ?  i  < 
ships  see  it  is  a  fallacy  therefore  to  i 
this  method  of  proceeding  in  a  cause 
titation  will  not  aa  effectually  bring  on  I 
tion  of  marriage,  as  a  cause  of  nullity 
riage.  Tbere  were  two  other  case*  af 
upon  that  act,  that  were  brought  in  t 
way ;  neither  of  them  came  to  a  deci 
the  method  of  proceeding  was  thesami 
wards  there  was  a  suit  upon  that  act 
liament  brought  as  a  cause  of  nullity 
riage.  I  rennemher  it  being  made  a  < 
whether  even  tliat  was  a  proper  way 
ceeding ;  but  the  judge  was  of  opini 
the  party  might  have  proceeded  in  eiti 
conceiving,  I  presume,  that  the  sentem 
way  would  be  as  effectual  as  in  tli 
With  what  propriety  then  can  it  be  s 
was  on  the  other  side,  that  all  procee 
causes  for  jactitation  of  marriage  mua 
an  ill  intent? 

My  lords,  it  doth  not  apply  at  al 
manner  of  proceedings.  Suppose  it  tc 
what  was  asserted  by  the  counsel,  ar 
lieve  it  is  in  a  great  measure  so,  tli 
suits  were  chiefly  used  for  the  purpos 
quiring  into  contracts  of  marriage  ;  f 
the  Marriage  Act  put  an  end  to  such  c 
it  was  difl^ult  for  parties  to  know, 
they  had  entered  into  such  contracts  f 
bind  them  or  no  ;  with  \\  hat  propriei 
l)e  5aid,  that  if  a  suit  of  jartitatioii  be 
upon  such  contract,  it  must  be  with  i 
tentP  1  have  mentioned,  that  these  si 
been  brought  under  the  Marriage  i 
therefore  merely  upon  the  question  of  ii 
In  those  cases  tlu*  sentences  are  precis 
ceived  in  the  same  words  with  the  sei 
this  cause  :  and  if  a  man  \^as  to  be 
again  ai\er  such  a  sentence  pronounce 
it  be  ar^vued  one  moment,  that  he  % 
guilty  of  polygamy  under  this  statute 
would  not,  it  must  be,  because  such  a 
is  on  the  same  footing,  as  if  it  had  be 
in  a  cause  of  nullity.  For,  if  a  sentei 
in  a  cause  of  nullity  was  to  be  offerer 
elusive,  and  before  you  entered  into 
upon  the  fact,  your  lordships  would 
the  proper  time  to  offer  it,  there  wool 
occasion  to  go  into  the  question  ;  bee 
the  fact  turn  out  what  it  might,  that 
would  be  satisfactory,  that  the  marr 
void,  that  is,  that  there  was  no  marri 
subsisting  between  the  parties.  Wh 
assertion  often  then  in  a  suit  of  jac 
and  what  was  the  assertion  in  the  ca 
before  your  lordships  f  The  plaintiff  I 
hit  claim  opoD  the  lady  itatea,  that  i 


»3TJ 


for  Bigamy. 


A.  D.  1776. 


C53i 


Of 


a 
r 
uf 


tteoltr  tioM  he  Wu  mtrried,  states  the  dream* 
stances,  states  the  persoos  present:    he  at- 
tempts to  prove  this  fact.     The  judg^  having 
eoBsidered  the  proofs,  and  gone  into  the  quies- 
tkm,  determined  that  there  was  no  marriage, 
er,  ID  other  words,  that  the  marriage  is  of  none 
ei^ :  that  is,  that  thti  marriage  that  is  plead- 
ed there  can  have  no  effect ;  for  he  pronounces, 
that,  as  far  as  to  him  appears,  the  parly  is  a 
spinster,  and  free  from  all  matrimonial  con- 
tracts.   If  we  are  right  then  in  hrint^ing  this 
cause  within  the  exceptions  of  the  act,  everv 
slgsetkm  1  should  conceive,  that  can  be  stated, 
n  removed  under  the  express  regulation  of  the 
•et  of  parliament ;     because  the  legislature 
tikiag  this  matter  into  their  consideration,  well 
aware,  as  it  must.be  supposed,  of  what  incon- 
veaiences  might  be  argued  to  arise,  have  still 
CMeted,  that  these  sentences  existing,  the  per- 
Mi  marrying  again  shall  not  be  within  the  act 
if  parliament. 

Uoder  these  considerations,  the  reply  having 
kco  so  fully  and  so  ably  gone  into  by  the  gen- 
tlman  who  went  before  me,  I  shall  take  up 
yoor  lordships'  time  no  longer,  than  in  hoping 
jsa  will  be  of  opinion,  that  this  sentence  com- 
isg  within  the  exceptions  of  ihe  act,  it  would 
k improper  to  go  into  any  proof  of  the  fact: 
smI  therefore  I  hope  your  lordships  will  admit 
of  this  plea  of  the  defendant 

lorif  President  of  the  Council,  My  lords, 
I  MM? e  your  lordships  to  adjourn  to  the  Cham- 
ber of  Parliament. — Lords.  Ay,  ay. 

Lord  High  Steward.  This  House  is  adjourn- 
ed to  the  Chamber  of  Parliament. 

The  Lords  and  others  returned  to  the  Cham- 
fer of  Parliament  iu  the  same  order  they  came 
^0,    The  prisoner  retired  from  the  bar. 

After  some  time  passed  in  the  Chamber  of 
i^iameut*,  the  Lords  and  others  came  bick 

*  Die  Veneris,  19  Aprilis,  1776. 

Ordered  by  the  Lords  spiritual  and  temporal 
>e  parliament  asembled,  that  the  following 
imstioDS  be  put  to  the  Juilges,  viz. 

1.  Whether  a  sentence  of  the  spiritual  Court 
Against  a  marriage  in  a  suit  for  jactitation  of 
Carriage  is  conclusive  evidence  so  as  to  stop 
Mie  oouosel  for  the  crown  from  proving  the 
Md  marritM^e  in  an  indictment  for  polygamy  ? 

S.  Whether  admitting  such  sentence  to  be 
Conclusive  upon  such  indictment,  the  counsel 
^  the  crown  may  be  admitted"  to  avoid  the 
effect  of  such  sentence,  by  proving  the  same 
^  have  been  obtained  by  fraud  or  collusion  ? 

Whereupon,  the  Lord  Chief  Justice  of  the 
court  of  Common  Pleas,  (Sir  William  Be  Gre^f, 
iAerwards  lord  Walsingham),  having  con- 
kmd  with  the  rest  of  the  Judges  present,  de- 
Kvered  their  nnanioious  Opinion  upon  the  said 
ftucitioiii,  with  his  reasons,  as  follow,  viz. 

Ml  lords ;  My  kird  chief  baron,  (sir  Sidney 
fllmrd  Saiytbe),  aot)  the  rest  of  my  brethren, 


from  thence  in  the  same  order :  and  the  peers 
being  seated,  and  the  Lord  High  Steward  i* 
his  chair,  the  duchess  of  Kingston  was  again 
brought  to  the  bar.. 

have  desired  me  to  deliver  their  answer  to  the 
questions  your  lordships  have  been  pleased  t6 
propound  to  us. 

That  our  opinion  may  be  the  better  under- 
stood, it  is  necessary  to  make  some  observa- 
tions on  what  has  passed  in  argument  upon  the 
suljectt 

What  has  been  said  at  the  bar  is  certainly 
true,  as  a  general  principle,  that  a  transaction 
between  two  parties,  in  judicial  proceedings, 
ought  not  to  be  binding  upon  a  third ;  for  It 
would  be  unjust  to  bind  any  person  who  could 
not  be  admitted  to  make  a  defence,  or  to  exa- 
mine witnesses,  or  to  appeal  from  a  judgment 
he  might  think  erroneous ;  and  therefore  the 
depositions  of  witnesses  in  another  cause  in  proof 
of  a  fact,  the  verdict  of  a  jury  finding  the  fact, 
and  the  judgment  of  the  court  upon  facts  found; 
although  evidence  against  the  parties,  and  all 
claiming  under  them,  are  not,  in  general,  to  be 
used  to  the  prejudice  of  strangers.  There  are 
some  exceptions  to  this  general  rule,  (ii>unded 
upon  particular  reasons,  but  not  being  appll* 
cable  to  the  present  subject,  it  is  unnecessary 
to  state  them. 

From  the  variety  of  cases  relative  to  judg- 
ments being  given  in  evidence  in  civil  suits, 
these  two  deductions  seem  to  follow  as  gene- 
rally true:  first,  that  the  judgment  of  a  court 
of .  concurrent  jurisdiction,  directly  upon  the 
point,  is  as  a  plea,  a  bar,  or  as  evidence,  con* 
elusive,  between  the  same  parties,  upon  the 
same  matter,  directly  in  question  in  another 
court:  secondly,  that  the  judgment  of  a  court 
of  exclusive  jurisdiction,  directly  upon  the 
point,  is,  in  like  manner,  conclusive  upon  the 
same  mutter,  between  the  same  parties,  coming 
incidentally  in  question  in  another  court,  for  m 
different  purpose.  "But  neither  the  judgment 
of  a  concurrent  or  exclusive  jurisdiction  is  evi- 
dence, of  any  matter  which  came  collaterally 
in  question,  though  within  their  jurisdiction  ; 
nor  of  any  matter  incidentally  cognizable ;  nor 
of  any  matter  to  be  inferred  by  argument  from 
the  judgment. 

Upon  the  subject  of  marriage,  the  Spiritual 
Court  has  the  sole  and  exclusive  cognizance  of 
questioning  and  deciding,  directly,  the  legality 
of  marriage ;  and  of  enforcing,  s|»ecifically,  the 
rights  and  obligations  respecting  persons  de- 
pendMig  upon  it ;  but  the  temporal  courts  have 
the  sole  co<rnizance  of  examining  and  deciding 
upon  all  tem|K)ral  rights  of  pro|»erty  ;  and,  so 
far  as  such  rights  aie  concerned,  they  have  the 
inherent  power  of  deciding  incidentally,  either 
upon  the  fact,  or  the  legality  of  marriage, 
where  they  lie  in  the  way  to  the  decision  of 
the  proper  objects  of  their  jurisdiction :  they 
do  not  want  or  require  the  aid  of  the  spiritual 
courts;  nor  has  the  law  provided  any  legal 
means  of  sending  to  them  for  their  opiniou ; 
except  where,  in  the  case  of  marriage,  %n  iMUtl 


539] 


1G  GEORGE  III. 


Trial  iifthe  Ducheu  of  Kingslor. 


lard  High  Steward.  Mr.  Atloiney  Gttieral, 
you  otay  go  ea  lo  Blale  your  charge. 

Attorney  Genrral.   My  lortU,  il  Ktto%  to  be 
tnaUfrofjusI  BUT|irize,  thnl,  before  llie  ciin- 
I  of  tlie  la^  ceoiury,  no  leciilar 


[UH 


is  joiueit  upon  llic  rpcaril  in  ctrlain  real  wriU, 
upon  ihelegalily  ara  muTiiiRe,  or  ils  imme- 
diate c'ODxeqiivnce,  "  general  bastardy  ;"  or, 
in  like  raanner,  in  some  oilier  particular  ia- 
■tancei,  lyin^  peculiarly  in  tbe  knowlcge  or 
iheir  cnurta,  a*  prnreaiian,  deprj*stioD,  ami 
WDoeotbers;  in  tlicM  casea,  upon  the  Uiue  to 
formed,  tbe  mode  of  Iryiag  the  questinii  i*  by 
lererence  to  tlie  ordioary,  and  hi*  certilicate, 
when  returoed,  receii f  d,  and  entered  upon  the 
record  in  the  temporal  courts,  is  a  per|<etiiBl 
knd  concluiiTe  etidence  against  all  llie  world 
upon  that  point ;  which  eiiJieptionable  extent, 
on  whaleier  reasnna  foundrd.  was  the  occasiim 
oflhe  Biatute  of  tbe  9tb  of  Henry  6,  reqninn); 
certain  iiublic  proclamations  lo  be  made  fur 
(leraoos  tiilereittd  to  come  in,  and  be  parties  lo 
ihe  pmceedinj.  But,  even  in  these  cases,  If 
tlie  ordinary  should  return  do  certificate,  or  an 
ioiutticient  oue ;  or,  if  tbe  issui;  is  accompa- 
nied «itb  any  special  ciicurostances,  as  if  a 
second  isaue,  triable  by  a  jury,  it  formed  upon 
tbe  snme  record  ;  or,  if  ibe  effect  of  the  same 
issue  is  put  into  another  fnrm,  a  jury  is  to  de- 
cide, and  not  tbe  ordianry  to  certify,  the  truth  ; 
«nd  tu  ibis  purpose  sir  William  .Siauuford  men- 
liniis  a  remarkable  instance.  Bigamy  was 
triable  by  tbe  bishop's  cerlilicale;  but  if  the 
prisoner,  lo  avoid  tbe  cbsri^e,  pleads  that  the 
%econd  espousals  were  null  and  void,  because 
£e  bad  a  farmer  wife  liriug,  this  special  bt^niy 
was  Dot  to  be  tried  by  the  bishop's  certificate. 

So  that  Ibe  trial  of  marriage,  either  as  lo  le- 
gality, or  tact,  wac  not  absolutely,  and  from  its 
nature,  an  object  ulienijori. 

Thure  Has  a  time,  wben  tbe  spiritual  courla 
wished  that  their  determioalions  might  in  all 
caiiHS  be  receiird  as  authentic  in  the  temporal 
courU;  and  in  ibsl  solemn  assembly  of  the 
kiufi,  the  peen,  the  bishops,  and  judg-es,  con- 
vened for  the  purpose  of  settling  the  demands 
«f  tbe  church,  by  Edward  the  second,  one  of 
the  claims  naa  expressed  in  these  h  ords :  "  Si 
■liqua  cau'a,  icl  oegolium,  cujus  cognitio 
snectat  ad  foium  ecclesiosticum,  et  coram  ec- 

tum,  el  Iraniiicril  in  rem  judicatam,  nee  per  ap- 
pellalioneu)  fuerit  aiiapeDsum ;  et  pnslmodum, 
cnram  judice  teculari,  super  eadem  re  inter 
n  [lersonaF  questio  moieatur,  et  prnvetur 


sr,; 


<el 


talis 


-OBKCulori  noD  admitiatur."  The  ansn 
which  demand  was  expressed  in  this  msnuer: 
<■  Quandu  eadem  causa,  ditersis  rationihus  co- 
nm  jiidicihusf  cclesiosticis,  el  setulatibus,  ten- 
tilatur,  dicunt  quod  (non  obstante  ecclesiaslica 
jadicio)  curia  rrgis  ipsum  tractet  negoiium,  ut 
>ibi  expedire  videtur."  For  which  lord  Coke 
(irecthis  reason, second  lDStilute,c.  £3.  "  Fur 
like  spiritual  judges'  pruceedii>{;i  are  for  tlie 


punishment  had  been  provided  for  a  crime  < 
Ibis  maliguaot  complexion  and  peraiciout «] 

Perhaps,  tbe  innocence  of  simpler  »ge»,  I 
tbe  more  prevailing  influence  of  religion,  ( 
the  leTcrily  of  ecclesiastical  censures,  togettu 


correction  of  ilie  spiritual  inner  man,  and  '  pi 
'  salute  apims.'  to  <>njniQ  him  pFoance ;  at 
■  be  judges  of  the  common  Inw  proceed  lo  gil  _ 
damages  and  reconipence  for  ibe  wrong  utt 
injury  done ;"  and  then  adds,  "  and  >o  thi^  "^ 
tide  H  a»  tleserireilly  rejected. " 

And  Ibe  same  demamt  was  pi.tde,  and  re- 
ceived the  same  aniwer,  in  the  third  year  of 
kini;  Janes  the  SiEt. 

Il  is  to  he  observrd,  that  this  demand  related 
only  to  civil  suits  Iteiween  the  same  parlies  ; 
and  that  the  sentence  should  lie  received  as  a 
plea  in  bar.  Ilul  ibis  atlenipt  and  miscarriage 
did  not  prevent  ibe  lempural  courts  fram  shew 
inif  the  same  respect  lo  tlieir  prnceedings,  aa 
ibcy  did  In  those  in  other  courts.  And  lliere. 
fore  where,  in  civil  causes,  they  found  Ihe  quea- 
liou  of  marriage  directly  determined  by  theec- 
cletiaslical  courts,  they  received  the  senleiK^ 
thouzh  not  as  a  plea,  yet  as  proof  of  the  fact  I 
it  being  an  authority  accreditrd  in  ■  judtnal 
proceeding  by  a  court  of  competent  jatisdio' 
lion ;  but  still  ihey  received  it  upon  iDe  aaiM 
principles,  and  «nb]ecl  to  the  same  rulea,  by 
which  they  admit  the  acts  of  other  court*. 

Hence  a  sentence  of  nullity,  and  a  aenlettc* 
iu  affirmance  of  a  marriage,  have  been  reGci*e4 
39  conclusive  etidence  on  a  i[iiestion  of  legili- 
macy  arising  incidentally  upon  a  claim  to  • 
real  estate. 

A  seutence  in  a  rsose  nfjselitalion  has  beeo 
received  upon  a  title  in  rjrcicueat,  as  esidpoe* 
jgsinal  a  marriage,  and,  in  hke  manner  in  peiv 
B'lnal  action:!,  iinincdiaiety  Ii>undi!d  on  a  sup- 
posed  marriage. 

So  a  direct  lenience,  in  a  suit  upon  a  promise 
of  marriage,  against  tbe  crmlracl,  has  been  ad- 
milled  as  evidence  agaiusl  such  contract,  in  an 
action  brought  upon  ihe  same  promiw  for  )l»- 
mages,  it  being  a  direct  senlenee  of  a  con^ 
pelent  court,  disproving  the  ground  of  tbe  a^ 


ID  a  personal  action  a 
upnn  a  lupposeil  coverture 

But  in  all  these  cases,  the  parlies  to  the  auitf, 
or  at  least  the  purlies  against  whom  Ihe  eti- 
dence vtas  received,  were  paities  lo  the  ten- 
lence,  and  bad  acquiesced  under  it ;  or  claini«il 
under  those  who  were  parlies,  and  bad  tti- 
quicsced. 

But  althnagb  tbe  law  stands  thus  wi(h  n- 
gard  lo  civil  suits,  proceedings  in  mallcra  of 
crime,  and  especially  of  felony,  fall  undvrft 
different  consideration :  first,  becauae  the  pa^ 
lies  are  not  the  same  ;  for  the  king,  in  wboiB 
Ibe  trust  of  prosecuting  public  ofleucas  i*  rcafe 
ed,  and  which  is  execut«l  by  his  immediate  or- 
ilers,  or  in  his  name  by  some  prosecutor,  i*  no 
parly  to  vivh  proceedings  in  tlie  Ecdcuutictl 


541] 


fir  Bigamy. 


wi|^  tboK  calamities  wliicli  natunlly  aod  ne- 
eetsarity  follow  the  enormitj  nilf^ht  formerly 
bate  been  found  sufficient  to  restrain  it. 
From  Ibe  moment  these  caases  ceased  to 

^^^  WW    ■   ^^1  ^m     J J        ■■  ■ ■iiBii-i --.        »■ 

Claarty  and  cannot  be  admitted  to  defend,  eza- 
mioe  witnesses,  in  any  manner  intenrene,  or 
appeal:  secondly,  such  doctrines  would  tend 
to  gif  e  the  spiritual  courts,  which  are  not  per* 
Bitted  to  exercise  any  judicial  cognizance  in 
matters  of  crime,  an  immediate  influence  in 
trials  for  offences,  and  to  draw  the  decision 
firon  the  course  of  the  common  hiw,  to  which 
it  mlely  and  peculiarly  belongs. 

The  ground  of  the  judicial  powers  gtren  to 
eedestastical  courts  is,  merely,  of  a  spiritual 
cQQsideration,  *  pro  correctione  morum,  et  pro 
*  nlute  animse.'  They  are  therefore  addressed 
Is  the  conscience  of  the  party.  But  one  great 
object  of  temporal  jurisdiction  is  the  public 
peace;  and  crimes  against  the  public  peace  are 
vkolly,  and  in  all  their  parts,  of  temporal  cog- 
aiaoee  alone.  A  felony  by  common  law  was 
aho  so.  A  felony  by  statute  becomes  so  aUhe 
MHaent  of  its  institution.  The  temporal  courts 
•loae  can  expound  the  law,  and  judge  uf  the 
crine,  and  its  proofs ;  in  doincf  so,  they  must 
•ee  wiib  their  own  eyf s,  and  fry  by  their  own 
tales,  that  is,  by  the  common  law  o'f  the  land ; 
It  is  the  trust  and  sworn  duty  of  their  office. 

Wbeo  the  acts  of  Henry  the  eighth  6rst  de- 
ciiicd  what  marriages  should  be  lawful,  and 
abtt  incestuous,  the  temporal  courts,  though 
tkey  had  before  no  jurisdiction,  and  the  acts  did 
|ot  by  express  words  give  them  any  upon  the 
psiot,  decided,  incidentally,  upon  the  construe- 
tioQ,  declared  what  marriages  came  within  the 
Ufitical  degrees,  and  prohibited  the  spiritual 
Marts  from  giving  or  proceeding  upon  any 
•tber  construciion. 

Whilst  an  ancient  statute  subsisted  (2  H.  4, 
15),  by  which  personal  punishment  was  in- 
curred on  holding  heretical  doctrines,  the  tem- 
peral  courts  took  notice,  incidentally,  whether 
Ae tenet  was  heretical  or  not;  for  **  the  king's 
coarts  will  examine  all  things  ordained  by  sta- 
tate.** 

When  the  statute  of  W.  3,  made  certain 
i>lsephemous  doctrines  a  temporal  crime,  the 
^poral  courts  alone  could  determine,  whe- 
Ibertbe  doctrine  complained  of  was  blasphem- 
^  so  as  to  constitute  the  crime. 

If  a  roan  should  he  indicted  for  taking  a  wo- 
^  by  force  and  marry  in;;  her;  or  for  mar- 

2iag  a  child  \Tithout  her  father's  consent ;  or 
'  a  rape,  where  the  defence  is,  tliat  **  the 
*<MDan  IS  his  wife  ;'*  in  ail  these  cases,  the 
^poral  courts  are  bound  to  try  the  prisoner 
^  the  roles  and  course  of  the  common  law, 
*td  iacidentally  to  determine  what  is  heretical, 
isd  what  is  blasphemous ;  and  whetlier  it  was 
iinarriage  within  the  statutcr-a  marriage 
vitbout  consent;  aud  whether,  in  the  last  case, 
(be  woman  was  his  wife :  but  if  they  should 
happen  to  find,  that  sentences,  in  the  respective 
easeh  bad  been  eiven  in  the  Spiritual  Court 
vpas  the  facreay ,  the  bias phemous  doctrines,  the 


A.  D.  177e.  pW 

produee  tb«t  effaot,  imagimilion  can  iearcdy 
state  a  crime  which  calls  more  loodly,  and  in  n 
greater  Tariety  of  respects,  for  the  interposi- 
tion of  civil  authority;    which,  beside  the 

marriage  by  force,  the  marriage  without  con* 
•ent,  and  the  marriage  on  tlie  rape ;  and  theeoort 
must  receive  such  aenteucea  as  oonelnstre  evi« 
denoe,  in  the  first  instance,  witbont  looking 
into  the  case,  it  would  vest  the  subsuntial  and 
effective  decision,  though  not  the  cogniaanee 
of  the  crimes,  in  the  Spiritual  Court,  and  leave 
to  the  jury,  and  the  temporal  courts,  DOtbinff 
bat  a  nominal  form  of  proceeding,  upon  wbnt 
would  amount  to  m  pre-determined  convietioa 
or  acquittal ;  which  most  have  the  effect  of  a 
real  prohilntion,  ainee  it  wouM  be  in  vain  to 
prefer  an  indictment,  where  an  act  of  a  foreiga 
Gonrt  aliall  at  once  seal  op  the  lips  of  the  wit* 
Besses,  the  jury,  and  the  ootut,  aud  put  an  en- 
tire slop  to  the  proceeding. 

And  yet  it  is  true,  that  the  apiritoal  ooortt 
have  no  juriadiction,  directly  or  indireetly,  in 
any  matter  not  altogetber  spiritual ;  and  it  i« 
equally  true,  that  the  temporal  courts  have  the 
sole  and  entire  cognizance  of  crimes,  irhieh 
are  wholly  and  altogether  temporal  in  their 
nature. 

And  if  the  rule  of  evidence  most  be,  as  it  ie 
of^en  declared  to  be,  reciprocal ;  and  that  in 
all  cases,  in  which  sentences  favourable  to  the 
prisoner,  are' to  be  admitted  aa  ooncliiaive  evi- 
dence for  him  ;  the  aenteucea,  if  unfiivoarable 
to  the  prisoner,  are  in  like  manner  coodoaife 
evidence  against  him ;  in  what  aituatlon  motC 
the  prisoners  be,  whoee  life,  or  liberty,  or  pro- 
perty, or  fame  rests  on  the  judgments  of  codllSi 
which  have  no  juriadiction  over  them  in  the 
predicament  in  wbfch  they  stand  P  and  in  what 
situation  are  the  judg^  of  the  common  law, 
who  must  condemn,  on  the  word  of  an  eccle- 
siastical judge,  without  exercising  any  judg- 
ment of  their  own? 

The  Spiritual  Court  alone  can  deprive  a 
clergyman.  Felony  is  a  irood  cause  or  depri- 
vation: yet  in  lord  Hobart's  Re|iorts  it  is  held,, 
that  they  cannot  proceed  to  deprive  for  felony, 
before  the  felony  has  been  tried  at  law ;  and 
although,  af^er  conviction,  they  may  act  upon 
that,  and  make  the  conviction  a  ground  of  de- 
privation, neither  side  can  prove  or  disprove 
any  thing  against  the  verdict ;  because,  as  that 
very  learned  judge  declares,  **  it  would  be  to 
detcrmioe,  tliontrh  not  capitally,  upon  a  ca- 
pital crime,  and  Uicreby  judge  of  the  nature  of 
the  crime  nod  the  validity  of  the  proofs;  nei- 
ther of  which  belongs  to  them  to  do.'* 

If  therefore  such  a  sentence,  even  upon  a 
matter  within  their  jurisdiction,  and  berore  a 
felony  committed,  should  be  conclusive  evi- 
dence on  a  trial  for  a  felony  committed  after, 
the  opinion  of  a  judge,  incompetent  to  the  pur- 
pose, resulting  j[for  aught  appears)  fruro  in- 
competent proois  (as  suppose  the  suppletory 
oath)  will  direct,  or  rule,  a  jury  and  a  court  of 
competent  jurisdiction,  witliout  confronting  any 
witnessesi  or  hearing   any  proofs:   for  the 


513]  16  GEORGE  UI. 

grosa  atnl  o|>eii  icbdiIsI  girea  lo  relicion, 

Elies  more  cruel  ilisappoinliiietit  to  the  jiisi 
oooiirable  expedalionR  of  tlie  pcnioiii  beli 
cil  by  it ;  which  tends  more  lo  ciirru|it  llm 


Trial  qflhf  Duckeis  i>f  Kingtlon, 


[544 


quetlion  aupiiusei,  snil  tlie  truth  U,  that  ilie 
l«intKinil  courl  does  not  and  caniioi  examiue, 
whether  the  Mnlence  is  a  Jual  uouclusimi  Irnm 
the  cue,  eitlivr  in  law  or  fact ;  and  Ihe  dil6- 
cuhy  will  QOI  be  reDiored  by  presuniiu^,  Ihai 
«Tery  court  delerminea  rightly,  becanse  it  must 
be  pre« limed  laD,  that  the  giarlies  did  iiKhi  ia 
bringing  the  I'lill  and  true  case  hefore  the 
cuurt ;  and  if  Ihey  did,  slill  ihe  court  will  have 
tteltrmintd  ri)(hl1y  by  eccleiiasiical  luirs  and 
rules,  and  nal  by  those  laws  and  rules  by  which 
criniinaU  aru  to  iland  or  tall  iu  ilili  cnuulry. 

If  thi;  reasuu  for  receiviD);  auth  senlence  Ja, 
because  It  it  the  judgment  of  a  court  corajie- 
teut  to  the  enquiry  ibeo  before  iheui ;  from  the 
.Mine  rri8on,  the  delerntinaliuii  of  two  justices 
of  the  tieace  U|Hid  Ihe  factor  vahdily  uf 
iMite.  in  adjudging  a  place  nl'  sellleuieul,  may 
Itereaner  be  olTered  us  evidence,  and  i;ive  Iht 
.hw  lo  the  highest  court  of  crituiiial  juris- 
dicllM, 

But  if  a  direct  sentence  upon  the  identical 
.qnntion,  in  a  milrimonial  cau>>e,  shonld  be 
*(ltni(>ed  as  eridence  (thoug:h  such 
•Ifaiuil  lh<:  marriage  has  not  llie  force  uf  n  tinal 
tIeciskiD,  that  there  was  none)  yel  a 
jactitation  is  uf  a  different  nature ;  it  is  ruokej 
aaacaiisit  ufderataiilionorJy,  and  tiot  as  a  ma- 
'  trimoniai  cause,  unless  where  Ihe  defendant 
^eiulii  a  miirriage ;  and  nhellier  it  cominucs  a 
■Butriuieiilsl  cause  thniU|;haut,  as  snme  say,  oi 
fteaae*  to  Ite  ae  on  failure  4f  pruvin^r  a  lua'r- 
riage,  as  others  hare  said,  slill  Ihe  sentence 
has  only  a  negaliru  and  qualified  effect,  tix. 
"  ihal  liha  parly  bos  failed  la  his  proof,  aud  ihat 
tbe  libellani  is  free  from  all  matrioiuniat  cuu- 
traci,  as  laras  yvl  ap[iears;"  leaimg  it  npeu 
to  new  proufsof  iliesume  marriage  in  ihe  same 
cause,  or  to  any  iiroofa  uf  that  or  any  other 
muriiage  In  anuilier  cause:  and  if  such  stn- 
tenc«  is  nu  plea  to  a  new  suil  there,  and  dues 
polconcluile  the  court  which  prouunuces,  it 
cannot  concludes  court,  wlijcii  rf^eives  ihe 
Veurcnce,  from  go'\tig  into  new  proofs  to  make 
Mt  ihatorany  olhertuarria^e, 
<  So  ihsi  admillin^  the  sentence  ia  its  full  ex- 
tent and  import,  it  only  prores,  that  it  did  not 
J>rl  appear  that  ihey  were  murried,  and  not 
that  they  were  not  UMrrieil  al  all :  and,  by  the 
Ivie  laid  down  by  lord  chief  justice  Uolt.'such 
Moleuce  can  be  no  proof  uf  any  thin^r  to  be  in- 
ferred by  ar^fumcnt  f'rum  it ;  mid  ihercfore  il  is 
■01  tu  b^  iolerreil,  that  thfre  was  nu  marriage 

Sauy  lime  or  place,  btcauie  Ihe  conrl  had  uoE 
en  siiScieut  evidence  to  prove  ■  marriage  at 
%  particular  lime  and  place.  That  scuieuCe, 
IMd  this  judgment,  may  aland  well  lo^'cllier, 
Wd  bulb  pmpoailione  he  equally  true  :  il  may 
fca  true,  that  ihe  Spiritual  CuuVt  had  nnl  then 
fufiicieol  prouf  uf  the  niarnai^e  sp?cifie<l.  and 
tllal  your  lordships  may  uow,  ttiilbrluusltly, 
llnil  sufficicDt  proof  of  aome  miiria  ^e. 


rily  of  domestic  life,  and  lo  loosen  those  sac 
connections  aud  close  relatioos,  designed    ^ 
Providence  Iu  bind  the  mnrnl  world  tuj^tbeTj 
or  which  may  creale  more  civil  disorder, 


But  if  il  was  a  direct  and  decisive  at 
u|)(in  the  point,  and,  si  it  sland^,  to  be  ad- 
mitted IS  cuuiilnsive  evidence  upon  ibe  cout^ 
and  not  to  be  impeached  from  within  ;  ye| 
tike  all  other  acts  of  ihe  hi|;hest  judicial  autha> 
rit^,  it  is  impeachable  from  without :  allbougl 
it  IS  uul  permitted  to  shew  tlial  Ihe  court  wai 
mistaken,  it  may  be  shewn  that  tbey  <rer 

Fraud  is  an  extrinsic,  cntlaleral  act ;  n 
vilialea  the  must  solemn  proceeiliu^  of  Ci 
ofjusticc.     Lord  Cuke  says,  il  avoids  alljudi< 
cial  nets,  ecclesiastical  or  temporal. 

lo  civil  suits  all  strangem  may  falsify,  f 
covin,  either  fines,  or  real  or  feigned  reo 
veries ;  and  even  a  recovery  by  a  just  title,  il 
culliuion  was  practised  lo  prevent  a  fair  it- 
fence  ;  and  Uiis,  wheiher  the  covin  is  appare 
upon  ihc  record,  as  not  esioiulng',  or  not  di 
manding  Ibe  view,  or  by  sud'ering  judgment  b; 
confession  iir  ddiiult;  ur  extrmsic,  aa  i 
[ileading  a  release,  collateral  Harrauty,  oroU 
advanlageuus  pleas. 

lo  criminal  proceedings  if  an  offender  ii  fit 
victed  of  feluny  on  cuufessinu,  or  is  outlaw* 
not  only  the  time  of  the  feluny,  bni  the  lelOB 
itself  tnay  be  traversed  by  a  purchaser,  whiw 
conveyance  would  be  aH'ecied  as  it  slaotb 
and,  even  afler  a  convicliun  by  verdict,  lie  m 
traverse  the  lime. 

In  ihe  proceedings  of  the  Eccles 
Court  the  same  rule  holds.  In  Dyer  I 
an  iustance  of  a  second  administration,  frauda- 
leatly  obtained,  to  defeat  an  execuiion  at  (ai 
against  the  finl ;  and  Ihe  faci  being  admilM 
by  demurrer,  Ihe  court  pronounced  agaiasttt 
fraudulent  administration.  In  another  inslauo 
had  been  fraudalently  ri 
vnked  ;  and  ihe  fact  belnfr  denied,  issue  wi 
joined  ti|ion  it ;  and  Ibe  cidliision  Wing  fhuoj 
by  a  jury,  the  cuurl  gave  judgment  agaioat  it. 
In  the  more  roodcru  eases,  llie  queatia 
ems  lo  have  beeo,  wheiher  the  parlies  sb«a 
be  permitted  lo  prove  collusion  ;  and  not  ana 
iog  to  doubt  but  that  stranijers  might. 

So  thai  collusion,  being  a  mstler  eslriiii 
of  the  cause,  may  be  imputed  by  a  ttran|[efJ 
and  tried  hy  a  jury,  and  determined  bj  thi 
lurts  nf  temporal  jurisdiclinn. 
And  if  fraud  will  vitiate  Ihe  judicial  acta  d 
Ihe  temporal  courts,  Ihere  seems  as  much  re» 
son  lo  prevent  the  miichielit  arising  Irum  cd- 
luslon  in  the  ecclesiastical  courts,  which,  froo) 
of  their  proceedings,  are  at  least  u 
much  exposed,  and  which  we  find  have  been^ 
lUch  exposed,  lo  be  practised  lipofl 
purposes,  as  the  courts  in  Weit« 


We 


■r-hM. 


D  the  Hjiiritual  Couii' 
(ge  in  a  suit  of  jaclilalioD  o^ 
t  conclusive  evidence,  lo  u  M 


fur  Bigamy. 


[Here  /..Ilowf.l  .-.  great  ni.roar  Wiini)  the 
b*r.  and  ihe  Seijeaut  al  Arum  uiiide  ilit  usual 
pnclMnaiioD.] 

U]  lanh,  the  misfortunes  of  in  dividual  a,  the 

eemipiioa  of  [irivaie  life,  the  cniiruEion  uf  do- 

Mnlic  relation*,  the  (Jisarder  of  civil  luccession, 

■■d  the  offence  done  lo  religioii,  are  su^^esled, 

Mt  u  iqt;r«d>ents  in  the  pnrticalar  otfcuce  now 

«der  trial,  but  ■■  miseriei  likely  to  arise  I'rum 

tte  examiikof  the  crime  in  geoertl;  and  are 

Ud  before  yotir  lordsbipa  only  lo  call  your  at- 

leDlion  (o  the  couneand  order  of  the  trial,  that 

nthinK  may  fall  oiii,   which  may  give  coun- 

lo  Bucli  a  crime,  and  heighten  sucb 

lo  Ibe  public. 

The  present  case,  to  stale  it  justly  and  fnirly, 

uf  much  ofthjs  agKraralion.     The  ad - 

B|[c  of  the  parlies,  and  their  previous 

iiaons  of  life,  would  reduce  many  of  theae  ge- 

nrralaftiolesof  mischief  and  criminality  iQidlc 

toptci  of  empty  declamation.     No  part  of  Ihe 

prcseol  complaint  turns  upiiii  any  ruia  brought 

«l    ibe  blaiueleu   character  of   iojured   iiino- 


helpless  oHiipriDg',  or  tbe  appre- 
hrMMi  of  ■  dis]iuted  succession  tu  the  house 
«f  rterre|>uiai,  as  probable  aggraiations  of  this 

Bat  your  lordsbipf  will  be  pleased  wilhal  lo 
rwnesniier,  that  every  plea,  which,  in  a  ca»e 
diflerrotly  circiiiDBlaiwed,  might  have  laiil 
cla>M>  ■*>  your  pKy  for  an  uofarlnnale  ptmlon 
in  ^•ongM' ininida,  u  eolirely  cat  offbere.  If 
it  be  irur,  Ibat  the  sacred  rites  of  Rinlrimony 


■lop  Ihe  ciiiinwl  fur  the  crown  from  proiing 
the  mBtmi;rin  an  iudiciment  lur  polyiramy. 

Bui  necnodly,  udrDittinbT  soeb  senl«uue  lu  be 
oaoicloaivp  upon  sacb  indirliiienl,  the  counsel 
ftr  the  crown  may  be  admiiled  to  avoid  the 
tSeci  of  such  sentence,  by  proving  ihe  satite  lo 
faare  b«eo  obraineil  hj  fraud  or  culluaiuo-* 
Die  Slbbtli,  20  Apiilis,  JT7G. 


hy  the  Lords  apiriUial  and  lemiioral 
Im  pari ia meat  assembled,  that  the  Lord  Cbief 
Janice  of  the  court  uf  Gummim-Pleas  be,  and 
be  ta  bertrby  detireil  to,  lavour  this  Hou$e  »ilh 
aeapy  of  his  ArKuiueiitii|H)u  tbe  Questions  pro- 
pmtA  tuthe  JuJgenby  Ibis  House  yes Lerdny. 

Tliiiae  reasnns,  says  Mr.  tCargrave,  were 
ihougtir  lo  be  so  im|iorlaul  ilmt  the  Lards  re- 
setted tn  have  ■  copy  of  his  argumeal. 

*  See  Pealce's  Law  uf  Eiiilence,  c.  1,  a.  9. 
UEmKI).  East's  Pleas  of  ibe  Crown  c.  19. 
m, i,  mhI  Hawkins's Heaa ultlie Crowo,  bk.  1, 


^SM 


A.D.  1776.  [5^0 

have  been  vioUted,  1  am  afraid  it  must  also 
ap|iear,  ihal  dry  lucre  was  the  whole  induce- 
ment, cold  fraud  Ihe  only  means  lo  |)erpetral« 
thai  crime.  In  Irulh,  the  evidence,  if  it  turns 
out  correapondeot  to  Ibe  eipeclalinns  t  fiavs 
formed,  will  clearly  aiid  expressly  represent  it 
as  a  mailer  of  perfect  indiSereoce  tolhunriBOoer 
which  husband  she  adhered  to,  so  thai  the  profit 
lo  he  drawn  from  this  marriage,  or  from  thai, 
was  lolembly  eijual.  The  crime,  staled  under 
these  circumstances,  and  carrying  this  imprea- 
sioD,  is  an  offence  lo  tbe  law;  which,  if  ilba 
less  aggravated  in  some  particulars,  becomes 
unly  more  odious  in  olbera. 

But  I  decline  making  general  observaiions 
upon  the  evidence.  I  will  stale  itlo  your  lord' 
ships  (Ibr  it  lies  in  a  very  narrow  compiss}  in 
ihe  simplesl  and  shortest  manner  I  cau  invent. 
The  taols  (as  the  slate  of  Ibe  evidence  prnmisea 
me  they  will  he  laid  before  your  lordships) 
form  a  case,  which  il  will  be  quite  impas«ibl« 
If)  aggraiate,  and  exiremely  diffieuli  to  ex- 

Itly  lords,  coDsideriog  Ihe  length  of  lim* 
which  has  inleKveiud,  a  rery  few  periiHls  wilt 
comprise  the  facts  which  I  am  able  to  lay  be- 
fore your  lordships.  First,  Ibe  marriage  uf  tha 
prisoner  with  Mr.  Hertey ;  her  cohabitatiua 
with  him  at  broken  and  distant  iulervals  ;  th« 
birth  of  a  child  In  consequence  of  il ;  the  rup- 
ture, and  separaliuQ  which  aoun  followed, 
Secondly,  the  attempt  which  the  prisouer,  in 
view  lo  Ibe  late  lord  Briitol's  IbeD  slate  uf 
liealth,  made  to  cBtablish  the  proofs  uf  her  mar- 
riaij:e  with  ihe  present  earl.  Lastly,  the  plan, 
(vhich  makes  the  immediate  subji-cl  of  Ihe  pre- 
sent iiidictroeut,  for  bringing  about  the  cele-  , 
braliun  uf  a  second  marriage  with  tbe  late  duka 
of  Kiugslon. 

The  prisoner  came  to  London  early  in  life, 
some  time,  as  1  lake  il,  about  the  yfsr  1T40. 
About  1743,  she  was  inlroiluced  into  the  family 
of  the  late  princess  of  Walifs.  as  her  maid  of 
honour.  In  the  summer  of  1744,  she  con- 
tracted an  acquniotance  with  Mr.  Hertey; 
which  heffiits  ihe  matter  of  Ihe  present  indicl- 
iiient.  Tins  ac[|UBinlance  was  conlrscled  hy  ' 
the  mere  accident  of  an  Interview  at  Winches- 
Ler  races.  The  familiarity  immediately  began ; 
and  very  soon  drew  tu  its  conclusion. 

Miss  Chudleigb  was  about  eigbleeu  years  of 
age ;  and  resideid  al  the  house  ufa  Mr.  Merrill, 
her  cousin,  no  a  ti-it  with  •  Mrs.  Hnnmer, 
her  aunt,  who  was  also  the  sister  of  Mr.  Mer- 
rill's tnotber.  Une  Mr.  Muuutenay,  an  inli- 
mnle  friend  of  Mr.  Merrill's,  was  ihere  al  the 
time  lime. 

Mr.  f  lervey  was  a  boy  about  seventeen  years 
old,  of  small  lorlune,  but  Ihe  youngest  sun  of  a 
iiubic  family.  He  was  lieutenant  of  ilie  Cora- 
wall,  whicn  mode  part  of  air  John  Duvers'a 
Eijiiadron,  tbeii  lying  al  Porlsmoulh,  and  des- 
tined for  the  Wesl-lndies.  In  short,  he  ap- 
IHfared  lo  Mrs.  Ilaumer  anadvaDtageous  match 
for  her  niece. 

From  Wincbesler  races  he  was  invited  to 
Lainsion ;  and  carried  the  ladies  lo  nee  hu  ship 


847] 


16  Gt.Ofti(SR  III. 


Trial  ^tie  Dueheu  ofKiiigdoH, 


[MS 


•I  Poiimionih.  The  Au^ort  foHawio;,  he 
mide  «  •ecood  *iiil  at  Laioaton  fiir  two  ortbrM 
days;  dnririK  which  the  m«tria|(e  nai  eaa- 
IraMnI,  celetH-ateri,  and  com um mated. 

Some  circumaiancM,  which  1  hkTe  almdy 
alluded  to,  aud  uiliera,  which  ii  ia  irnmalerial  to 
■tale  iiarliculaily,  remleriNj  it  impouible,  oc 
jinpruriitent  in  a  drgrtt  next  In  impoaiible,  that 
aucha  marriatreBliould  be^celcbralvdMlrmnly, 
•r  [(ul>!ici;  girrii  out  to  the  world.  The  lor* 
tune  ot'  boih  waa  inmSicieDt  lo  msintaia  ihem 
in  tliat  liluatioD  to  wbicb  hii  birth  and  her  am- 
biiiun  had  pretenaioDa.  The  income  of  her 
plkce  WMild  hare  failed.  And  lb«  diipleaiure 
of  Ibe  Doble  rimlly  to  which  be  belonged,  rcn- 
4and  it  inpowihle  on  bis  part  to  tvow  ibe  ccn- 
DMtiiW.    The  cODMquenca    mt,    ifaat    tbey 


ftct,  i 


.  wu  neceuary  for  Ibtt  purpose 
t  wilb  Iht  almoct  priraey ;  and  ae- 
urdiDgly  00  otber  witacMe*  were  praaent,  but 
web  aa  had  been  appriaed  of  tbe  conncclioD, 

— J  IbouKhl  neceaaary  to  eatabliah  the 

seil  abould  erer  be  diaputed. 

a  ia  a  aniall  pariah,  the  *aloe  of  Iha 


I  Uie  only  I  . 

obnrcfa  at  tbe  cad  af  hia  garden.  On  tbe  4th 
af  AngiM  17M,  Hr,  Amta,  tbe  then  reoior,  wai 
a^Bied  hi  be  al  tbe  charch,  alone,  lata  at 
Bifht  At  elcfen  o'clock,  Mr.  Herrey  and 
Hua  Chndlelgb  went  out,  aa  if  lo  walk  in  tbe 
garden :  fallowed  by  Mn.  Baumer,  her  aer- 
vant  (wheae  maidan  name  1  fbi^t ;  abe  ia  now 
called  Ann  Cradock,  ha*iiig  married  Hr.  Her- 
vay'a  aerrant  of  that  name)  Hr.  Menill,  and 
Mr.  Monntenty  ;  wbieh  last  eanied  a  tapar  lo 
laad  the  aer*iee  by.  Tliey  fonnd  Mr.  Atnia  in 
ibecbnrch,  accordingly  hia  appoiatmenl;  and 
there  the  aerrlca  wu  celabraied,  Mr.  UoQDie- 
aay  holding  tbe  taper  in  hia  hat.*    llie  eere- 


*  By  tbe  Marriage  Act  (atat  36  Geo.  9,  c. 
53,  s.  8,)  "  if  any  ncraan  ahall  aalemoixe  ma* 
Irinoiiy  in  any  olner  place  tbiD  a  cburch,  or 
public  chapel,  where  hanna  bate  been  uaoally 
pnbliahed,  unless  by  special  licence  from  the 
archbishop  of  CaDtctbury,  or  shall  solemnize 
raatrimoiiy  trithout  publication  of  baons,  unleas 
licence  ornarriBgebe  first  obtained  from  some 
peraon  bsTinc  authority  lo  grmot  tbe  same ; 
areryperaoD  Enowincly  and  wilfully  sn  ol&Dd- 
ing,  and  beinfT  TawfuTly  convicted  thereof,  ahall 
be  guilty  of  felony,  and  transported  to  some  of 
Ilia  majesty's  plantaljona  in  America  for  fonr- 
teen  years,  according  to  the  lawa  in  force  for 
transportation  of  felona,  and  all  such  marriages 
ahall  be  null  and  void."  And  by  a.  11,  of  the 
BHme  alatnle,  "  marriaRea  by  Ucence,  where 
either  of  the  parties,  not  being  a  widow,  or 
svidower,  ahall  be  under  twenty-one  year*  of 
ag«,  had  without  the  previous  consent  of  the 
father,  or  lawful  guardians,  or  one  of  them,  or 
If  no  gvardian,  then  of  the  mother,  if  liiing 
and  unraarHed,  or  if  none  such,  thnse  of  a 
mirdiui  appbinied  by  Ibe  court  of  Chancery, 
indlbeaiaUandnid." 


many  being  pptformed,  Mr*.  Hanmer^  maid 
waa  diapalclieri  lo  see  thai  tbe  ooaat  waa  dear  ; 
aud  they  rtrtiirned  into  the  hoiiae,  wilboul  being 
by  any  of  the  ser*anla.     I  mentioa 


Hr.  Justice  Blackstnne  (Comm.  book  1,  c, 
Ifi,  a,  3,  *i)l.  1,  pp.  4SS,  440,}  abaerres,  that 
"  the  iiitrrreiitioti  of  a  ptieal  to  aolemDime  ihia 
cunlrai:!  ia  merely  '  juris  posilivi,'  and  not 
'jitrisnaiurslisaut  dirini;'  it  being  said  (Heaa 
iro,)  thai  I'npe  Innocrnt  the  M"  [he  wh 
Pone  from  119lllo  1116] '>  waa  the  first  wba 
ordained  the  eelebralHHi  nf  naafriagc  in  a 
church  :  before  whicfa  h  waa  totally  a  dril 
contract.  And  in  the  timea  of  tbe  grand  rsbek 
lion,  sil  marriages  ware  nerlbrmed  by  tba  jaa- 
tices  of  the  peaoe ;  ana  theae  mamagsa  wcra 
declared  ralid  without  any  fresh  siilsiiiaiialiw 
by  Stat.  18  Car.  S,  c.  SS.''^ 

The  paange  in  Hoor  to  which  the  laatned 
judge  refers  h  aa  fullowa : 

"  Goldingbam  Doctor  del  dvil  ley  dlt  qne  Is 
•olemoiaation  de  marriam  ne  fut  use  en  I'Eg' 
Use  devant  que  le  Pope  lonoceDl  9  ceo  antsin* 
primes;  mea dcvanl cral ordioanoe le msrriap 
fuit  solemnize  en  liel  forme,  que  le  home  tical 
at  meaaon  Ion  la  feme  inhabite,  et  ameaDinil 
la  feme  ore  luy  a  sa  messou,  et  ceo  t'uit  lout  Is 
ceremony  ;  et  dc  ceo  fuit  que  le  boine  est  dil 
ducert  taorem,  per  reason  que  il  dace  la  frot 
ove  Iny  a  aa  meaaoo,  el  k  I'ltme  fuil  dit  mtftt 
vin>  per  reason  que  el  est  ouaai  tooperia  aaif 
(ceat')  eiro,  a  que  el  Mt  Iny  on  sulgect  ftl 
agreament  de  marriage." 

As  to  ihfe  proceedings  for  regulating  lba<a> 
lebration  of  msniages  "  in  the  timet  af  Ibt 
grand  rebellion;"  on  Januarys,  1644-9, As 
parliament  pa*>e<l  an  erdiuauce  bearing  Ibii 
title,  "  The  Book  of  Common  Prayer  ahall  set 
be  henceforth  nsed }  hut  tbe  Directory  for  Pu^ 
lique  Worship"  (in  llie  table  it  ia  imillrd,* 
"  For  lakiog  awuy  the  Book  of  ComMa 
Prayer,  and  tor  establishing  and  putting  in  as- 
eeuiion  of  the  Directory  fi>r  tlie  PidiliqnaWH* 
skip  of  God.") 

Jn  the  DIrectM-y  therein  set  forth  is  tbaft^ 
lowipg  protision  respecting  marriages : 
"  Tbe  Solemnization  of  Marriage. 

"  Although  Marriage  he  no  Sacrament,  wot 
peculiar  to  Sie  Church  of  God,  hut  comniM  0 
roankinde,  and  of  publiqiia  inlernt  in  tnrf 
Cora nton wealth,  yet  because  such  a*  nMrry  aia 
to  marry  in  the  Lord,  and  liare  special  need  if 
Instruction,  Direction,  and  Exhortation  Irsa 
the  Word  of  God,  at  their  enlring  into  aaah  a 
new  condition;  and  of  the  blA*iD|r  of  Oti 
upon  them  thernn,  we  juil^e  it  cx|>edient,  Ihtf 
Man-is^  he  aoleniniznl  by  ■  lawfull  MinistFr 
of  the  Word,  that  he  may  acmidintity  consail 
tliem,  and  pray  fur  a  blessing  u|M>n  tbcm. 

•  or  the  titles  inseried  in  SrnbeH'a  table  sf 
the  ■  Acts  of  Ordioanc«'  but  sery  lew  are  th" 
aaroe  with  those  respectively,  which  ate  pn* 
fixed  to  tbe  AcU  and  Ordinancct  theau«lT«i> 


for  Bigamy. 

rdrramstBDCra,  txicsiid;  lliey   hap- 
pen 10  be  ivcnllnilei)  li^  tlie  ivilnem. 
Tti*  marriigc  was  coniiiinmaleil  tEie  same 
111  li«  lay  wltit  her  Iwoor  ihrec  nights 
;  tficr  wlik'li  he  was  ubiigeil  la  re- 


A.  D.  1778. 


[550 


liTritge  is  to  lie  belwi^tl  one  mui  and 
DDiaD  only,  and  llicy,*  such  aa  are  oot 
In  the  Urgrrca  of  (^ouwiifcuiDit;  or  Affinity 
iliilril  hy  iheWurilorGoil.  And  the  par - 
ti(«ar*  to  be  of  years  of  discre^n,  fillo  make 
ibcir  own  choice,  or  upon  good  grDundt  lo  giie 
Ihcjr  muuial  conaeiil. 
|[B^<*<e  'he  aulciDDiziag  of  Marriage  he- 
I  any  P«raoit«,  ilieir  purpose  of  Marriace 
'*i«  published  hy  Ihe  Minisler  Ihree  several 
'"■  '  ~~  ID  theCoui{regaliuii,altheplace 
\ir  inosi  iHuat  and  conslautabode 
,Ri>ely.  And  of  liiii  Publicalion,  the  Mi- 
||«rho  is  to  JDvn  ibem  in  Marriage,  shall 
■uffioienlTeaiimonyibefore  he  proceed  to 
■isc  the  &larri(ige. 

bfere  IhM  Publication  of  such  their  pur- 
!f  the  partiea  he  under  age]  the  cooseal  of 
~  snla,  or  uthera.uuder  whose  power  they 
•  Ibe  Pareots  lie  deail)  ia  to  lie  mack 
K  lo  the  Church -officers  of  that  Cuogre- 
I,  to  he  iUcurdeiT. 

^  *  J3  he  ob*er»«l  id  the  proceed- 
if  all  oihrrs,  although  of  age,  whose  Pa- 
■we  living,  lorlheir  first  marriage.  And 
r  ciuirriagea  of  either  of  thoae  parlies, 
wit  be  eibocied  not  lo  rontract  marriage, 
H  8nt  scqnMiiting  their  parents  with  it, 
ih  eoiivenieney  it  may  be  dune)  endea- 
K  lo  obtuintbeir  coosent. 

enUuu^fht  DOl  to  force  their  children 
■ry  witlmut  their  free  consent,  nor  deny 
~    n  conieot  without  juat  cauic. 

if  the  purpose  or  contract  of  marriage 
V  Una  puUiabed,  ibe  marriage  ii  not 
i  loDg  deterred.     Tliereloru  the  Minuter, 
'  A  coDTeDient  wniiiiDg.  and  nothing 
Kted  to  hinder  it,  is  publikely  to  sa- 
ls Lhe  place  appointeil  by  Authority 
le  Worship,  betore  a  cooipelent  ouai- 
'dihle  witoeasew,  al  some  convenieot 
t  tbaday,  al  aoy  time  of  the  year,  t%- 
M  k  day  of  puldiifue  llumiliniiuo.     And 
lirla*  Ibat  it  be  not  on  the  Lord's  day. 

ueall  (clatiDM  are  aaDCtlHcd  by 

1  Prayer,  the  SliQisler  is  lo  pray 

IC  apoo  thetn  to  lb«  effect ; 

dhOuwIedijing   our   sioa,  whereby    we 

'  t  mirtf  Ives  leas  than  tlie  leaat  of  all 

M  of  (lud,  and  pruvoh'd  him  to  im- 

Vall  •yrMmforla  earnestly  in  the  nam* 

^rislt*wlreBt  ibe  Lord  (whose  presence 

b>*ttriilhe  bappintw  of  every  condition, 

■BwectrM  tvery  relslion)  to  M  their  por< 

w,  uJ  l»  own  ami  areepi  Iheiu  in  Cbrial, 

^"  ai>  iNw  Lu  be  joyned  in  the  HonouraUe 

uiruf  llamaite.  Ihe  Covenant  of  their  God. 

I.1  Ikaa  a*  be  tiaih  btought  them  together 

]  lua  Piotidencr,  be  wuuhl  uoctifia  them 

*  &i  iu  t>c<>bell. 


turn  lo  his  ship,  which  bad  received  sailing 

Aliss  Cbudleicb  went  back,  aa  had  been 
agreed,  to  her  station  of  maid  of  honour  in  Iha 
family  of  the  princess  dowager.     Mr.  Hervej 

'  by  hia  Spirit,  giving  them  a  new  frame  of 
'  heart  lit  for  their  oew  estate  ;  enriching  them 
'  with  all  Graces,  whereby  they  may  perfortn 
'  the  duties,  enjoy  ibe  iHimforls,  uodei^a  th« 
'caret,  and  resist  the  ttraptations  which  ac- 
'  company  that  eoDditioD,  as  becometh  Chrii' 

"  The  prayer  being  ended,  it  i«  coavcnienl 
that  Ihe  Uinialer  do  briefly  decide  unto  them 
out  of  Ihe  Scripture, 

■*  ■  The  Inslitutioii,  Use,  and  euds  of  Mar- 
'  riage,  with  the  Conjugal  duties  wliich  in  all 
'  faithful neia  they  aretonerforin  each  lootbcff 
'  exhoMing  them  lo  aludy  the  holy  Word  of 

■  God  that  they  may  learn  to  live  by  Faiih,  and 

■  to  be  content  in  the  midst  of  all  Marriage 
'  carea  and  Irouhles.  lanclifying  God's  Dame  in 

■  a  thaakfull,  sober,  and  holy  use  of  all  Coo* 
'  jugal  comforts,  praying  much  with  and  for 
'  one  anothtr,  watching  over  and  provoking 
'  each  other  lo  love  and  gooil  works,  and  to 
'  live  ingether  as  the  heirs  ot  the  Grace  of  hft.' 

"  After  solemn  charging  of  the  persons  lo 
be  married,  before  the  great  God,  who  search* 
elh  all  hearts,  and  la  whom  they  must  give  a 
strict  account  at  the  lost  day,  that  If  eiilicr  of 
ihem  know  aDy  cause,  by  prscontract  or  other' 
wise,  why  they  may  not  lawfully  proceed  to 
marriage,  thai  they  now  discover  it :  the  mi- 
niater  (if  no  impedimeol  he  acknowledged) 
shall  cause,  first,  the  man  to  take  the  woman 
by  the  right  hand,  saying  these  words  ; 

"  '  1    N.  do  take  thee  N.  to  be  my  married 

■  wife,  and  do,  in  the  presence  of  God,  and 
'  betore  this  congregation,  promise  and  cove* 
'  nani  to  be  a  loving  and  faitbfull  husband  unU 
'  Ibee,  until!  God  shall  separate  us  by  ileaih.' 

"Then  the  woman  shall  take  the  man  by 
bis  right  hand,  and  say  these  wards ; 

"■IN.  do  take  lh«e  N.  to  be  my  married 
'  huaband,  and  I  do,  ia  the  presence  of  God, 

■  and  belore  this  congregation,  prumiiie  aitd 
'covenant  lo  he  ■  loving,  faiihtull.  and  ob«< 
'  dient  wife  unto  thee,  until!  God  shall  aepanlc 

■  us  hy  death.' 

•■  Then  without  any  fariber  Ceremony,  tba 
Minister  shall  in  Ihe  face  of  Ibe  C'lagregatioa, 
pronounce  Ibem  to  be  Husband  and  Wife,  ac- 
oording  to  God's  Ordiuaoce ;  and  so  conduda 
the  aciiuD  with  Prayer  to  this  effect ; 

"  ■  That  the  Lord  would  be  pleaaed  io  »«• 
'  company  hia  own  Ordinance  with  hia  Ucaa- 

•  ing,  bearediiug  him  to  enrich  the  persona 
<  now  marrird,  as  with  nllier  pled|{*a  of  Itia 

*  love,  an  particularly  with  the  Miuifuriii  and 
'  fruits  of  marriage.  Ki  the  prs'sa  of  his  abnn- 
'  dant  inFrey,  in  and  ibniuich  Chriit  Jmiis.' 

'■  A  KrgMler  ia  to  be  carefully  kept,  <■  lierrtB 
the  Titmes  uf  ibe  partin  lO  luariied.  with  tba 
time  of  their  marriage,  are  iVirlhwith  In  ha  lairl/ 
Uecorded  io  a  iioufc  prepared  liw  ibu  pui- 


851] 


16  GEORGE  IIL 


Trial  of  the  Ducheis  of  Kingston  f 


[55f 


mileil  in  November  foliowiiiflr  ibr  the  West 
liplies ;  and  remained  there  till  Auf^ust  1746, 
^irlien  be  set  sail  for  Ent^aiitl.  la  tbe  month 
of  Octiiher  tollouinvr  be  landed  at  l>)rer.  and 

poste,  for  tbe  perusal  of  all  wbom  it  may  con  • 
cern;** 

AfUrwarda,  by  tbe  Act  of  1653  (passed  Au- 
irusi  8 1.)  cap.  6,  *  How  Marriages  shall  be 
Solemnized  and  Registered ;  As  also  a  Regis- 
ter for  Births  and  Burials/  (but  tabulated  under 
the  title  of  *  Touching  Rlarriages,  and  tbe  re- 
gistering therfof;  and  also  touching  Births 
mnd  Burials,')  it  was  enacted,  that  *<  wbosoe? er 
•ball  agree  to  be  married  within  the  Common* 
wealth  of  England,  after  the  99th  day  of  Sep- 
tember, in  the  year  1653,  bhaU  (one  and  twenty 
davs  at  least,  before  such  intended  Marriage) 
defiver  in  writing,  or  cause  to  be  so  deh?md 
uuto  the  Register  (hen«fter  appointed  b]^  this 
Aci)  for  the  respective  Parish  where  each  party 
to  be  married  4iveth,  the  aames,  surnames,  aa- 
ditions,  and  places  of  aboail  of  the  parties  so  to 
be  married,  «nd  of  their  Pircota,  Guardians, 
or  Overseers;  All  which  the  said  Register 
shall  publish  or  cause  to  he  published,  three 
several  Lords  days  thep  next  following,  at  the 
close  'of  tbe  morning  Exercise,  in  the  pub- 
liaue  meeting  place,  commonly  called  tbe 
Church  or  Obappel ;  or  (if  tbe  parties  so  to  be 
married  shall  desire  it)  in  the  Market-place 
next  to  the  said  Church  or  Chappel,  on  three 
Market-days,  in  three  several  weeks  next  fol- 
lowing, betwen  the  hours  of  eleven  and  two ; 
which  being  so  performed,  the  Register  shall 
(upon  request  of  the  parties  concerned)  make  a 
true  Certificate  of  the  due  performance  thereof, 
without  which  Certificate,  the  persons  herein 
ifcer  authorized  shall  not  proceed  in  such  mar- 
riage :  And  if  any  Exception  shall  be  made 
sgainst  the  said  intended  marriafire,  the  Regis- 
ter shall  also  insert  the  same,  with  the  name  of 
the  person  making  such  exception,  and  their 
place  of  aboad,  in  the  aaid  Certiticute  of  Pub- 
fication.'' 

And  that  "  all  sucb  Persons  so  intending  to 
he  married,  shall  come  before  some  Justice  of 
peace  witliin  and  of  the  same  County,  City  or 
Town  Corporate  where  publication  shall  be  made 
as  aforesaid ;  and  shall  bring  a  Certificate  of 
the  said  publication,  and  shall  make  sufficient 
proof  of  the  consent  of  their  Parents  or  Guar- 
dians, if  either  of  the  said  parties  shall  be  under 
the  age  of  one  and  twenty  years:  And  tbe  said 
Justice  shall  examine  by  witnesses  upon  Oath, 
or  otherways  (as  he  shall  see,-  cause^  concern- 
ing the  trutn  of  the  Certificate,  and  due  per- 
formance of  all  the  premiKGS  ;  and  aUo  of  any 
exception  made  or  arising :  And  (if  there  ap- 

5 ear  no  reasonable  cause  to  the  contrary)  the 
larriage  shall  proceed  in  this  manner : 
**  The  Man  to  be  married,  taking  the  Wo- 
■osn  to  be  married  by  the  hand,  shall  plainly 
and  distinctly  prooounce  these. W(»rds : 

**  *  1  A.  B.  do  here  in  the  presence  of  God 
^  tho  searcher  of  all  beajrtSi  tako  Ibce  CD.  fiw 


resorted  to  his  wife,  who  then  lived*  by  the 
name  of  Miss  Chudleigh,  in  Conduit -street. 
She  received  him  as  her  husband,  and  enter- 
tained him  Mccordioi^ly,  as  far  as  consisted  with 

*  my  wedded  Wife ;  and  do  also  in  the  presence 
'  of'^God,  and  before  these  witnesses,  promise 
'  to  be  unto  thee  a  loving  and  faithful  Husband/ 

«  And  then  the  Woman,  taking  the  Man  by 
the  hand,  shall  plainly  and  distinctly  pro- 
nounce these  words : 

** '  1  C.  D.  do  here  in  the  presence  of  God 

*  the  searcher  of  all  hearts,  take  thee  A.  B.  for 
'  my  wedded  Husband,  and  do  also  in  the  pre* 

*  sence  of  God,  and  before  these  witnesses. 

*  promise  to  be  unto  thee  a  loving  faithful  and 

*  obedient  Wife.' 

•«  And  it  is  further  Enacted,  That  the  Man 
and  Woman  bavintr  made  sufficient  proof  of 
the  consent  of  their  Parents  or  Guardians  as 
aforesaid,  and  expressed   their  consent  unto 
marriage,  in  the  manner  and  by  the  words 
aforesaid,  before  sucb  Justice  of  Peace  in  the 
presence  of  two  or  more  credible  witnesses; 
the  said  Justice  of  Peace  may  and  shall  declare 
the  said  Man  and  Woman  to  be  from  thence- 
fortli  Husband  and  Wife;  and  from  and  altar 
such  consent  60  expressed,  and  such  declaratioa 
made,  the  same  (as  to  the  form  of  marriagt) 
shall  be  good  and  effectual  in  Law.    And  so 
other  marriage  whatsoever  within  the  CsB* 
mon  wealth  of  England,  after  the  29th  of  Sep- 
tember, in  tbe  year  one  thousand  six  hundm 
fifty  three,  shall  be  held  or  accompted  a  Mar- 
riage acconling  to  the  Laws  of  England;  But 
the  Justice  of  Peace  (before  uhom  a  Marriage 
is  solemnized)  in  case  of  domb  persons,  ittsf 
dispense  with  pronoucincr  tbe  woids  aforesaias 
and  with  joyning  hands  in  case  of  persons  ttal 
have  not  hands.*' 

Then  follow  directions  respecting  the  regif* 
tration  of  marriages,  &c. 

The  act  of  1656,  cap.  10,  continues  and  eoiH 
firms,  for  six  months  af)er  the  end  of  the  fiifk 
session  of  that  present  parliament,  the  aboff- 
mentioned  act  of  1653,  excepting  the  claoaa  > 
tliat  **  no  other  marriage  whatsoever  withis 
the  commonwealth  of  England  after  Septan* 
her  S9tli  1653,  shall  be  held  or  accounted  a 
marriage  acconling  to  the  laws  of  EngkBd," 
which  clause  is  thereby  declared  null  and  voii*      ' 

By  Stat.  12  Car.  S.  c.  33,  (confirmed  by  IS  4 
Car.  2.  c.  11,)  after  recital  that,  by  virtue  Of  f 
colour  of  certain  ordmances,  or  pretended  aeH  } 
or  ordinances,  divers  marriages  since  the  be-  ] 
ginning  of  the  late  troubles  nad  been  hadaad  '< 
solemnized  in  some  other  manner  than  bad 
been  formerly  used,  it  was  enacted  that  at 
marriagrH  had  or  solemnized  in  any  of  his  tfi* 
jest  v's  dominions  since  May  1st,  1642,  befbt* 
any  juiitice  of  peace  or  reputed  justice  of  pcse^ 
and  ull  marriages  within,  &c.  since  the  aafli 
day  had,  &o.  according  to  the  direction  of  tKf 
act  or  ordinance  of  one  or  both  HoosN  of  ffv 
liament.  or  of  any  oonecnthMi  at  WatfMi^ 
under  Ihc  slila  or  title  of  a  poriismMtr  ">»' 
be«anlli-ifihMr.M 


I 


^■^^ 


>»■  Bigamy. 
r  flaa  of  kfefiinif  Ihe  mirrjaze  secret.  In 
t*  laticr  rail  nf  NuremWr  in  >he  same  year, 
" '.  Hmcy  «ileJ  for  ihe  MeililerrsnRsn,  Bntl 
tamed  in  ihe  muntli  of  January  1T4T.  aoJ 
•toyed  here  lill  May  in  ihe  same  year.  Mean 
■Huleshecanlinuedla  ie«i<lem  Conduit-street, 
and  he  U  tisitberat  usual,  lill  aume  difTprenceB 
arme  bFtween  iliem,  which  termin^tal  in  a 
•lownH^lil  quarrel;  after  whioli  th^y  nerer 
■aw  pach  other  mnre.  He  cnntinued  abroad 
IrtI  OeMmber  1747,  when  he  retarued  ;  bal  Do 
■nlnx-ourae,  which  can  be  traced,  passed  be- 
■  wepu  them  aflerwarils. 

Tliia  pmeral  account  is  all  I  am  able  to  gite 

Sinr  lonIihi|)s  of  the  inlcrcnnrse  Wtween  Mr, 
errey  and  his  wife.  The  cause  of  ihe  dis- 
pIcasuTff  which  separaieil  ihem,  is  immalprial 
to  be  enlnrgwi  upon.  The  fruil  of  their  iuter- 
couTSK  was  a  son,  bnrn  at  Chelsea,  some  time 


cot^lni;  Ifl  the  rites  and  ceremonies  of  ibe 
ctiurch  uf  England. 

"  tjt  marisge  dans  I'ordre  civil  est  une 
uaion  Ici^liiue  de  Tbomme  el  de  la  ti'mme, 
pcMi  MToir  itei  enliins,  iwur  les  ^leier,  et  pour 
lettr  assorer  les  droits  des  propri^tfs,  sous  I'au- 
tvni€  At  la  lot.  Afio  de  conslater  cetle  union, 
«lle   est  accornpagn^e  d'une  c^r^moiiie  reli- 

«tfUe  imblic  ;  vraie  logamacbie,  qui  necbanffe 
tMI  4  la  chose.  II  faut  done  dihUnguer  deux 
<hosw  dans  te  manage,  le  coalrat  civil  on 
ent  naiurel,  et  le  sacremeat  ou  la 
sacr^.  Le  mariai^e  pnurrail  done 
a«ec  tons  les  eReis  nalurels  et  civils, 
de  la  c^-r(:munie  relinieuse. 
letne  de  I'Gg^ise  nesout  de- 
«*■««>  n^cessairrs  dans  I'ordre  ciiil  que  par  ce 
qoe  le  ni»i;isir»t  less  adoptees.  II  s'est  mfme 
^eooK-  uR  luni;  temps,  sans  que  les  ministre* 
4l*  la  religion  aient  an  aucune  part  (I  la  cali- 
bration des  marit^es.  Du  lemps  de  Justiaien 
le  coaseDtement  de*  parlies  en  pn^sence  de 
l^iDMns,  Hns  aucune  c6rfmonie  de  I'Eclise, 
U((itiioo(l  eoFure  le  mariaKe  parmi  les  ehr^- 
liiiH  C't^lcet  empereur(|ui  fii,  vera  le  mi- 
HM  4d  siiifane  si^cle,  lea  premitres  Inis  pnur 
^m  tc*  prfitrcs  inlertinssent  comine  simples 
tdnaiHt  *ans  ordonner  encore  de  b^nddirlion 
Mipliale.  L'fmpereur  Ltoo,  qui  mourni"  [qu. 
'Omia]  "  Bur  le  Irdne  en  ess,  semble  eire  le 
ytHDier,  qui  ait  mis  la  c^r^monie  religieune  au 

2f  dasfoudilious  n^ceraaires.     La  loi  m^me 
I  fit  uieaie  que  c'iiait  ua  noutel  eublisse- 

*■*!>«  I'tdtie  juste  que  nous  nous  forraons 
■fail  dn  mariaife,  i1  r£so1ie  d'abnrd  que  le 
%m  ardre  et  la  pi#l^  mime  rendent  aujonr- 
ri'kst  ntresiaireii  les  forriialii^s  reliKieuies, 
arfoptfM  dans  tonien  les  cnmmuuions  ehr£- 
Uenarm.  IHaia  llw^encr  du  mariaxe  ne  pent 
en  tin  dCoaturie  ;  el  cet  riiKiiirdneiil,  qui  est 
k  tini>ei|Ml  dans  la  society,  e«i  el  iloil  demeiirer 

(Vitf  daiUBKiMrai."  Viiliaire Uiut  PfaihiMph. 
jn.  Droit  CuKwi^itf,  itcl.  6. 


A.  D.  I77fl. 


[5M 


in  the  year  1T4T.  The  circnmttance*  of  ibat 
birih,  ihe  nnliee  which  |ieuple  tank  of  ir,  aad 
the  ciinrersBtiuns  whieh  she  held  ahout  that, 
and  Ibe  deaib  of  the  child,  fur.  '»A\  part  of  th« 
evidence  that  a  matrimonial  conuection  actual- 
ly suiwisted  helvteen  Iheni. 

At'ier  having  menliuned  so  oHen  Ihe  txertcf 
iviih  nhich  Ihe  marrisgvand  cnhabilaliun  wera 
conilocied,  it  leems  needless  In  observe  to  your 
lordshipi,  Ihat  the  liirili  of  a  child  was  sup- 
pressed with  equal  care.  That  also  made  but 
an  awkward  part  of  the  family  and  edablisb* 
nient  of  a  maid  of  honor. 

My  lords,  thai  which  I  call  the  second  pe- 
riod, was  in  the  year  1759.  She  hud  Iheu 
lived  at  a  distance  from  her  husband  near 
twelve  years.  But  Ihe  inlirm  suie  of  the  late 
lord  Brislol's  heallh  seemed  to  open  Ihe  pros- 
pect of  a  rich  surcession,  and  an  earldom.  It 
was  thought  worth  while,  as  nolhint;  better  bad 
then  ufTcred,  lu  be  countess  of  Biisiol ;  and 
tor  that  purpose   to  adjust  the  prooti,  of  ber 

Mr.  Amis,  the  minister  who  had  married 
them,  was  at  Winchester,  in  a  declinintf  s'nie 
of  health.  She  appointed  her  cousin,  Mr. 
Merrill,  to  meet  her  tbere  on  the  13th  of  Fe- 
bruary 17S9;  and  by  six  In  the  raaminjf  she 
arrived  at  the  Blue  Boar  inn,  uj)posile  Mr. 
Amis's  bouse.  Slie  sent  lijr  liis  wile,  and  co  n- 
municated  her  business,  which  was  to  get  m 
cenilioale  fi'om  Mr.  Amis  of  Ijer  marriage  with 
Mr.  Hcrvey.  Mrs.  Amis  inviied  lier  (o  Ibetr 
house,  and  acquainted  ber  husband  wiili  the 
occasion  of  her  coming.  He  was  ill  «-bed; 
and  desireil  her  to  come  up.  But  outhing  wa( 
done  in  the  business  of  the  ceKiScate,  till  th* 
arrival  nf  Mr.  Merrill,  who  broutrbl  a  aheel  of 
■lamped  paj>er  to  write  it  upon.  They  were 
still  at  a  loss  sbont  the  form,  and  sent  for  one 
Spearing,  an  altoruey,  iJjiearinK  thuu){bi  that 
■  lie  merely  malliog  a  certificate,  and  deiiiering 
it  nut  in  the  manner  whiuh  bad  been  projiosed, 
was  not  the  best  way  of  eatahlisbMiK  the  evi- 
dence which  might  be  wanled.  He  therefore 
propiiseil,  that  a  cbeck-boolt  (as  he  called  it) 
should  be  bouG^ht ;  and  the  marriage  be  regi*- 
lereil  in  the  usual  form,  and  in  the  presence  of 
the  prisoner.  Somehndy  suggesting  that  it 
had  been  thought  improper*  she  should  be 
present  at  Ihe  making  nt  the  register,  he  de- 
sired she  niighl  be  called  ;  the  purpose  being 
perfecily  fair,  raerdy  to  slate  that  in  the  form 
of  a  retfisler.  which  many  people  knew  to  be 
true ;  and  which  Ihoae  pemnos  of  Koaour,  then 
present,  give  no  room  to  iloubt.  Accordingly 
his  advice  was  laken,  the  book  was  bnlighl, 
and  ihe  marriage  was  registered.  The  bonk 
WHS  entitled,  Matrisgeit.  Uirlhs,  and  Burial* 
in  Ihe  parish  of  Lainslon,  The  first  entry 
ran.  The  9jd  of  Augusi,  1743,  buried  Mra. 
Susannah  Merrill,  relict  of  John  Merrill,  esq. 
The  next  was,  The  4th  of  August  1744,  mar- 
rieil  the  honourable  Augustus  Hervey,  esq.  lo 
Miss  Elizabeth  Chudleigh.  daughter  of  colonel 

*  t»o  in  former  edition. 


555] 


16  GEORGE  III. 


Trial  of  the  Diicheis  qf  Kijigslon, 


I 
I 

I 


Thomai  Cliudld^h,  lile  of  CbeUea  Callege, 
deceaseil,  in  iJie  parish  church  of  LuImIod,  \ty 
meTbomisAiniB.  The  pciioner  was  in  creal 
■pirilj.  She  tbttikeil  Mr.  Amis,  uti  lolJ  aim, 
it  ml^hl  be  a  himdreil  Ihoussiid  pouiids  in  her 
way.  Slie  tolil  Mrs.  Amis  nil  ber  aecrer*  ;  of 
the  child  she  liati  by  Air.  Ilervey  ;  a  fine  boy, 
but  il  HBi  danJ ;  and  how  «be  borrowi^d  lOdl. 
ofhenunlllannirr  la  make  b>by  clnlhes.  Jt 
Mcvfd  ihe  parfKMe  ol'lbe  hour  to  iliicliwe  ihese 
Uiingi.  She  lealed  up  Ihe  regiiler,  and  lert  il 
wiib  Mn.  Antiit,  io  charge,  upon  her  hiubanil's 
dealh,  10  •Iclicer  il  to  Mr.  niethll.  Thin  hap- 
pened in  a  fen  neeka  afler. 

Hr.  Kluchin,  the  preseat  rector,  succeeded 
to  ihe  ti'ing  of  Lainslon  ;  but  the  book  re- 
maiued  in  the  ponraaion  of  Air.  Merrill. 

Io  Ihe  year  1764  Mrs,  Haomer  died,  ami 
Was  buried  al  L.ainatOD.  A  feiv  days  after,  Mr, 
Merrill  desired  ber  burial  might  be  registered. ; 
Mr.  Kinchin  did  not  know  of  any  re^ialer 
Mbicb  belonged  to  Ibe  pariah  ;  but  Mr.  Merrill 
liroduced  llie  book  which  Mr.  Amis  had  made 
and  laking  it  nut  of  the  sealed  cover,  in  which 
il  had  remained  till  that  lime,  shewed  Kiuchin 
ibe  entry  of  the  marriige,  and  bade  bim  noi 
menlinn  it.  Kinchin  suhjnined  Ihe  third  entry, 
iluried,  December  the  IDih,  1TC4,  Mrs.  Ann 
liaamer,  relict  of  the  late  colonel  Wilhai 
Hanmer:  and  delivered  the  book  again  to  Ml 
Merrill. 

In  Ihe  year  176T  Mr.  Merrill  died.  Mi 
fialhurat,  nhn  married  bis  dnnghter,  found 
this  book  amoni;  bis  papers ;  aQiT taking  it  to 
be,  what  it  purported,  a  |iarish  resitler,  deti*er. 
ed  il  to  Mr,  Kinchin  Kccotdingly,  He  bai 
kept  il  as  such  erer  since  ;  and  upon  that  oc- 
casion marie  ihc  fourlh  entry.  Buried,  the  7lh 
of  February,  1707,  John  Merrill,  rsi|. 

The  earl  of  Bristol  recovered  his  health  ; 
Sii<l  lliii  regisler  was  furgntlen,  till  a  very  dif- 
ferent ocoasian  arose  lor  enquiry  after  it. 

The  Ibird  peri nd  to  whlca  I  befrged  iheat- 
leniinn  of  your  lordships  in  the  ouiset,  was  in 
theyenr  1768.  Nine  years  bad  passed,  since 
Iter  former  hopes  of  a  great  lille  and  forlune 
bad  fiilleii  10  (he  ground.  8he  bad  at  leogib 
formed  a  plan  tn  attain  the  aame  oiijecl  anolhei- 
way.  Mr.  Ilervey  also  had  turned  hia  Ihougbts 
to  a  more  sgreesble  connection  ;  and  actually 
enlereil  into  n  <H>nespnndcoco  wiih  the  prisoner, 
for  the  purjHiie  of  selling  aside  a  marriage  so 
burdensome  anil  hnlpfiil  to  both.  The  scheme 
he  proposed  was  rather  indelicate  ;  not  ihal 
mf'erwards  executed,  which  could  net  sustain 
Ibe  eye  of  Justine  a  moment ;  but  a  simpler 
neihod,  founded  in  the  truth  of  the  caae ;  thai 
«f  ohlaining  a  se|>Braiinn  by  sentence  '  a  inen- 
'  si  el  thorn  propter  adulleriura  ;'  which  might 
lerre  as  the  Inuiidaiioii  of  an  act  of  parliament 
for  ID  shwluie  iliviree.  Ilesenl  her  a  inea- 
■age  Io  ihis  rffi-t't,  in  terms  aulGoienily  pe- 
remplury  and  iwuub,  as  yi'Ur  hinlKhips  will 
kar  from  the  wnnpis.  Mrs  Crad.ick,  ihe 
wnmitn  I  hare  meniioueil  bel<>r«  as  \<et\v^  Mrs 
Hsninpr'sKervam,  and  present  aiihf  msrriaae, 
mas  tlien  iD*rned  to  a  MrvauLuf  Mr.  ileivey. 


and  lived  in  Ibe  priaoner'a  family  wilb  her  btH 
band.     He  bade  ber  tell  her  mistress,  ■  that  tl. 
wanted  a  divorce ;  that  hesboutd  call  upon  1mI(  J 
(Cradock)  to  prove  the  marriage ;  nod  that  tbv  ■ 
prisoner  must  supply  such  other  ciideoce  af  J 
might  be  necessary," 

This  toight  have  answered  his  purpose  vdi  I 
enough;  but  her'a  required  mure  reserve  anil  4 
msoagemeot;  and  such  a  proceeiling  luigkt 
have  disappointed  it.  She  llirrefore  spurned  at 
that  part  of  the  proposal ;  and  refused  in  terms 
of  high  resentment,  '  to  prove  herself  awfaor*.* 
On  the  ISlh  of  August  fnllnwing  she  enterad  * 
caveat  at  Doctors  Commons,  to  binder  aDy 
process  passing  under  seal  of  the  court,  at  Im 
mil  of  Mr.  Hervey,  against  her,  in  any  m^- 
trininnial  cause,  without  notice  to  her  proctor. 

What  difficulties  impeded  the  direct  and  <&• 
vious  plan,  or  what  inducement  prevailed  is 
favour  of  so  different  a  measure,  I  caonut  tlat* 
to  your  lordships.  But  it  hait  been  already 
seen  iu  a  ddute  of  many  days,  what  kind  N 
plan  they  substituted  in  plitce  of  the  former. 

In  the  Michaelmas  sesiiou  of  the  year  ]76B, 
she  instituted  a  suit  of  jaclilatioa  of  marriage 
in  the  common  form.  Theanswer.wstKcross 
hbel,  claiming  the  ricrhis  of  marriage.  But 
IliB  claim  was  so  shaped,  and  the  evidence  w» 
applied,  that  sucixss  bEcame  utterly  imiiraetU 

A  grosser  arliBce,  I  believe,  was  never  fabri* 
ealed.  His  libel  staled  the  marriage,  wilk 
many  of  its  particulars  ;  bat  not  too  many.  It 
was  large  in  alleging  all  the  indifferent  etr- 
cumatances  which  attended  the  courtship,  coo- 
tract,  marriage  ceremony,  consummation,  aotl 
Cdbabilalion ;  but  wbon  it  came  to  the  facia 
themselves,  it  stated  a  secret  cuurlship,  aod  a 
contract,  with  ihe  privily  of  Mrs.  Hanmer 
alone,  who  was  then  dead.  The  marriage  ce- 
remony, which,  in  truth,  was  celebrated  in  tb* 
church  at  Lainstoo,  was  said  to  have  been  per- 
formed at  Mr.  Merrill's  house,  io  Ihe  parish  of 
S|iarshui,  by  Mr.  Amis,  in  Ibe  pretence  of  Mrs. 
Hanoier  and  Mr.  Mountensy,  wbo  were  all 
three  dead.  Mn.  Cradiick,  whom  but  three 
months  before  be  held  out  as  a  witness  o<  tba  _ 
■  dropped  ;  and,  to  abut  her 
perfectly,  the  consummation  is  taid 
have  passed  without  the  privily  or  knonh  ' 
of  anv  jMiri  of  the  fsniily  and  servanl*  of 
Merrill ;  meaning  |>erhaps  that  Cradock 
servant  tu  Mrs.  Hanmer.  It  was  fanber 
sinuBled,  that  llie  marriase  was  kept  a 
except  from  ihe  |ierauns  before-mentioned. 

To  tliese  articles  the  form   of  proceedi 
obliged  her  to  pul  in  a  |ierxonal  answer 
□slh.     She  denies  the  pieviuus  contract 
•■des  the  proposal  of  niarrisge,  by  stalil 
hat  il  was  made  to  Mrs.  Hanmer  without ' 
pnvity;   not  denving  that  it  was  afir 
iiunicalpd  to  ^ler.     The  rest  of  the 
whtoh  conUios  a  circumstantial  allegaliiMl 
the  marriage,  logeiher  wiib  the  tiaie,  pit 
'  sn  liirth,   she  hiirirs  in   ibr  I 
sion  of  every  answer,  by  deny- 
iog  the  real  i>l  iIm  said  prMcitded  puaittou  ot 


for  Bigamy. 


STtictewtetntein  m^  pad  ihrreur.    Fiuilly, 
»ba  demon  to  (bp  sriicle  whicb  altegei  cod- 


DM>*inc>  the  rest  of  the  irllcle  (o  he  true  In 
•  mny  |ian'aritreserTeithii  inlvo.  Thewliole 
•termenl  nl'  msiTlage  ff>s  but  >  one  part'  ol*tlie 
article ;  (tin  aTeriiieDt  (the  UnsuBge  jg  so 
eoaiiruriMt)  makes  but  one  mi'mbsr  nf  b  wd- 
•enee  ;  and  yet  it  combines  lalse  circumilinces 
wUhlriie.  'Theywere.in  Mr.  Merrill's  house 
St  >$pAnliDl,  jnineil  logelher  In  holy  inatrimnny.' 
Tbtspinot  tliearticlp,  nailer  answer  calls  jl, 
■•  not  (rue.  It  U  true  they  were  inorrled ;  but 
■ol  iroe,  lliat  they  were  tnarrleil  aX  Sparsbot, 
orUMr.  ftlerrill'Hhojse, 

How  WM  this  gTOBs  and  palpable  evaainn 
lifliil  7  It  is  the  course  of  llie  Eccieeiasltcal 
CoartU  file  exeeplions  la  JDdislincI  or  insufli- 
ncDt  antwen.  Othemise,  to  be  sure,  they 
e««U  not  eotnpel  a  defendant  to  pnl  in  any 
laalerial  answer.  But  it  was  not  the  purpose 
•T  itiia  luii  to  exact  a  sufficient  answer ;  cunte- 
^ocalty  DO  excepiioQS  were  tiled  ;  but  the  par- 
Kwawcottu  issue. 

Tbe  plan  of  ihe  eridence  also  was  framed 
vpiui  the  same  measured  line.  The  articles 
bad  excluded  every  part  of  the  family  :  even 
the  vuman  whom  Mr.  Hervey  had  senl  to  de- 
■lABil  Ihe  divorce,  was  oniilled.  But  her  bus- 
iMod  >>  produced,  to  swear,  that  in  the  year 
ITM  Mr.  Hervey  danced  nitb  Miss  (^IbuHleitch 
W0  Wiocbfster  races,  and  visited  her  at  Lain- 
■lon;  aod  in  1746  be  heard  a  rumour  of  tbeir 
awritffe.  Mary  Eilwards  and  Ann  Hillam, 
MTTUil*  in  Mr.  MerriU'a  family,  did  not  can- 
imliil  the  article  they  were  exaraineil  to, 
wUcb  ailefea,  that  none  of  his  servanls  knew 
wmj  thing  of  Ihe  matl^r.  Bot  they  had  heard 
ifae  report.  So  had  Messrs.  RofaioMn,  Hoi- 
^kcb,  and  Edwards.  Kncli  was  the  amouut  of 
Hr-  Uerrey'a  evidence ;  in  which  tbe  wit- 
wmmet  make  a  grreal  shew  of  zeal  ti>  disclose  all 
they  kmiw,  wilh  a  proper  degree  of  caution  to 
enjainthal  they  know  nolhia^. 

Tb«  form  of  examining  witnesses  was  also 
dha^eJ  on  htr  pari;  anil  she  proved,  most  ir- 
B^ttgaUy,  that  she  passnl  as  a  single  wonian  ; 
wm\  by  her  maiden  uame  ;  was  maid  of  ho. 
■Mir  ta  the  princess  dowager  ;  bought  and 
WiA;  borrowed  money  of  Mr.  Drummond  ; 
■w)  fcaptoath  with  him, and  other  bankers,  by 
daa  name  of  Elizabeth  Chudlei^b ;  nay,  thai 
Mr.  Merrill  and  Mrs.  Hanmer,  who  bad  agreed 
ta  keep  the  marriai^e  secret,  conversed  and  cor- 
reuooded  wilh  her  by  that  name. 
'  nr  ibi*  purpose  a  great  variety  of  witnesses 
«M  rallril;  whom  it  would  have  been  very 
nah  la  prvdoce,  withoul  some  foregone  agree- 
Wtn,  or  perfect  understanding,  Ihat  Ihey  should 
Mt  ba  eross- examined.  Many  of  (hem  could 
Ml  hi>«  ke[it  llicir  secret  under  thai  diacus- 
naa;    even   in    the   imjierfect  and   wretched 

U^ed  upon  paper,  and  in  tliiise  courts. 
Tkiercfflic  not  a  siut^le  inlcrrogalory  was  tiled, 
*K  a  single  witness  crust- eiamiued,  though 
fntduced  lo  article*  excaediogly  conliJeatial, 


And  if  they 

»  be  aigned. 


A.  D.  1776.  [558 

such  as  might  naturally  have  exdied  l)ie  cu- 
rioilly  of  an  adverse  party  to  have  made  fur- 
In  (he  event  of  Ibis  cause,  thus  lrea(pd,  tbuR 
pleaded,  and  Ihua  proved,  tbe  parties  had  the 
lingular  fortune  to  catch  a  Judgment  agunst 
the  marriage  by  mere  surprise  upon  tbe  justice 
of  Ibe  court. 

While  I  am  ubiiged  to  cJiinplaiD  of  this  gross 
surprise,  and  tu  slate  Ibe  very  prni.-eeriings  in 
Ihe  cuose  as  pregnant  evidence  of  Ibrir  own 
collusion,  1  would  not  be  understood  to  intend 
any  refleciion  on  the  integrity  or  ability  of  tlie 
learned  aud  respeiitabic  judges. 
For  oft,  Ibounh  wisdom  wake,  suspicion  sleeps 
Al  wisdom's  gale,  aud  lo  siinplicily 
HeaigDB  her  chsrge ;  while  goodness  thinks  no 

Where  no  ill  seems. [ill, 

Nnr  should  any  impulallon  of  blame  be  ex- 
tended  to  those  names,  which  your  lurdabips 
lind  subscribed  lo  ihe  pleadings.  The  lorms 
of  pleading  are  matters  of  course.  And  if  Ihe; 
were  laid  before  counsel,  only  b 
without  calling  their  attention  tu  the 
tliem,  tbe  collusion  would  not  appear.  A  cnun- 
sel  may  easily  be  ted  lo  overlook  what  nobody 
has  any  interest  or  wish  that  he  should  con- 

Thus  was  the  way  paved  to  an  adulterous 
marriage ;  thus  was  Ibe  duke  of  Kingslnn 
drawD  in  lo  believe,  that  Mr.  Hervey'a  claim 
to  the  prisoner  was  a  false  and  iojuriuus  pre- 
lensioD ;  and  he  gave  hie  unsusjiecling  hand  lo 
a  woman,  who  was  then,  and  bad  for  %ii  years, 
been  Ihe  wife  of  another, 

lo  the  vain  and  idle  conversations  which  she 
held,  al  least  wilh  those  who  knew  her  situa- 
tion, she  could  not  refrain  from  boasting  bow 
she  bad  surprised  the  duke  into  tb->  rrmmage. 
<■  Do  not  you  Ibink,"  says  she  with  a  smile  to 
Mrs,  Amis,  "  do  not  you  ihink,  that  it  wai 
very  bind  in  his  grace  tu  marry  an  old  maid  ?" 
Mrs.  Amis  was  widow  of  Ihe  clergyman  who 
had  married  her  lo  Mr.  Hervey,  who  had  aa- 
sisied  her  in  pnvcuritig  a  register  of  thtl  mar* 
riage,  and  lo  whom  she  bad  told  of  Ihe  birlh 
of  Ihe  child.  The  duke's  kindness,  as  she  in- 
sultingly called  it,  was  acarcely  more  strange, 
Ihan  her  manner  of  representing  il  to  one  who 
knew  her  real  silualion  so  well. 

My  lords,  this  is  tbe  stale  of  llie  evidence; 
wbicti  musi  be  giveo,  were  il  only  to  satisfy 
Ihe  form  of  tbe  trial ;  but  is  in  lact  produced, 
lo  prove  that,  which  all  tbe  world  knows  j>er- 
feclty  well,  as  a  matter  of  public  notoriety. 
The  subject  has  been  much  talkeil  of;  but 
never,  I  believe,  wilh  any  manner  of  doubt, 
in  any  company  at  all  ciiuversanl  wilh  Ihe  pas- 
sages of  tliDl  lime  in  this  town.  Tbe  niliiesses, 
however,  will  lay  these  facts  before  your  lord- 
ships; after  which.  1  suppose,  there  can  be 
no  question  whatjudgmenimusll)e  pronounced 
npoa  Ihem  :  for  your  lordships  will  hardly  view 
Ibis  act  of  parliament  just  in  Ihe  light  in  which 
the  prisoner's  counsel  hare  Ihougni  Gt  to  re- 
preieat  it,  •■  a  law  made  for  beggars,  not  lor 


659] 

pf  ople  of  f 


16  GEORGE  111. 


Trial  oflht  Diuhett  of  KingOon 


[Jflor 


To  be  tare,  th«  preiinble 
?\\iteM\j  |iroTe  Ifac  legiilature  to  Iib>« 
forneen  ur  FX|ircleit,  (b*l  ihne  would  be  [lie 
crime!  of  higher  lil»,  or  uotilcr  can Jilion-  Bi 
'  the  ad  is  frauted  to  punish  Ibe  crime,  wlifrctrr 
it  mi^hl  occur ;  anJ  Ibe  impartial  tein|>er  ul 
yoiir  justice,  ta.y  tonli,  will  out  turn  asiile  ili 
course  in  respect  to  a  noble  criminal. 

Nor  does  the  ejili  nf  ao  hrinous  a  fninil  wem 
to  he  exteniialeil,  by  rft'errln^  lo  the  advice  ol 
,  Ihute  by  uthoEc  aiJ  it  was  cntiUiicM,  or  lo  Hit 
contidenl  opinion  they  enleriuined  ol'  the  suc- 
oea*  of  their  project.  I  kunw  lliis  prnject  wat 
ant  (nur  did  I  ever  nieaa  tu  conteud  it  was)  all 
,  berowft,  rattle ularly,  iu  lUat  fraudulent  al- 
teinpl  Uiion  public  juilice,  it  could  not  be  sa. 
Sul,  my  lurdi,  that  imparlin);  a  criiiiiaal  pur- 
poae  to  ibe  necessary  instrumeitta  lur  carrying 
It  into  FXccutioD,  exlrnuiiles  the  eo'll  ot  the 
nullior,  ia  a  conceit  perfectly  new  in  ronralily, 
■nJ  more  thin  1  c 
pliea  asgraralion, 
corrupting;  tbese  ingtrumeots.  Not  thai  I  inean 
liy  this  obserratiun  to  palliate  the  guilt  nl  «uch 
corrupt  tnitrumtnti.  i  think  it  may  be  Hi, 
■nd  excee<lingly  wlioleaome,  to  convey  to 
Doctors  Commons,  that  those  among  them,  il' 
any  snch  there  are,  who,  beine  auiuainteil  with 
tlie  whole  extent  of  the  prisoner'a  purpose,  to 
fumiab  herselfwith  the  ^Ise  appearance  of  a 
■ingle  woman  in  order  to  draw  the  duke  into 
•ucn  a  marriage,  aaaisled  her  iu  executing  any 
part  uf  it,  are  lar  enongli  from  being  clear  of 
the  charge  contained  in  this  indictment.  They 
•re  acctisaties  to  her  felony ;  and  ought  to  an- 
swer for  it  accordingly.  This  is  slating  her 
case  fairly.  The  crime  was  committed  by  her, 
and  her  accomplices.  All  liid  their  slisic  iu 
the  iierpetratioD  of  the  crime :  each  is  stained 
with  the  whole  of  itie  guilt. 

My  lords,  I  proceed  to  examine  the  ivif- 
Deisei.  The  nature  of  the  case  ahuU  out  all 
contradiction  or  impeachment  of  testimony. 
It  will  be  necessary  lor  your  lurdslnps  to  pvo- 
nouDce  that  opinion  and  judgment,  wliicli  so 
plain  a  case  will  demand. 

Sol.  Gen.  My  lurd«,  we  will  now  proceed 
to  call  our  niUiess«g. — Call  Ann  Cradock. 


CI.  oflheCr.  Hearken  to  your  oath.— 
'  The  evidence  that  you  shall  give  on  hehall' 
'  of  our  sovereign  lord  the  king's  mnjesty, 
'  against  Elizabeth  ducheas-du wager  of  King- 
*  Blon,  the  prisoner  at  tbe  bur,  shall  be  the 
'truth,  tbe  whole  truih,  and  nothing  bill  the 
<  truth,  So  help  you  God.'  [Then  sTie  kissed 
■'  e  book,] 


inform  your  lordships  whether  she  has  not  bmt 
a  security  for  aoine  proviiioD,  or  benefit,  ot  ^ 
promise,  in  cunsei]ueoc«  of  the  evidence  shil 
is  to  give  on  this  iudictment  F — Craihck.  No.  ■ 
Examined  by  Mr.  SoUcilor  General. 

How  long  hare  you  been  acquainted  irU 
ibe  lady  at  the  bar? — Above  Sa  years, 

Where  did  you  first  become  accjiiHiated  «ril 
herP— 1  saw  the  lady  tirat  in  Li>ndun,  afici 
wards  at  Lainston. 

What  iiccBsioo  carrii'd  you  to  the  lady  i 
Lainstoa  f — Along  with  a  lady  that  1  served. 

Name  the  lady.— Mrs.  Haumer. 

Was  Mrs.  Huuiuer  any  relation  lo  tlie  }td 
at  the  bar?— Her  own  aunt. 

Was  the  lady  at  the  bur  at  Lainstnn  aloi^ 
with  Mrs.  Hanmerf — Not  when  I  lirst  went 
down  to  Lainston. 

Did  she  come  down  there  aflenrards  ?_ 
Ves. 

Do  you  remembtr  seeing  Mr.  Augutlua 
Hervey  there  at  ihat  time.^ — I  remember 
seeing  Mr.  Augustus  Hervey  there,  hut  nut  at 
the  time  1  first  saw  the  lady  there. 

When  did  Mr.  Uertey  come  Iheref— It  naa 
in  June,  at  the  Wiochesier  races. 

How  long  did  he  stay  there  at  that  tim«r — 
1  cannot  particularly  say  bow  long  he  luight 
slay:  he  was  coming  and  going. 

Were  you  in  Lainslon  church  with  Mr.  Her- 
Tey  and  that  lady,  at  any  time  in  liiat  s'lm- 

At  what  time  of  tbe  day  T—U  was  towatdl 
night ;  it  was  at  night,  not  Id  the  day. 

Upon  what  occasion  ? — To  see  the  marr 

Name  the  persona  who  were  presenL— 
Merrill,  Mrs.  Hauiner,  Mr.  Muunteuay, 
Uervey,  MIes  Chudleigh,  and  myself. 

Who  una  the  clergymai  "     " 
belonged  tnihe  church. 

Here  they  married  ihi 
them  married. 

Was  Ibe  manioge kept  i 

By   what  ceremony  W! 
By  the  matrimonial  ceremony  ;    by  the  C< 
mon  Prayer  Book. 

Were  you  employed  to  take  care,  Ibtt  tl 
other  servants  should  be  out  of  lbs  way  f. 

Did  they  return  lo  Mr.  Merrill's  bouse  aA 
the  marti«ge  ? — Yes,  they  did. 

How  far  is  the  church  from  the  bniuef. 
Not  a  great  distance,  but  I  cannot  say  how.fs; 
it  is  in  the  garden. 

Did  Mr.  Amis  return  with  tbe  parly  inta  ll 
house  F — Not  that  I  saw. 

Did  you  attend  on  the  laily  as  her  maid  T' 
1  did  at  that  time,  her  own  nut  U^ing  able. 

ADet  the  ceremony,  did  yuu  see  tbe 
in  bed  together  P — t  did. 

Aljird.  Itepeat whatyousaid,— CroJocifc. 
saw  them  put  lo  bed :  1  also  sun  Mrs.  HaauM 
insist  upon  their  getting  up  a^ain. 

Did  you  seeihero  tbe  next  morning? — 1  m 
then  tust  night  afterwards  in  bed,  the  mm 
night  alter  Mis,  llaauer  went  to  beil. 


—Mr.  Amis, 
ef— Yesi   I 


s  the  marrianfe  F- 


561] 


Jir  Biganuf. 


A.D.  I7t6i 


ijm 


Did  ydu  Me  them  aflerwardt  in  bed  for  eom* 
nights  tt'ter  that? — I  saw  tliem  particularij  in 
bed  the  last  Dight  Mr.  Herrey  %vbs  there,  for 
lie  was  to  set  out  in  the  morniug  at  fire  o*cloek; 
I  was  to  call  him  at  that  hour,  which  I  did  ; 
and  entering  the  cliamber,  1  found  them  both 
fast  asleep:  thej  were  very  sorry  to  take 
leave. 

Can  you  fix  what  year  this  was  P — 1  believe 
it  to  be  in  the  year  1744,  but  1  am  certain  it 
wa^  the  same  year  In  which  the  Victory  was 
It  Porttimouth.* 

Do  you  recollect  what  time  of  the  year  it 
irt»? — In  the  month  of  Auf^ust,  I  think. . 

\lhatis  your  reason  for  thinking  it  was  in 
tbe  month  of  August? — My  reason  is,  that  it 
«u  in  the  time  of  Maunhill  fair  ;  and  also  that 
tberewere  green-gap^es  ripe,  wliidi  the  lady 
and  i^entleman  were  botii  very  fond  of. 

Do  you  recollect  how  lung  it  was  after  the 
dntbof  Mr.  Merrill's  mother? — No,  1  cannot 
.    JMtly  say. 

Where  did  Rlr.  Herrey  go,  as  you  under- 
itood,  the  morning  he  went  away? — To  Ports- 
mouth. 

Did  you  understand  that  he  was  then  in  the 
leaser? ice  ? — I  did,  and<that  he  was  going  with 
1     adnira)  Darers. 

I  Hire  you  any  particular  reason  for  knowing 
1  tint  be  did  go  with  admiral  Davers  ? — ^l^be 
\  rvMoo  I  hare  to  believe  he  did  go  with  him  is, 
ibe  jwrson  whom  I  married  afterwards  was  Mr. 
Hertey's  servant. 
Wis  he  servant  to  him  at  that  time? — He 

Did  you  receive  a  letter  from  the  person  you 
afterwards  married,  who  was  Mr.  Hervey's 
Mmnt,and  attended  him  ? — 1  did,  from  Port- 
Mihoo. 

Do  yoa  know  what  relation  Mr.  Merrill  was 
totbe  lady  at  the  Imrp — Firtt'cousin. 

Who  Mas  Mr.  Mouotenay,  whom  you  men- 
taocd  as  present  at  the  murriage  ? — A  iViend  of 
^h.  Merriirs,  as  he  pretended. 

Did  he  live  i»  the  family  at  that  time  ? — He 
*u  in  the  family  at  that  time,  and  had  been 
fritin  the  time  of  the  death  of  Iuk  mother. 

Do  you  know  whether  any  other  {mrt  of  the 
ranily,  of  both  parties,  were  acquainltd  with 
^e  marriage,  except  those  |>ersons  you  have 
neatiiined  i*— No,  1  did  not  at  that  time. 

Did  tbe  lady  chan|i[e  her  name  on  the  mar- 
na^e? — Never  in  public,  to  my  knowledge. 

Had  you  occasion  after  this  to  see  the  lady 
f  inUndon? — I  saw  the  ludy  in  London  many 
i     liioes. 

Do  jon  know  whether  there  were  any  cbil- 
^retof  the  marriage? — I  believe  one. 

What  reason  have  you  for  believing  so  ?^- 
'Hte  lady  herself  told  me  so,  and  her  aunt  also, 
^hooi  1  ought  to  have  mentioned  first  The* 
■^  toM  me,  that  she  would  take  me  to  see  the 

Bid  sbt  offer  to  carry  her  aunt  as  well  as 
y*ato  see  the  diild  ?— I  do  not  know  that. 

How  king  after  tbe  marriage  was  it,  that  she 
^  yea  sIm  would  Ipke  you  to  see  the  child  ? 

VUL.  XX. 


—That  I  cannot  say,  biH  it  wu  after  Mr. 
Hervey  returned  a  second  time. 

Returned,  from  whence? — 1  beard  be  bad 
been  at  Port-Mahon. 

Do  you  recollect  how  k>ng  Mr.  Herrey  had 
been  absent  the  first  time  ? — No,  I  do  not.- 

How  long  had  he  been  alisent  the  second 
time  P — After  his  return  the  second  time,  I  be- 
lieve the  child  to  have  been  begotten. 

How  long  after  Mr.  Hervey's  second. cetnra 
was  it,  that  she  told  you  she  would  carry  you 
to  see  the  child  ? — It  was  after  his  first  return. 

A  Lard.  1  believe  there  is  some  mistake. 
Let  the  witness  explain  that. 

SoL  Gen,  Was  it  after  Mr.  ROrvey*s  first 
or  second  return,  that  the  lady  told  you  she 
would  carry  you  to  tee.the  child ?—l  believe 
tbe  first  time. 

Do  you  recollect  bow  long  that  wm  after  the 
marriage?^!  do  not  recolleci. 

When  did  you  marry  Mr.  Heney'sienrftBtP 
—The  1 1th  of  February  1759. 

Did  the  prisoner  at  the  bar  say  any  thing 
particular  to  yon  about  the  child  ? — 8he  told 
me  the  child  was  a  boy,  and  like  Mr.  Hervey. 

How  long  did  you  continue  in  the  service  of 
Mrs.  Hanmer?— -Till  she  died. 

When  did  Mrs.  Hsnmer  die  ?«-She  has  been 
dead  eleven  years  tbe  second  of  last  December. 

Had  you  any  occasion  to  know  what  became 
of  the  child,  whether  it  lived  or  died  P — I  know 
nothing  further  than  what  the  lady  said. 
When  1  expected  to  go  to  see  it,  the  lady  cume 
in  great  grief,  and  told  me  it  waa  dead. 

Have  you  any  reason  to  know  at  what  place 
the  child  was  born? — At  Chelsea,  by> reaiou 
her  mother  could  not  go  there. 

Who  informed  you  that  tbe  child  waa  born 
at  Chelsea  ? — Mrs.  Hanmer  told  me  this. 

Have  you  ever  heard  it  from  the  prisoner  P-~ 
Yes,  1  certainly  have. 

8be  said,  her  mother  coidd  not  go  there. 
What  do  you  understand  to  be  the  reason,  why 
Mrs.  Chudleigh  could  not  go  to  Chelsea?— 
By  reason  her  husband  and  aon  were  buried 
there,  aa  1  have  been  told. 

Had  you  any  conversatioii  with  tbe  prisoner, 
about  the  year  176B,  about  any  mesMge  to  be 
delivered  to  the  prisoner,  that  Mr.  Hervey  had 
givOn  to  you  ? — I  had  a  message  from  Mr. 
Hervey,  signifying  to  tlie  lady  be  was  deter- 
mined to  be  parted  ifom  her. 

Did  you  deliver  that  message? — Not  for 
some  time  after  I  received  it,  not  being  aUe. 

When  did  yoti  deliver  it  ?«-On  iiaturdty 
morning,  wheu  the  lady  came  up  to  me,  and 
told  me,  that  abe  knew  what  had  been  the  mat- 
ter with  me.  I  told  her  Mr.  Herrey  desired 
me  to  let  her  know,  that  he  was  determined  to' 
bff,  I  shoo  Id  have  aakl  divorced,  hot  I  aaid 
parted  ;  and  also,  that  be  desired  me  to  tell  the 
lady,  she  had  it  in  ber  own  power  to  asfist  him. 
I  delivered  the  meMSge,  alid  the  laily  replied, 
was  ahe  to  make  herself  a  whore  to  oUtge  tiim  P 

Did  she  appear  to  be  with  child  belbre  this 
conversation  with  yon?— 8hc  did  appear  to 
to  be. 

90 


i 


SaSi  I«  OEOBGE  Ur. 

What  pirilb  u  Hr.  Merrilt'a  liouse  in  t — I 
*"'"-e  JD  St.  George's:  liis  hsme  at  IdinstDo 
irkhoriUeir. 


Are  tbcre  *ny  other  hotwei  In  the  parish  bS' 
Mm  Mr.  HerriH'af— Not  U  Lauulon,  there 
fattot. 
_  Wm  Acre  wnice  regaUrly  tu    Lainstoa 
rdid  ihe  family  go  tn  any  other 


SeiUiter  Central.  Uy  lordi,  ne  have  no 
UWre  quealiiKK  to  uk  this  iTitaen  at  present. 

Lord  Sigh  Sltaard.  The  couuid  for  (he 
prtaoner  are  at  liberty  to  ask  Ihe  wiiaesa  any 
^ueatJDDB  lh«y  think  proper. 

Exusined  by  Hr.  Wallace. 

Have  you  not  declared  toaome  perioni,  that 
you  bad  bd  expectBtinn  of  Mma  (irofUion  or 
mefit  on  the  event  of  Ibia  proiecutioDr— I 
OCTcr  could  declare  1  had  any  lbiD)|  priimiaed 
me  by  any  body. 

Expectation  of  proiiaion  from  the  peraoni 
thai  proteculeF — Ineierhail;  I  know  none  of 
the  family. 

Where  have  you  liwl  for  this  monlii,  nr 
two,  or  three? — 1  hais  lived  at  ftlr.  B«su- 
water'8. 

What  is  the  reason  of  your  baving'  your  re- 
MdcDce  theref — In  regaid  to  hlii  l&dy  beiagu 
relation  to  Mr.  and  Mrs.  lialhurel. 

Had  your  reaidence  tliert^  any  relaiion  to 
tbi*  prosecuuoaf — Itis  unknown  to  me,  if  it 

What  hiTe  you  to  do  wilh  Mr.  Balburet?— 
Mrs.  Batburat  \*  ao  kiuj  an  to  have  uie  ibere, 
an  braair  a  aerrant  to  her  aunt  from  my  chilU- 
bwod. 

■  low  long  hare  you  been  at  Mr.  Brati- 
Wiler'a?— I  am  sure  I  cannot  juajly  say  ibc 
e  tliere. 
[  belbre  tlii*  prosecution  was  com- 
mcnceil? — I  can't  letl  whca  Icanielhcte;  I 
un'l  tell  bun'  long  I  havelieeu  there. 

I  do  not  meaii  that  you  should  aitiwer  to  a 
4t),  hut  according' lo  the  beat  of  your  uiemiiry. 
—About  four  EOODtba,  I  fancy. 

Was  il  before  or  atnce  you  appeared  before 
Um  graod  jury  ? — Since  I  appewed  befote  the 
ftittd  jury. 

Do  you  know  who  i«  tlie  proseculur  of  ibis 
iadictment.'i— Mr.  Meadnna,  ]  iiuaKiue. 

Doy«akiio«>  Mr  Meadows? — I  liaveseen 
hi*  tHiM  «r  three  (iuief  ia  luy  life,  aud  that  is 


Tri<d  of  ike  Duekm  oj  KingttoHt  [564 

offers  made  me  frooi  the  pro- 

1  hare  jual  now  add, 


day  when  I  c 


■  over? — 'tbt 


Aie  you  to  alay  at  Mr.  Beauwaler'i 
return,  when  Ibis  ptiiseculiou  in  aver! 
hat  home  1  bad  ia  at  Laiosloo,  where  I 
■pay  reiuru  again.    1  weu  dowu  there 
yUkI  trBEalwelfemoiith. 
.  Have  you  never  declared  lo  any  bndy, 
p>a  had  an  etpMlalion  of  mote  iiroviaiau  trtm 
the  Willie  Dotv  id  haqd?— I  (Oi      sot 


it,  as  I  bail  a 
secular. 

Have  you  declared  it? 
t  could  out. 

Would  you  be  underaiood,  that  yoa  hai* 
notf— What  was  I  to  declare? 

Whether  you  have  not  decbu'ed,  whether 
(rue  or  fiiisc  I  do  not  care,  that  you  had  so  n- 
pectalion  of  some  provisiiin  from  this  prosecv- 
lion  ? — I  could  nui  declare  it,  before  it  iru 
naade  to  nie. 

You  roust  say  whether  you  did  aay  ao  ot 
not. — I  neier  liad  any  offer  from  the  proie- 

Had  not  TOU  an  expectation  from  the  pme- 
culion? — NX  1  could  uotsay  ibaf,  when  they 
□ever  ofli^red  ia  me. 

Do  ^ou  underalBod  the  question  generally, 
urcunfiiieJ  to  ibe  proseculur? — Itbinkilcu 
be  coofuied  lo  annc  but  bimceif. 

Have  yuu  any  expeclutiuu  from  any  body 
elsei"— No,  mine. 

Nor  ever  declared  so?— No.  i  nevet  de- 
clared Ibat  1  bod  uny  such  eipeciationa. 

At  what  lime  o(  the  uight  was  ibii  nir- 
riage? — 1  cannot  poisibly  tell  Ibc  hnur;  it  WW 

Have  not  you  meulinned  lo  any  hody  smm 
hour  of  the  night  ?— I  ilu  unt  know  thai  1  bate 
menlioaed  it,  any  farlbtr  lliuu  iliat  it  wat  U 
night. 

Ydu  have  said,  that  you  were  employed  W 


uay  a 


Il  alter 
clear; 


buiv  came  you  (lien  lu  i;o  lu  lli 
was  employed  tu  conie  out  of  tbe  cli 
ibe  marriage,  audseeihat  ibe  buuse 
alter  tlie  marriage,  and  nut  brl(>re. 

Was  there  any  care  taken  befure  they  wHl 
lu  cburcli  ? — No,  I  iln  nol  kimw  thai  there  wti. 
Mr.  and  Mrs.  Merrill  dined  out  Ibat  duy.aud  ■ 
do  not  know  that  any  of  the  liuuse  knew  ihit 
lliere  hbs  to  be  a  inarriDKc. 

Are  you  sure  (but  Mr.  and  Mrs.  UrrriU 
dioed  out  thai  day  ? — Yes. 

When  did  Mrs.  Merrill  die?— I  do  nolkDOW, 
Mrs.  Hanmer  it  tvus  ;  there  h  as  du  Mrs.  M"- 
rill  at  thai  time. 

Then  by  Mrs.  .^Icrrill  ynu  moot  Mrs.  Hui- 
mer,  did  you ?— Cei tuinly  I  did  mean  .M«- 
Hanmer,  tur  there  was  nu  Mra.  Merrill. 

Were  you  desired  to  tjo  In  the  cburcb  ?.— I 
don't  know  wbeibfr  1  uiisi  de»ii'ed  to  pi,  but 
lliere  1  was  ;  ibal  1  reciillect. 

Did  you  go  as  a  uitness,  ur  nut  ofcurinailjr  ' 
— [  was  there  to  see  ihe  uiarriBiie.  At  tu  wil- 
neis,  I  was  luit  called  tu  he  a  wiluess. 

Did  any  of  (he  parlies  know  you  were  in  lb* 
church? — Those    that   were    iu   the    church 

Did  yon  hear  the  ceremony  perfomad  t"^ 
id. 

Did  you  hear  (he  whole  ceremony  ? — I  t** 
eveao:  certainly.  ..     ' 

HMa  awuf  oM  aaidt  yoa  did  net  bnr  4 

■'-    tii,«d«- 


HMa  awufoot  aaid, 
(bit  I  lhn*iii|iiir<  JM.  tbit 


w 


for  JBigamtf. 

?— Certainly  I  do,  for  1  know  whc 
ftsked  or  not. 

^-did  Mr.  Heirey  stay  there  after 
(re  ? — ]  really  cannot  say  how  many 
vaa  not  long  there. 
I  that  Mrs.  Hanmer  made  them  ^ei 
er  they  went  to  hed ;  how  lonflf  did 
mer  sit  up  after  that?— 1  cannot 
how  many  hours  ;  I  can't  say 
might  have  been  one,  or  two,  or 

Mrs.  Hanmer's  custom  to  lock  the 
c  Mils  Chudleigh  lay  ?— 1  never 
die  did  lock  the  door  at  all. 
'  body  by  her  order? — Not  to  my 
:  I  never  knew  the  door  ordered  to 
ly  any  body,  nor  by  myself  neither : 
I  never  locite^l  it. 

sure  the  door  was  never  locked  then, 

Ilervey  went  out,  when  he  was 

et  up  and  leave  the  room  as  you 

—Went  out  where  ?  I  don't  under- 

re  said,  he  was  made  to  qret  up  again. 
Iiest  of  my  knowledge,  the  lady  got 
well  as  Mr.  Hervey. 
Ih  left  tlie  room  ?— 1  believe  they 
le  room,  I  know  nothing  to  the  con- 
;  1  know  they  afterwards  went  to  bed 

lu  not  declared,  you  knew  nothing  of 

age?— No,  never  in  my  life,  to  my 

* 

»u  did  not  remember  any  thing  about 

very  odd  that  I  can  remember  it  now, 

J  not  have  remembered  it  before ;  1 

I  in  my  memory. 

lot  yon  declared  ihat  you  did  not  re- 
p—No, not  that  I  know  of. 
you  will  give  a  posiiive  answer,  yes 

jlher  you  have  or  not  have  declared  it? 

could  have  declared  that  which  I  did 

m  did  not  remember  any  thing  about 

1  never  could  say  that. 

a  or  did  you  not  say  so  ? — No,  1  did 


the  Earl  of  Buckinghamthire, 

t  pot  one  question  to  the  witness.  You 
X  you  speak  not  only  in  the  presence 
ipectable  court,  but  m  the  presence  of 
God  .^— Yes. 

rou,  or  have  you  not,  ever  declared 
did  expect  an  advantage  from  the  pru- 
say  aye,  or  no. — i  must  say  no :    I 
aay  aye. 

ive  told  us,  that  Mr.  Merrill  and  Mrs. 
went  out  to  dinner  the  day  on  which 
■g«  was  performed ;  1  shoald  be  fflad 
at  what  time  Mr.  Merrill  and  Mrs. 
Tdomcd  home  ?— 1  believe  it  might 
n  seven  and  eight  o'clock,  as  I  bad 
I  eat  of  the  housekeeper's  room  to  the 
mwui  lady  by  candle-light. 
day  of  Ow  noDth  was  itf^Tbat  I 

ib«i    Ml 


A.  D.  1776t 


[566 


By  the  Duke  of  Grafian. 

Did  you  ever  see  the  child,  that  the  ladv  at 
the  bar  offered  to  carry  you  to  see  f— No,  I 
never  did. 

What  was  the  interval  of  time  between  the 
otfer  to  carry  you  to  see  the  child,  and  the 
death  of  that  child  ?— That  1  cannot  jastly  say 
neither ;  but  as  far  as  I  can  remember,  the 
day  that  1  was  to  go  to  see  thcf  child,  the  lady 
came  and  said  it  was  dead. 

Though  you  cannot  exactly  recollect  the  in'* 
tenral  between  tlie  oue  transaction  and  the 
other,  yet  still  vou  may  speak  at  large.  Was 
it  a  week  ?  Was  it  a  month  ?  Was  it  half  a 
year  ?— It  was  not  a  month,  nor  yet  half  a  year. 

Were  there  a  few  days  interval  between  the 
one  and  the  other  ?— There  was,  but  1  cannot 
say  how  many  days. 

Did  yon,  in  the  spaoe  of  these  few  days, 
ever  express  to  the  lady  at  the  bar  your  ear- 
nestness and  desire  to  see  the  cbiW,  which  vo«l 
say  the  lady  at  the  bar  told  yon  was  so  like  Mr. 
Hervey?- 1  expressed  my  desire  at  the  time, 
when  the  lady  spoke  of  the  child  to  her  aunt. 

What  was  the  answer  that  you  had  for  not 
carr}'ing  you  immediately  to  the  child  f — ^The 
lady  told  me,  she  would  come  on  such  a  day 
with  the  princess's  coach,  and  that  1  should  gd 
and  see  the  child.  .    .     .    > 

Were  you  examined  by  the  Ecclcsiaslical 

Court? — I  was  not. 

Did  you  know  at  the  time,  that  there  was 
such  a  process  going  on  there  ? — I  was  told  by 
Mr.  Ilervey  there  was. 

Did  you  offer  to  Mr.  Hervey,  or  to  any  other 
of  the  parties,  to  give  that  evidence  which  you 
now  have  proved  it  was  nuiterial  to  givef--He 
told  me,  he  must  call  upon  me  to  assist  him  m 
his  marriage. 

Did  any  thing  else  pass  relatiTC  to  the  pro- 
cess in  Doctors  Commons,  alter  Mr.  Hervey  a 
conversation  with  you  ? — Yes,  there  certaiolj 
was,  though  I  never,  was  called. 

Did  any  thing  pass  between  Mr.  Hervey 
and  you,  or  between  any  of  the  parties  and 
you,  after  that  declaration  of  Mr.  Hervey's  to 
you?— I  was  to  acquaint  the  lady  wilh  hia 

intentions. 

You  said  you  were  to  remove  the  sermnU 
out  of  the  way  at  Mr.  Merrill's  house  at  the 
time  of  the  marriage:  how  many  servaiUa 
might  there  be  about  Mr.  Merriirs  liouse  at  the 
time  of  the  marriage  ?— The  butler ;  a  maid, 
who  waited  on  MissMerrill;  two  house-matds  t 
a  laundry- maid:  one  of  the  house- naaida  be- 
longed to  Mrs.  Hanmer,  who  always  went 
down  along  with  her,  and  there  was  a  kitchen- 

Were  there  any  liffhto  in  the  church  at  the 
time  of  the  cerenaony  being  performed  ?--There 
was  a  wax  light  in  the  crown  of  Mr.  Moun- 
tenay'shat. 

Lord  Tamruhoid.  Whether  ahe  has  ever  re- 
eeived  or  been  offored  any  thing  to  with- bold 
her  evidence  relauve  to  the  supposed  mar- 
Tiage  r— ^im  CraiMt.  I  nei cr  lia««. 


If, 


667] 


IS  6E0E0E  m. 


Trial  of  ike  Duchess  of  Kingston, 


[SGf 


n    T  -J  zr-ff  r         l  I  appreliciided  it  mieht  be  sometbiiMT  coBoeniiui 

Bj  Lord  HifUbonmgh.  |  ^^  |^„^,  ^^„^j  ^^p^^  j^^  p^j^^  ^  ^^^  j^^ 

Did  you  ever  receive  any  letter,  ofleriog  you  ,  think  1  loUt  him,  that  1  had  once  been  lok 


any  advantage  in  case  yon  would  appear  ag^ainst 
the  prisoner,  before  you  v^ere  aubpotoaed  at 
Hicks'a-ball  ? — I  received  a  letter  from  a  friend, 
wherein  I  was  told,  that  a  gentleman  of  tiieir 
acquaintance  would  get  rue  a  sinecure,  but  on 
wbat  account  1  knew  not. 

A  gentleman  of  whoae  acquaintance? — I  do 
not  know  who  the  gentleman  was  ;  it  never 
was  explained  to  me  who  the  gentleman  was ; 
Dor  I  never  asked. 

Who  was  the  friend  who  wrote  that  letter  to 
you? — Mr.  Fozard  of  Piccadilly. 

Wbat  answer  did  you  make  to  that  letter  ? — 
1  made  no  answer  any  further,  but  that  it  was 
Tery  kind  in  any  body  that  would  assbt  me  in 
getting  me  ^ny  thing. 

Who  is  Mr.  Fozard  ?^A  person  that  lives 
near  Hyde- park-corner,  and  keeps  livery- 
stables. 

You  say  be  wrote  you  word,  that  some  of 
their  friends  would  get  you  a  sinecure  ?— -1 
aaid,  a  gentleman  of  their  acquaintance. 

Of  whose  acquaintance  ? — Mr.  Fozard*s. 

Upon  what  account  did  you  conceive  or 
understand  that  he.was  to  get  you  a  sinecure? 
—That  I  cannot  tell. 

What  have  you  done  with  the  letter  ? — I  do 
not  know  where  the  letter  is ;  I  know  I  have 
it  not. 

Wiil  you  take  upon  you  to  say,  that  there 
was  not  iu  that  letter  an  expression  intimating, 
that  if  you  would  appear  against  the  prisoner 
at  the  bar,  a  sinecure  would  be  gotten  for 
you  ?— I  certaini  V  do  say,  there  was  no  snch 
expression  in  the  letter ;  only  a  friend  of  theirs, 
or  a  gentleman  of  their  acquaintance,  I  do  not 
know  which,  would  get  me  a  sine  cure. 

Did  you,  or  did  you  not,  hy  virtue  of  your 
oatb,  understand  tliat  that  was  to  be  tlic  con- 
sequence of  your  appearing  against  the  pri- 
soner at  the  bar?— I  did  not  know  that  that  was 
to  be  tlie  consequence  of  my  appearincif.  I  had 
no  room  to  imagine  so,  because  I  know  not 
the  person  of  the  prosecutor,  nor  none  of  his 
family. 

Did  you  advise  with  any  boily  concerning 
wbat  you  should  do  with  regard  to  that  letter  ? 
—I  certaini}'  did  apply  to  a  friend,  and  ac- 
quainted him  I  had  received  such  a  letter. 

Wbat  did  you  write  to  your  friend  ? — 1  never 
writ  to  any  friend ;  1  applied  to  a  friend,  and 
shewed  the  letter. 

Whether  you  did  not  a&k  advice  from  some 
body,  what  you  should  do  with  refrard  to  that 
letter? — 1  did  not  ask  any  body  what  1  vi'as  to 
do  with  it ;  I  received  it. 

What  did  you  consult  that  friend  about  ? — 
Tb  let  him  know  1  bad  received  surh  a  letter ; 
but  1  did  not  know  what  it  mi^jit  be  upon,  or 
wbat  it  might  not 

Did  he  read  the  letter?— Yes. 

Wbat  floovarsation  passed  between  you  ami 
him  o»  the  inlgect  of  the  letter  ?— I  toM  bim,  I 
did  not kiMir  Whit k mifftiK bi ftovi  bot thill 


that  I  might  have  the  same  settled  upon  me  a 
the  lady  promised  me  when  I  went  into  tb 
country. 

What  reason  had  you  fur  thinking  so  ? — ^Th 
reason  I  had  for  thinking  so,  was,  because 
had  been  told  once,  that  I  might  have  the  san 
gfiveu  me  that  the  lady  at  the  bar  offered  iw 
when  I  tvas  to  go  into  the  country,  it'  I  woul 
speak  the  truth ;  but  by  whom  I  know  not : 
never  asked  the  question. 

I  desire  to  know,  what  you  did  with  that  lei 
ter,  whether  you  put  it  into  the  hands  of  tfa 
person  whom  you  consulted?-*?  put  it  into  n 
one's  hands ;  the  person  had  the  letter  I  coi 
suited. 

You  put  it  into  that  person's  hand  to  read  il 
— I  gave  the  letter  into  that  person's  hand 
read  it,  and  told  him,  he  might  shew  it  to  M 
Hervey,  if  he  would. 

For  what  purpose  did  you  desire  it  might  I 
shewn  to  Mr.  Hrrvey  ? — For  this  pur|»ose,  l» 
lieving  it  might  be  against  hiiu  and  the  ladv 
but  by  whom  1  know  not,  for  I  never  asked  U 
question,  who  it  was  that  was  to  give  it. 

Did  you  desire  your  friend  to  »hew  it  to  tli 
prisoner  at  the  bar  ? — That  was  impossible,  fc 
the  lady  was  not  in  England. 

Did  yon  then  desire  him  to  shew  it  to  an; 
body  oil  her  pan  ? — 1  shouhl  look  i\\wn  it,  if  i 
was  shewn  to  Mr.  ilervey,  it  would  be  on  he 
part,  as  being  man  and  wife. 

\V  hether  you  desireil  it  to  be  shewn  to  aaj 
body  else?-r-No,   not  besides  Mr.  Hervey. 

[^Adjourned 

Fourth  Day. 

Saturday y  April  20. 

Ann  Cradoek's  examination  continued. 

Lord  Billtboroush,  I  was  exceedingly- gb 
the  House  was  a«tjMiiriied,  but  I  %«ould  muc 
rather  it  had  been  ailjounipd  sooner,  because 
now  lie  under  a  t^ood  deal  nt'ditiirulty  to  resum 
the  thrcHd  of  those  questions,  that  for  my  ow 
information,  and  for  that  of  the  House, 
thought  hi^^hly  proper  and  necessary  to  lie  e] 
Illicitly  and  exncd}'  answered.  My  lords, 
think  the  last  question  that  I  put  to  the  witne 
at  the  bar,  was,  v%  hether  siie  had  put  thatlette 
Mhich  she  said  was  signed  by  Fozard,  into  tl 
hand  of  any  other  person  ?  If  I  do  not  mistak 
my  lords,  she  said,  she  bad  put  it  into  the  has 
of  a  friend  of  hers  m  read.  U|ion  asking  he 
whether  she  hail  any  other  intention  than  lb: 
of  puttin;*^  the  letter  into  his  hand  ?  I  think  si 
mid,  she  loUl  the  |>crson  he  might  shew  tl 
letter  to  Mr.  Hervey,  as  hhe  appreheudeil  it  r 
latiMl  to  him.  Mow  I  desire  to  ask  the  evidcn 
at  the  bar,  whether  she  knows,  that  her  friai 
did  shew  that  Utter  to  Mr.  Hervey  or  aotf- 
Ann  Cradock,  My  friend  did  shew  il  lo%li 
Hervey. 

Did  your  friend  tell  you  what  Mr. 


669] 


far  Bigamy* 


I 


'•! 


i 


•aid  conceniinfr  the  letter? — My  friend  told  | 
mr,  tbat  he  desired  I  should  keep  the  letter. 

Do  yoa  mean  Mr.  Hervey  or  the  friend  de- 
sired yoa  to  keep  the  letter?—!  mean,  the 
answer,  that  was  iriven  upon  the  letter  beings 
ibewp,  was  brought  by  my  friend,  and  BIr. 
Herrey  desired  ine  to  keep  the  letter. 

Did  your  friend,  who  carried  the  letter  from 
yoa  to  Mr.  Henrey,  say  any  thinir  more  to  vou, 
iban  tbat  Mr.  Hervey  desired  yon  should  keep 
the  letter  ?— He  told  melhat  Tshuuld  acquaint 
the  lady  tliat  was  abroad  with  it. 

Did  you  acquaint  tlie  lady  that  was  abroad 
with  il  ? — I  had  it  not  in  my  power  so  to  do. 

Did  you  acquaint  any  body  else  with  it? — I 
did  several  of  my  acquaintance. 

In  particular,  did  yon  acquaint  any  liody 
that  was  concerned  in  business  lor  the  lady  ? 
-No. 

I  desire  to  know,  whether  yon  did  by  your- 
wlf,  or  by  any  body  else  for  you,  make  any 
Uiwer  whatever  tu  the  letter  to  Mr.  Fozard  ? 
^I  went  to  Mr.  Fozard  when  1  received  the 
Wtler,  aa  in  the  letter  it  was  required  to  know 
BT  af(e,  and  where  I  was  born. 

I  desire  you  will  inform  their  lordships  of  the 
whole  of  what  passed  between  Mr.  Fozard  and 
YOU  St  that  interview  ? — Nothing  in  particular, 
nurther  than  relating  to  where  J  was  born,  and 
nv  a((e ;  my  af^e  J  did  not  know.  1  did  not 
tik  who  was  to  (five  me  the  sinecure. 

Did  you  not  think  it  extraordinary,  that  Mr. 
Fozard  should  enquire  of  you  your  a^e,  and 
wbtreyou  were  born  ? — I  certainly  did  think  it 
citrBorilinary. 

Whether  yoa  did  not  ask  the  meaning  of  it  ? 
—1  did  not  ask  any  meaning  for  it. 

By  Lord  Derby. 

You  said  yefsterdny,  that  you  did  expect  to 
recfive  someihinif  adequate  to  what  you  had 
received  from  the  prisoner  at  the  bar :  what 
did  yoa  formerly  reciMve  from  the  prisoner  at 
the  bar  ? — Many  favours  in  friendship,  bat  not 
aay  thin;^  in  particuLir. 

Wbat  were  you  ottered  by  the  lady  ? — Twenty 
irsineas  a-year,  to  ^o  and  settle  in  the  country, 
and  the  choice  of  three  different  counties. 

At  what  time  was  that  oflier  made  to  you  ? — 
The  lime  I  cannot  justly  remember. 

Itecollect ;  how  many  years  was  it  ago  ? — I 
believe  it  may  be  three  years  ago,  or  four,  1  am 
■ot  certain. 

What  was  your  answer  to  that  proposal  ? — It 
■•de  me  very  unhappy  to  think  that  1  wm  to 
be  banished,  tnit  1  consented  to  go  into  York- 
•Ure. 

What  were  the  counties  that  were  propote<l 
i»  yoQ  P-— Yorkshire,  Derbyshire,  1  think,  and 
MtrthmiiberiaDd. 

lo  oonsfqnence  of  that  consent  to  go  into 
Ttrfciliife,  did  yoa  cro  into  Yorkshire  ? — No,  f 
dU  HI  7  1  went  to  Thoresby :  I  tried,  bul  I 
•nM  go  BO  further. 

Wlitl  wM  the  reoaoD  that  you  cooM  go  no 
fcttbcr?— From  being  unhappy,  and  going 
^     in  mjr  friendf. 


A.  D.  177«.  [570 

Did  yon  receive  any  aum  of  money  in  conae- 
qnence  of  going  as  far  aa  Thoresby  P— None, 
no  further  than  was  to  carry  me  to  the  place 
where  I  said  I  was  to  go. 

You  mentiooed  an  annuity  of  twenty  guinarii 
a-year ;  has  thai  annuity  been  paid,  or  liave 
you  received  any  piart  of  il  since  that  igran- 
ment? — No. 

Lord  CcnoMntry.  You  snid  yon  were  present 
at  the  marriage  in  1744;  I  desire  to  know 
whether  you  have  ever  communicated  tbat  in- 
formation to  any  person  till  this  year,  and  to 
whom  ? — Ann  Cradock.  I  have  several  times 
to  many,  but  to  particular  persons  I  cannol 
speak.  * 

Lord  Derhif,  I  should  be  glad  to  know  whe- 
ther you  do  understand,  or  do  not  understanit, 
that  any  sum  or  sums  were  ever  paid  to  an^ 
person  tor  your  subsistence  and  board,  Od  the 
l>art  of  the  prisoner  at  the  bar?— Jim  Cro- 
dock.  No,  1  do  not  know  tbat  ever  any  ium  wan 
paid  upon  my  account. 

Lord  Buckinghamshire.  T  desire  to  isk  the 
witness,  whethprsheatany  time  did  receive  any 
present  whatever  from  the  prisoner  at  the  bar  r 
— Ann  Cradock.  Several  m  point  of  frienif- 
ship. 

Lord  Townshcnd.  Were  you  ever  off'ered  any 
sum  of  money  at  any  time,  to  conceal  any 
evidence  ? — Anii  Cradock,  No. 

I/onI  Towmhend.  By  either  aide  ?«— ^nm 
Cradock.  No. 

By  Lord  Camden, 

I  desire  to  know  whether  you  law  the  hAt 
at  Thoresby,  in  the  way  to   Yorkshire?— I' 
was  in  the  lady's  house,  and  saw  her  several 
times. 

In  any  of  those  interviews,  did  any  thing  past 
res|>ecting  the  annuity  of  twenty  guineas  a* 
year,  and  the  journey  you  U-erelhen  making  to 
Yorkshire  ? — No,  not  any  thing  in  particular 
as  to  that 

What  was  the  reason  of  your  return  from 
Thoresby,  and  not  going  to  your  journey'a 
end? — My  reason  tvas,  from  my  ill  atate  of 
health,  and  unhappiness  of  mind. 

Lord  Lyttelton.  Did  the  lady  explain  to  yoa 
what  were  her  motives  for  sending;  yon,  or,  as 
you  called  :t,  banishing  you,  into  lliose  dist^ 
counties?— ylin  Cradock.  No,  my  lords. 

J^rd  Derhi/.  What  did  you  apprehend  to  be 
the  lady's  motives  for  such  a  proposal?-- <-JnJi 
Cradock.  Timt  1  was  ever  at  a  loss  to  know,  be* 
cause  1  never  asked. 

By  the  Duke  ofAneatUr, 

Did  you  consn't  a  friend  on  ecootmt  of  the 
substeuce  of  Mr.  Fozard *8  letter  ?— 1  did. 

I  desire  you  to  tell  the  House,  who  that  friend 
was?— My  friend  wm  Dr.  Hosaack,  wbo  m 
phvsictan  of  Greenwich  hospital. 

What  is  become  of  that  letter,  or  bava  yoa 
it  ?— 1  have  it  not ;  bat  it  is  in  my  box,  I  be« 
lieve  at  Lainston,  as  I  carried  it  with  me  when 
1  went  there  with  my  otfter  tfauigf. 


171]  16  GEORGE  in. 

Bj  the  DoVe  of  Rickmomd. 

Wts  not  the  marriage  to  be  kept  a  secret  f — 
Yet. 

If  daring  the  lime  the  imrriaffe  was  to  be 
kept  a  secret,  ao^^  person  had  asked  yoo  about 
the  marriage,  would  you  hate  owned  it,  or  de« 
Died  it  ?— 1  never  from  the  time  divulged  the 
secret,  until  it  bad  been  told  before. 

Did  no  person,  during  the  time  it  was  a  se- 
cret, ever  ask  vou  if  you  knew  it?— Several 
haTe  asked  me,  but  I  have  always  replied.  No. 

By  the  Lord  President, 

Do  yoo  not  know,  that  your  hnsband  was 
examined  in  the  Spiritual  Court,  in  the  ^pse  of 
jactitation  P — 1  know  he  was  called  upon  in  the 
Court,  bnt  what  passed  I  am  an  utter  stranger 
to,  as  1  never  asked. 

Had  not  Mr.  Hervey  intimated  to  yon,  that 
jon  were  to  be  called  upon  on  that  occasion  ? 
.  —He  did. 

After  that  did  you  hear  any  thing  from  Bf  r. 
BerveVi  respecting  yonr  attendance  in  that 
cause  r— Mr.  Hervey  told  me,  he  must  call 
upon  me  to  assist  him  in  the  marriage,  and  to 
fWeartoMrs.  Hanmer's  hand-writinp. 

Were  you  ever  called  upon  that  occasion  ?-*! 
was  not. 

By  Lord  Derby. 

Did  you  live  with  Mrs.  Hanmer  until  the 
time  of  her  death  ? — 1  did  ^ 

Which  happened  eleven  yeors  ago  the  9d  of 
last  Decenilier  ? — Yes. 

Upon  what  have  you  sulMiisted  since  thst 
tiose  ?— Mrs.  Hanmer  left  me  200/. ;  one  was 
taken  up,  the  oiher  was  left:  1  quitted  the 
lady^  house,  and  went  to  Newington.  J 
should  have  told  you  that  the  200/.  were  in 
this  lady*s  hands  [pointinfi:  to  the  Duchess]  ; 
one  waa  taken  up,  and  the  other,  with  my  hus- 
band's income,  supported  me  whiUt  lie  lived. 

How  do  yon  know  thst  thst  200/.  was  left 
you  by  Mrs.  Hanmer? — It  was  lelt  nie  in  lier 
will. 

By  the  Duke  o^Ancasler, 

Do  yon  of  your  own  knowleilge  assert  that 
therewas  a  child  f — I  do  assert  1  was  told  ao.  I 
never  saw  the  child. 

Who  told  you  so  ? — Mrs.  Hanmer  told  me 
BO,  and  the  iaily  told  me  at  our  return  out  of 
the  country. 

Who  told  yon  there  wna  a  child?— Tliis 
lady  at  the  bar  told  me  so  lierself.    Both  told 


Trial  q^ihe  Dvc/tess  ofKingsiofif  \ 


Do  you  from  your  own  knowledge,  affirm, 
that  that  child  is  dead  ?— The  lady  at  the  bar 
told  me  ic  was  dead,  as  she  told  ine  before  she 
would  take  me  to  see  it. 

Did  the  lady  at  the  bar  bring  the  prinress  of 
Wales's  coach,  and  carry  you  to  see  tlie  chiM 
at  Chelsea?— The  lady  told  me  she  wouM 
eome  m  the  prinoeM'a  coach,  and  carry  me  to 

By  Lord  JU^aor. 
How  old  te  jni  sfprrhcad  tbf  diiU  waiat 


the  time  of  its  deatli  ? — ^That  I  can  give  w 
count  of :  it  was  very  young ;  but  tlia  i 
know  not. 

Weeks,  montlis,  or  years  ?— Mootba,  bv 
years. 

Did  you  ever  hear  that  the  child  wa^ 
tised  r— I  did  bear  that  the  child  waa 
tiled ;  but  Mrs.  Hanmer  and  I  were  ia 
country  at  that  time. 

Did  you  ever  hear  what  the  child's  i 
was  ? — No,  I  cannot  recollect  that  I  did. 

Did  you  ever  hear  where  the  chiM 
bnried.' — I  did    hear  that   it  was   burie 
Chelsea. 

Who  told  you  so  ?— The  lady  at  the  bar 
me  so  herself  one  day,  when  I  waa  airin; 
the  coach  with  her  that  way. 

By  Lord  Fortescue. 

How   have  you  suliaiited  since  yonr  I 
band's  death?— With  what   1    made  of 
furniture  which  was  in  my  house,  which 
all  new. 

How  long  is  it  since  your  husband  died 
Five  yeara  last  March.  [Ordered  to  wiihdr 

L.  H,  5.  Who  doyou  call  next,  Mr.Solic 
General  ? 

Sot.  Gen.  We  desire  to  call  Mr.  Ca 
Hawkins. 

Mr.  Cdtsar  Hawkins  sworn. 

Examined  hy  Mr.  Dunning. 

Mr.  Hawkins,  are  you  acquainted  with 
lady  at  the  bar  ?  and  how  long  have  you  b 
so? — A  great  many  years:    I  believe  ab 
thirty. 

Are  yon  acqnainted  fiitli  the  present  I 
Bristol  Y  and  how  Ion;;:  have  you  i>een  so  f- 
have  hnd  the  honour  of  knowing  the  earl 
Bristol  nearly  89  man}'  years. 

l>o  von  know  of  anv  intercourse  betwi 
my  lord  Bristol  and  the  latly  ot  the  bar 
Of  an  intercourse  certainly  ;  uf  acquaintai 
uodouhtedlv. 

Do  you  Know  from  the  parties  of  any  id 
ria^e  between  them  ?  —Mr.  Hutckins.  J  ilo 
know  how  far  any  thing  that  has  come  bef 
me  in  a  confidential  trust  in  my  pmfesi 
should  he  di<(closed,  consistent  with  my  prul 
sional  honour.*  [Question  and  answer 
peated.] 

Mr.  Diinninfr.  I  trust  your  lordships  ^ 
see  nothiog  in  my  question,  that  can  \wi 
confidential  trust,  or  dishonor  Mr.  Hawkint 
frivini;  it.  My  question  is  simply,  whether  I 
i  Hawkins  knows,  from  the  parties,  of  any  on 
riage  between  them  P 

Lmrd  High  Sieward.  The  question  that  ^ 
asked  by  the  counsel  at  the  bar,  is,  ^'  W 
tber  the  witness  knew,  from  any  informat 
of  either  of  the  two  parties,  that  they  w 
married?"  The  witness  objects  to  it,  wlwll 
he  ia  to  answer  any  questions  that  are  ine 

•  Sea  Leach's  Hawkioa'a  Plc«  of  ' 
CrowBi  book  9,  e.  46,  s.  99. 


cuiie  liimf«ir  train 
I,  uadelihe 
lenl,  he  will  submil 
save  yuur  lunlghiii* 
-  ■'  -u  loni  lilt. 


^^^^^F  ,  Jbr  Bigamy. 

hfeM  Wilb  bb  pmreuional  liDnvr.  Your  lonl- 
oliqia  kre  tu  ilet«rnitn»,  nlirllirr  ibe  qacstiou 
puibjr  the ooqumI  at  llir  h<f  slmll  heMkeilf 

Lonl  Mttmfuld.  i  su[i|>use  Mr.  Unwkini 
Binna  to  demur  li>  ilie  queslioii  U|kiii  the 
Kroaiid,  ihel  il  ciiue  lu  hia  kiiuwleJgi:  tame 

•nxy  Utaa  hia  beiti^  einplnyril  ««  «  surgeon  Ibr 

M*  or  both  of  the  jiiriic* ;    mil   I  lake  I'nr 

)(ttnlad,  ir  Mr.   HuwkiiiB  untler*luuil»  tlint 

Hfeiir  lordaypa'u|Uiiiuii,ili 

lege  uo  that  account  lu  exi 

(i>inic  Ibe  nniwer,  that  thei; 

n'ytj'  your  lurilihi|is' juilijin 

U  uiMer  Ll ;    Iherrl'cire,  tu 
(be  trouble  of  an  aii}( 

fm  in  Diiinion,  but  tliiakB  that  a  sar^eim  h 
an  pritilrge  tn  tiotA  gii'm\f  etiilence  \a  n  court 
oTjuuicr,  bulla  bouail  \tj  the  law  of  the  lanil 
ludoit;  [if  Roy  «>' your  lords hi|m  think  hr 
^XHiob  ■  priiilege,  it  will  he  a  luittcr  to  he 
lUbiiiMl  elipwlierc,  but]  if  all  your  tordiliipi 
WHuieue,  Mr.  Hawkins  will  uuilBntaDd,  Ihai 
>'i<|aurJudKii>e"laiiil  ojiinioa,  tlial  a  sut^eo 
!■)•  DO  privli^a,  where  it  ii  a  malerial  quei- 
iKW,  ia  »  ciril  or  criminal  came,  to  know  whe- 
■bcr  nirliea  were  itiarrieJ,  or  whelliera  obitd 
■u  boro,  \a  say  that  hia  introduction  lo  Ihe 
pirtin  wu  in  the  course  of  his  (irnfewioo, 
■cil  in  that  way  lie  came  Id  llie  kDOwleilj-e  of 
II.  I  Uke  it  fur  ifranieil.  that  if  Mr.  Bawkins 
>a](fiiandathat,it  ia  a  Bititfarliiin  lo  hini,  and 
I  dor  jualifi cation  to  all  llie  world.  If  a  «ur- 
;««  waa  rujuolarily  to  reienl  iheM  oecrete,  to 
k  tote  be  wouhl  be  guilty  of  a  breach  of 
b°Mur,  aiuJ  of  great  indiacrelinn ;  hui,  lo^re 
tlul  informalian  io  a  court  of  justice,  which 
^  iht  law  uf  the  land  he  it  buunil  to  do.  will 
MfR  be  imputed  lo  liim  as  any  iadiacretiun 


'  fite  ia  Ihe  Ca»e  of  Annesley  ».  (he  etrl  of 

itglcMy,  Tul.  17.  p.  1130,  the  objection  taken 

Ml)  urer-tulnl  to  the  exatninaliun  of  GiQanl. 

XW,  sIjw,  Ihr  exaniinutioQ  uf  Kirkland  in  earl 

Fwrws'i  CiiM,  vol.  19,  |i.  B86.     Set,  luo,  what 

PNinl  ujiuu  lunl   Bamui(tuii's  ubjeciiug  tu  re- 

'h1  BiNmdeQlial  coininiiuicmiuii*,  iafra.  |>.  biM, 

■■J  upon  llio  examination  of   Mr.  Ucrklay, 

■V^  p.   (its.      S«e.   nlu>,  Blackht.    Coiiini. 

h  3,c  IS,  p.  3rn,  anil  Peake'a  Law  of  Efi- 

litiitr,  piiii  I,  c.  3,  a  4.  "  Of  iierauoB  iocom- 

I  til  of  tlieir  rclutiuD  lo  the  ^ar- 

iiiauy  uoM^  on  Ilie  auhjea  are 

i  ihe  ttriuil  from  them  is  very 

<<-io  Dixon  an  atloriiey  liad  been 
'  ^'iie  cvideucv,  and  lo  pruitucc 
iK'fure  a  yraud  jury,  upou  au 
(urii;ery  lu  he  (iretiirred  a);ainBt 
'.'lit,  by  whom  ihe  pi)p<rB  had 
I'jily  coininuiiuiBtnl  tu  him,  Iba 
'  iix  was  iiutooniiMllaUelupru- 
i'-'TiaifBiiiM  hi*  clieni ;  and  lord 
I,  tlua  iiutead  of  producing  iheiii 
h  he  might,  inimr<liaie)v  upon 
'Umuii,  ID  liivodelivered  them 
■TaUutr.  li>87. 


A.  D.  1776. 

Mr.  Dunning.     My  queslioa  is,    Wlieiber 
'uu  knew  from  either  of  the  partiei,  thai  llier* 


lu  Ihe  Caie  of  Lea  v.  Wlieailey.in  C.  B, 
Pasch.  20  Car.  3,  where  ihe  detenilanl  pleaded 
thai  he  waq  servani  to  u  peer,  Ncirlh.  Ch.  Jiiat. 
held  that  the  defendaut  ouj-lil  to  sue  his  writ 
of  privilege;  obseriin[>:  that  it  was  the  prirl-' 
lei^e  of  the  maiter,  nui  uf  (he  aerTant,  and  per- 
hapi  his  master  would  not  proleol  him,  antl 
then  he  must  aaawer.  And  ha  illustmled  Ibia 
doctrine  by  the  caie  of  a  counsellor,  •'  where" 
said  he,  "'il  is  ihe  pri«ilc^  of  ihe  clieai,  thai 
he  shall  not  he  cuidji«I1fi1  to  discover  Ihe  te- 
crels  of  Ilia  client ;  hut  if  the  client  Im  wiUiugr, 
Ihe  Court  will  compel  (h«  niunael  lo  discDter< 
whal  lie  know«."  See  Jacob's  Law  Uic« 
tinnary,  (\(n\i  eililion,  1782)  ail.  t'ritilege.  a. 
4,  '  Of  Ihe  privilege  of  peers  anil  metDLwrs  of 
ptrliaineot.' 

The  dqclrine  respecting'  Ihe  extent  of  ihe 
privilege  ihut  persons  staudiat;  in  particular 
rdutioiis  lo  a  parly,  shall  not  be  examiniil 
Bgainil  such  1>arly,  was  very  ably  inTeati^ed 
by  Mr.  Justice  Bulier,  in  bis  judgment  faj 

(ll)  "  This  action  was  brought  to  recover 
penalties  upon  the  Bribery  Acl,  for  bfibioif 
voters  St  iIk  e'eclion  in  1790,  for  Ihe  boroaah 
of  Newark-upoii-Trenl,  lo  vote  <br  uue  of  iIib 
.ndiilate*.  The  bribery  was  chargeil  lo  have 
been  committed  by  Ihe  defeudaot  and  bit  aeeniB,  . 
amootc  whom  was  one  VV.  Handley.  At  the 
trial  before  Thoinsoo,  baron,  at  the  Noitiog- 
■-—  assizes,  W.  Handley  wis  called  a*  a  wit* 
who  dejiOBed,  thai  priiviaus  tu  the  <)iss»- 
a  uf  parharaenl,  he  had  received  letters  at 
Newark  from  Ihe  defendant  in  London,  which 
id  notice  tu  produce.  He  bad  lliem  not, 
but  said  he  had  restored  some  of  Iheiu  to  ttie 
dereodam,  and  given  Ihe  others  to  .^r«.  Etiza- 
belb  Handley,  with  a  direcliun  to  destroy  them ; 
he  had  since  endeavoured  to  procure  ihem  again 
from  her  Ibr  that  purpose,  hut  she  had  relused 
to  g'ire  iheiu  up.  IV.  B.  Hundley,  an  aiior- 
ney,  was  called,  wlio  said  ihnt  he  had  the  tel- 
lers III  question,  and  ihat  he  hail  received  them 
Mrs.  E.  U.  He  further  sUted  tliat  he 
not  then  concerned  io  carrying  on  any 
n  for  VV.  H. ;  that  he  liad  bran  applied  to 
by  W.  H.  lo  be  concerueil,  hut  had  declined  it 
Bs  lie  WBS  UDiIer-sbcrilT,  and  a  material  witiieM  ; 
Ibnt  he  hud  not  employed  VV.  H.'s  altorney  for 
;  but  iliat  VV.  H,  hadcunsulled  hitn  in  liia. 
pfOleBbiuii  na  a  coiifiileniiBl  person ;  and  bail 
ipplivd  lu  him  both  hclnrc  and  atter  be  haJ 
received  the  lellert.  Tlin  wilnets  vhjedcd  lo 
iiruduoe  ihe  leitvrs  f**  J,  and  the  judge  thought 
lie  was  iwl  bound  so  lu  do. — The  Jitry  luundB 
verdict  ti>r  the  JelendanL" 

(')  •'  It  was  undenlood  and  argned  upon 
at  the  har,  and  so  assumed  by  the  Court,  that 
the  olijecliun  made  by  the  witness  In  the  pru< 
duction  uf  llie  letlurs,  wu  on  llie  fuuiidatioo 
uC  liiscliaracier  i<f  attorney,  hy  which  he  aior 
ceivcd  lunaelfbauod  U  withhold  theiu." 


575] 


16  GEORGE  HI. 


Trial  qfihe  Duchess  of  Kingston^ 


[570 


WM  a  marritge  lietween  themP — Mr.  Haw- 
Xmi«.«*Frt)m  tbe  conversatioQ  with  both  parties 
1  ftpjirelietided  there,  was  a  inarrinf;;e,  but  no  - 

vpop  the  case  of  Wilson  against  Rastal,  4  Term 
Re|i.  763,  at  follovrs  : 

■  **  This  doctrine  of  privile^  was  fully  discuss* 
ed  in  a  case  before  lord  Hardwicke.  Tlie  pri- 
vilege is  confined  to  the  cases  oi'  counsel,  soli- 
citor, and  attorney  ;  but  in  order  to  raise  tbe 
privilege,  it  uioat  be  proved  that  tbe  informa- 
tion, which  the  adverse  party  wishes  to  learn, 
was  comnnuuicated  to  the  witness  in  one  of 
lUoae  characters ;  for  if  he  be  ein|iioyed  merely 
at  a  steward,  be  may  be  eicamined.  It  is  in- 
deed bard  in  many  catet  to  coui|>el  a  friend  to 
diaclose  a  confidential  conversation  ;  and  1 
should  be  glad  if  by  law  such  evidence  could 
be  excluded.  It  it  a  subject  of  just  indignation 
where  persons  are  anxious  to  reveal  what  has 
been  comoranicated  to  them  in  a  confidential 
manner;  and  in  the  cateC6^  mentioned,  where 
Reynolds,  who  had  formerly  been  the  attorney 
of  Mr.  Petrie,  but  who  was  dismissed  before 
the  trial  of  the  cause,  wished  to  give  evidence 
pi  what  he  knew  relative  to  the  subject  while 
he  was  conoemed  as  the  attorney,  1  strongly 
animadfertPfl  on  his  conduct,  and  would  not 
suffer  him  to  be  examined  :  he  had  acquired 
his  information  during  the  time  that  he  acted 
as  attorney  ;  and  I  thought  that  the  privilege 
of  not  being  examined  to  such  points  was  the 
prifilege  of  the  party,(^c^  and  not  of  the  attor- 
ney ;  and  that  that  |M:ivilege  never  ceased  at 
any  period  of  time.  In  such  a  case  it  is  not 
sumcient  to  say  that  the  cause  '\%  at  an  end ; 
the  mouth  of  such  a  person  is  shut  for  ever.  1 
take  the  distinction  to  be  now  well  settled ;  that 
Ibe  privilege  extends  to  those  three  enumerated 
cases  at  all  times,  but  that  it  is  confined  to  these 
cases  only.  There  are  ca^es,  to  which  it  is 
much  to  be  lamented,  that  the  law  of  privilege 
i»  not  extended  ;  thofw  in  which  medical  per- 

(b)  It  was  said  in  argument  by  the  de- 
fondant's  counsel,  **  In  one  of  Petrie's  causes 
for  briliery,  tried  a  few  years  agu  at  Salisbury, 
Iteynulds,  who  had  been  Pctrie's  attorney, 
though  not  so  at  the  lime  of  the  trial,  tvtis  called 
to  prove  something  that  he  had  learned  in  a 
contidential  conversation  with  IVtrie,  but  1^1  r. 
Justice  Boiler  would  not  stiiler  him  to  |rtve  tlie 
evidence,  and  strongly  reproaclteil  him  for 
bis  anxiety  to  reveal  the  secrets  of  his  former 
client." 

**  In  Madame  Dii  Banc's  Case,  where 
trover  was  broui;ht  to  recover  her  jt:\vels  from 
persons  who  had  stolen  them  in  l-Vance,  and 
DDOught  them  over  here,  lord  Kenyon  would 
not  permit  the  person  who  acte<l  at>  interpreter 
between  the  defendants  and  their  attorney,  to 
be  examined  as  to  the  conversation  which  was 
held  between  them,  considering  the  interpreter 
anstanding  in  the  same  situation  as  the  attorney 
hiroasif,  and  said  at  the  trial,  *  that  he  was  the 
orgao  nf  tbe  attorney.'  " 

(c)  Vid.  Lindaey  v.  Talbot,  BulUN.  P.  2M. 


thing  in  proof  appeared  before  me:    I  mean 
nothing  as  legal  proof,  but  conversation. 
But  did  they  in  conversation  admit,  that  they 

sons  are  obliged  to  disclose  the  information , 
which  they  acquire  by  attending  in  their  pro- 
fessional characters.   This  point  was  very  much 
considereil  in  the  fluchess  of  Kingston's  Case, 
where  sir  C  Hawkins,  who  had  attended  tlie 
duchess  as  a  medical  person,  made  the  objec- 
tion himself,  but  was  over-ruled,  and  compelled 
to  give  evidence  against  the  prisoner.     Tha 
question  therefore  here  is  whether  B.  Hand  ley 
were  privileged  with  respect  to  any  person. 
As  to  W.  Uandley,  he  certainly  was  not ;  for 
he  said  that  the  witness  neither  was,  or  could 
be  his  attorney ;  because  he  was  at.  that  time 
acting  as  under-sheriff.     Neither  was  he  pri* 
vileged  as  to  this  defendant  for  the  same  rea- 
son ;  and  though  it  was  said  that  the  defendant 
(by  W.  Handley)  consulted  him  in  his  profes* 
sion,  as  a  confidential  person,  the  meaning  of 
that  was,  that  as  B.  f  fandley  was  more  con- 
versant with  business  of  this  kind  than  those 
who  were  not  of  his  profession,  W.  Handley 
consulted  him,  but  did  not  employ  him  as  an 
attorney.    But  it  was  contended  on  the  part  of 
the  plaintiff,  that  8up|K>sing  the  witness  were 
privileged  in  any  action,  in  which  W.  Handley 
was  a  party,  the  privilege  did  not  extern^ to  this 
action  agsmst  Kastall.     Bnt  to  that.  I  caDBOt 
accede  ;  for  if  he  were  privileged,  so  as  not  to 
be  examined  to  particular  points  in  any  action 
against  VV.  Handley,  he  could  not  prove  tbe 
same  facts  in  an  action  against  any  other  per- 
son.    For  the  nature  of  this  kind  of  privilef^e 
is,  that  the  attorney  shall  not  be  permitted  to 
disclose  in  any  action,  that  which  has  beta 
confidentially  communicated  to  him  as  an  st- 
torney.      However  as  H.  Handley  was  neither 
the  attorney  of  \V.  Uandley,  or  of  the  defen- 
dant, I   am  of  opiuion,  that  he  was  impro- 
perly prevented  from  producing  the  letters  in 
question." 

Lord  Kcnyon  said  in  giving  his  judgment 
upon  this  rule  for  a  new  trial :  *'  But  in  order 
to  shew  that  the  nrivile;;e  extends  beyond  the 

a  cv  V 

case  of  an   attorney  and  client,  a  hard  catf 
has  been  pressed  upon  our  feelings,  of  coufi- 
dence  reposed  in  a  friend.   But  if  a  friend  ctiuld 
not  reveal  what  was  imparted  to  him  in  confi- 
dence, M  hat  is  to  become  of  many  cases,  even 
affecting  life ;   e,  p,  UatclifPs  case  (l8St.  Tr. 
430).      And    if   the  privilege    now    claimed 
extended  to  all  cases  and  persons,    W.  InnI 
Kussell  died  by  the  hands  of  an  assasfin,  aad 
not  by  the  lianils  of  the  taw ;  for  bis  friend 
lord  lloward  (9  St.  Tr.  m'l)  was  permitted  to 
give  evidence  of  confideniial  conversations  be- 
tween them:  all  good  men,  indeed,  thought 
that  he  should  ha^e  gone  almost  all  lengths 
raiiier  than  have  betrayed  that  confidence ;  bat 
still  if  the  privilege  had  extended  to  such  a  cassi 
it  was  the  business  of  tbe  Court  to  interfere 
and  prevent  the  evidence  being  gives.  J  tlMre* 
fore  think  that  this  privilei^e  is  onlj allowed  is 
the  case  of  attorney  and  clieftt." 


fir  Bigami/. 
I  tni  wfrp?   Anil  it  thai  Ibe  ^roiinJ 
ufUD  whrch  you  I'nrm  Ihtil  spprvheosron  ? — 
Y^  it  \» ;  ilKy  did  ailinit  il  in  cnnferMtion. 

Do  you,  ar  ilo  you  not,  kann  that  a  child 
(TM  (h«  Trait  ol'lha'i  inarriBye P—Ycs,  I  do. 

C«n  ^«u  Irtl  ihrlr  hinblrip*.  abaul  what  lime 
dial  cbtM  IH8  hnrn r  and  where? — About  ihe 
lit**  I  BintKit  l«ll.  II'  I  ever  put  down  an; 
■fefa^  in  imlin^  at  (he  lime.  I  mi;^hl  hare  de- 
an*^ tt  ifWwardi,  nccording  lo  mj  custom, 
wbteb  Is  n  destroy  |iB|ier«  thai  are  '>t'  no  uw, 
•Ad  which  ml^t  be  irD|iroper  lo  be  Ibuad  alter 

Inform  iMr  lordibips  about  nljal  lime  this 
nighl  b*,  ai  near  as  your  memory  will  enable 
joaMidu. — I  ah ou Id  suppose  ilivan  about  thirty 
]l«»t«  »g«;  but  I  <lu  |irolpsl  I  du  nnl  know. 

Where  waa  this  child  horn  ? — At  Chrlsea, 
Mw  to  ChEftea-Collei^ ;  but  I  forget  the 
.Mane  of  the  street. 

Wm  Ihti  tnarrta;;e,  and  ilie  birth  of  thnt 
eWtd,  at  thai  time  liepi  a  secret  ?~l  was  Itild  it 
«u  to  be  ft  secret. 

D<t  yod  know  what  is  since  become  of  ihal 
(Mill?—!  beliere  it  died  in  a  tittle  lime  afier- 

By  voor  answer,  thai  you  uuderstood  it  was 
U  be  kept  a  secret,  did  ynu  mean  the  mar- 
liare,  or  the  binh  oFlhe  child,  or  both  ?— Both. 

Wliicti  of  the  partiea  can  you  recnllecl  it 
was,  BUr;  Hervey  or  Mias  ChuJIeifrli,  ihni  de- 
Arf  UtHlTtightbekeiit  aarcretr  or  both  ? — 
I  ■booU  lake  fbr  granted  both  rijuiDy. 

I>B  yoa  know  enoueh  of  ihe  then  Mr.  Her. 
Vcy't  notioo*  lo  be  able  to  inform  their  lord- 
Mp*,  whether  lliis  chilit  wai  bum  after  his 
•m  ar  Mcend  return  I'ruhn  sea,  anbaequenl  to 
llw  itarTiagv  r — No,  I  do  not  kn'>w  enough  of 
liil(Mltan«<olnBKer  (his  quesiion. 

I>tt  yon  know  whm  a^^  Ihis  ihild  had  at- 
iMicd before  ■(sdealtiN-l  pMle«t  I  do  natre- 

drayoa  recollrct  about  what  time  of  ihe 
ywr  ft  was  you  Hrst  hesi'd  this  cliild  was  horn, 
mt  kbmt  wliat  time  ol*  the  year  you  heard  it 
dMF— I  do  not  know;  I  miglil  hear  uf  the 
tMb  iniBedtately. 

DM  ynu  erer  attend  the  child  in  ihe  course 
or  your  prflfessioii?—!  did  once:  I  am  lint 
lare  whether  I  did  nut  allend  more,  but  I  re- 
(DcmbCT  I  attended  it  once. 

!>•  yow  remember  whether  your  recotlecfion 
rfdiit  traDsadion  was,  or  was  not,  helped 
Amtt  Ihe  lime  of  Ihe  commencenieni  of  the 
■M  ta  Ihe  Spirilaal  Court  P— Really  t  do  nni 
Ikm  any  Iblog  Ihal  paned  to  bring  it  lu  my 
■indthea. 

Were  yon,  nr  were  yoo  not,  applied  to  by 
Mitr  of  the  |iarties,or  boih,  at  ihe  lime  of  (he 
WUienqing  this  suit  in  Ihe  Sgiiriiual  Court  ? 
— 1  WM  ap^ieO  to  by  llie  earl  i<f  Bristol. 

Wilt  ymi  be  su  good  as  to  lell  what  was  the 
nraMtofkrd  Bristol's  then  application  loyoii? 

nr.  WatUct.  On  the  pan  of  Hie  noble  laity 
I  ■n^-cubmit  to  your  lordships,  that  noHiing 
■il  la  Ihe  absence  of  Ihe  lady  ii  eTidence 
wpimi  the  pritoner  at  the  bar. 

VOL.  XX. 


A.  D.  1778.  [578 

Mr.  Dunning-  I  will  put  Ihe  <)ueslinn  in  K 
way  that  it  sliall  be  liable  to  no  objection.  Did 
you,  or  did  yon  nol,  in  conaequvnce  of  lord 
Bristol's  npplicnlion,  apply  to  the  lady  at  the 
bsr»— Mr.  HnmkiM.  Idid. 

Mr.  Sunning.    Then  lell  ns,  what  was  Ihe 

purport  of  lord  BriElol's  application  to  voii,  and 

what  message  you  carried  fWim  lord   Bristol 

to  the  lady  ut  Ihe  bar?— Mr.  Han,kim.  To  the 

besi  of  my  remembrnnce.  the  tart  of  BrisiM 

met  me  in  the  street,  and  aiappe<l  toe,  telling 

!  lliai  he  should  be  glad  <  would  call  on  hink 

his  house  the  firsi  morning  1  had  half  aii 

ur  to  spare  ;  and  thst  if  I  could  then  fix  the 

ie,  be  wODld  lake  care  to  be  in  ilie  way,  anA 

other  company  shoulil  interrupt  tha 

"'in,     He  iotimated  Ibst  il  was  not  Ofl 

his  own  health,  hut  on  acconnl  of  an 

old  frienil  of  mine.    I  nsuied  ihe  lime,  and 


Hgbl  hand,  there  lay  two  at  three  bundles  of 
papers,  Ibliled  itp  as  ihese  papers  are  [taking 
up  some  papers  a[  Ihe  bar :]  to  these  panera  ha 
otlen  pointed  in  course  of  what  he  said  at\n- 

rita.  Alter  making  some  polite  apnli^ies  to 
Tor  Ihe  particular  Ironble  he  was  then  girinff 

,  he  told  me  il  was  on  the  present  ducheat 

Kingston's  nccouut;  Ihal  be  wished  me  to 
carry  her  a  messnge  upon  ■  subJEct  that  wu 
rery  disagreeable,  but  that  he  thought  il  would 
be  less  shocking  lo  be  carried  by,  aud  received 

■n,  a  person  she  knew,  than  from  any 
Btraiiger :  thai  he  hail  bren  fir  some  lime  past 
very  unhappy  on  account  of'his  mairimooial 
connections  with  the  duchess,  Hisa  Cbtidlejgh 
that  was  then ;  thai  he  "  iahed  to  haie  his  free- 
dom ;  which  tbe  criminality  of  her  conduct, 
and  Ihe  proofs  which  he  hud  of  it  (which,  in 
pointing  10  the  papers  1  betbre  meolioned,  he 
said  be  bad  for  some  tiii>e  |in«l,  with  intent  and 
purpose  to  procure  a  divorce,  been  eoliecling 
nod  filing  together :)  ihot  he  believed  Ibey 
contained  the  most  ample  and  abundant  proo^, 
crrcn instances,  and  every  thing  relatire  to  siicU 
proof;  that  he  intended  to  pursue  his  prosecu- 
tion with  the  strictest  firmness  and  resolution  ; 
bul  Ihut  he  relained  Such  a  regnrd  and  reaped 
for  her,  and  as  a  gentleman  to  bis  own  charao* 
ter,  that  be  wbliM  not  to  mis  mutice  or  il)  tem- 
per in  the  course  of  il ;  bul  Ihal  in  ercry  re- 
aped he  would  wish  lo  appear  lUid  act  on  the 
line  of  a  man  of  honour  and  of  a  gentleman  : 
that  he  wished  (he  said)  she  would  understand 
■hat  his  soliciting  me  lo  carry  ili?  message, 
should  be  receireil  by  her  as  a  mark  of  that 
disposition  :  that  as  most  probably  in  Ihe  num- 
Irer  of  so  many  leslimonial  deposiiions  as  vieti 
there  collected,  there  might  be  many  offensive 
circumilnnces  named,  superfluous  lo  the  nece^ 
tary  legsl  proofs,  Ihflt  ir  she  plenaed  I  might 
inform  her,  that  her  lavryet^,  eitbei'  with  ot^ 
without  henelf,  tmgbl,  in  cnnjnncIioQ  with  bW 
Iswyere,  look  orer  all  the  depositions,  sjid  Ifaat 
it'  any  parts  were  found  lending  to  iodeceni  oi" 
soandalous  refleclions,  whith  his  gentlemen  oif 
the  law  should  think  might  be  oniiued  without 


679J 


16  GEORGE  III. 


Trial  of  the  Duchess  of  Kingston, 


[580 


weftkeniiig;  his  cauw,  he  bimielf  thoald  have 
IK)  objt^tinn  to  it :  that  as  be  intended  onlj  to 
act  upon  the  principles  of  a  {j^entleman  and  a 
man  of  honour,  he  should  hope  she  would  not 
produce  any  unnecessary  or  vexatious  delays  to 
the  suit,  or  eidiauce  the  expeuces  of  it,  as  he 
did  not  intend  to  prosecute  to  gain  by  any  de- 
mands of  damages,  I  think,  or  to  that  purpose. 
I  deli%'ered  tliis  message  to  the  duchess  as  well 
as  I  could.  I  do  not  presume  now,  that  either 
the  precise  words,  or  the  identity  of  the  words 
and  expressions  can  be  recollected  by  me,  but  it 
was  to  tlie  purport,  as  near  as  possibly  I  can 
remember,  of  wnat  I  have  said. 

Will  you  recollect,  whether  u]M>Dthi8  con- 
versation any  distinct  proposition  was  stated  to 
^e  ducbess  which  required  an  answer?  or, 
what  answer  you  carried  back  from  the  duchess 
for  that  purjposeP  You  will  of  course  be  refer- 
ring yourself  to  what  passed  between  you  and 
the  duchess. — 1  deliTered  my  message  to  the 
duchess.  After  a  little  time  taken  mr  consi- 
deration, I  do  not  recollect  exactly  what  her 
grace  desired  me  to  report  to  the  earl  of  Bris- 
tol; but  it  was  to  this  effect:  that  she  was 
obliged  to  him  for  tbe  polite  parts  of  bis  mes- 
sage, but,  as  to  tbe  subject  of  the  divorce,  she 
•bould  cut  that  short  by  wishing  him  to  under- 
stand, that  sbe  did  not  acknowledge  him  for 
her  legal  husband,  and  should  pat  him  to  the 
defiance  of  such  proof:  that  she  had  then  al- 
ready,  or  should  immediately,  institute  a  suit 
in  the  Ecclesiastical  Court,  which  she  called, 
I  think,  a  jactitation  of  marriage ;  but,  as  he 
had  promised  before,  that  he  would  act  upon 
tbe  line  of  a  man  of  honour  and  a  gentleman  in 
his  own  intended  suit,  she  hoped  that  he  would 
pursue  the  same  line  now,  and  that  he  would 
confine  himself  to  the  proofs  of  legal  marriage 
only,  and  not  to  other  proofs  of  connections  or 
cohabitations :  if  be  did,  that  he  would  make  it 
a  process  of  no  long  delay,  and  that  either  he 
would  gain  an  equal  freedom  to  himself  by  a 
sentence  of  that  court,  declaring  them  to  be 
free,  or  he  would  the  sooner  be  able  to  institute 
his  own  intended  suit.  The  earl  of  Bristol 
received  my  message  as  one  affected  and  struck 
by  it,  making  no  reply  or  answer  for  two  or 
tnree  minutes ;  then,  not  speaking  to  me,  but 
rather  seeming  to  express  his  own  thoughts 
aloud  in  short  sentences,  that  he  did  Aot  con- 
ceive he  should  have  bis  equal  freedom  by  that 
method.  I  believe  I  should  have  mentioned, 
that  her  ^ce  desired,  in  part  of  her  message, 
that  nothing  might  be  brought  forward,  which 
might  be  the  subject  of  useless  conversation 
and  scandal.  He  said,  iu  reply,  that  he  was 
DO  more  inclineil  to  bring  forward  any  thing  for 
the  lovers  of  scandalous  conversation  only,  than 
she  could  be ;  and  that,  if  he  could  not  estab- 
lish tbe  proof  of  legal  matrimony  (1  do  not  re- 
member the  words,  but  to  the  sense  of  this) 
that  be  was  too  much  a  gentleman  to  bring  any 
thing  before  the  public  relative  to  other  con- 
nedioni  with  the  lad jf.  I  do  not  remember 
that  any  thiDg  material  passed,  or  more  thaa 
this. 


Do  yon  recollect  that  in  any  SQbseqnent 
conversation  with  the  lady,  you  were  dedned  to 
apply  to  tbe  gentleman  for  any  other  civility  in 
the  course  of  this  cause? — Before  the  first  at- 
tendance that  1  have  lately  alluded  to  in  illnem, 
Mrs.  Chudleigh,  her  mother,  did  us  tbe  bdooor 
of  a  private  family  friendship.  After  these 
messai^es,  her  grace  now  and  then  called  ob 
my  wife  in  an  evening,  frequently  sayingy  she 
was  passing  to  or  from  her  law  gratlemen. 
When  I  happened  to  see  her  ^prace,  I  etery 
now  and  then  asked  bow  her  suit  went  oo?  to 
which,  I  think,  she  always  seemed  to  answer 
cheerfully,  <  Very  right,'  and  •  Well.' 

Did  you  ever  carry  any  other  messsges  ?— 
Two  or  three  times,  1  cannot  recollect  which, 
she  asked  me  to  deliver  some  message  to  the 
earl  of  Bristol ;  I  am  not  sure  whether  one  was 
not  a  letter,  or  whether  opon  the  occasion  of 
her  asking  me  to  deliver  something,  for  mr 
own  memory  1  might  not  ask  her  to  write  it 
down,  but  1  really  do  not  remember  at  present, 
though  I  have  endearoured  to  recollect  what 
the  subject  of  these  messages  were :  hot  I 
know  they  were  of  very  trming  import,  no- 
thing that  could  have  struck  me  strongly,  or  I 
should  have  remembered  them ;  and  1  oikler- 
stood  they  were  rather  given  to  me,  as  if  the 
earl  of  Bristol  was  delicate  in  receiving  any 
messsge  from  her  grace,  and  that  I  was  only,  to 
expect  a  verbal  answer  on  that  account. 

Do  you  recollect,  whether  any  of  these  mes- 
sages related  to  any  witness  or  witnesses  to 
be  produced  or  kept  back  ? — Certainly  not ;  I 
never  had  a  supposition,  that  the  ducbess  woaki 
have  given  me  such  a  message.  Nothmg  ap- 
peared to  me,  but  what  contained  matter  of 
little  import,  and  of  the  most  hodoarahle  kind. 

Did  you  ever  observe,  or  do  you  now  recol- 
lect, any  ground  to  form  a  belief,  whether  the 
parties  had  forgotten  or  remembered,  that  there 
was  then  living  one  of  the  witnesses  to  tbe  fact 
of  the  marriage  ? — 1  profess  I  do  not  recollect 
that :  I  have  heard  it  in  common  conversation 
in  the  town,  but  not  that  ever  I  remember  from 
either  him  or  her  at  that  time. 

At  what  time  did  you  receive  that  report 
from  him  or  her? — I  think  I  have  seen  the 
earl  of  Bristol  but  once  since  the  commence- 
ment of  this  prosecution,  and  then  his  lordship 
seemed  rather  to  speak  peevishly. 

Lord  Matisfield.  They  will  not  examine  to 
what  lord  Bristol  has  said  since  tbe  commence- 
ment of  tbe  prosecution  ? 

Mr.  Dunning,  Was  any  thing,  that  my  lord 
Bristol  said  on  that  subject,  communicated  to 
the  lady  ? — Hawkins,  1  certainly  might,  and 
did,  I  believe,  tell  her  grace  what  was  said. 

Lord  Mansfield,  Then  you  may  go  on. 

Mr.  Dunning,  Then  tell  the  house  what 
lord  Bristol  said,  and  you  repeated  to  the  lady* 
^^Hawkins,  His  lordship  seemed  to  be  peevish, 
that  such  a  person  was  now  brought  rorward, 
and  as  he  had  heard  it  suppled,  1  believo,  for 
want  of  her  having  such  allowance  or  wadk 
care  taken  of  her  b^  tbe  duchess,  as  he  sup- 
posed  she  used  to  have.    If  1  u&deBrtpo4  luA 


igamy. 


|]  Jo 

I,  the  ftrt  of  Brielol  raiil,  thi 
^  wilb  bim  to  FXuresB  thlnei  tn  (hut  pur- 
lod  Mill,  llinl  ir  slie  hi<1  been  a<i  easy  In 
t,  or  htd  hnd  as  gonJ  a  memnry  when 
lae  wai  can-ieil  on  in  ihe  EcclesiaMical 
,  lb«l  lie  belieTed  llie  issue  of  il  would 
jBf>eondilf«rEnl. 
■ill  you  be  k>  good  as  lo  rEc<i1Iecl>  nbether 
■  cominiinieated  this  lo  the  Inly,  and  what 
pBMd  iifxtn  llint  nccBsion? — I  did  coramuni- 
RateJIIothe  ilueheis;  bdiI  I  thought  she  vru 
rather  out  nC  temper  nith  the  metsa^e,  or  irilli 
roe,  abe  calliag  at  wj  lioiue  at  a  time  I  vmn 
TcTV  muMi  in  hute  to  go  out  upon  businesii, 
anil  coold  not  give  lier  grace  ihat  tine  to  bear, 
wlialnbe  seemed  lo  wish  to  have  lo  Inik  more 
npOD  it,  She  ulfereil  In  come  again,  bul  I  wni 
then  mH  well  in  my  health  at  all,  end  perhapc, 
u  ahe  ni^ht  liiink,  nol  i|uile  so  citil,  would 
Ml  name  snollier  lime  wtih  her  grace  fur  her 
t»eill  upon  me,  bul  tnid,  that  J  would  lake  an 
niiporlaniiy.  a<  soon  as  I  was  able,  of  wailing 
niwn  hir  trrare  at  her  own  house.  I  did  do 
ihii  Mitiir  lime  alUr,  and  was  lold  at  the  door, 
iliai  l,i-r  irrnce  Was  not  at  home.  I  left  my 
nuiif,  uiid  taid  I  should  call  aifain.  Afler 
NtM  ttjt  interval  i  did  so,  nn<l  then  waa  told, 
Ihrt  her  ^fnct  was  at  home,  but  was  laid  down 
MllMpt  f'^f  "hence  I  concluded,  thai  1  was 
WID  caH  again. 

,  An  ]  in  understand  from  you,  that  tins  lant 
■MM(e  from  my  Imd  Britiul  was  never  the 
■UiiiBitiDn  between  you  and  Ihe  iluche«s? — 
IMrtlale  it  lo  her  during  the  time  that  ahe 
Unaliny  house, 

-  H»a  yon  at  any  time  since  beard  any  Ihing 
fiaaihe  duchrts  uu  IhalanhJeRl? — I  did  hear, 
hn  KM  ftoui  any  good  auihority,  ihat  her  grace 
*M  tBlh«r  aiii^y. 

Baa  tlic  lady  Derer  convened  with  you  nn 
tkf  Mdiject  of  this  liiin'T  witiirsi  to  the  mar- 
liige.  from  Ihal  time  lothis?_I  hare  never 
I  MR  brrgrao  bul  once  Hince,  and  that  was 
~  ~  '  t  momiiig  fiir  a  few  mioulra  ul  the 
Vewewtle's. 
pmlly,  at  any  time  whalever.  hare  you 
MV  thing  Imm  the  itucheK  on  llie  siib- 
'       »  living  wilreM   to  llie  marriage, 

ma,  iir  any  tbing  connrninf;'  berf 

.  tpalut,  DMhiiig  conduKirr     ■  might  hear 
Lj!***  Ilm  aiirh  ■  person,  but  It  was  never  re- 
mmt.  whctliershe  was  a  belter  or  worse 
~tM  ;  nothing  relative  tu  ihai.  wheihev  she 
bniaror  HOrtieeiidfiire,  onhalahe  was 
nrber,(irBoy  ll)inglD  ihal  puriiose? 
I  W  oadFnland  you  to  have  beard  lier 
•t  tbare  was  sUL'b  a  witness?— In  what 
eonvtftatinn   I  caanot  tell,  but  nothing 
~~  made  ine  know,  that  there  waa  such 
wba  bad  auch  material  knou  ledge. 

lord  Urislol  you 

-  Hy  qneslinn  il,  Hbetber  ynu 

'■Mute  thing  from  the  Inily,  or 

lib  iraa  some  accidental  looser 

H  not  W  lnuttD((  mc  with  sutb  a 


A.  D.  I77S.  [568 

Was  it  (hen  tneniioned  in  any  looser  or  atS' 
ciilental  conversation,  or  any  eiinveraatioB  f — 1 
protest,  it  la  impossible  lo  remember  thai  with 
any  degree  of  preciHion  or  of  line. 

1  did  not  mean  to  ask  yon  to  recnlt«cl  any 
particulars  of  Ihe  cunvenialion.  but  simply  lo 
the  point,  whether  Ihe  duchesi  ever  slated  lo 
you,  or  acknowledged,  Ibere  wui  a  living  wit- 
ness lo  the  marriage  ? — No,  I  do  not  reiiii-mbet 
Ibat  she  ever  staled  to  me,  or  said,  that  Ihcro 
was  a  liring  witness  lo  tl)e  marriage. 

Is  il  a  &cl  that  ever  you  learned  from  iLe 
lady  P 

Lord  Dtrby  moved  the  Clerk  might  read 
ibia  pari  of  the  Evidence. 

Hawkint.  I  ralber  (if  I  may  say  any  tiling) 
understood  from  ber  grace,  thai  Ibere  was  some 
looser  marriage,  not  ipiile  in  the  common  man- 
ner. I  Ihink  I  coulil  remember  on  expression 
ofher grace's  once,  u[>on  her  grace's  spenking 
on  Ihe  occasion.  If  I  remember,  I  asked  her 
grace  how  her  suit  went  on  ?  Tbii  was  towards 
the  laller  pari  of  it.  She  looked  grave,  and 
deaired  to  speak  tn  me  in  another  room.  She, 
said,  thai  she  had  bad  a  greal  deal  of  concern 
and  ai;ilatian  of  mind  cince  she  last  saw  me, 
which  I  remarked  lo  ber  bad  been  fur  a  longer 
interval  otiime  on  ber  not  calling  at  the  bnnte 
upon  my  wifein  the  usual  manner.  Hergrace 
said,  that  she  had  had  so  much  concern  upon 
what  she  bad  noi  expected  at  the  cnintnence' 
menl  of  her  suit,  from  finding  ibnt  a  positive 
ualh  was  ex|iected  fruni  her  grace  that  sha 
was  not  marrifd,  and  which  she  had  for  soma 
lime  Ingelbcr  apprehended  would  be  put  in  lier 
in  Ihal  form,  that  she  thought  she  should  hava 
dropped  her  suit  entirely.  tt>r  that  she  wnuld 
not  for  Ihe  whole  world  have  taken  that  direct 
kind  nf  positive  oath  ;  but  that  what  bad  been 
oRereil  tu  her,  badUeenaocump1ii;aied  (1  think, 
I  understood)  with  other  things  that  were  cer- 
tainly nol  true,  tbatabe  could  and  bad  taken 
llie  ostli,  with  a  very  safe  conscience.  To  soma 
ijueslions,  I  do  nol  remember  the  words  In 
her  grace  from  me,  bow  Ihen  she  came  lo  in- 
stitute a  suil  at  nil?  She  nnawereil  me,  "  O, 
for  that  matter  (I  think  it  was)  the  ceremony 
as  duiii-,  was  such  n  scrambling  shabby  busi- 
ness (1  do  not  say  these  were  Ihe  precise  words, 
bul  to  that  purport)  and  so  much  incnmplete, 
that  bIi«  should  have  been  lull  as  unwilling  to 
have  laken  a  pnsilive  oalh  Ibat  she  waa  mar- 
ried, as  thai  she  was  not  married." 

N,  D,  Thi*  part  nl  llie  Evidence  was  or- 
dered lobe  read  by  the  Clerk,  whoaccordinjjly 

Mr.  Dunning.  I  should  be  glad,  if  you 
would  tell  their  lordships,  what  it  was  that  wn» 
so  particular  in  this  busipesa.''  if  the  lady  ever 
explained  it  In  you  ? — Mr.  JIuKkiHt.  I  never 
bad  an  explanalion  from  thai  moment,  I  bail 
within  myaelfa  curioiily  from  ths  lime  ihal  1 
carried  the  mesasge  tn  my  lord  llristol  fiom 
ber  grace,  and  liii  reception  of  il.  1  had  ra- 
ther imagbed  ibnt  ihtte  was  aotna  marriage  of 


683} 


16  GEORGE  UL 


Trial  of  the  Duchess  ofKingstotif 


[584 


wbich  kgil  proofs  oonld  not  be  prodoced,  but 
tbat  was  only  my  own  notion :  before  that  time 
I  bad  no  real  authority  at  all ;  I  did  no(  know 
myself  honestly  what  to  think  of  it. 

JDid  the  lady  ever  explain  to  you,  by  what 
reasou  it  happened,  thai  the  question,  when  it 
came  to  be  put,  came  in  so  much  more  palatable 
a  form  than  she  ex|iected  it?— No,  not  in  the 
least:  1  should  not  have  presumied  to  bare 
asked  such  a  question ;  nor  did  she  give  me 
any  explanation  at  all. 

IV 1^  any  thing  erer  said  by  lord  Bristol,  and 
communicated  to  the  lady,  respecting  an  inten- 
tion of  bis  to  appeal  from  this  sentence?— 1 
know  nothiog  of  triat. 

What  said  her  grace  on  that  subject f — Her 
grace  had  told  me,  that  the  sentence  was  passed, 
mnd  that  it  was  irrevocable  and  final  to  them 
two,  unless  my  lord  Bristol,  within  a  certain 
limited  time,  did  something  to  keep  the  catt»e 
open.  I  do  not  know  what  that  was.  That 
there  was,  she  believed,  some  demur  at  that 
time,  as  my  lord  Bristol  was  not  satisfied  with 
the  sentence,  anil  had  made  some  demand  by 
bis  proctor,  if'  1  understood  right,  for  the  costs 
of  suit  which  were  decreed,  I  believe,  against 
him. 

I>o  yon  know  whether  the  coats  of  suit  were 
ever  paid  by  my  lord  Bristol  ?— 1  do  not,  but  1 
believe  tliey  were.  I  was  going  on  to  say  wbai  1 
recollected  upon  that.  They  bad  some  demurs 
upon  the  costs  of'  suit ;  but  that  if  my  lord 
Bristol  insisted  upon  it,  she  wouki  give  her 
proctor  directions  not  to  let  such  a  thing  slop 
the  closing  of  the  suit. 

Do  you  then  know  whether  my  lord  Bristol, 
who  by  the  terms  of  the  sentence  was  to  pay 
the  costs,  did  not,  upon  this,  receive  the  costs 
he  had  been  put  to  in  the  suit  ? — 1  know  no- 
thing mure  than  1  have  mentioned  :  not  a  tittle 
more  nor  less. 

Do  you  know  of  no  other  means  that  were 
used  to  satnly  my  lord  Bristol,  and  to  prevent 
this  cause  from  continuing  any  longer  open  ? — 
No* 

Do  j^ou  know  nothing  uf  an v  bond  that  was 
given  from  any  body  to  any  body,  respecting 
this  cause  and  this  question  ?-»Not  the  least  in 
the  world. 

Am  1  to  understand,  that  you  say  you  know 
nothing  of  any  bond  that  has  any  direct,  im- 
mediate, or  other  relation  to  this  subject  ?-*Not 
tbe  least  that  ever  I  heard  of. 

You  are  not  then  a  trustee  in  any  such  bond  ? 
—Oh  no,  certainly  not. 

Can  you  give  us  tbe  date  of  the  time  when 
the  first  messai^e  was  cunvt;yed  from  lord  Bris- 
tol to  the  lady  through  you? — I  wasendea- 
Touriog,  before  I  came  into  the  court,  to  re- 
collect it,  but  I  could  not :  I  put  nothing  down 
in  writing  relative  to  it. 

Can  you  recollect  the  year  ? — ^The  message 
must  have  been  immediately  before  the  com- 
mencement of  the  suit,  whenever  that  was. 

1  presume,  though  you  used  tbe  terms, '  hti 
gtaoe/  and '  hia  toriifaif,'yott  perftottj  wall  ii»? 
JMitoadt  thtA  wtUmi  Am  jjrtMi  tSji^tniht 


to  these  appellations  at  the  time  these 
stances  passed  ? — Yes,  certainly. 

Does  any  circuaistanee  impre«i  you  with 
the  recollection  of  the  Lime  of  the  year  whea 
this  conversation  passed,  if  you  cannot  tell  ua 
the  exact  year? — (  miuht Imvc  enqoited  bow 
long  the  suit  lasti>d  ;  but  I  protest  1  do  not  ro- 
colkfct  now  any  particular  circumstances  to 
bring  it  to  my  mind. 

Mr.  Wallace.  My  lords,  I  have  no  quaa- 
tion  on  the  part  of  tbe  prisoner  to  put  to  Mr. 
Hawkins. 

By  the  Duke  of  Anctnterm 

Did  you  attend  the  child  ? — I  think  oaoo. 

Waa  it  a  boy  or  a  girl  ?•— A  lioy. 

Do  yon  speak  from  your  own  knowladgv 
that  the  child  is  dead  ?— No ;  but  have  no  no- 
sons  to  doubt  it. 

Do  you  know  of  your  own  knowledge,  thai 
that  child  was  the  child  of  the  prisoner  aA  tho 
bar  ?— No.  1  could  have  no  proot'  of  that ;  lor 
from  the  time  thai  her  grace  waa  broughi-lo- 
bed  of  it,  I  never  saw  the  child  till  I  waa  saol 
for  to  it  in  its  illness  \  perhaps  I  had  hardly  ever 
heard  of  it :  I  had  n^ver  seen  it. 

Did  you  attend  the  ditchess  at  the  time  tbo 
lay-in  ? — 1  did  not  at  her  lyin^-io :  1  waa  i^ 
sired,  in  case  at  any  future  time  it^  bod  baoi 
necessary,  that  I  should  hate  been  a  witaan 
of  the  birth  of  that  child. 

Did  you  understand  that  child  to  be  the  !•• 
gitiroate  child  of  the  duchess  of  Kingaton  and 
Mr.  Hervey  ? — I  did  suppose  so  at  that  tigM. 

Was  you  told  so  by  any  body  ?— 1  could  not 
be  necessarily  tuld  so  at  that  time,  becaoM  1 
had  been  told  of  the  marriage  before. 

Duke  of  Grafton,  Were  you,  from  the  coo- 
versation  that  passed  with  the  party  at  that  ikwtt^ 
convinced  that  it  was  a  supposed,  or  that  it 
was  a  real  marriage ;  and  were  any  expreaaiona 
useii  relative  to  the  concealing  the  birth  of  the 
child  ? — Hawkins*  1  understood  at  ^hat  time, 
thai  it  was  a  real  marriaife 

Dnke  of  Grafton,  Were  there  expressiona 
made  use  of,  that  would  not  have  been  made 
oseof  in  any  other  circuinHisnce?— l£c<«fciss. 
I  do  not  reuieiuber  any  particular  expressioa 
at  all,  only  tliat  I  was  desired  to  attend,  with  a 
view  and  purpose  that  I  might  be  a  witoasa  to 
the  l>irth  of  iliat  child ;  l»eing,  as  I  suppose, 
thought  more  proper,  as  a  physical  man,  to  he 
in  the  room  at  the  time  of  a  delivery  and  tbo 
birth  of  a  child  than  any  other  person. 

By  Lord  Lyttleton. 

Who  first  informed  you  of  the  marriage?— 
I  should  rather  appreli.€iid  it  came  from  tho 
duchess,  before  I  saw  my  lord  Bristol. 

Do  you  recollect  how  long  thai  waa  ago?'— 
1  do  not  indeed ;  it  waa  a  great  numy  yeara 
ago. 

Do  you  remember  to  have  heard  aoy  par^ 
tioular  curcumstances  related  to  you  by  eithtc 
of  the  parties,  concerning  the  celebnttioo  if 
that  marriage  ?^No,  never  move  thao  «ha&  I 
hare  mantioned  just  now. 


>r  Bigamt/. 
Vy  lioril  Camden. 
yno  ID  il>e  rocim  at  ilic  lime  or  the  it- 
'!>>  the  bcsl  ul'  my  remembrance,   I 


A.  D.  1776. 


id   yon  etfr  tee  the  cliild  itaelf?"-At  the 

of  Uie  ilcliiery  I  il»r(iBiiy  I  diil,      All". 

Ul  H<iru  I  WM  w^ot  fur  on 

BW  you  then  iny  cerlnin  knnwlcdi^e  of  iti 

b  Ue  iviMPer's  cliililf— ll  I*  im|>Dsiiili]« 

leluny  when  I  iswlbe  child  snine  nionlhii 

—'■"'-  iijtii  I  coold  hDon  it  tobeihe  Mtne 

By  Lon!  Raxcnsiriirlh. 
got  unileruniiil  iliat  the  ilucheM  ap- 
■ji  and  iii«'<  L-tinfin(«dlilst  the  semen  ce 
fi«ol(«Ulkliilul  Cuurl  wu  6n»if—Va- 

U  liberty  to  wtiry  •K*i°< 
H>iiieii(-i-  was  B|(|icaled  from  vi\tii'ui 
rnn't — Mo*t  cvrUioly. 
(Icliveftfll  llie  priauoer? — I  w»s  en- 
rmy  lu  re«olteol  Iwliire  1  cauie,  who  woa 
(waiiki  inyiell',  anil  wlin  delivi>rei]  ber 
but  1  jiroiut  I  liNve  fort;allen  it,  h>  a* 
Mw  rwotlecl-  1  cuuld  not  reculksl,  il  is  so 
iNg  tfp.  [Ordered  lu  witbdrow.] 
1W  Bod.  Sapltia  Charlotlt  Felliplore  ivorn. 
Jtt.  Gn.  How  Icmg  beire  you  been  ac- 
IMbEMdwill)  the  prisdocr  ut  llie  bar^—Mis. 
JMir'v*  Agriat  nany  years. 

JiU-  G*n.  liiil  you  kunw  tbe  Uily  belor«  the 
MttlI44f 

In.  SttUfkct.   Oly  lurda,  I  linve  oo  other 
N>McfiO'  ■'>>  "^  the  circu instances  to  be 
I  Mflired  lAer,  tbno  nlmf  ^iriws from  my  iMu- 
_lMiiw  teoMtJy  witli  the  lady ;   uid  uoIpbs 
ludiblp*  rv<|Uir«  it  of  me  ■«  »  wittteu  fur 
I,  I  ibonld  wi&h  tu  be  excused. 
.    h-  S-   The  luly  must  cerliiiaty  dUclose 
pihn  tui»iM  iiir  ih«  |iur[Mi>a«  of  justice. 
By  Mr.  dltomry  General 
J  j«a  know  tbe  priwaw  at  the  bar  befure 
t  1744?—!  cannot  recoiled. 
Bid  *M  koBw  the  prisoner  belure  she  ww 
ploT boauur  Lo  tbe  Iste  iiriuccus  of  V/  ales  P~ 

I  ooBTcnst^no  hsTc  you  ever  bad  nilh 
kCrmUtive  lo  ber  mar'iage  wilti  Mr. 
_     "l  belivre  I  b«*e  lieud  her  say  that 
■In  wm  mMTWd  lo  biea. 

CtA  jau  tecoliccl  what  circumBlaDces  sl>« 
hi  ■rmiiiiwJ  resfMKtiae  that  muriase,  where, 
u^  Mtwhaltinw,  nod  b«lbre  what  wilnesses!* 
u  B   Butuiuer  bouse,  in  a. 


Cm  yo«  ranollect  upon  what  accnsioM  llteM 

'-uiiviiujon*  hale  poaied  belwpcn  you  and  the 

!«>*an*--UpDn  luy  wuid,  I  cauual  pretend 

^uj  »kai'.  i(i«liMt[  a|c«. 

Ua  yow  racolUot  any  cMiieraatioD  reapediu^ 

L      IW  dMkl  Mtikb  Uie  phfoner  bad  by  Mr.  ller- 

I      <ni— I  know  tialbiiiK  ahoul  ' 


[iSSS 

il  ha*  heea  said  Urtwcen  the  priaaoerand  yon, 
that  she  «a«  niarried  lu  Mr,  Uertrejrf— I  be> 
licvp  but  ouce. 

Mr.  Alt.  Gen.   MylordK,  i  i1»t1  noitrouttto 
Mrs,  Ftlti|>la.r  nilb  any  u'ore  ipiMiianit. 

L.  H.  S.     Would  the  cuunovl  lor  (Iw  pri- 
soner ask  (be  witness  any  qwaliniu  ? 
_  Mr.  WMact.  Hy  lords,  1  idinll  not  ask  Mra. 


Barringlun. 

Lord  £nrrfnf  ron  tvFOrti. 

Sul.  Gen.  Waif  long  bn*«  you  Ifpen  ao- 
[;uaii)te<)  with  the  lady  at  the  Iwr.'' — Lord 
Barritigton.  AbofeSUytara. 

SuL  CiiH.  Did  yixi  ever  bear  fram  the  lady 
at  the  I'lir,  thai  ahc  wai  tnatried  tu  Hr.  Her* 
<tey  F — Lord  Burringfon.  Uy  lonis,  I  am  coim 
here  in  ubedientw  lo  yuitrlordwluiia'  auaimana, 
ready  to  Kive  leMimeay  aa  to  any  matter  tl«t[ 
know  ol*  my  owik  knowleili,'*,  or  tl>at  ha*  com* 
to  me  iu  tbe  usual  way ;  but  il>*  any  thing  liaa 
Ireeii  conlided  to  my  honuur,  or  uonfidentially 
told  lue,  I  do  bold,  witii  bumble  RUbwiadoi)  to 
your  lordship*,  ihaLaa  a  man  of  boneur,  aa  a 
tDDD  regardful  of  tbe  laws  of  aociety,  )  cannot 

L.  U.  S.  Wbeu'tbe  last  wituees  hut  one 
(Mr.  Man  kins)  was  nl  the  bar,  he  made  souo- 
tbing  bke  the  Mine  excuse  fur  hU  not  aukwer- 
ing  tbe  questions  put  to  liiin.  He  was  tbeu 
inJormed  by  a  uuble  and  learned  lord,  and  the 
whole  court  agreed  itith  that  lord,  that  suck 
ijuvalioiu  were  to  be  aus»«red  in  a  court  of 
justice,* 

Lord  Barringiott.  I  have  no  dnubl  but  ihat 
ike  qiieslioD  il  a  proper  qnealion  to  be  aaked 
by  a  court  of  Justice,  otherwise  your  loidshipa 
would  not  have  permitted  it  to  be  asked.  But, 
my  lords,  I  think  crerv  man  must  ael  lYom  hia 
own  feelings  ;  and  1  feel,  that  any  prifate 
oonrersutiou  enlrutted  to  me,  is  not  to  be  re- 
ported again. 

A  Lord.  Hii  lordsbiu  nill  recollect  llie  oath 
tliat  be  has  taken,  is,  lliat  he  shall  dedara  tho 
whole  Irulb. 

Lord  Jiarrington.  My  lords,  aa  I  underclaud 
tbe  oath,  loan  decliae  anaweriog  lliequeatioa 
lliat  haa  been  asked  me  witlioul  acting  con- 
Irary  lolhatoatli,  without  being  guilty  of  per- 
jury. But,  ifilia  tbeopioiou  o/yourlardabijM 
that  I   ara  houud  by  Itial  oath  lo  auswer,  and 


differently,  for  I  will  not  he  pGrjured. 

Oucbew  of  Kingttim.  I  do  release  my  lord 
Barringlon  from  every  ubligatiou  of  booour.  I 
wi»h,  and  oarnesllv  dE«ire,  ilmt  erery  witoea* 
nho  shall  be  nxamiued,  may  deliirer  their  opi- 
nions in  ctsry  point  jually,  wbelker  tor  me  oe 
agninsi  me.  1  came  fioro  Rome  ai  ibi'  lia/artl 
ut  my  life  to  aut render  myxeir  lo  Ihia  Court.  I 
bow  wilhsubmisaivcobeifieaceloeverv  deore*. 
and  do  oui  efen  complain,  that  an  «cclF*ii 


S87] 


16  GEORGE  III.  Trial  of  the  Duchess  of  Kingston, 


[588 


•entence  has  been  deemed  of  do  force,  altbougrh 
such  a  sentence  has  never  been  controrerted 
duringf  the  space  of  one  thousand  four  hundred 
and  seventy- five  years. 

Lord  Barrington,  My  lords,  T  do  solemnly 
declare  to  your  lordships,  on  that  oath  that  1 
have  taken,  and  on  my  honour,  tliat  I  have  not 
bad  the  least  communication  made  to  me  of  the 
duchess  of  Kingston's  cfenerositv.  1  have  not 
had  the  least  communication  with  her  pfrace  by 
letter,  message,  or  in  any  other  way,  for  more 
than  two  months ;  and  1  bad  no  idea  of  bein^ 
mimmoned  as  a  witness  here,  until  the  Easter 
holy- days,  so  that  her  grace's  generosity  is 
entirely  s|)ontaneous,  and  of  her  own  accord. 
But,  my  lorils,  1  have  a  doubt,  which  no  roan 
can  resolve  better  than  your  lordships,  because 
jour  liooour  is  as  U\fr\\  as  any  men ;  1  have  a 
doubt,  whether,  thinking  it  improper  that  1 
should  betray  confidential  communications  be- 
ibre  the  duchess  consented  that  I  should,  and 
^ve  me  my  liberty ;  whether  her  grace's  ge- 
nerosity ought  not  to  tie  me  more  firmly  to  iny 
former  resolutions  ? 

Duke  oTRichmond*  For  one,  I  think  that  it 
would  be  hnproper  in  the  noble  lonl  to  betray 
any  private  conversations.  I  submit  to  your 
lordships,  that  every  matter  of  fact,  not  of  con- 
versation, which  can  be  requested,  the  noble  lord 
is  bound  to  disclose. 

Lord  Manxfield.  I  mean  only  to  propose  to 
your  lordships,  to  avoid  adjourning  to  consider 
this  question  or  any  thing  further  upon  it  at 
present,  that  the  counsel  might  be  allowed  to 
rail  other  witnesses  in  the  mean  time,  and  that 
lord  Barrington  may  have  an  opportunity  of 
considering  of  the  matter,  if  the  counsel  should 
think  proper  to  call  his  lordship  again. — [This 
proposal  was  over-ruled.] 

The  Counsel  against  the  Duchess  desired  to 
withdraw  the  Witness. 

Lord  Camden.  My  lords,  I  understand  from 
the  bar,  that  rather  than  your  lordships  should 
be  perplexed  with  any  question  which  may 
arise  upon  the  noble  lord's  difiicutty  in  giving 
his  evidence  at  the  bar,  the  counsel  would  ra- 
ther wave  the  lienefit  of  his  evidence  in  the 
cause.  My  lords,  if  that  be  their  resolution, 
and  they  think,  that  safely  and  without  pre- 
judice to  this  prosecution  they  may  venture 
to  give  up  that  evidence,  your  lordships,  to  be 
sure,  will  acknowledge  the  politeness  of  the 
iurrender.  But,  my  lords,  now  I  am  upon  my 
legs,  you  will  give  me  leave  to  make  one  short 
remark  upon  this  proceed incf,  and  to  hope  that 
your  lordiihips,  sitting  in  judgment  on  criminal 
cases,  the  hiii^hest  and  moat  important,  that 
may  affect  the  lives,  liberties,  and  properties 
of  your  lordships,  that  you  shall  not  think  it 
befitting  the  dignity  of  this  high  court  of  jus- 
tice to  be  debating  the  etiquette  of  honour,  at 
the  same  time  when  we  are  trying  lives  and  li- 
berties. My  lords,  the  laws  of  the  land,  I  apaak 
il  boMly  in  this  gra?o  aiMinUv,  arc  to  receive 
another  answer  from  those  who  avs  caMed  te 
depose  at  ymir  krtiM  ts  !•  Md  tlwl  iD  peiBt 


of  honour  and  of  conscience  they  do  not  thinkf 
that  they  acquit  themselves  like  persons  of  thai 
description,  when  they  declare  what  they 
know.  There  is  no  power  of  torture  in  this 
kingdom  to  wrest  evidence  from  a  man's  breast, 
who  with-holds  it ;  every  witness  may  un- 
doubtedly venture  on  the  punishment,  that  will 
ensue  on  his  refusing  to  give  testimony^  As 
to  casuistical  points,  how  far  he  should  conceal 
or  suppress  that  which  the  justice  of  bis  coun- 
try calls  upon  him  to  reveal,  that  I  must  leave 
to  the  witness's  own  conscience. 

Lovd  Lyiileion,  The  laws  of  the  land  have 
spoken  clearly  on  this  occasion,  and  if  your 
lordships  had  applied  them  to  the  noble  lord  at 
the  bar,  he  has  told  your  lordships  that  he  is 
willing  to  submit  to  your  judgment.    Bat,  my 
lords,  it  is  yet  a  question,  whether  or  not  the 
noble  lord  will  be  perjured  p    It  is  a  question 
uot  decided  by  your  lordshi|>s,  that  he  will  be 
perjured,  if  he  refuses  to  betray  a  confidence.  I 
am  sure  that  I  feet,  and  I  apprehend  your  lord- 
ships aa  men  of  honour  feel,  the  full  weight  of 
the  noble  lord's  objection.     He  will  speak  to 
matters  offset,  but  he  does  not  desire  to  speak 
merely  to  conversation.    And,  my  lords,  I  am 
not  surprised  that  he  should  make  that  objec- 
tion :  for  if  yon  consider  how  loose  and  inaocv* 
rate  all  evidence  of  conversation  must  be,  it 
takes  off  in  a  court  of  justice  much  from  its 
availment.    The  noble  lord  has  told  jrou,  that 
confidential  conversation  may  have  passed  be- 
tween him  and  the  noble  lady  at  the  bar:  be 
has  stated  to  you  his  doubts,  and  1  apprehend 
he  is  not  obliged  to  go  on  with  his  evidence^ 
until  your  lordships  have  unanimously  pro- 
nounced, that  it  is  your  opinion  that  he  is 
obliged  so  to  do. 

L.  H.  S.  If  the  counsel  for  the  prosecutioir 
say,  that  they  have  no  questions  to  ask  the 
noble  lord,  he  may  withdraw. 

Lord  Barrington,  My  lords,  might  T  be  al- 
lowed to  say  a  word  or  two,  before  I  withdraw 
'from  this  bar !  It  is  impossible  that  any  person 
can  revere  this  high  court,  indeed  any  court 
of  justice  in  this  country,  more  than  I  do.  It 
is  not,  my  lords,  from  contumacy,  of  which  I 
am  incapable ;  it  is  not  with  any  view  or  pur- 
pose that  any  of  your  lordships  would  disap- 
prove, as  individuals,  I  am  certain,  that  1  have 
taken  the  part  which  I  have  done.  I  do  not 
say,  that  there  are  no  cases,  in  which  a  pmon 
ought  to  reveal  private  conversation.  There 
are  cases,  in  my  opinion,  in  which  he  should : 
there  are  cases,  in  my  opinion,  in  which  he 
should  not :  and,  my  lords,  no  person  can  draw 
the  line  but  himself.  But,  my  lorda,  1  have 
recollected  (I  am  obliged  to  the  counsel  for  the 
prosecution,  who  are  willing  to  admit  roe  to 
withdraw.  I  return  them  my  thanks.  1  dare 
say  in  that  they  have  consulted  my  feelings  as 
much  as  they  could,  consistent  with  the  datiea 
of  their  station)  but  I  haverecollectod,  my  lords, 
since  the  generous  manner  in  which  the  dnchsss 
of  Kingston  has  been  pleased  to  absolve  dm 
from  all  ties.  I  have  recollected,  that  she  said, 
-"    wiilMd  and  desired  lint  I  might  say  aay 


iss] 


^  Slgams. 


A.  D.  1776. 


[590 


thing.  If  her  gnoe  thinks  that  any  thinff  I 
can  say,  consistent  with  truth,  can  tend  to  her 
jostificatioo,  I  am  then  ready  to  be  examined 
to  private  conimonications. 

Soi.  Gen,  1  do  not  desire  to  examine  the 
noble  lord.  I  stated  to  joor  lordships,  that  1 
do  DOC  think  the  cause,  m  which  my  dnty  en- 
gages me,  will  at  all  suffer  by  having  deference 
to  any  difficulty  that  the  noble  lord  may  enter- 
tain. I  will  not  examine  the  noble  lord  on  the 
concession  of  the  lady  at  the  bar.  The  noble 
lord  stands  at  your  lordships'  bar  a  witness. 
Having  taken  the  oath,  though  I  do  not  exa- 
Bine  him,  the  prisoner  may. 

Mr.  Wallace.  At  the  same  time  that  I  ex- 
ffffss  my  astonishment  at  the  offer,  lord  Bar- 
riogton  IS  not  called  to  the  bar  as  a  witness  for 
the  prisoner.  The  noble  lady  at  the  bar  has 
ber  witnesses,  in  her  turn,  to  call,  with  which 
the  shall  trouble  your  lordships. 

Duke  of  Richmond.  I  do  not  look  on  a  wit- 
neM  at  the  bar  to  be  the  witness  of  the  counsel 
«r  of  the  prisoner,  but  the  witness  of  the  House. 
I  than,  therefore,  ask  a  question  or  two  of  the 
BoUe  lord.  I  will  not  distress  the  noble  lord's 
ftdiags  by  enquiring  into  confidential  matters. 
I  will  merely  ask  questions  of  fact.  The  6r8t 
qnettion  I  troulil  ask  the  uoble  lord  is,  whether 
M  knows  any  fact  by  which  he  is  convinced 
tint  Mr.  Hervey  was  married  to  Miss  Chnd- 
kkh? 

Lord  Barrington.  I  do  not  know  of  any  fact, 
vbicb  will  prove  the  marriage  between  the 
^neben  of  Kingston  and  Mr.  Hervey,  of  my 
svn  fcoowledflre. 

Duke  of  Richmond.  The  noble  lord  must 
kive  it  to  the  House  to  judge  whether  it  will 
tr  not  But  does  his  lordship  know  any  fact 
i^ve  to  that  matter  ? 

Li>rd  Barrington.  I  do  not  know  any  thing 
if  my  own  knowledge  that  can  tend  to  prove 
tka  marriage.  I  know  nothing  but  what 
I  have  heard  in  the  world,  and  from  conver- 
sion. 

IdHf^' Radnor.  I  am  afraid  your  lordships, 
by  your  acquiescence,  have  admitted  a  rule  of 
poceeding  here,  which  would  not  be  admitted 
IS  any  inferior  court  in  the  kingdom.  J  de- 
an, therefore,  to  ask  the  noble  lord,  whether 
^  knows  any  matter  of  fact  relative  to  that 
■Mrriage. 

l^rd  Barrington.  My  lords,  if  I  do,  I  can- 
Mt  reveal  it ;  nor  can  I  answer  tlie  question 
*iUioat  betraying  private  conversation. 

[Moved  to  adjourn.  Adjourned  to  the  Cham- 
^  of  Parliament. 

After  an  adjournment  of  some  time,  the 
I^^  returned  to  Westminster-liali.] 

L.  H.  S.  My  lord  viscount  Barrington,  I  am 
Mmaoded  by  tlie  lords  to  acquaint  your  lord- 
Aip,that  it  is  the  judgment  of  this  House,  that 
J*a  are  bound  by  law  to  answer  all  such  ques- 
liNii^  as  shall  be  put  to  you. — Haa  the  counsel 

*  Set  what  passed  on  the  examinations  of 
Vr;  BMrkins  and  Mr.  Berkley. 


for  the  prosecution  any.  question  to  put  to  tha 
witness  at  the  bar  P 

Sol.  Gen,  We  shall  not  ask  the  noble  lord 
any  questions. 

Is.  H.  S.  Has  the  counsel  for  the  prisoner 
any  question  to  put  to  the  witness  at  the  bar? 

Mr.  Wallace.  Not  any. 

Lord  Radnor.  .  Does  the  witness  know  from 
conversation  with  the  lady  at  the  bar,  that  sha 
was  married  to  the  earl  of  Bristol  ? 

Lord  Barrington,  My  lords,  I  have  already 
told  your  lordships  the  inotives  which  indues 
me  to  think  that  I  cannot,  consistent  with  con- 
science, with  honour,  or  with  probity,  answer 
such  questions,  as  will  tend  to  disclose  confi- 
dential communications  made  to  roe.  At  the 
same  time  I  informed  your  lordships,  that  if 
the  oath  went  so  far  as  that  I  should  break  that 
oath,  if  1  dkl  not  answer  all  questions  whrh 
could  be  put  to  me ;  if  that  was  the  determi- 
nation ot  your  lordships,  I  said  I  would  not 
break  m^  oath.  My  lords,  I  continue  in  the 
same  opinion  and  principle.  My  own  judg- 
ment, as  far  as  it  guides  me,  which  is  very  im- 
perfectly, does  ten  me,  that  I  am  not  obliged 
to  answer  all  questions  that  can  be  put  to  me. 
But,  my  lords,  though  nobody  can  draw  the 
line  of  conscience,  ot  honour,  and  of  probity  ia 
this  case  but  toyself,  yet  in  point  of  law,  and 
in  interpretation  of  law,  and  the  oath  I  have 
taken,  1  am  desirons  of  assistsnce  from  thosa 
who  can  best  give  it  me,  and  1  had  much  rather 
trust  almost  any  man's  judgment  thsn  my 
own.  I  do  not  dare  to  ask  again  your  kirdsbips* 
opinion  on  that  point.  But,  my  lords,  might  I 
be  permitted  to  apply  to  the  learned  counsel 
who  are  near  me ;  if  it  is  the  opinion  of  tha 
learned  counsel,  that  I  am  obliged  by  my  oath 
to  answer  the  noble  lord's  question,  1  will  rea- 
dily answer  it. 

Lord  Effingham.  I  apprehend,  that  no  ques- 
tion can  be  put  in  this  court  ou  a  matter  of 
law  to  the  counsel  at  the  bar. 

Several  Lords  said,  *  You  may  ask  the 
counsel.' 

Lord  Barrington.  My  lords,  f  have  put  the 
question  to  the  Attorney  General,  and  I  give 
,nim  my  thanks.  He  says,  he  thinks  I  am 
obliged  by  my  oath  to  answer  all  questions. 
That  being  the  case,  I  have  nothing  more  to 
say,  than  humbly  to  beg  your  lordships'  pardon 
for  having  given  you  so  much  trouble,  and  to 
beg  and  intreat  that  you  will  believe,  that  no- 
thing but  the  tenderest  and  the  strongest  feel- 
iofi;s,  and  the  most  determined  resolution  to  do 
what  was  right  in  my  situation,  could  have 
induced  me  to  give  you  so  much  trouble. 

Lord  Radnor.  Whether  his  lordship  knows 
from  conversation  with  the  lady  at  the  oar,  that 
she  was  married  to  the  earl  of  Bristol  ? 

Lord  Barrington.  My  memory  I  have  found 
by  long  experience  to  be  a  very  erroneous  one, 
and  especially  with  relation  to  things  past  long 
ago.  To  the  best  of  my  memory  and  belief, 
the  duchess  has  never  honoured  me  with  any 
converkativn  on  the  subject  for  many,  gaaqji 


691]  16 1 

yettts  pHl;   I  bHli 
IwcDty  yeun  put. 


Ikt  <' 


.  I  I 


And, 


doablt'ull; ;  but  dfier  tlie  solution  vtliicli  Ihe 
ttnrneJ  counsel  bas  (jirpn  in  my  dnnlrif,  t  mvaii 
iii>l  to  coDcesI  ■tiy  tiling  ffim  j^our  lorJslii|i». 
Tbinking  it  rig-lil  to  be  ekamincil,  1  Ihink  it 
riglil  to  give  fronit  soswtrs,  anil  any  iloiibl  io 
kny  thiu^  I  uy  will  arise  Trom  my  not  reinpm  • 
bering  well  ibe  drcoraslances.  The  diithrai 
OlKin^nn,  man?  (i  sboutd  not  say  too  niudi 
if  I  WSB  to  ssy  thirty)  years  agn,  .lid  entrust 
Hie  with  a  circumilHuce  in  her  life,  relative  lo 
■n  engmcement  of  a  malrimniijal  kind  with  Ibe 
earl  of  Bristol,  then  Mr.  ller*ey. 

Loril  Radnor.  Whether  his  lonlihip  under- 
stood, that  lhiitniBlrimnnlBlenD^g«nienl,nhiGl] 
bad  already  paiscpd,  waa  n  marriage  ? 

Lord  Barringlon.  I  understood,  there  had 
been  a  iflalriroonisl  engaifcinent  entered  into  i 
but  irhether  it  nuiounled  lo  n  legal  marriisfp 
Or  not,  I  am  not  lawyer  or  ciciUao  enough  lo 

£ord  Radnor.  Did  hh  lordship  ever  under- 
■land,  that  there  nus  issue  dI' thai  marriage? 

Lord  Barringlan.  Upon  ray  wiird  1  cannot 
say;  I  do  not  know  thai  Ihe  ducheia  eter 
made  nny  comniunicntion  of  thai  sort  lo  me. 
I  bad  heard  of  ii  in  ihe  world,  but  I  do  nnl 
know  that  tbe  duchesa  ever  communicBted  to 
me  tbe  circumstance  of  her  having  hnrl  any 
iMue. 

Lord  Radnor.  Does  his  lordibip  know  any 
tiling  or  a  band  entered  into  on  tbe  pan  of  rbe 
prisoner  at  Ihe  bar,  of  lale  yaars,  reinlive  to 
the  Huppreasion  of  erideiice,  or  Ihe  payment  of 
ooHs  of  anil  in  the  Keclesiaslical  Court  ? 

Lord  Barring fim.  I  never  bad  Ihu  least  coin- 
inunicaiinn  Iroin  iIik  itudiesi  of  Kingston,  or 
from  any  person  relative  lo  any  Iblng  uf  the 
kind  i  I  do  nol  recollect  Ihat  I  ever  heard  of 
.  any  such  thing  even  in  Ihe  world;  and  tbe 
ducliesB  uf  KluKSlon  has  never  cammuDlcaled 
to  lue,  iu  ihe  course  of  her  life,  to  the  belt  of 
.r  belief. 


Trial  o/ikt  Diichtit  of  Kingston 
t  ihote 


r.  Dunning.    Mv  lorili,  wi 
e  Mm.  Judith  Philli|<«. 


tbeti 


IS  pie: 


inv  thinif  nl 


n  lUe  least  a  deviation  from  the  striclesi 
rules  of  virtue  and  religion.— [Ordered  lo  with- 
draw.!— My  loi^s,  is  il  too  much  lo  beg,  Ibal 
what  I  have  said  al  Ibe  bar  may  be  read  over 
to  me  f  Part  of  it  is  of  a  nice  nature ;  1  may 
bate  expressed  myself  improperly ;  tlie  writer 
may  have  Taken  It  down  erroneously :  1  shoiild 
be  glad  lo  have  it  read  over  lo  me,  Ibat  I  may 
correct  it  in  your  lordBbina' prrsence,— [Here 
the  universal  voice  was  ■  Read,  read  !'  but  lord 
3arringlon  spared  the  House  the  trouble,  by 
addressine  himself  to  Ibeir  lordships  as  fuf- 
lonsO— My  lonli,  I  find  by  ibe  Clerk,  that  Ihe 
pail  which  IB  of  ihe  DicesI  kind  with  reUliou  lo 
me,  wherein  1  enpreased  ihe  difficulties  and 
teliogs  I  had  on  Ibe  sulijecl  of  questions  Ihai  I 
Iboughl  I  ought  not  to  answer,  and  why  and  ou 
wbal  ground  I  have  since  Ibougbl  il  my  duly, 
underslandlug  Ihat  my  oalh  oliligea  me  to  it, 
to  give  my  answera  ;  I  find,  niy  lords,  thai 
part  bas  aul  been  taken  dowo  by^tbe  Clerk,  and 


derire 


family  of  the  n 


Uta.  Judilli  P/iillipi  sworn. 
Examined  by  Mr.  Dunning. 
You  were  th«  widow  of  Mr.  Amis,  ww 
nol  ?— Yes. 

Mr.  Amis  wja  parmn  of  the  psrish  of 

Did   vou   knoi 
Merrill  ?_I  did. 

Was,  or  was  nol,  Mr.  Merrill'^  house  in  tbi 
parish  P—It  was. 

How  long  since  did  your  hnsband  dief-J 
Seventeen  years  ago. 

Do  you  know  Ihe  lady  al  ihebarf— Vo^ 
well.  ^ 

How  long  hate  you  known  ihe  lady  «t  iM 
bar?— .4  bout  thirty  years. 

Were  you  privy  lo  her  marriage  in  your  hoM 
band's  lire-liiiier—l  was  not  at  the  wmldinf 
bui  I  beard  my  hnsbnnd  say,  he  married  tlien 

.1  iM-d.  Thai  is  not  evidence.  ' 

nr.  Dunning.  Had  you  not  any  Other  IOMM 
of  knowing  thai  fact  from  ibe  lady  M  Ihe  Ml 
herself?— Mrs,  Phillipi.  Yes. 

Do  you  remember  tbe  lady  at  Ihe  bar  eotlf 
ing  lo  WiuehMier  f— Very  well. 

When  ?— She  cBme  about  tbe  middle  of  Fe- 
bruary, 1759. 

Wna  Ibal  in  your  husband's  lire-time,  or 
since  his  death? — In  my  husband's  life- lime. 

Waa  it  long  before,  and  bow  long  betoMJ 
Mr.  Amia's  desth  t — Six  weeks. 

What  was  tbe  occasion  of  ibe  lady's  visit 
Winchester  f— For  a  roister  of  her  marrias 

If  you   recollect  any   particulars  of   vri 
passed  upon  thai  occasion,  state  thera— " 
came  lo  the  Blue  Boar  in   Kingsgate-ali 
Winchester,  and  sent  forme  by  six  o'dt   ' 
ibe  morning.      When  I  went  lo  her,  she 
me  if  J   Ihoughl  Mr.  Amis  would  ijive 
register  of  her  ninrringe  J  I  told  her,  1  thon[ 
he  would.     Then  I  asked  her  to  my  houi 
and  when  she  came,  she  asked  me  lo  m 
wilh  lier  to  Mr.  Amis,  and  ask  if  he  wotilil  i 
her  and  give  ber  a  reicisler  of  her  mai 
I  went  nn  lo  Mr.  Amis,  and  told  Hi 
what  Ibe  lady  had  desired.      Mr.  Amis 
to  see  Ibe  lally.    Then  I  came  down  ai 
ber,  Ihat  Mr.  Amia  at  that  lime  was  conBned 
bis  bed.     The  lady  went  lo  Mr.  Amis,  and 
Mr,  Amis  her  request.      Then  Mr.  Merrill 
the  lady  consulted  together  whom  to  send  fiuy 
and  ihey  desired  me  to  send  for  Mr.  Spearing, 
the  Btlnrney.     I  did  send  for  him ;  aud  during 
the  lime  tlie  messenger  wus  gone,  Ihe  lady  con-, 
ceafed  heiaelf  in  a  chisel :  she  said,  sbe  '* 
cure  Ihat  Mr,  Spearing  should   knnsr  tl 
was  there.     Wlien  Mr.  .Spearing  cam 
Merrill  prodiiceil   a   sheet  of  stamped 
ilmt  be  brought  lo  make  the  reglstei 
Mr.  Spearing  raid,  il  would  not  do,  it  r 
■  book,  and  Ibat  ihe  lady  must  be  a'"*  ~ 
of  it.    Then  1  went  lo'lhe  closet, 


bilv.  Then  the  lady  mtne  to  Mr.  S|>eariog, 
■ad  Mr.  Spearing;  tolil  the  lady  n  alipet  ol 
ttamfwil  piper  would  anl  do.  it  miiBl  hea  buok. 
Tbm  the  tailf  drtired  Mr.  Spearinof  to  |ra  nml 
buy  oiip.  Mr.  Spearing  went  anil  bouglitoiie, 
■nd,  wlien  broughi,  the  regislvr  was  roHile, 
Tlien  Mr.  Amis  drlitd'ei]  it  Id  llie  lady.  Tlit- 
lady  thaiik«il  lilna,  and  said  it  might  lie  on  liuii- 
dred  thousand  pounda  in  her  wny :  nl  the  same 
time  *he  addid,  that  (he  had  had  a  child  liy 
Mr.  Heriey,  and  lliat  it  was  a  boy,  hut  that  il 
was  dead  ;  ami  that  she  liai]  borrowed  an  hun- 
dred |iounda  of  ber  aunt  HaDmer  to  buy  bnbv 
Ihioga.  Before  Mr.  Merrill  end  the  Uily  M\ 
my  bouse,  the  laily  sealed  up  the  rejjititer,  anri 
gaTc  It  to  me,  and  de«ired  I  woiilil  lake  care  of 
■I  uatd  Mr.  Amiii's  death,  and  then  drlicer  It  to 


Hr.Mer 


Did  it  accordingly  remain  in  yonr  bands 
«ntd  your  huaband's  dealb,  and  did  yoii  ihtn 
deHrcT  it  10  Mr.  Merrill  f— 1  did. 

!>•  you  recalled,  nbelher  Mr.  Merrill  nc- 
(■HMbled  the  lidy  from  the  lime  you  Hrat  saw 
htv  to  Wiocheiiler  lo  your  husband's  house, 
wM  Mr.  Merrill  join  ibem  aUerwards  when 
ihn  were  there  f — Hejoioed  tlicm  aflerwarda. 

0a  yOH  remember,  whether  any  other  entry 
WU'IMD  made  Id  ibis  reifigler.book,  besides 
thecDlryof  tills  mavria|;e.''  —  l  don't  remeoi- 
berany. 

Do  you  recollect  to  hare  ceen  any  thing  of 
the  lady  at  the  bar  since  your  husband's  death  f 

Do  you  recollect  eny  cnnTenition  that  hni 
yMa«d  between  you  at  any  of  those  limes?— 
tim  I  had  delivered  the  reiiiater  to  Mr.  Mer- 
iflL  I  waited  upon  llic  lady  al  her  huuie  at 
Emctitsbridt^,  and  found  her  in  the  ^rden.  I 
mU  her,  1  hail  delivered  the  register  to  Mr, 
Uerrill.  She  ihaohed  me  for  il ;  and  desired  I 
vould  lake  au  Doliee  of  it ;  ut  the  saine  time 
Ac  Mid  Mr.  Swinn  was  in  the  gfarden,  and 
I  would  take  no  aulice  to  him  of  tin 


se' 


Oe  you  recollect  any  further  conversation 
abaol  Uiis  book,  atler  Mr.  Merrill's  death,  with 
dwUdy  ? — I  was  once  a-ftshing  with  the  lady, 
and  abe  tobi  me  some  Ihingi  that  bad  passed  m 
diefiniily.  She  lold  me,  that  Mrs.  Balhlirsi 
bad  naad  her  very  ill,  for  she  hod  gut  all  the 
naptn  Mr.  Merrill  had  of  ber's  al  the  time  of 
ail  death.  Upon  which  I  asked  her,  what 
wti  become  of  the  refrisier  ?  She  lold  nie  Ihi 
■blister  of  Ibe  parish  hud  it. 

Waa,  or  wa«  nol,  Ihe  Afrs.  Batburst  yot 
ki*«  spoken  of,  Ibe  daughter  of  that  Mr.  Mer- 
oH?— She  was. 

Do  jou   recollect  any   other    conversalini 
■itb  l£e  lady  at  the  bur,  after  ber  marriagi 
(Fkh  ihe  duke  of  Kingston  T— Yes  ;  I  waited 
•pan  ber  in  Arlington -street,  after  her  marriif 
•Hh  the  dgke  of  Kingston.     She  said  to  m 
Wm  il  not  very  good-natured  of  Ibe  duke 
^nj  an  old  maid  ?  1  looked   her  in  the  luce 
■i  HoiM,  but  said  nothing  then.     Hhe  asked 
n  IT  Hr.  Herrey  bad  sent  lo  ine  at  ihe  time 
.^kMtiUlf  I  Mkl  ha  had  not  Mtit  (0  na. 


A.  D.  me.  [59i 

[The hook  shewn  lo  ihe  wilne«3  ]     Can  you 
'  sure,  whether  that  Is  the  book  you  hate 
been  speaking  of? — I  am  very  sure. 

1  believe  lliere  are  Ihe  vesligea  of  Ihe  seals 
about  it  still  ?— There  are. 

Where  it  was  *pnted  up  f — Yes. 
Look  ai  the  entries  in  the  bunk ;  arc  they  not 
lur  husband's  writing?  and  were  lliey  not 
ade  in  your  presence? — TTiey  arc  my  hus- 
band's hand- writing,  and  ibey  were  made  in 
my  presence. 

They  were  made  likewise  in  Ihe  prtsence  of 
the  lady  at  the  bar,   were  tlipy  nol  ? — They 

Clerk  reails ; 
■  Marriages,  births,  and  burials  in  ibe  paiich 
•  of  LainatoD.  Sd  of  August,  Mrs.  Susannah 
'  Merrill,  relict  of  John  Merrill,  et.i\.  buried, 
'  4lh  of  August  1714,  married  ihe  bunnuralila 
'  Auguttui  Herrey,  esq.  in  ibe  parish  ihurch 

■  of  Lainston,  to   Miss  Eliatabrlh   ChudleigK, 
'  daughter  of  colonrl  Thomas  Chudleigh,  late 

■  of    Chelsea    College,   deceased.      By   tne 
'  Thomas  Amis.' 

Mr.  Dunninj;.    Kly  lords,  I  have  done  with 


Mr.  Mantficld.  I  should  be  glad  first  lu  see 
the  book. —  I  would  wish  to  know  by  what 
mpans  you  now  sulwiat?  what  support  you 
hare  ?— Mrs.  Phillips.    Upon  my  own  pririla 

Where  do  you  live?— At  Bristol. 

Is  your  husband  liring  or  dead  ? — AIi»e. 

What  employment  was  he  in,  before  he  liveil 
al  Driitol  upon  his  fonune? — [)e  was  steward 
to  the  duke  of  Kingston,  and  a  graaier. 

Was  he  not  turued  out  oftheservire  of  the 
duke  «F  Kingston? — I  believe  be  was  not 
turned  out. 

Do  not  you  know,  whether  he  was  or  not  ? 
— He  wrote  akiter  to  Ihe  duke,  and  desired  lo 

Do  you  kuow  then,  that  be  ww  not  tamed 
nut  ?--Yes. 

Hud  he  been  threatened  to  he  turned  out,  be- 
fore he  Bcoi  that  lelter?— Not  thai  ever  I 
heard  of. 

Had  your  husband  bad  any  diflerences  or 
disputes  with  the  duke  of  Kiug^tuu  ? — No,  not 
that  1  know. 

Was  bis  reason  then  fur  quitting  the  sertice 
of  ihe  duke  of  Kingslou  merely  bis  own  In- 
clination, without  any  particular  reaioo  nr 
cause? — He  ihoughl  the  duke  looked  cool  upon 
him :  for  what  reason  he  could  nol  tell. 

Had  the  duke  eier  expressed  any  cause  of 
dislike  to  him  ? — Not  that  I  know  uf. 

How  long  have  you  left  Bristol  ?— About  four 
months. 

Where  have  you  lived? — Sometimes  in  one 
place,  Bometinies  in  another. 

In  whni  places? — Somelimei  at  Ihe  Turf 
cotfee-hou»e,  aoiuetimeiia  St.  Mary-Is*. 

p%  -  -.  -.-  ^  -  ■ 


»95] 


1»  GEORGE  III. 


Trial  n/llif  Duchtis  of  Kingston, 


P9« 


How  much  or  Ibe  Irme  at  llie  Turf  COffe«- 
'    kouse  ?-'I  reslly  cinnot  say  exactly. 

Von  are  ool  uked  as  lu  ■  week.  Have  you 
liveJ   iliere   tbe    greater  parlf — Tlie   greater 

Who  lias  «iipaorled  yoj  at  lite  Turf  coffee- 
house F—OursJves. 

Hare  you  paid  the  expellees  of  your  support 
ihere  P — Thai  1  do  not  know  any  thing  of. 

Do  you  not  know,  that  the  whole  nf  your  tx- 
al  the  Turf  coHee-hnuseii  to  be  (jefrayed 


~I  hare  ont. 


do  Dot  koow  it  ia. 

Itaieyou  not  iinilerstooi]  si 

Nnr  (To  you  lielieveit?— I  cannot  tell  wliat 
It)  lielieTe,  or  what  is  to  be  done. 

Cannot  you  tell,  whether  you  belicTe  that 

Eur  expences  at  the  Turf  cofTee-honse  are  to 
defrayed  by  Mr.  Mcatlowa? — No,  I  do  not. 
I  do  not  know  aay  thing  of  thai. 

Do  yuu  not  knoir,  hy  nhoni  you  evuect  the 
upence  of  your  aupjiotl  at  the  Turl  colfee- 
house  is  to  be  paid? — 1  do  uut  know  hy  whom 
it  is  to  be  paid. 

Hare  you  seen  Mr.  Evelyn  Meadows  at  tbe 
Tiirfc.,ffee.house?— 1  hare. 

How  often  may  you  have  seen  that  gentle- 
toan  there  t—\  cannot  tell. 

Many  limes,  oronly  once  or  twice? — I  may 
hare  acco  hicD  twice  or  three  limea. 

Hare  you  not  seen  him  oltener  than  thai, 
there?— I   have  aeen   him   frequently   iu  the 

Have  yon  not  had  frequent  conTersations 
with  hrm ! — Not  frequent. 

Hare  you  notconrersed  with  hiiD  sometimes 
■I  the  Turf  coffee-house,  sonielimes  at  other 
■lacesr— No  where,  but  at  the  Turf  coffee- 

>Vho  has  been  preseDlatsuchuonFerfaiiaDi? 
•—My  buabuod. 

UltoelseP— Nooneelse. 

Has  not  Mr.  Fozard  been  present  at  some 
«f  these  CO  11  versa  lions  F — Never. 

Hare  you  not  been  at  Mr,  FojirJ'g  house 
with  Mr.  Meadows  ? — N'erer;  by  accidentoo 
^briiiinu-day  1  called  at  his  door,  and  he 
Baa  there. 

Were  you  in  company  with  Mr,  Meadows  at 
JUr.  Fozard's?--!  was. 

Does  Mr.  Fozsrd  assist  Mr.  Meadows  In  the 
ooun^e  of  this  piosecuiiuo? — 1  know  notbioe 
ttf  that. 

Do  not  you  know,  that  Mr.  Fozard  has  as- 
«)iled  Mr.  Meadows  in  looking  out  for  wit- 
neiaesr— I  don't  know  any  thing  about  iL 

Hare  you  u«t  yourself  been  present  at  con- 
•erhBliooa  wiih  Mr.  Fozard  about  this  prose- 
(aiii»n  ?— Notliiog,  but  what  was  merely  ac- 
Wdeiilal. 

How  often  has  that  accident  happened,  that 

Km  hare  been  present  at  conrersalions  with 
r.  Fozard  about  this  prosecution  P — 1  nerer 
was  at  JHr,  Fozard's  hut  twice. 

His  Mr.  Fozard  been  at  the  Turf  coffee- 
bouse  with  you?— He  came  to  aeo  Mr.  I'hil- 
Ufs,  wbtii  be  bad  tbe  gout. 


How  often  might  Mr.  Fozard  viait  you  ■ 
the  Turf  <:uffee-hause?-~He  came  tu  see  Ml 
PhillipR,  but  nut  me. 

How  olien  might  he  visit  Mr.  Phillips  there  r> 
~\\>0M  three  limes.  -" 

Hare  you  ever  met  Air.  Fuzard  at  any  oi 
places  besides  the  Turf  coffee-house  and 
own  house  ? — Never. 

Do  you  know  of  any  promise  made  to  _ 
or  your  bnsband  of  any  benetii  or  adraniafM 
cie)ieDdin|r  upon  the  event  of  this  proseculioaf. 
— ^one  in  the  world. 

Did  you  iierer  hear  of  any  such  promise  be 
ing  made  to  you  or  your  husband  ?-~Nerer> 

Hare  yuu  nerer  said,  that  any  such  prooiis 
or  offer  was  made  ? — Meter,  nor  it  uever  wu 

Hare  ^ ou  never  said  any  thing  Iu  that  pur-^ 
pose  ? — No,  never  lo  any  body. 

Havit  you  never  made  any  mention  of  uj 
kind  of  benefit  or  adrkntage  you  were  lo  receive 
from  the  evidence  you  should  give  on  this  pra- 
secutioo  ? — Not  iu  ihe  least ;    1  don't  wast  it. 


thai  at  tbe  lime  o  _ 

in  this  roister  no  other  en'iry  was  made?— 1 

don't  remember  thai;    1  remember  rer^  well 

standing  at  the  bed's  feet  when  the  reginter  waa 

made. 

Do  not  you  know  whether  an_y  other  entrji  ■ 
was  made  ul  that  lime?— 1  doit'l,  for  I  naf  J 
backwards  and  forwards  in 

How  come  jou  then  lo  know,  that  the  r. 
gister  of  this  marriage  was  made  in  ihe  book  a^| 


thatti 


.' -I  Si 


Did  yon  read  it  at  that  time  ? — I  beard  ftll] 
Amis  read  it. 

Did  yuu  hear  him  read  any  thing  else  be-r| 
sides  the  entry  of  the  marriage  P — Nothing  but 
that,  for  1  was  going  backwards  and  forward* 
iu  Ihe  room. 

Do  you  know  oolhlug  al  all,  whether  aDj< 
lliini;  else  was  entered  hekidcs  that  at  the  timfl 
of  ihe  marriage  ? — I  did  not  sec  any  thing  but 
that ;  though  it  might,  as  1  ffas  going  back^l 
wards  and  fortviirds. 

Did  you  see  ihe  entry  of  Ibe  marriage  in 
book  ?'  -1  did. 

Ityou  saw  that,  must  not  vou  have  i 
whether  there  were  any  other 
the  same  leaf? —  1  beard  it  re 
it  afterwards  hut  when  Ihe  lady  sealeil  it  up. 

Did  not  you  take  notice  thai  ihere  were  othet 
entries?— I  did  not. 

You  look  notice  of  nothing  ujion  Ihe  paper^ 
but  the  entry  of  this  marriage  ? — Of  DOlhinf . 

Did  you  keep  the  paper  long  enough  befbr* 
you,  or  did  the  Udy  at  liie  hut  keep  the  book- 
long  enough  bel'ure  her,  lor  her  to  see  whi 
iher  what  she  heard  read  w 
paper  ?--J:4he  held  it  in  this  i 
the  manner)  0|>en,  and  1  saw  it  as  1  stood  h 
her :   I  did  not  read  ii.  hui  heard  il  read. 

Did  all  Ihe  peisons,  who  Here  present,  hea 
what  was  said  aliontthe  hundred  pouoda  Im| 
by   Mrs.  Uaiimer  ?— No,  they  did  B 


olh*'" 
leea 
saw 


for  Bigamy. 


.ut—To  Mr 


Itily  mIJ  she  hntl  borrnwpil  lool.  of  her  aiinl 
lira.  Haompr  toliiiy  baby  lliii»;s. 

WI.K  m  Ibe  UJy  lell  tUiit  ti> 
Amiii  iiid  In  rae. 

Uid  she  s[ieib  it  louilly  or  softly,  nr  how  ? — . 
Sb«  fpoke  it  u  ibe  iru  Billing  by  the  beil-fliile 
Utkinzlu  Mr.  Amis. 

WbeB  did  you  tell  any  bwly  of  such  re- 
gttutf — t  really  cannot  say  exaclly  »hfD,  but 
I  btre  taid,  I  bail  il  in  my  poBseuiun. 

Wben  tliU  you  Grst  meotiou  i(  ? — I  caanol 
tell. 

Was  Mr.  Merrill  present  at  tb?  time  when 
this  vntry  was  niaiie  id   tbe    reglKlerf — He 

Was  be  in  tbe  roam  the  wbolc  lime  ibat  itiis 
CMvecMtiun  pas-seil,  tbat  you  bate  inentlonetl, 
•rtcsdibi!  IDO/.  by  Airs.  Hanoierf—No,  be 
*M  I)' It. 

Dill  Mr.  Merrill  come  with  tbe  UUy,  or  tbe 
UAj  bel'ure  biiu,  or  wilbnut  biiu  ?— Tbe  lady 
bi&re  him,  for  Mr.  Itleirill  nas  gone  lu  Laiu- 


When  Mr.  Merdll  came.  Hid  not  tbe  lady 
npeu  ibe  cnaversatioD  that  hail  liven  about  tbe 
ifeM  •ad  the  hundred  pounds  ?—Tbere  was 
■Mhin^of  ibatiaid  bel'oreMr.  Merrill. 
'  Wm  any  tbinfruid  about  making  any  other 
(Olry  in  Ihe  register,  besidei  that  uf  Ibe  iiiar- 
riun?— NaijwiK  Ibat  I  heard. 

Wbeu  did  Itr.  aierrill  come  inln  tbe  room  ; 
brfocc  l]ie  entry  was  made  in  the  book,  or 
aft«-  >— Before. 

Wu  Mr.  Merrill  in  ihe  room  at  ibe  lime 
4htt  it  WM  made  ? — He  was. 

Who  was  it  broogbt  tbe  slBioped  paper? — 
Mr.  Merrill. 

Wu  Mr.  Merrill  in  the  room  when  Ihe  lady 
MBcealed  herself,  as  you  baie  said.'— Hewaa. 

WTmi  else  was  >n  the  room  ? — No  one  except 
myiolf. 

Now  look  al  tlie  book. — I  know  ihe  hand 
rvfeclly  well. 

b  ibe  whale  of  tbat,  which  is  written  on  that 
Inf.  Ihe  writing  of  your  husband  7— It  is. 

You  bate  said  tliai  you  went  to  Arlinglon- 
•reet;  canyuu  pa lue  any  person  tbat  you  saw 
there  T — No  one  was  in  the  room,  when  I  went, 
mepl  Ibe  lady. 

Cko  yon  na 
Ibcre?— Only 
Ibni  ■  miUiner 

Cmi  yon  name  those  persouB? — I  can't;  1 
lotflhliitw  them. 

Cui  y«u  uame  neilber  of  tbetn  ? — The  ler  - 
mtww  Fozard. 

Can  you  name  no  other  sertanis  Ihal  you 
■Wfberer— No;  I  bad  an  inaainmstioo  iu 
■J  eyt,  and  the  lady  was  encfedingly  kiod  to 
Me:  fhe ordered  an  e|^  to  be  boiled  for  me, 
Ud  Poaanl  bmu!;hi  it,  in  order  that  it  might 
WcpCDcd  *nd  laid  on  my  eyi 

Can  yoo  nime  any  other  si 
■wlbere? — 1  don't  rememh 

Lord  Camden.  My  birds,  I  obspTTe  in  tbi^ 
niry  vf  the  register  tbe  words  '  was  married' 
cn  ilnick  through  wilh  n  black  tine ;  1  wui 


iny  jiers 


I   tbat  1 


IS  whom  yoi 


A.  D.  1775.  [598 

10  know  of  the  witness  whether  she  can  nc- 
coonifnrtbat  atruke?— Mrs,  Phillipt.  Uaniiqt. 

^\v.  Duniting.  Il  is  a  repelilimi.  There  is 
mariiage  written  in  the  raarfjin.  *  August  ibe 
S'lib,  married.'  The  t-DIry  then  pro'.'eeda, 
'  The  boDOurable  Augustus  Hervey,  e^q.  wu 
married  ;'  which  being  a  repetition,  I  suppose 
they  Biriick  thai  through  Ailh  a  hiack  line. 

Lord  Camden,  I  believe  it  is  so. 

Mr.  DuaniHg.  If  your  lordships  plea<^e,  the 
next  witneBs  to  be  calkd  is,  tbe  rev.  i>1r.  Ste- 
phen Kencheu. 

The  Re?.  Mr.  Stfphtn  Ktnchen  sworn. 
Kxamioed  by  Mr.  Duaxing. 

Mr.  Cunning.  You  succeeded  Mr.  Amis  ig 
this  church  at  Lainslun,  I  believe  F — Kenchcn. 
I  did. 

When  did  you  liriit  see  that  bonk  that  bebal 
in  bii  band,  sad  how  did  it  come  there  P— The 
firH  lime  that  I  saw  tbe  book  was  aAer  the 
death  of  Mr?.  Hanmer,  aunt  to  Mr.  Merrill, 
who  maa  buried  in  the  vault  of  tbat  liill* 
church. 

By  whom  was  that  book  )>roduced  lr>  yoa, 
and  for  what  purpo^ef — tn  order  to  reeiilw 
Mrs.  Hanmer's  biirial. 

By  whom?— By  Mr.  Merrill. 

Did  you  accordingly  make  an  entry  of  the 
burial  of  Mrs.  Haomer  ? — I  made  an  entry  of 
theburialofMrs.  Hanmer. 

What  then  became  of  the  book? — Mr.  Mer- 
rill carried  it  hack  seain  10  bis  own  house. 

When  did  yon  nest  see  Ihe  book?— At  the 
death  ofMr.Marrill. 

By  whom  was  tbe  book  then  produced  to 
you  P— I  cannot  tay  ;  either  Mr.  or  Mrs.  Ba- 
thursl,  or  lu  the  preaence  of  them  both. 

Did  you  then  make  an  entry  of  the  burial  of 
Mr.  Merrill  ?— I  did. 

What  then  became  of  tbe  book?— I  have 
had  il  in  my  possession  ever  since. 

Mr.  Duuni'ig.  My  lords,  1  sbsll  ask  uft 
mori?  queitiuns  uf  this  witness. 

L.  H.  S.    Mr.  Wallace,  would  you  ask  this 


witness  any  qucilions  ? 
Mr.  Wallace.    1  have  ( 


have  no  questions  to  put  to 
this  witness. 

Mr.  Dnnning.    If  your  lordships  please,  we 
will  now  call  the  reverend  Mr.  Jolm  Dennis. 
Tbe  Rev.  John  Dentin  sworn. 
Examined  by  Mr.  Dunning. 
Mr,  Dunning.    Look  at  that  book.      Were 
you  aoquaiuied  with  tbe  band-writing  of  the 
late  Mr.  Amis?   You  knew  Mr.  Amis,   I  pre- 
sume?— Denait.    I  knew  him  perfectly  well. 

Do  you  know  his  band-writing  when  ] 
•ee  it? — 1  have  seen  his  haod-w 
-diuK  him  in  Ihe  liviai^. 


ing  oftea, 


Did  V 


-1  ba< 


him  wnte,  but  nut  id'tt- 

Look  ai  that  hand- writing ;  tell  me  whether 
you  believe  the  two  entries  in  the  Rrsl  paj^  of 
thai  book  are  bis  haod-writintc  ? — Ves,  parti- 
cularly  bis  name,  Tbomas  Amis,  seem*  ^mj 


16GE0HGE  III. 


Willi  liieilukeul 


JJi)  vou  bdieve  it  li>  le  his  lisail 
)  Wlieve  llie  Hfaole  10  Ue  bis  li 
^Oraereil  lo  wUlidnn-l 

Str.  Dunning.    I  do  nal  know 
Abe  part  ol'tliP  (tiiaoiier,  iliey  mean 
11)6  iirOfinifi  wbicli  it  is  tieccamr^  for 
'STtbey  require  it,  Ihe  nuirmgr ■  ''■' 

Mr.  W'allwe.  We  are  re»ily  to  ailmil  thai 
Tact,  There  is  no  douUi  ol'  lifr  briii){  mar- 
Tied  by  ibe  licence  of  Ihe  arcbbisliop  of  Cun- 
terliury. 

Mr.  /tunning.  Yna  will  give  ns  the  date. 

Mr.  Wullace.  Mt-nlioii  wlmt  ibe  day  is. 

Mr.  Dunning.  The  8ih  ol"  Msrcb  1769,  1 
Snderatand. 

Mr.  Dunning.  My  lords,  we  are  now  going 
p  prove  a  uareat  eiitered  by  ibe  laily,  upon 
tbe  ajiprelieusioD  of  a  suii  iniKiiUed  lo  be  insli- 
(uied  |iy  Mr.  Hervey  id  the  Spiriiiul  Court. 

„  Mr.  JamtiBWoro. 

Mr.  Dunning.  Do  you  Lnow  any  thing  of 
the  ca*eBi  entered  at  Doclnra' Commons  on  lb 
))Brloflhe  Udy  al  the.bar?— Jumei.  Yes,  lb 
caieal  ig  tniered  in  iliis  book  (producing  it). 

Is  that  the  proper  liook,  ia  which  sucb  en 
tries  ought  to  he  mHde.''--lt  is. 

The  Careat  was  reitl  by  the  Clerk,  and  it  ■ 
folloHS!  '  The  18ih  of  August  1T68.  I^t  nn 
<  cllalion,  inlimalioii,  or  other  process,  or  any 
'  leilers  nf  request  for  the  sume,  to  any  oilier 

•  judge  or  juriadiclion  whaltoefcr,  issue  uuder 
« the  Mai  of  this  Court  at  Ihe  luil  or  inslaDre 

•  of  the  hoiiDurahle  Augustus  John  Heney,  ur 

*  bis  brullier,  against  ibe  honuurable  Elizabeth 
7  Cbudleighi  spinster,  of  any  cause  or  suit  mo- 

•  triinnnial,  without  due  notice  being  giveu  m 

*  Mr.  NBthaoiel  Bishop,  proctor  I'or  the  said 

•  honourable  Elizabeth  Cbudleigb,  who,  on  his 
■  being  warned  thereto  before  the  judge  of  this 

*  Court,  or  his  lawful  surrogate,  will  he  ready 

*  by  himself  or  counsel  lo  shew  just  cause  »f 

*  this  sntne  Caveat,  and  why  no  sucb  process 

•  or  letters  of  request  should  issue  thereupon.' 

Mr.  Wallace.    The  witness  merely  produces 

Ihe  book  ;  he  knows  DOthiog  of  the  lacl  of  ibe 

entry  being  made. 
Juma.    I  know  Mr.  Bishop's  clerk's  band  ; 

this  ia  his  ha  lid- nri  ling- 
Mr.  Punning.     Perhaps  the  witness  may 

Itnon,  that  Mr.  Bishop  ivax  the   proctor  em- 

floyed  by  the  lady  in  the  course  ol  that  suit  i* 
Jama.  I  have  heard  ao. 

.    All.  Gen.    That  appears  on  the  record  they 

have  put  in. 

'    Mr.  Dunning.     I  understand,  that  it  is  the 

pleasure  nf  some  of  jour  loidsliijia,  Ibal  we 

■bould  go  into  Ibe  pruol' of  the  marriage  of  Ibe 

^luke  of  Kini{3loD  ? 

Mr.  Wallace,   ll  is  admitted  on  the  pari  of 

the  prisoner. 

nir.  Uunning.    But  as  some  of  Ihe  lords 

tviiiti  for  Ihe  proof,  we  will  examiDe  it, 


T?  ial  o/the  Dmkesi  nf  Kingston,  [600 

The  Ittverend  Mr.  Juma  Treteck  sworn. 


Mr.  Dunning.     Be  so  good  as  find  the  re-* 
gister  of  ihe  mBrriage  of  the  duke  uf  Kiugi 

Mr.  Trcbtrk  points  ilout. 

CUrk  reads.  '  N'  93.  Marriaijes  in  MarcE 
17Q0.  N°g2.  The  most  uahlf  Evplvti  Pier* 
reponi,  duke  of  Kingston,  a  bachelar,  >n4 
the  hunonrable  Elizabeth  ChudleiKb  V 
KfliglUsbridge,  iu  St.  Margar^i'ii  WeUmia. 
sler,  a  spinbler,  were  married  hy  specify 
licence  of  the  archbishop  uf  Canterburi- 
this  8lh  of  March  17<J9.  by  me  Sawui 
Harpur,  of  Ibe  British  Museum.  TbUDiftC^ 
'  riage  was  dlemnized  between  us, 

'  KlSQSTON, 

'  EuZ.tBETH  Chuduigb,' 
'  In  Ihe  presence  of 

*  MtSHAU, 

'  WlLUAU  YeOi 

'  A-  K.  F.  GiLBEBT, 

'  JlHES  LaHOCHK,  JUD. 

'  Alice  Yeo. 

'J.  RoshMacktb, 

'  E.  It.  A.  Laruciib, 

■  Arthur  Colueb, 

■  C.  MASUaM.' 


"SS 


Mr.  Dunning.  I  am  desired  to  apprize  J«a 
lordships  of  a  tiicl,  which  may  ft  may  itpl  If 
jirornl,  if  thought  npcssaary.     Tour  tordal ' 

heard  in  the  evidrnce  nf  the  last  wot 

M:oLim  of  a  cenaio  Mr.  Spearing,  who  wll 
present.      Tbst   Mr.  Spearing    could   not 
tound.     Ue,  though  mayor  uf  Wincheater, 

found  lo  be  amusing  himself  someitiii 
or  oilier  beyond  sea,  God  knows  where, 
bare  witnesses  lo  give  your  lordships  ibal 
count,  if  your  lordships  think  it  necessary.—* 
U'ill  ynuf  lordships  now  please  to  bear  tbf 
reverend  Mr.  Haipur  ? 

The  Reverend  Mr.  Harpar  sworn. 

Mr.  Dunning.  Did  you  perfunn  the 
riage  ceremony  between  these  parlies?- 
lUrjiur.  Yes. 

Mr.  Danning.  At  ihe  lime  mentioned  J 
register  7— Mr.  Harpur.  Yes. 

L.  H.  S.     Have  yuu  any  more  witness 

Mr.  Cunning.    We  don't  judge  it  nt 
lo  oAer  lo  your  lordships  aov  more  evii 
ihissiageof  ihehiisinrbs.     If  il  should 
so, we  reserve  lo  ourselves  the  right  of  cvun 
itig  them  herenfier. 

Mr.  Malluce.  1  beg  Mrs.  Phillips  mav 
called  to  the  bar,  that  a  kiier  may  be  prodfui 
lo  her,  and  thai  she  may  say  whether  il  ia  I 
band- writing. 

Mr*.  PAi%f  called. 
Mr.  Waiiace.    Is  that  your  haod-writiogi 

Mrs.  Phill^i.    The  name  is  my  band- 
Mr.  Wallace.     Is  thai  your  ' 

riuilipi.  it  ia  tu^  teller. 


writing?^ 
nd-wriimK 


•H 


w 

^F        lliv  duchi 
WH;  My  Ou 


ui  fram  JuVmi  Piin^ips  tn  her  grace 
iliv  duchen  of  KiogMoo  reaJ. 

W  My  My  Oucheu ;     I  wriw  your  grace 

Uni  Iflirr. — My  lie»t  huever  Iweu  tiimly  ul- 
Urli«il  III  yuur  grt^a'a  inieresi  auil  |ilcaiiiire, 
•nd  niy  uluioet  wiih  lo  ileietTc  your  favour  und 
cauBicuaiice.  Suffer  me  out  ihro  in  my  ile- 
c)<niai(  ycurs  tu  ihink  1  hafe  tiirleiled  thai  fa- 
•nur  and  prnteciioii,  wiibnut  inteationally  giv- 
IDK  the  moit  tliatnnt  hum. 

' '  RJay  I  aolreat  vour  grace  to  ncce|it  thti  «i 
)  lincertf  and  bumlil?  Bulimiaainn  fat  any  tailnre 
•f  rMpvcl  nud  duly  luyour  ijrace;  and  peniiil 
me  uMi  hninhly  to  entreat  vuur  grace'*  kind 
iDltroestiun  witb  my  lnrd  dute  to  continue  Ur. 
PhillJ|N  his  steward,  uliuie  liap|iinMa  conaian 
Mly  in  acling  and  dmcliarginif  IiIb  duly  lo  his 
(tMc'a  pleuure.  I'hia  addiiioaal  mark  uf 
jBir  grace'i  gondneaa  vre  hope  tii  lie  bappy  in ; 
ui  in  reiuro,  the  reaiainder  of  our  lives  ahall 
k>  paMed  in  gratitude  uad  iluly.  The  persaii 
TtMcarrica  ihit  niil  wait  Ul  receive  vaurgrace's 
plftuirR  aud  coinniinila  lo  her,  who  reuiaina, 
*ilh  ibe  greaieat  m|wcl,  my  lady  ducbean, 
)wr  i;race'8  mogi  dulitui  aercanl, 

■'  J.  Pimxips." 
"  NnTvmher  7,  ITTl." 

All.  Gen.  The  eiidence,  your  lurd!ihi|is  will 
rtcollrci,  gitni  by  llie  wilueis  wai  in  unNwrr 
tgi  qitMlion,  nhelher  ber  huiband  bad  or  had 
uu  Iwrn  turned  oul  of  hii  place  f  pointing  ihe 
[|imllon  ao  ai  tu  give  your  lordships,  aud  la 
tiiirthe  wiinesK  lo  understand,  that  ibey  meant 
I  :<:  cirmmttuiice  of  being;  turned  oul  of  hia 
;  'let  ihoul'l  go  |>erBonally  lo  tlie  ditcredit  of 
'■■'  liuitiand,  aad 


I  also  imply  some  memory  i 
of  ilie  wife.    The  niinefs,  i 


■ilnd 

'     iliQt,  told  your  lordahips,   wilb 

'  ii  pari  of  It  a*  might  he  deemed  tn 

r  liusbaud'a  credit  in  the  business, 

evigned  hii  place  under  llie  duke, 

;  .cliiTirswhicTi  I  haieinmj'hand.aaduin 
1  III  ilaie  lo  ynur  lordehipi,  if  it  be  ihoughl 
iroaary  before  Ihe  calling  of  the  wilneaa,  it 
laii  T«y  cur reiponde lice,  by  which  it  appears 
liitt  ht  did  an  leiigu  bla  employment  under  his 
RTice  into  hii  grace'*  huids.    He  wrote 


"  t  have  ever  dnue  my  duty  ivilh  llie  »lr 
nlrfgard  to  your  grace'*  iaiarest,  and  v 
lli(  mon  perf^t  reipccl.     I  b«ve  declined 
npliiit;  D  i;i>ihI  aeltleluent,  lo  act  cnutiiTmable 
'■'  j"ur  grace's  pleaaure,  which  her  grace  wa» 
|>lcaMiil  >o  proniMi  nhuuM  be  made  up  to  me, 
aliicii  iiiiitt  hafe  eacojied  hergrace'x  iUFinury, 
1 1  JjaTi-  mnce had  my  rent  cunstderably  raiae'l, 
ini!  )iu  much  concerned  to  observe  Idlely  yuur 
tTicr't  ,t>tp|i!uure'  and  hrbg  cmiiteiuus  of  t 

■  of  uiy  duty,  I  uinal  Ih.'  un- 
to your  grsce.  I  bupe  your 
; 


initeil  to  yi      .. 
kiteaed  to  penmt  my  dehi 
%«f  your  grace'a  aA'jiiri,   whirb, 
.,  i  sau  only  properly  keep, 


A.D.  1776.  [CnS 

while  satisfied  myself,  and  faooourcd  with  your 
grace's  approbation,  ^c." 

In  answer  la  wbicb  he  received  ihi*  teller: 
"  Mr.  Phillips ;  Your  teller  came  lo  me  at 
Newmsikel.  Alter  what  has  pasted,  there  i* 
a<i  occa>.iou  fur  many  words.  I^berin  will  be 
at  Hotin  Pierrepoiit  some  time  Dcxi  H  eek.  with 
my  orders  abuul  iiellling  your  buniness,  whieli 
I  flaller  wyselCyou  will  readily  comply  with. 


'la 


a,  &c.'' 


Alt.  Gen.  I  believe  I  may  refer  to  your 
lordships'  memory,  thai  Mrs.  Phillips  nieo- 
lioned  ilia  grace's  having  looked  coolly  on  ber 
husband,  which  occasioned  his  reiignation. 

A  Peer.  What  is  that,  Mr.  Aiiurney  Ge- 
neral, ibatynu  have  been  reaiUng? 

Alt.  Gen.  The  Grst  is  a  copy  of  a  letlm  la 
ihe  duke;  the  other,  ibe  duke's  original  an- 
swer. If  ii  is  iliought  maierial  enough  to  (rou- 
ble your  lordships  w  ilh  it,  we  can  easily  prove 
thai  this  is  his  grace's  baDd-wciting.  ana  ifaia 
the  copy  of  bis  grace's  letter,  which  was  all 
that  waa  neceiury.      lAdjourntd  lo  Mundii). 


The  Ptrni  and  Last  Dar. 
iAo'iday,  April  33. 

TheLordsanduiherscamefiumlbeChamhu 
of  Parliament  in  ihe  cuslnaiary  order,  Pra- 
clamaliOQ  for  silence  being  made  as  luual. 

The  Duchess  of  Kiagtlon  was  cundupled  to 
■lie  bar,  vhtu  ber  t;rnce  addressed  Ibe  Lvids 
iu  the  following  Icnus : 

Mv  lords  ;  This  my  respectful  a-ldrnn  will, 
I  flaiicr  myself,  be  favouruhly  accepted  by 
your  lordahtpa :  my  words  will  Uow  freely  fi-wa 
my  bearl,  adnrtied  simply  with  innocence  aad 
Irulb,  My  lords,  I  have  sui&red  iinlienrd-of 
.  my  honour  and  tame  have  beett 
:beili  I  have  been  loaded  with  re- 
uUui'b  iodignuiea  uiid  banish ipii 
Tidered  me  Ihe  less  able  to  make  my 
dcleuce  before  Ibis  augusl  aasemlily  against  a 
prosecution  of  so  exiraurdiuary  a  nature,  and 
so  nndcservetl. 

My  lords,  with  tenderness  consider  bow  diffi-  „ 
cull  IS  the  task  of  myself  to  speak,  nor  say  too 
little  nor  loo  much.  Degmded  as  I  am  by  ad- 
versaries j  my  family  despised;  the  honour- 
able lilies  nu  which  I  ael  an  iiie>timable  value, 
as  received  finm  my  most  nuhle  and  late  dear 
husband,  atieinpteo  lo  be  lorn  lirom  me;  yone 
lordships  will  judge  how  greatly  I  slaud  in 
uced  ol  your  protection  and  iudiiiigenoe. 

Mv  lords,  were  I  here  to  plead  for  lili>,  for 
rnrlu'ne,  nn  wordu  frnu)  me  should  lieat  the  air: 
the  hiu  I  iiislain  iu  my  most  kind  coinuanion 
and  aH'pclionute  husband,  makes  Ihe  liiriiiec 
uinrw  Ihan  indilli;ieDt  lo  me ;  anil,  when  it  stiall 

Eleaoe  Atiiiighly  God  lo  ciil  me,  I  sliall  wil- 
ngly  lav  that  burlhcn  doifa.     I  plead  befoM 
your  loriUhips  I'lr  my  fame  and  honour. 
My  lurdv,  logic  ia  property  defined,  and  wall 


severely  ai 


603] 


16  GEORGE  III. 


Trial  of  the  Duchess  ofKingstoHf 


[604 


represeDted  in  this  high  court.  It  is  a  lalent 
of  the  human  roiail,  and  uot  of  the  body,  and 
holds  a  key  which  signifies^  that  logic  is  not  a 
science  itself,  but  the  key  to  science.  That 
key  is  your  lordships' judicial  capacity  and  wis- 
dom. On  the  left  hand  is  represeoted  a  hcm- 
roer,  and  before  it  a  piece  of  false,  and  another 
of  pure  gold.  The  hammer  is  your  jnenetratinff 
judflrment,  which,  by  the  mercy  or  God,  will 
strike  hard  at  false  witnesses  woo  ha?e  given 
evidence  against  me,  and  prove  my  intention 
in  this  pending  cause  as  pure  as  the  finest  gold, 
and  as  justly  distinguished  from  the  sophistry 
of  falshood. 

My  lords,  your  unhappy  prisoner  is  bom  of 
an  ancient,  not  ignoble  family  ;  the  women 
distinguished  for  their  virtue,  the  men  for  their 
▼aluur;  descended  in  an  honourable  and  unin- 
terrupteid  line  for  three  centuries  and  a  half. 
Sir  John  Chudleigh,  the  last  of  my  family,  lost 
bis  life  at  the  siege  of  Ostend,  at  18  years  of 
age,  gloriously  preferring  to  die  with  bis  co- 
lours in  his  bosom,  rather  than  accept  of  quarter 
from  a  gallant  French  officer,  who,  in  coro- 
passtnn  to  his  youth,  three  times  ofiered  him 
bis  life  for  that  ensign,  which  was  shot  through 
his  heart.  A  happy  death  !  that  saves  tbe 
blush  he  would  now  feel  for  the  unheard-of  in- 
juries and  dishonour  thrown  on  his  unfortunate 
Kinswoman,  who  is  now  at  the  bar  of  this  right 
honourable  bouse. 

His^race'the  late  duke  of  Kingston's  for- 
tune, of  which  1  now  stand  possessed,  is  valu- 
able to  me,  as  it  is  a  testimony  to  all  the  world 
how  high  1  was  in  his  esteem.  As  it  is  my 
pride  to  baye  been  the  object  of  affection  of  that 
Tirtuous  man,  so  shall  it  be  my  honour  to  be- 
,  itow  that  fortune  to  the  honour  of  him  who 
gave  it  to  me;  well  knowing,  that  the  wise 
disposer  of  all  things  would  uot  have  put  it  in 
bis  heart  to  prefer  me  to  all  others,  but  that  I 
should  be  as  faithful  a  steward,  as  1  was  a 
faithful  wife ;  and  that  1  should  suffer  others, 
more  worthy  than  myself,  to  share  these  his 
great  benefits  of  fortune. 

BIy  lords,  1  now  appeal  to  tbe  feelings  of 
your  own  hearts,  whether  it  is  not  cruel,  that  I 
should  be  brought  as  a  criminal  to  a  public  trial 
for  an  act  committed  under  the  sanction  of  the 
laws ;— an  act  that  was  honoured  with  his  ma- 
jesty's most  gracious  approbation;  and  pre- 
viously known  and  approved  of  by  my  royal 
mistress,  the  late  princess  dowager  of  Wales ; 
and  likewise  aulnorized  by  the  ecclesiastical 
jurisdiction.  Your  lordships  will  not  discredit 
so  respectable  a  court,  and  disgrace  those  judges 
who  there  so  legally  and  honourably  preside. 
The  judges  of  the  Ecclesiastical  Court  do  not 
receive  their  patents  from  the  crown,  but  from 
tbe  archbishops  or  bishops.  Their  jurisdiction 
is  competent  in  ecclesiastical  cases,  and  their 
proceedings  are  conformable  to  the  laws  and 
eustoms  of  the  land,  according  to  tbe  testimony 
of  the  learned  judge  Blackstone*  (whose  works 
are  as  entertaining  as  they  are  instructive,) 

•  Vd.  9,  chap.  7»  98. 


who  says,  "It  must  be  acknowledged,  to  ibc 
honour  of  the  spiritual  courts,  that  tboogli  iliey 
continue  to  this  day  to  decide  oiany  qoestMNis 
which  are  properly  of  temporal  eognisance, 
yet  justice  is  in  general  so  ably  and  impartially 
administered  in  those  tribunals  (especially  of 
the  superior  kind,)  and  the  boundaries  of  tbeir 
power  are  now  so  well  known  and  eatablisbedi 
that  no  material  inconvenience  at  present  arises 
from  their  jurisdiction.    And  shouM  ao  altera- 
tion be  attempted,  great  confusion  wouki  proba- 
bly arise,  in  overturning  long  established  tbrms, 
new  modelling  a  course  m  proceedings  tlMl 
has  now  prevailed  for  seven  centuries."— And 
I  must  here  presume  to  add,  as  founded  on 
truth,  that  that  court  (of  which  bis  majesty  is 
tbe  head)  cannot  be  stopped  by  any  authority 
whatsoever,  while  they  act  in  their  own  iuiis- 
diction. — Lord  chief  justice  Hale  says,  **  When 
there  has  been  a  sentence  of  divorce  (which  is 
a  criminal  case,)  if  that  sentence  is  suspended 
by  an  appeal  to  the  court  of  Arches  (as  a  sups-  • 
nor  court),  and  while  that  appeal  is  depcadisg 
one  of  the  parties  marries  again,  tbe  senteocs 
will  be  a  justification  within  the  exceptioo  of  lbs 
act  of  parliament,  notwithstanding  that  the  sen- 
tence has  been  appealed  from,  and  consequeotlf 
may  be  reversed  by  a  superior  court."    AaO| 
my  lords,  how  much  more  reason  is  there  ftr 
its  coming  within  the  exception  of  the  act  ia 
my  case,  since  no  appeal  had  been  made  f 

My  lords,  I  earnestly  look  up  to  your  Uu^ 
ships  for  protection,  as  being  now  a  sufferer 
for  having  given  credit  to  the  Ecclesiastic^ 
Court.  1  respectfully  call  upon  you,  my  lords, 
to  protect  the  spiritual  jurisdiction,  and  all  tbe 
benefit  of  religious  laws,  and  me,  an  unhappy 
prisoner,  who  instituted  a  suit  of  jactitatioa 
upon  the  advice  of  a  learned  civilian,  who  car- 
ried on  the  prosecution,  from  which  I  obtained 
the  sentence  that  authorized  your  prisoner's 
marriage  with  the  most  noble  Evelyn  duke  of 
Kingston ;  that  sentence  solemnly  pronounced 
by  John  Bettesworth,  doctor  of  laws,  vicar-ge- 
neral of  the  ri^ht  reverend  father  in  God 
Richard  by  divine  permission  lord  bishop  of 
London,  and  official  principal  of  theconsistorial 
court  of  London :  the  judge  thereof,  calling  oo 
God,  and  setting  him  alone  before  bis  eyes,  and 
hearing  counsel  in  that  cause,  did  prononnca, 
that  your  prisoner,  then  the  honourable  ElizS' 
beth  Chudleigh,  now  Elizabeth  dowagtf 
duchess  of  Kingston,  was  free  from  all  matri* 
monial  contracts  or  espousals,  ss  far  as  to  bisi 
at  that  time  appeared,  more  especially  with 
the  said  right  honourable  Augustus  Jobs 
Hervey. 

My  lords,  had  this  prosecution  been  set  oa 
foot  merely  for  the  love  of  justice,  or  good 
example  to  the  community,  why  did  tbey  not 
institute  their  prosecution  during  the  five  yeai« 
your  prisoner  was  received  and  acknowledged 
the  undoubted  and  unmolested  wife  of  the  lal* 
duke  of  Kingston? 

My  lords,  tbe  preamble  *  of  the  veiy  acts0 

/  iaeT0l.l4ip.  lOlU 


iriMb  Wiittaiikiteii,  pUtnly  and  in  It  rely  pre- 
cliiilw  jour  jiiiioiier  ;  it  runs  Ihii*:  "  Forai- 
Diueh  H  ilivrri  eril-ilispcut.ll  iiersuns,  being 
natHciI,  ruu  uiil  of  one  Guuiily  inio  aiiatlier,  nr 
'  hi  |il*ce(  wliPre  they  am  not  knnwii,  •uil 
I'-  bocome  lu  be  inarrierl.  IibtIii);  another 
'  (ir  huhbaiul  li>in)r<  to  tbe  gteal  diabonour 
'  (■<■■!,  anil  ■iltprundoiii^t  nfiiiTtrslionest  men'! 
sbilJr«u,  anJ  oibcn,  Jfac,"  AdiI  aa  tbe  preani' 
bla  hai  nol  bran  c«DaiiIerE!il  in  be  sufficient  in 
ny  tiTOUr  tu  impeilc  tbe  trial,  1  bei;lear«  toub- 
HTfe  baw  much  ynur  pritouer  tuHers  liy  beinijr 
pRxlucf  d  belure  liiia  nnlile  bdiiie,  na  llie  penalty 
of  an  act  of  [latliBiiienl,  wiihoul  bpnefilinij  by 
ll»  preamble,  wbich  ii  auppuicd  lo  contain  ibe 
wli^  aubatuiice,  extent,  auil  meiniug  ol'  lite 

Kt. 

Uy  tonla,  upnn  your  trise  remit  on  my  un- 
liapp*  ca»e,  you  will  brur  in  your  wilbng  re- 
iiicinbran<x.  lliul  ibe  nrpbananJ  niilow  i*  your 
^culiar  circ  ;  and  ibat  you  will  be  lendiu'  ol' 
Ibt  boODUr  ol'  yuur  late  Umlber  peer,  and  see 
n  ne  hi>  widow  and  rcpreiealnlire,  recollect- 
iii[how  easy  il  may  be  lor  a  next  ut'kin  lo  pn>- 
■KUlt  ibe  widows  or  llie  daughlera,  not  only  uf 
Hay  neer.  bnt  ol'  erery  subjecl  of  Great  Bri- 
Ilia,  il  il  cnn  bn  eirecleil  by  thenalb  ol'one  bu- 
^r»ijuiMii'd  nn<1iiiiere(ledold  woman,  nhode- 
cUidl  Kcveii  ynais  ago  Ibnt  she  was  incapable 
of  glTing  evidence  Uierean,  m  will  appear  in 
^f  bciure  your  lurdsbi|>s.  And  I  may  fur- 
itr  ohaerre  to  your  lurdships,  tbut  my  uiae  is 
rlorly  wilhin  the  protim  nf  the  alalule  on 
■bieb  I  am  indicled.  In  llie  third  clause,  il  is 
"  iTorided  iJiat  thia  act  shall  not  extend  lo  any 
fmno,  wher«  tbe  former  inai  ria^e  baib  betn, 
orbtrnfirr  ahall  be,  declared  by  sentence  of 
Ut  Ecdcsiasiical  Court  to  be  «uiil,  and  of  no 
•ftcL- 

Iflbere  is  supposed  to  linre  lieen  a  former 
amiap,  the  Mine  must  have  been  s  true  mnr- 
OV*.  or  a  false  one.  II  a  true  one,  it  caimol  be 
Jaclarcd  roid  ;  and  if  a  false  oae,  or  Ibesem- 
Uioce  uf  one  noly,  tben  only,  and  no  other- 
inw,i*ilibat  it  can  be  declared  tnid. — Tbere- 
brrmuil  this  proviso  hare  respect  to  preteudt^l 
■luiiTUKFa  'loly,  and  tononeoibcr:  and  such 

■:  II  w,  thai  can  be  (he  objecli  nf  causes  of 
iDiion,  ilif-  sentence  in  which  is  a  more  ef- 

nil  dirorro  and  separatiuu  of'Ihe  parlies, 
I   iiiany  ditorees  which  have  been   ijtter- 

I  I"   ^ill  within  this  prntiMi.— The  crime 

<:''!  "I  II:  1 1 II-  ludiclment  was  not  a  felony,  or 
■><-ii  i<  I'  hi;  oral  olTrnoF,  until  ibs  icI  Of  James 
I'll,  iiiu  I:  i  ilicn,  it  was  otily  coKniiable  in 
I'll  )  <  I  il  .i,i>ii<:.'it  Courl  i  and  thoui^b  an  in- 
'"   iiiiiii  ii.iiM  lie  far  a  ahKhl  blow,  yet  Ibe 

'     II  I  '■■-  iliil  Liuislluw  of  ■  criniiiiarpiuac- 

"iiio'i  I'lr  [i^Ntkiaray  until  ilial  periiHl;  su  tliat 
it  II '  rii'.i'  ..'iiiiFi  wiibin  the  exceplioo  of  Ibe 
<tii>  ,'  ,[:.i--  >t|iiiQ  ibii  (ulijMi,  it  la  no  offence 
•'  I  ' ;  .Ml  III.  SlitiWIi,  bisbop  uf  L'liidon,  has 
<'  N  •-III,  laws  tb«  law  «f  the  land  is  llie 
taWUml. 

MWiihacfrnl,  ilisl  I  bad  orcslly 
i  ri>)1uu«  by  lilt  ri-puMa  of 
1  bag  l«ar«  to 


•bat  n 


A.  D.  1776r 
prisoner  n 


[60S 


Yoi 


possessed  of  a  small  estate  in  the  Cullnly  uf 
Deron,  where  sir  Georjie  ChndlriKli,  her 
father's  eldest  brothrr,  bad  lsri;e  (lossessiona. 
The  i>urcliase  of  that  estate  nas  niiicb  solicilnl 
in  Ibat  county  ;  and  hatinKfre<iuento|)|)orlUDi- 
lies  to  dispose  of  it,  il  was  ever  made  an  innu. 
perablK  objection  by  Ihe  intended  purchaser, 
Ibat  I  cnuld  not  mnke  a  clear  title  lo  ibe  entsta 
nl  of  Hr.  Uerrey's  claim  lo  your  pri- 


■jfe. 


Anil  yoor  priEoner  being  'also  possessed  of 
building  lands  for  B  greal  number  of  years,  fur 
the  same  reasons  she  never  had  Ihe  ground 
covered  (valued  at  l,iQOl.  per  aonnm.)  And 
as  your  prisoner's  beallh  declined,  and  mode  il 
necessary  for  her  lo  seek  relivf  iti  fureigo 
etimes  (wbich  increased  her  expences  beyuoil 
wbat  ber  circiiin stances  could  support,)  and  her 
liille  fortune  daily  decreased  b^  money  lake* 
upon  mortgage  and  bond,  as  mil  appear  by  ib« 
evidence  of  Mr,  Drummond  ;  her  royal  mis> 
tress  likewise  in  tbe  declineof  life,  whose  dealb 
would  probably  bare  deprived  her  of  iOOt.  » 
year ;  the  persecutions  threatened  on  Mr.  Her< 
tey's  side  presented  but  a  gloomy  proa|iect  for 
ber  declining  life ;  yuur  prisoner  was  induced, 
as  she  before  observed  to  ynur  lordships,  in  fnl- 
lovr  the  advice  of  Dr.  Collier,  and  instituted  Iha 
luitofJactilBlioi),  your  prisoner  subscribing  en- 
tirely to  bis  npiaion,  and  followinir  bis  adrica 
and  instructions,  which  she  presumes  nliino  is  a 
full  detence  against  the  charge  uf  felony  ;  for 
your  lordships  in  your  great  caiidoar  caonol 
think,  that  a  lady  can  know  roore  of  the  ctiit 
law,  than  bet  learned  citiiians  could  point  out 

And  as  a  criminal  and  felonious  inleiil  is  ne- 
cessary 10  constitule  the  olfencfi  with  whiub  I 
sland  charged,  certainly  I  cannot  be  giiilly  in 
following  Ibe  advice  I  receival,  and  in  doing 
wbat  in  my  conscience  I  thought  an  auiltorised 


My  lords,  though  1  am  aware,  tbal  any  per- 
son can  prosecute  for  the  crown  lor  an  offence 
against  an  act  of  parliament,  yet  i  will  veolura 
to  say,  that  few  inpiances,  if  any,  have  beeu 
carried  iulo  evecuUon  without  ibe  consent  of 
■he  parly  injured  :  and  with  great  defereoca 
tn  yuur  lordships'  judgment  I  venture  lo  de* 
dare,  Ibat  in  the  preseul  case  no  person  what- 
ever has  been  injured,  unless  your  lordsbins' 
candour  will  permit  me  lo  say  that  1  am  in- 
jured, being  now  Ibe  objeiM  «!'  tbe  undeserved 
resenlmentof  Diy  enemies.  Il  is  plain  lu  ull 
Ihe  world,  (bat  bis  grace  the  duke  uf  Kingiion 
did  not  think  himself  injured,  when  in  the  short 
Kpaceuf  five  years  bis  grace  wade  Ihree  wills, 
each  succeeding  ooe  more  fsvuuruble  lo  your 
p«isoncr  than  liie  other,  giving  ihe  most  ge- 
nerous and  incontestable  proof  of  bisaffeuLoa 
and  solicitude  for  my  comfort  and  dignilj. 
And  il  is  more  than  probable,  my  lords,  froru 
tbe  wall  kuowD  mutual  friendship  subaisllng 
helweea  us,  thai  bad  1  been  inttrcsli'd,  I  might 
have  oblained  the  bulk  of  hia  forliine  fur  my 
taiudj.    But  i  tesiiecied  bis  honour,   I 


HOT] 


16  GEORGE  III.  Tnal  of  the  Duchess  qffCingstan,  (008 


loved  lilt  virtues,  and  bad  rather  have  forleited 
ny  life  than  bavenaed  any  nndne  inflaence 
to  injure  the  family.  And  though  it  baa  been 
induatriously  and  cmelly  circulated,  with  a 
tiew  to  prejudice  me,  that  the  iinit-bom  of  the 
late  duke's  aister  was  deprived  of  the  aucceaaion 
to  bis  grace'a  fortune  by  my.  influence,  the 
wills,  mv  lords,  made  in  three  distant  |»Griud8, 
each  excluding  him,  demonstrate  the  calumny 
of  these  leporta. 

]  mu«t  furtlier  obaerve  to  your  lordnhips,  in 
oppoaition  to  the  charge  against  me  of  interest- 
eduess,  that  bad  I  possessed  or  exercised  that 
undue  influence  with  which  1  am  charged  by 
the  prosecutor,  1  might  have  obtained  more 
than  a  life  -interest  in  the  duke's  fortune.  And 
though  from  the  affection  I  bear  to  the  me- 
mory of  my  late  much- honoured  husband,  1 
have  forborne  to  mention  the  reaaon  of  hia  dis- 
inheriting his  eldest  nephew,  yet  Charles,  the 
•econd  son,  with  his  heirs,  appear  immediately 
afler  me  in  auccession  ;  William  and  his  heirs 
follow  next ;  after  him  Edward  and  his  heirs ; 
and  the  uofurtunate  Thomas,  lady  Franceses 
youngest  son,  is  not  excluded,  though  labour- 
rag  under  the  infirmities  of  childhood  at  the 
age  of  manhoofl,  and  not  able  to  support  him- 
adf.  For  the  late  noble  duke  of  Kingston  re- 
peated! v  mentioned  to  your  prisoner,  '*  I  have 
not  excluded  him,  for  he  has  never  offended  ; 
and  who  can  aay  God  cannot  restore  him  ? 
Who  can  aay  that  God  will  not  restore  him  to 
health?"  My  lords,  that  good  man  did  honour 
to  the  peerage,  honour  to  his  country,  honour 
to  human  nature. 

Bis  grace  the  most  noble  duke  of  Newcastle 
appeared  with  the  will,  which  had  been  in- 
truated  to  his  grace  for  four  years  by  his  late 
dear  friend.  In  honour  to  the  lady  Frances 
BleadoH-s,  the  prosecutor  was  requested  to  at- 
tend at  the  0|>enin^  of  the  wilt.  He  retired 
with  displeasure,  disappointed  that  his  oldest 
son  was  disinherited,  and  unthankful,  though 
the  duke's  fortune  still  centered  in  his  tour 
youngest  sons  and  their  posterity. 

My  lords,  worn  down  by  sorrow,  and  in  a 
wretrhed  state  of  health,  I  quitted  England 
without  a  wiifh  for  that  life  which  1  was  obliged 
by  the  laws  of  God  and  nature  to  endeavour 
to  preserve ;  for  your  prisoner  can  with  great 
truth  say,  that  sorrow  had  bent  her  mind  to  a 
perfect  resignation  to  the  will  of  providence. 
And,  mv  lords,  while  your  unhappy  prisoner 
was  endeavouring  to  re-establish  her  greatly- 
impaire<l  health  abroad,  my  prosecutor  filed  a 
bill  in  Chancery  upon  the  most  unjust  and  dis- 
honourable raoti%i'S.  Your  prisoner  does  not 
complain  of  his  endeavouring  to  establish  a 
right  to  himself;  hut  she  does  complain  of  his 
forming  a  plea  on  di^shonourable  and  unju!< 
opinions  of  his  late  noble  relation  and  generous 
benefactor,  to  the  prejudice  and  discredit  of 
his  much-afliicted  widow :  and  not  satisfied 
with  this  prosecution,  as  a  bulwark  for  his  suit 
in  Chancery,  he  cruelly  institnted  a  criminal 
prosecution,  in  ho|ies,  by  a  conviction  in  a  cri- 
minal caaie,  to  eitablisb  a  civil  claim ;  a  pro- 


ceeding ditooonteiiaiiced  by  tba  opinkHi  of  tbi 
late  lord  Northingtoo. 

My  lords,  I  have  heretofore  fbrbomo,  fron 
the  great  love  and  afiectioo  to  my  late  noUa 
lord,  to  mention  what  were  the  real  notirw 
that  induced  his  grace  to  disinherit  his  eMsrt 
nephew ;  and  when  my  plea  and  answer  is 
Chancery  were  to  be  argued,  I  partienlarly  re- 
ouested  of  the  counsel  to  abstain  from  any  le- 
flectiona  npon  my  adversaries,  which  tbe  na- 
ture of  their  prosecutions  too  much  dcssrrsJ; 
and  grieved  1  am  now,  that  I  most  no  loofw 
conceal  tliem.  For  as  self-preservation  is  lbs 
first  law  of  nature,  and  as  I  am  loore  and  sbsis 
persecuted  in  my  fortune  and  my  fame,  asi 
my  enemies  hand  about  pocket- evidence  to  is* 
jure  me  in  every  company,  and  with  douMs 
tongocs  they  sting  me  to  the  heart,  1  am  re- 
duced in  the  sad  necessity  of  saying,  that  lbs 
late  duke  of  Kingston  was  made  acqosisiri 
with  the  fatal  cruelty  with  which  Mr.  Evdji 
Meadows  treated  an  unfortunate  lad v,  who  wai 
as  amiable  as  she  was  virtuous  and  beaotiftl; 
to  cover  which  offence,  he  most  ungratefbOy 
and  fslsely  declared,  that  lie  broke  his  curate 
ments  with  her  for  fear  of  disobliging  the  dsia^ 
which  he  has  often  been  beard  to  say.  Thb^ 
with  his  cruelty  to  his  sister  and  mother,  uA 
an  sttempt  to  quit  actual  service  in  the  late  war, 
highly  offended  tbe  duke;  and  it  would  be £^ 
ficult  for  him,  or  his  faUier,  to  boast  of  thl 
least  friendly  intercourse  with  his  grace  Ibro^ 
wards  of  eighteen  years. 

My  lords,  in  a  dangerons  state  of  bcshbi 
when  my  life  was  despaired  of,  I  reoeivsi  a 
letter  from  my  solicitor,  acquainting  roe,  that  if 
I  did  not  return  to  England  to  put  in  su  aa- 
swer  to  the  bill  in  Chancery  within  twenty- 
one  doys,  I  should  have  receivers  put  into  »f 
estates ;  and  also,  that  if  in  contempt  of  tbe 
indictment  I  did  not  return,  1  should  be  oot- 
lawFd.     It  clearly  appeared  to  me,  my  kMnd% 
as  1  make  no  doubt  it  does  to  your  kMndshipii 
that  if  in  the  inclemency  of  the  weather  1  ridtcd 
to  pass  the  Alps,  my  lire  would  probably  be  en- 
dangered, and  the  family  would  immediatdy 
enter  into  possession  of  the  real  estates,  snd  if 
female  fears  should  prevail,  that  1  shonkl  be 
outlawed.    Thus  was  1  to  be  deprived  of  Ufr 
and  fortune  under  colour  of  law.     And  tbst  I 
might  not  return  to  these  persecuting  sum- 
monses, by  some  undue  and  cruel  proMediniS 
my  credit  was  stopped   by   my  banker  W 
4,000/.  when  there  remained  an  open  accoool 
of  75,000/.  and  at  that  instant  upwards  sf 
6,000/.  was  in  bis  hands,  my  revenues  beisf 
constantly  paid  into  his  shop  to  my  credit 
I'hus  was  I  commanded  to  return  home  at  tbe 
manifest  risk  of  my  life,  and  at  the  same  tins 
every  ai  t  used  to  deprive  me  of  tbe  means  sf 
returuing  for  my  justification.    Conscious  af 
the  perlect  innocence  of  my  intention,  and  con- 
vinced  that  the  laws  of  this  country  could  nsl 
be  so  inconsistent  as  to  authorize  an  act,  end 
then  defame  and  degrade  me  for  having  obeyed 
it,  I  left  luly  at  the  hazani  of  my  life.    It  was 


my 
not  for  property  1  retnined,  but  to  proft  »/• 


Jw  Bigamy. 

mIT  hi  hatmniUa  woman.  Grant  me,  n\ 
(ard«.  but  your  guoil  o|>iniHi,  and  tlien  I  Mil. 
ju*li6ed  ia  tlie  ionoeence  of  my  iolenlion.  m 
]raa  can  tleprive  me  of  nolhing  tliat  I  vulit' 
•ten  if  ynu  should  take  I'rom  me  all  m 
worldly  poueaiiODs ;  tor  1  bare  rested  on  tin 
■Ml  wli«re  iba  pogr  blind  Belisnrim  is  mid  I 
bfe  atked  oUariiy  of  every  paiseo^r,  alier 
bavin ^  <!onr|ucrei]  Ihe  Ootba  and  Vandals, 
Afneana  and  Peraians ;  aod  woulit  do  ihe  same 
■tlliaut  murmuring,  if  you  would  pronniiuce 
■1^  wtiat  1  hope  your  lordtliips  will  ulieerl'iilly 
~^  rib*  to — Ihal  I  am  an  honourable  woraan. 
J  Ionia,  your  lale  brother,  Ibe  truly  bo- 
ikbe  duke  or  Kingston,  wbuae  lile  wag 
~  i  by  etary  vjKue  and  every  grace,  doea 
1  re3|)ectable  charaGler  pleail  niy 
d  prare  my  ionoeence  t 
'§  lonli,  tbe  crideoce  of  ihr  Taot  of  a  f  up- 
1  ctaudeatine  marriaee  with  Mr,  Herfey 
itjr«ly  upon  tbe  lesticaooy  of  Ann 

t  perauad«d  your  lordships,  from  tbe 

'  in   wbicli  abe  gave  her  evidence,  al- 

nady  enieriaiu  great  auspiciooa  nf  the  veracity 

«f  herlniiiiiony.     8be  pretends  lo  apeak  to 

a  Barriaife   ceremony  being    performed,    at 

■kkh  llir  waa  nut  asked  lo  be  present,  nor  cui 

At  aasij^i  any  rmoD  tor  Iter  beini;  there. — 

Ik)  ratal es  a  conduct  in  Mra.  Ilaomer,  who 

ikp  prrtenda  tvaa  present  at  the  ceremony,  in- 

aMnatcal  with  a  real  mnrriu|^,     Slie  acknow. 

Irffra  that  sho  waa  in  or  itbout  Londim  during 

Ihe  jaclilatinn  Eiiit,  and  that  Mr.  Hervey  ap- 

.  iied  to  her  on  that  oceosion ;   and  swears  that 

I  tbru  and  ever  had  a  perfect  retuembrance 

:  <!ii-  marria^te,  and  wn>  ready  to  have  prored 

li  111  )be  been  called  upon,  and  never  dedar- 

ii>  any  person  thitshe  bad  nut  a  perfect 

rniry  nl  Ibe  niarriHge,  and  that  she  never 

"  iltiired  either  tu  giie  or  nith-hold  her  evi- 

,  ijir ;  and  from  Mr.  Hervey's  not  calliog  on 

:iii<  wumNn,  it  is  iasiuuaied  he  abuaiaed  IVnm 

IlK  pcwtf  by  colluaioii  with  itie.      She  ulso 

■irnuv,  (bat  I   offered  to  make  her  an  allow. 

,  mvr  nl'vOKiniieaa  a-year,  provided  she  would 

I|Id  fitlter  of  tite  three  counties  she  baa 

I,  but  acknow led^B  she  baa  received 

e.  Vuu  your  Inrdithips  l>e- 

il  If  I  cnuld  Itnve  be«u  weak  ennugh 

•  hMlitated  the  suit,  with  a  eonvictiou  in 

Jta  mind  of  a  real  lawful  marriage  be. 

|[Mt.  ilarvey  and  myself,  that  I  would 

■■y  cSprnce,  bare  taken  care  to  have 

,_t  woman  onl  nf  tbe  way  f    Out,  tny 

I  tniat  that  your  lordships  will  be  per- 

nllafleil,  that  great  pari  of  Ibe  evidnice 

ia  made  for  the  purpose  of  ihe 

riioui^h  ahe  baa  denied  she  has 

1  from  Ihe  evenl,  or   ever  de- 

kaa,  y<rt  it  will  be  proved  lo  your  lord- 

llMt  b«r  future  provision  (as  the  baa  de- 

I  K :    and  ootwlihatanding 

•  MW  Iwvugbl  herself  up  to  swear  Ihal 

4  tllft  wretnony  «f  marria4{e  perform- 

'II  be  proved  that  the  hni  ileclored 

h«tr  it.     And  it  will  be  further 


A.  D.  1778.  [010 

proved  lo  yonr  lordships,  that  Mr.  Rsrvey  waa 
extremely  snliaitous  to  have  established  a  le^al 
marriage  wiib  me  for  the  purpose  mentioned 
by  Mr.  Hawkins,  and  that  this  woman  waa  ac- 
tually applied  to,  and  declared  to  Mr.  Hervey'a 
solicitor,  tliat  her  memory  was  impnireit,  anit 
that  she  had  not  any  recollection  of  il,  which 
waa  thB  reafon  why  «be  waa  nut  culled  as  ft 
witness. 

My  I'irds,  if  she  is  thus  contradicted  in  these 
particulars,  and  appears  under  the  influence  of 
expectalions  from  this  event  of  tbe  prosecution, 
your  Inrdsbipa  wilt  not  credit  bsr  evidence, 
that  ttie  complete  ceremony  of  marriage  waa 
pertbrmed.or  any  other  particulars  nhicb  rest 
upon  her  evidence. 

Aly  lords,  wilh  niepect  to  what  your  lord- 
ships bare  beard  froni  the  will leeaes,  of  ray 
dearre  at  times  to  be  considered  as  the  wife 
of  Mr.  Hervey,  your  lordships  in  your  candour 
will  naturally  account  for  that  circumstancei, 
alter  tbe  unfurtuoate  conuectiun  that  had  sub- 
aisied  betweeu  us. 

My  lorda,  I  call  God  Almlgtily,  the  searcher 
of  hearts,  to  witness  that  at  tbe  time  of  my 
marriage  wilh  Ihe  duke  of  Kiogalon,  I  had, 
myadf,  the  most  perfect  conviction  ihal  il  was 
lawful.  Thai  noble  duke,  to  whom  every  paa- 
saife  of  my  life  had  been  disclosed,  and  wbOiB 
affection  for  me,  as  well  as  regard  far  his  owft 
honour,  would  never  have  suffered  bim  to  have 
married  me,  had  he  nut  as  well  as  myself  re- 
ceired  the  most  aolemn  asauraoces  Irom  Dr. 
Collier,  Ihal  thesenteooe,  which  bad  beeujiro- 
Douiiced  in  the  Eccleslasticnl  Court,  was  ab- 
solutely final  and  conclusive,  and  that  I  was 
perfectly  at  liberty  lo  marry  any  otbur  person. 
If  llierefure  I  bavc  offended  agaiust  the  letter 
of  the  ael,  I  have  to  offeodid  without  criminal 
intention.  Where  such  iuteulion  does  not  exist. 


your  lordships'  justice  and  humanily  will  lell 
vou  there  can  be  no  crime ;  and  yourlordshint, 
lookins  on  my  distressed  situitioo  witli  an  in* 


iinlbrtuuata 


looking  on  my  distressed  si 

dolsent  eye,  will  pity  me 

woman,  deceived  aud  misled  by  m 

tioDi  of  law,  of  Ihe  propriety  of  which  it  was 

iukpossible  tor  me  to  judge. 

My  lords,  before  I  take  my  leave,  permit  me 
to  cxpresa  ray  warm  and  grateful  sense  of  ihs 
candauraodiadulKeaceofyourlontsbipR,  wbieb 
have  given  lae  ibe  firmest  confidence  that  i 
sbail  not  be  deemed  crimioal  by  your  lordsliipa 
for  an  act,  in  which  I  hadnnt  theleaslsuspicioa 
that  there  was  any  thing  ill^al  or  immoral. 

My  lord*,  1  bavc  lost,  ur  mislaid,  a  paper, 
where  I  had  put  together  my  ideas  to  pre- 
sent lo  your  lordships.  The  purpart  was  (o 
lell  your  lordhliips,  that  ray  advocate  Dr.  Col- 
lier, who  ioaliliited  this  suit  uf  jactitation.  Is 
now  in  a  dangeicua  slate  of  health.  He 
has  liad  two  uhyaicians  to  attend  him,  by  my 
order,  yeBterday,  to  insist  and  order  his  at- 
tendance to  acquaint  your  lonlibip*,  that  I 
acted  entirely  under  his  directions  ;  that  it  wni 
by  his  advice  I  married  bis  grace  tlie  duke  of 
K.ingston,assuringme thatil  waslnwful  ;  that 
he  had  the  bunuor  of  going  to  his  grace  ih* 

9R 


«n] 


t6  GEORGE  in. 


Trial  nftke  Duchas  of  Kingston, 


[6  IS 


«rcliliisli(ip  of  Canterbury  lo  obtain  a  licence, 
'  and  M  exjjlain  every  |>Drl  Ilist  regariJeil  the 
■intise;  tliuthis  e">ceivai  5DJu&l,sn  pious,  anil 
ao  good  BH  10  lake  lime  lo  consider  wbetber  he 
would  grant  us  a  sjiecial  licence  for  ihe  nar- 
rtage.  AfierniilurecaosiilerBtionKiiil  con^ulta- 
'  tton  witii  great  and  hoooiiralile  persopB  in  tbe 
lax-,  he  returned  llie  license  to  Dr.  Collier, 
Willi  full  permission  for  our  mairiiiire.  Or. 
Collier  wai  preseni  al  the  marriage ;  Ur.  Col- 
lier siKned  the  register  of  tit.  George's  church. 
Kt.  La  Rocbe  lias  frei|uenl1y  ailended  ihe 
duke  of  Kingston  to  Ui.'  Collier,  where  lie 
lieard  him  cunsull  the  doctor  if  the  marriage 
would  be  lawful,  he  said  it  would,  and  ncTcr 
could  he  con Irov cited. 

Under  these  circitmstancea,  I  wished  lo 
brina:  my  advocate  forth  to  protect  me,  He, 
my  Turds,  is  villing  to  make  an  aflidavil,  to  be 
examined  by  the  eoemy'H  counsel,  to  submil  to 
antr  thin^  that  your  lordibips  can  command, 
VfiTlins  lo  justify  hia  conduct;  but  he  has  had 
Ibe  misfortune,  my  lorda,  ever  since  Ihe  latter 
cud  of  Auguit,  or  the  Brst  week  in  September, 
I  do  not  well  remember  which,  never  to  have 
been  in  bed.     I  appreliended,  from  seeing  him 

Jesterday,  nllh  your  lordships' indulgence,  that 
e  lud  tbe  saint  Anthony's- fire:  but  my  phy- 
sicians, who  hare  been  with  him,  can  gift  a 
better  account,  if  you  will  permit  ihera,  of  the 
■late  of  his  health,  that  your  lordE.hipg  may  not 
imagine  that  he  keepu  back,  or  that  I  am  afraid 
lo  protliice  him.  If  It  is  not  to  avail  me  in  law, 
J  uk  no  favour;  but  I  petition  your  lordship.', 
and  would  upon  my  knees,  that  you  will  hear 
the  evidence  that  he  wilt  give  to  ihe  justllica- 
ti  on  of  ray  honour,  though  it  doe«  not  avail  me 
io  law. 

'  My  lonU,  I  do  request  Ibal  Dr.  Collier  may 
>e  examined  in  the  Hlricleat  manner,  and  by 
every  enemy  that  I  have  in  tbe  world.  My 
phyaicians  saiv  him  last  iijghl;  and  they  can, 
previous  lo  his  examination,  inform  your  lord- 
tbips  iu  what  slate  Ibey  apprehend  bim  lo  be. 

IjOrd  Ravenstvnrlh.  Afler  what  1  have  juat 
heard  from  the  prisoner  at  the  bar,  it  is  impos- 
■Jble  not  to  feet  equally  with  the  rest  of  your 
lordships :  and,  my  lords,  what  came  last  liom 
the  prisoner  al  Ihe  bar  I  otrn  strikes  me  with 
the  necessity  of  permiision  being  given,  if  it 
coutd  be  done,  to  have  Ur.  Collier  examiued. 
'  Lord  Camden.  I  am  really,  roy  lords,  al 
•oine  loss  to  know,  upon  what  ground  it  ixyour 
loi'dshijis  Bland  at  Ihie  momenl  with  respect  to 
Ihe  evidence  of  Dr.  Collier.  1  do  not  uoder- 
•land  yet,  that  Dr.  Collier  Is  called  by  the 
prisoner  or  by  her  counsel.  I  do  not  yet  un- 
derstand, that  io  considrratloD  of  the  iuGrm 
■tale  of  Ills  beallh.  the  prisoner  or  her  couasel 
do  require  from  your  lonlshlps  any  specilic 
particular  mode  of  examination,  by  which 
your  lordships  might  be  apprised  of  the  suh- 
Btance  of  hia  evidence.  I  uoderaland  neillier 
of  these  things  to  be  moved  to  your  lordships: 
if  tliey  weie.  milter  nf  debate  on  either  one  or 
thcDiher  might  probably  uiiiei  ud  tlieu  this 


is  not  Ike  place  for  your  lordships  to  enter  into 
a  consideration  of  it.  With  regard  to  the  cbs« 
itself,  which  the  noble  prisoner  has  made  for 
one  of  her  most  material  witnesses,  it  is  un-' 
doubledly  such  as  would  touch  yonr  lordships 
wilb  a  ]iroper  di^ree  of  coropassion,  as  far  m 
the  justice  of  Ihe  Court  can  gn,  and  yonr 
feehngs  ire  able  to  indulge;  beyond  that  it  in 
impossible,  let  your  lordships'  desire  be  what  it 
may:  for  you  lo  transgress  the  law  of  the  land, 
or  to  go  beyond  Ihe  rules  prescribed  by  thoaa 
taws,  ia  impossible.  A  witness  ao  infirm  that 
be  Is  totally  Incapable  of  atlendanoc!  ysiM 
lordships,  ir  you  are  lo  lose  his  evtdctiGe,  will 
lament  the  want  nf  it:  justice  cannot  ha  M. 
perfect  and  complete  without  Ihe  eiarn' 
of  a  necessary  and  material  witness,  aa 
had  it,  Bui  if  a  greater  evil  than  that 
happen  {and  it  has  frequently  happened  in  (hs 
course  of  canses),  wbicli  is  death  ilself,  whid 
shuts  up  Ihe  mouth  in  everiasting  silence, 
this  should  arrest  the  witness  before  he  couli 
be  produced,  bis  evidence  is  lost  for  evi 
this  witness  should  by  his  iniirmilv  be 
unable  to  attend  whilst  this  cause'ltsta,  1 1 
snrry  lo  say  your  lordships  must  go  on  wil 
out  him ;  it  is  impossible  to  wait  until  tl 
witness  can  be  proJoced.  While  the  cat 
lasts  (and  your  lordships  will  precipitate  n, 
thing  io  the  course  of  Justice)  if  he  can  la) 
brought,  you  will  make  every  accommodation 
tn  receive  him,  you  will  take  every  meaos  'm 
yonr  power  to  make  the  atiendance  ' 
convenient  for  bim,  you  will  receiv 
any  part  of  the  cause,  even  at  the  last  raotnent. 
before  it  Is  concluded.  So  far  your  lordsbipt 
■"ay  go  ;  beyond  that,  I  doubt,  you  cannot. 
But,  my  lords,  I  have  now  been  speaking  wiiW 
out  a  ijuestioD,  wi'tboul  a  motion,  without  t~ 
thing  demanded  of  your  lordships  by  the  |i 
BDoer  or  by  her  counsel. 

Lord  Riitenncorth.  I  would  beg  leave  to  | 
il  lo  those  noble  lords  who  sit  upon  the  ben 
whether  tb^re  ever  was  an  instance  In  a  crii 
nal  cause  of  a  witness  being  examined  olfaerw 

Laid  Camden.    Tbe  noble  lord  ii  pleased  ^ 
put  a  question  particularly   pointed  to  tuck  ^ 
your  lordships  as  hste  been  educated  m  ^ 
profession   of  the   laiv,   to  know,  '  whelh 
any  instance  can  be  produced  whei 
ness,   not  stiendlog  at  your   bar  to 
mined  vivA  zoce,  has  been  permitted  by  col 
mission,  by  delegation,  or  any  other  r 
whatever,  to  give  hb  evidence  out  of 
so  that  that  evidence  so  given  aut  of 
mijght  be  reporleit  into  the  court,  and  slaiid  ■ 
evidence  on  the  trial  ?'  I  nresume  thai  ia  tl 
point,  in  which  the  nobtelord  desires  to  kooK 
if  any  precedent  can  be  produced.     '»'*—  •»- 
quesiioD  is  asked,  and  ilie  answ< 
negative,  your  lordships  easily  c 
much  Ihe  modesty  of  tbe  answerer  is  to 
lecled,  if  he  gives  a  full,a  posiiive.and  a 
negative  to  that  question.     1  therefore  beg  ) 
be  uoderstoud  ascunlining  the  answer  I 
own  luioffledge.    Within  ihe  courte  o 


Wlienl 


Jot  Bigamy. 

leticeaiid  eYperieoce,  I  nerer  did  know 
an  instance ;  I  never  baye  to  the  best 
memory  read  of  sucb  an  instance ;  I 
icard  or  sucb  an  instance :  1  speak  in 
sence  of  those  who  are  better  versed  in 
d  of  knowledge  tban  myself;  I  speak 
be  law  of  the  land,  which  is  now  upon 
rdsbips  wool- sacks.  M^r  lords,  if  any 
se  occurs  to  them,  it  will  be  easy  for 
rdsbips  to  apply  to  them  ;  I  know  of  no 
ind  1  miffbt  add  briefly  one  word  on  the 
I  hope  1  shall  never  see  such  an  in- 
10  long  as  I  live  in  this  world.  What, 
Is !  to  give  up,  and  to  part  with,  that  no- 
ilege  in  the  mode  of  open  trial,  of  exa* 
ns  of  witnesses  vivd  voce  at  your  bar, 
cross  examination  to  confront  them  in 
of  the  world,  and  to  transfer  that  to  a 
chamber  on  a  few  written  interrogato- 
go  too  far  in  argniog  the  point:  I 
new  an  iostaDce.  I  am  in  the  judg- 
the  House,  and  of  the  learned  judges 
ar  roe ;  if  there  ever  was  an  instance, 
produced,  and  in  God's  name  let  jus- 
lone. 

Lords  then  proceeded  to  hear  the  wit- 

.  S,  Mr.  Wallace,  yon  may  proceed  to 

ir  witnesses. 

Wallace.   The  first  witness  I  would  call 

^rkley. 

Mr.  Berkley  sworn. 

Berkley.  My  lords,  what  knowledge  1 
this  business  arose  from  my  being  at- 

0  lord  Bristol ;  and  I  must  leave  it  to 
rdsbips,  whether  I  ought  to  be  exa- 
ts  being  attorney  for  lord  Bristol,  con- 
vith  honour  to  myself  and  the  duty  I 
bim. 

Wallace.  I  know  the  delicacy  of  the.si- 
of  an  attorney  :  I  merely  call  Mr. 
'  to  what  passed  between  him  and  Mrs. 
c,' being  seut  td  get  her  to  attend  and 
le  marria^^e. 

Mansfield,  With  regard  to  the  de- 
put  in  by  Mr.  Berkley  to  the  question 
sked  him,  when  they  make  him  a  wit- 
ey  subject  him  to  cross-  examinations ; 
point  is,  whether  he,  as  being  concerned 
tor  for  my  lord  Bristol,  can  demur  to 
stion  put  to  him  to  know,  what  this 
said  when   he  went  to  desire  her  to 

1  give  evidence  ?  And  as  to  that,  there 
»  be  no  colour  to  the  demurrer ;  for  the 
m  of  attorneys  is  as  to  what  is  revealed 
by  their  client,  in  order  to  take  their 
»r  instruction  with  regard  to  their  de- 
This  is  no  secret  of  the  client,  but  is  to 
iral  fact,  what  a  party  said  to  him  upon 

application  ;  and  it  has  been  oflten  de- 
),  that  as  to  fact  an  attorney  or  counsel 
privilege  to  with-hold  his  evidence,  if 
a  doulS:  even  if  he  swears  to  an  answer 
eery  he  cannot  protect  himself  Irom 
I,  whether  that  is  hi»  cUenVs  hai4  or 


A.  D.  me. 


[614 


not,  or  to  hui  having  sworn  it,  or  the  execvtioa 
of  a  deed :  it  does  not  come  within  the  objec- 
tion to  an  attorney  revealing  the  secrets  of  his 
client.  I  suppose  it  is  only  mentioned  to  your 
lordships  lor  a  justification.  If  none  of  your 
lordships  are  of  a  different  opinion,  it  wUl  save 
time,  and  the  witness  will  undentand  it  to  be 
the  opinion  of  all  your  lordships. 

Examined  by  Mr.  Wallace* 

I  beg  to  know,  whether  you  ever  made  any 
application  to  Mrs.  Cradock  relative  to  her 
bemg  a  w  itness  to  the  marriage  f — 1  did. 

At  what  time  ? — It  was  liter  my  lord  Bris* 
tol  was  served  with  a  citation  to  Doctoni 
Commons. 

For  what  purpose  did  yon  apply  to  her  P— 
To  know,  what  she  knew  relative  to  the  mar- 
riage between  lord  Bristol  and  Miss  Chudleigh. 

What  answer  did  Mrs.  Cradock  give  to 
that  ?— My  lord  Bristol  was  present.  She  said 
she  was  very  old,  very  infirm,  and  the  transac- 
tion happened  many  years  ago,  and  she  could 
not  at  that  distance  of  time  remember  any 
thing  of  the  matter :  upon  which  mv  lord  Bris- 
tol seemed  vastly  surpnzed,  and  said,  How  caii 
you  say  so  ?  or  to  that  effect. 

Did  she  persist  in  not  remembering  any 
thbg  of  the  transaction  ?— She  did,  and  said 
she  remembered  nothing  of  the  matter ;  and 
that  was  the  only  time  1  ever  saw  her. 

Mr.  Wallace.  My  lords,  I  shall  uk  Mr» 
Berkley  no  more  questions. 

By  Mr.  Attorney  General, 

Were  yon  sent  to  her  as  a  person  that  wat 
present  at  the  marriage  ? — 1  was  employed  i^ 
order  to  collect  evidence  from  different  people, 
whom  my  lord*  Bristol  directed  me  to  go  to,  and 
other  people,  with  respect  to  the  marriage,  as 
his  lordship  wanted  to  have  a  divorce ;  and  ia 
that  way  I  saw  Mrs.  Cradock. 

Did  lord  Bristol  explain  his  want  of  a  divorce 
at  the  time  he  sent  you  to  the  witness  ? — ^Tho 
direction  I  had  from  my  lord  was  in  May  1768. 

Was  it  at  that  time  that  m  v  lord  Bristol  told 
you  he  wanted  a  divorce  ? — It  was. 

What  you  have  said  was  after  the  dtationP 
— When  1  saw  the  witness,  as  well  as  I  re- 
member, it  was  after  the  citation. 

Did  lord  Bristol  describe  the  witness  to  you 
as  present  at  the  marriage  ? — He  did.  My 
lord  said,  that  she  could  prove  the  marriage.  , 

When  lord  Bristol  expressed  himself  sur- 
prized at  that  disappointment,  did  he  then  ex- 
press to  you,  that  she  was  one  of  those  present 
at  the  marriage  ^ — 1  do  not  know  that  my  lord 
did. 

Was  she  never  represented  to  you  as  a  per- 
son present  at  the  marriage?—!  understood, 
as  she  was  represented  to  me,  that  she  was  pre|- 
sent  at  the  marriage.* 

Was  her  husband,  Mr.  Cradock,  ever  repre- 
sented as  being  present  at  that  maniage?—- 

*  See  Peake'a  Xaw  of  Evidence,  chap.  9> 
••  4i  p«  199. 


I 


I 


I 


B15] 


16  GEORGE  III. 


Trial  nflhe  Ducheit  nf  Kingston, 


Mr.  Cratlock  hna  oAep  tolil  me,  tbat  be  nas 

Th«  qaeation  ibat  1  mean  lo  piil  upon  llial  is, 
Trby  WIS  the  busbauil  calleil  wbo  woa  not  |)rc- 
■ent  at  ibe  marriage,  and  Ihr  >virc  not  tailed 
who  iVu  reprMenl^d  tu  be  present  at  the  mar- 
riage?—  I  bnoo'  nothing  ol'lhal;  it  went  out 
of  my  bands  afterwards  tn  Doctors  Commnnii'. 

Did  you  dectine  that  pari  of  the  bminess  in 
respect  lo  Dncton  Gammons  ? — I  apiirebend, 
I  could  not  act  there. 

Mr.    Wallace.      Are  you  an  attorney  or  a 
pructor  ? — Berkley.  An  attorney,  not  a  proctor. 
[Orderctl  lo  wilbdraw.] 

Mr.  Manificld.  My  lords,  ne  are  now  goini; 
lo  call  Mrs.  Add  Pnicbard  lo  coutroilict  pari  of 
tlic  eridence  of  Ann  Cradock.  We  beg  the 
Clerk  may  read  Iheparl  alluded  lo. 

The  Clerk  of  the  parliament  was  ordered  lo 
read  ibat  part  of  Ibe  evidence  i  but  not  havia|j^ 
takeu  il  down,  Mr.  Guroey  was  ordered  lo  pro- 
duce Ilia  notes.  When  ihey  were  produced, 
the  psrt  alluded  to  could  not  be  found  ;  and 

Mr..Afiini^r/d3ddre5se<l  himself  to  the  Lords 
thus :  This  witness,  dnii  Pritchird,  is  called  to 
cDulradict  Mrs.  Cradock.  In  Ibe  Orst  place, 
to  prove  that  sbe  baa  told  Ibis  Mrs.  Pritchard, 
that  she  had  some  eipeciatious  of  advantage 
froTU  this  prosecutioD  ;  and  likewise,  thai  ate 
did  letl  this  witness,  ibal  she  did  uot  hear  any 
part  of  ibe  ceremony  read  al  Ibe  time  when  she 
aaid  Ibe  lady  at  Ibe  Inr  aud  lord  QrUtnl  were 
married,  though  she  has  repeatedly  told  your 
lordships  tbat  she  had  no  *iew  of  advau[s<rc 
from  this  cause,  and  Ihal  she  bad  heard  the 
whole  of  the  ceremony  read. 

Ann  Prilchard  svaia. 
Examined  by  Mr.  Mantfitld. 

Do  yoa  know  Sirs.  Cradock  ?— Yes. 

Have  you  ever  had  any  conTerEaljon  with 
Mrs.  Cradock  concerning  the  readinnf  ibe  mar- 
Hage  ceremony  belween  the  lady  at  the  bar  and 
lord  BriatoH — No,  I  never  bad. 

Did  you  erer  hear  flira.  Cradock  say  any 
thing  concerning  thai  ceremooy,  ur  ber  having 
heanj  it,  or  Dot  heard  ilT — Never,  before  abe 
was  examined. 

What  do  you  mean,  before  she  was  exa- 
mined? — Betbre  a  master  in  Chancery. 

When  was  that  P — 1  cannot  pnrticolarly  say 
the  time  ;  it  was  about  a  month  after  1  n-aa 
examined,  to  ihe  best  of  my  kooivledge. 

Wbea  were  you  examined  ? — I  cannot  parti- 
cularly say  the  time  when  she  was  examined. 

Can  you  recollect  how  many  months  ago  P 
— 1  cannot  iudeed ;    it  mighiw  a  year  and  a 

What  did  Mrs.  Craduck  aay  to  you  in  that 
GDnversatioD,  which  she  bad  vtilh  you,  about  lier 
liaving  heard  or  uot  baring  heard  the  marriage 
ceremony  T— Sbe  related  her  examinaiion  be- 
fore the  master  in  Chancery  concerniuj;  her 
grace's  marriage. 

In  ihat  conversation,  diil  Mrs.  Cradock  sajr 
wbelhei  she  liad  oi  had  out  heard  the  nuirr iag;e 


Tj 

coir 


ceremony  read  ? — i  ne?er  he«rd  her  relate  aBy 
Ibing  concerninj^  Ihe  murria|re  ceremony.  I 
uudersland  llie  question  now :  I  did  nut  belore. 
She  told  me,  she  did  not  bear  the  inarnagg 
ceremony.  * 

L.  H.  S.  Let  Ibe  lost  iiueatian  be  asked  on)! 

Whether  Mrs.  Cradock  did  or  did  not  say  M 

.ju,  Mrs.  Pritchard,  that  she  did  or  did  m| 

near  Ibe  marriai^  ceremony  read  i — She  liM 

sbe  did  not  bear  the  marriage  cerenwlfl 

Had  yoa  any  conTersation  with  Mrs.  Cra- 
dock about  any  advantage  which  sbe  expected 

im  this  prosecniinn  ? — I  had. 

What  did  Mm.  Cradock  say  lo  you  in  tbat 
conversation  ? — Sbe  luld  me  sne  was  to  be  pro> 
idcd  for,  but  io  what  manner  she  conid  not 
say,  till  after  the  aiFair  was  over,  lest  it  ahoaU 
be  <leemeil  bribery. 

l>id  you  hear  any  thing  more  said  by  Hlik 
Cradock  relating  In  that  subject  ?— Not  at  4Bfl 
time,  but  nt  anotlier  time  I  hare.  ^H 

What  did  you  hear  from  her  al  the  iAH 

me,  Sbe  lold  me,  it  would  not  auil  her  un^ 
Ibis  alTair  was  over ;  and  Iben  if  she  should 
get  a  good  (brtuDe,  she  might  come  and  live 
wilh  me. 

Uid  you  hear  from  Mrs.  Cradock  any  thin^ 
Slid  of  any  jmrlicular  proviiiion  to  be  mudr  for 
her,  or  auy  place  lu  he  gol? — Her  brvther  ap> 
plii'd  to  my  husband  al  Ibe  Custom-house,  de- 
xitiiu;  him  in  CB$e  be  heurd  of  d  vacancy  It 
him  knuHT. 

Alt.  Gen.     This  is  not  evidence  in  Iheqd 
liou  now  pro|Miaed,     I  know  uuthiug  of 
\i  111  be  brougbi ;  hul  ihi*  is  0'>t  evidence. 

Mr.  Maiitfielj.     Nothing  that  pnsse^.  n 
It  comes  borne  lo  Mrs.  Crailocb,  will  Ih>  i 
denee,  lo  be  sure.     The  witness  muat  relaM 


Alt.   Ccn 


lo  the  wiiiiesn  rHaling" 

Juther  uiamif  r  what- 
ich  Mrs.  dadiicki* 


Mr.  MiiRsficld.    It  is  undT 


thai  il 


a  Mr^ 


Did  yon  tell  to  Mra.  Cradock  what  ynift 
heard  from  her  hoihand  ? — I  Idd  her  niywdf. 
thai  her  brother  bid  been  at  Ibe  Cuslom-tiuiMe 
tn  desire  my  husband,  when  there  wassTR- 
oBDcy  in  the  boufe,  lo  let  him  know  <if  it,  M 
Mr.  Meadows  had  promised  lo  g<!(  bini  m 
place. 

What  did  Mrs.  Cradock  say  tn  you  upon 
your  idling  ber  Ihis? — 8he  bad  never  heard 
any  Ihiiii;  about  il. 

Did  ftlrs.  Cradock  say  any  Ihin^  more  Iv 
you  about  Ibis  place? — Her  answer  was,  it 
ivBs  more  Iban  sne  knew,  but  that  it  would  be 
equally  the  same. 

Wbal  was  meant  by  beingeqoally  tbesame? 
—She  thought  ber  brother  was  lo  provide  fot 
her  ool  of  it,  or  at  JosttOHllow  herKMBetLi^. 


— ■   "*^^ 


WBf]  Jar  Bigamy. 

By  Mr.  Attornfi/  General. 

Hew  iDDit  have  vou  been  ■cnuninled  nilh 
Un.  Cndaok  ?—Pire  ytin. 

How  toot;  irilb  the  prisoner  F — Prom  the 
(•d  dT  F«hniary  tut. 

Cw'uU  tokuflv  whMlier  nnv  body  itb;  pre- 
Ha(  at  any  of  the  couversations  ivhicli  you  had 
vitb  Aln.  Cnidock,  but  yoiirsell'f — No. 

I  urisb  you  would  lell  vhere  tb^y  weref — 
Onoe  al  my  own  bouse  at  Mite-end. 

Al  H  hat  lime  was  that  couTerMtioa  held  ai 
your  bouse  nl  Mile- end  ? — It  was  on  a  Sunday, 
iiM  1  (ntioot  paitKularly  tell  Iho  mooUi. 

How  long  ago  was  that  Sunday? — it  ms  a 
icry  little  lime  al\er  slie  had  been  eubptEoaed. 

or  kaa,  after  Hbe  had  bccti  sufiptcnacd  ? — It 
nigl)t  be  more  Ihaa  a  iveek,  I  caunul  lell  par- 
ticularly . 

fVhal  reaanii  have  ^nu  to  know,  that  it  was 
villiid  wnne  abort  lime  alter  she  bad  lieen  sub- 
paaMdf — Aa  we  were  very  intimate  acquain- 
INcei,  aha  came  to  dine  wiiii  rue.  She  (old 
■t,  (tie  louf^  to  tell  me  Hbat  bad  happened 
mce  the  laM  lime  tlie  saw  roe. 

Uat  bow  tong  wna  that  last  time  t>he  saw  you 
UTore  that  last  time  that  she  came  to  you  againf 
—I  eaiHiot  particularly  siy. 

Al  near  as  yo«j  can  gn ;  was  it  a  fortnight  f 
— ItiDi);lil  be  a  quarter  of  a  year. 

Have  yuu  any  means  ol  recollecting  within 
t  *ecb  or  n  Ibrluight  of  the  time  of  her  hming 
kw  exanirtied  upon  the  suhptenaP— I  cannot 
pOMibly  recollect,  a«  not  exjiecting  ever  to  be 
called  upon. 

Dues  TMir  intimacy  continue  with  Mrs, 
Cradock  c  —  It  alH-nyg  did,  until  she  has  been 
CDDflnnI  at  Mr.  Beauwater's, 

Did  you  ev 
Mn.  Cradoi'b, 
N«.i«Ter. 

Will  you  gi*e  an  account  to  their  lordships 
If  the  whole  converaalion  whicli  Mrs.  Cradock 
keU  upon  the  subject  of  thai  marriage  ;  whe- 
fter  she  told  y<iu  the  whole  story  of  ilie  inar- 
VifeT — She  tuld  uie  a  great  deal  of  it:  I  do 
Mlcnow  the  particulars. 

It  is  imiwnsnl.  that  you  should  recollect  as 
Many  particulars  as  yuu  can,  that  Mrs.  Cra- 
^K^told  ynii  uf  that  marriage.  What  parti- 
cdara  did  Mrs.  Cradock  tell  you  of  that  nar- 
ritger— She  told  me  that  the  had  been  eia- 
^«d  by  a  master  in  Uhaocery,  who  asked  iier 
Kritc  knew  of  the  mnrrini^'e  between  Augustus 
Mn  Herrey  and  Miss  Cbudleigh  ?  Tbey 
Mhed  ber  if  she  was  in  ibe  chnrch  ?  Sbe  an- 
■wnd,  ibe  was.  They  a«ked  her  who  was 
h  Ibe  church?  She  toM  tbem,  herself,  Mr. 
Xtrrill  and  Mrs.  Hanmer.  They  asked  ber, 
Kibe  beard  the  ceremony  ?  Hhe  told  him,  she 
dd  not.  That  was  all  the  particulars  1  heard 
btrrtkle. 

Had  nolyou  the  curinsity  yourself  to  enquire 
after  toiDc  more  particulars  ? — I  bad  uot. 

rr  tell  you  M  what  time  of  iiigbt 


e  Ibe  lime  it  happened  ?— 


A.  D.  1778.  [fil8 

Wai  any  body  present  at  the  conrersatjon 
about  the  reward  that  the  tiitneii  enpecledr 
-No. 

At  what  time  was  that  conrersation  bad  ? — 
t  was  after  dinner,  it  might  be  at  two  o'clock 
n  the  Suuday ;  it  was  Buinroer-liine  I  know, 
but  I  cannot  particularly  say  the  month. 

Was  it  the  same  Sujiday  that  the  former 

nversation  |>ass(d.' — No. 

Whether,  when  the  witness  propoted,  on  her 
having  a  great  fortune  coming  to  her,  that 
she  should  lire  with  Mrs.  Cradock,  or  Mri. 
Cradock  lire  nilb  heri*— Mrs.  Cradock  lire 
with  me. 

What  are  you  F — In  a  vety  creditable  situa- 
tion, and  a  pretty  fortune.     I  lire  at  Mile-end. 

Do  you  carry  on  any  buiineu  at  Mile-end  t 
— No.  • 

Are  you  married? — Yes, 

Has  your  husband  any  busiuessF—Yes;  a 
place  in  the  Custom- house. 

Lord  Croitenor.  What  do  vou  mean  ly  Mrs. 

Cradock's  being  confined  at  Olr.  Beau  water's  F 

— Ann  Fritchard.    1  went  to  enquire  for  her: 

I  was  not  permitted  to  see  ber. 

By  Lord  Denbigh. 

I  beg  to  know  upon  what  account  yoH  saw 
the  prboner  in  February  last? — By  au  invitt' 
tion  to  ber  house-keeper. 

Did  you  see  the  prisoner  herself  al  that 
timeF — ( did. 

What  passed  between  you  and  ibe  prisooerF 
— I  cannot  particularly  relate  it;  outbing;  ina< 

Did  nolhiag  pus  reUlire  to  Ibis  trial.' — 
Notbing. 

Did  nothing  pass  relative  to  the  conversa- 
lions  between  you  and  Mrs.  Craduck  F— 1  dv 
not  recollect  there  was. 

Lord  Wejimtmlh.  I  lliiok  the  witneaa  has 
said,  that  Mrs.  Cradock  told  her  that  abe  did 
not  bear  the  ceremony  read,  an'l  Mrs.  Cradock 
has  likewise  told  A'our  lordships,  that  she  was 
present  when  the  Ceremony  was  read :  I  Uiould 
be  glad  to  ask  whether  Mrs.  Cradock  gaie  any 
reawn  lor  not  bating  heard  the  ceremony  F 
whether,  that  she  was  at  a  distance  ru  the 
church,  or  the  clei^yroan  did  not  speak  loud 
enough  F — Ann  Prilchard.  She  was  U  too 
great  a  Jistauce  in  the  church. 

Duke  uf  Richnand.  Did  Mrs.  Cradock  lell 
you,  that  she  had  in  her  examination  before 
the  roaster  in  Chancery  said,  that  she  did  not 
hear  the  ceremony  reod  F — Ana  Ptiuhitrd, 
She  told  me,  sbe  did. 

A  Lord.    The  counsel  may  produce  thai 


Lord  Camden.  I  have  been  asking  the  same 
(juestion,  conceiving  it  would  give  light  to  your 
lordships,  if  it  could  be  produced.  I  find  that 
it  is  an  eaaminalion  de  bene  eue.  Publicalioa 
is  not  made,  and  the  examinations  are  sealed 
up.      [The  witness  was  ordered  to  withdraw.] 

Mr.  Wallace.  My  lords,  I  shall  call  wit- 
neiifsa  'Oow  -tu  prore  ibe  oofiMiltatioa  vf  Dr 


819] 


16  GEORGE  in. 


Trial  of  the  Dvchett  ofKingHon, 


[630 


Collier ;  and  I  ihili  folloir  that,  my  lord*,  wilh 
a  proof  nf  wbat  tilvice  he  gave  to  the  noblc' 
lady  at  the  bar  Bad  tLe  duke  uf  KfogalOD  id  (be 
preMDCe  of  a  witDeas  I  hare  to  produce.  Mv 
tords,  we  haf  e  teat,  but  find  there  ii  no  poiw< 


Dr.  Warrtn  aworn. 

Mr.  WaUaet.  I  wuh  Dr.  WarrcD  would  in- 
fonn  your  lonlahipit  whether  he  bu  lalely  aeen 
Dr.  Collier. 

Tit.  Warren.  I  fluted  Dr.  Collier  yeaterday, 
mbout  eight  o'clock  in  the  afleruooD,  and  Ibuad 
Iilin  Tery  ill  under  avarirty  ofconiplaints,  par- 
ticulariy  a  St.  AnthoDj's  Gee  ia  hii  head  and 
&c«,  by  which  one  aide  of  it  waa  ao  much 
•welled,  that  the  eye  waa  almMt  doted  up^ 
It  appeared  lo  nie  that  hecould  oat  Tentureout 
«itboat  great  hazard. 


At(ornes  General.  What  wrt  of  danget 
do  yon  mean,  when  you  apeak  of  the  danger 
under  nhich  tie  would  come  out  f — Dr.  Warren. 
I  think  that  he  is  in  danger.  I  cannot  say 
that  it  would  certainty  kill  bim,  but  it  would  be 
Tery  inprudeat  in  me  to  adrise  liim  to  come 
out.  [Ordered  to  withdraw,] 

Hr.  Manifidd.  ThewilneH  now  intended  to 
be  produced  to  yonr  lordshipa  ii  Hr.  Larocbe. 
The  Durpoae  for  which  he  ia  to  be  produced  it 
lo  tell  your  lordahipa,  that  he  saw  Dr.  Colliei 
frequently  wilh  the  lady  at  the  bar  and  the 
late  duke  or  Kiagston,  daring  the  luit  in  the 
Eccleaiasljcat Court;  that  he  haa  himaelf  heard 
Dr.  Cidlier  aaaure  both  the  partie*,  the  laie 
iake  of  Kingston  and  the  lady  at  the  bar,  after 
diat  aentenee  in  the  Spiritual  Court,  that  they 
were  perfectly  free  to  marry,  and  might  marry 
any  one  tbey  pleased. 

Mr.  Laroche  sworn. 

Hr.  Laroche.  Hy  lords,  1  did  not  know, 
VDlil  wilhio  these  few  minutes,  that  it  would 
be  necessary  to  call  me.  1  will  endeavour  tu 
recollect  lotbebest  of  my  knowledge.    1  have 

Kt  some  memorandums  in  my  pocket,  and  1 
pe  I  m»  be  at  liberty  to  refer  to  them. 
Lord  lUgh  Slemard.    Are  thej^  in  your  own 
wriUug  T — Laroche.    A  copy  of  it,  and  it  has 
been  in  my  poaieasion  ever  since  ii  was  copied. 
A  Lord.    Copied  by  his  desire  ? — Laroche. 
Yes,  from  my  own  notes,*  and  in  my  presence, 
and  has  been  in  my  own  custody  ever  since. 
Examined  by  Hr.  Manifield. 
IKd  you  know  the  late  duke  of  Kington  ? 

and  do  —  •- "■-   "-..=-.    "^-    f.-.L 

knew 
Ctdlier. 


U  you  know  the  late  duke  of  Kington  ? 
do  yon  know  Dr.  Collier F—Ves,  fboth 
m  hb  grac*  the  dnka  of  Kingaloii  and  Dr. 


*  Bm  Doet ,  roriuM,  3  T«na  Bcp,  749. 


Were  you  present  at  the  mairiage  of  tbe  tady 
at  the  bar  and  the  duke  of  Kingaton  F — I  wa*. 

Was  Dr.  Collier  present  also  M  the  mar- 
riace  F—He  was. 

Do  you  know,  that  Dr.  Collier  was  conmlled 
by  the  lady  at  the  bar  and  the  duke  of  King- 
itoD,  while  the  suit  waa  depending  in  the 
Spiritual  Court? — I  do  know,  tbat  I  have  fre- 
queally  walked  wilh  hia  grace  the  duke  •! 
Kingston  to  Doctors  Cnmmuns  in  a  morning  to 
Dr.  Collier.  I  bavegone  alio  with  the  daebeta 
in  her  coach,  and  the  duke  likewise,  to  Dr. 
Collier. 

Ha*    this     happened  '  frequently  7— Many 

Were  you  ever  present  wilh  Dr.  Collier  mat 
the  duke  of  Kingnon  and  the  lady  it  the  bar, 
after  that  sentence  had  been  given  in  tfaal 
ciUTt? — I  was  several  linae*  at  Dr.  Cotlier*t 
chambers  after  ihe  auit  had  been  determined. 

Were  yon  present  when  Dr.  Collier  gave  to 
the  lady  at  the  bar,  or  the  late  doko  of  Khig- 
■lao,  or  both  of  them,  any  opinion  conoetninf 
thecffect  of  that  aentenee? — 1  waa  many  limsi 
at  Dr.  Collier's  chambers,  and  in  convemtkn 
I  have  heard  Dr.  Cellier  tell  the  doke,  that  ba 
might  with  Safely  marry  tbe  ducheat  of  King- 
ston, Hiaa  Chudleigh  asahethen  waa. 

Have  you  beard  that  opinion,  or  to  that  ef- 
fect, given  more  than  once  f — i  cannot  beaaad: 
I  have  heard  it  said  from  Dr.  Collier  to  tb» 
duke. 

Have  von  heard  that  said  also  in  the  preaenck 
ofthetady  atlbebar  by  Dr.  Collier?— I  think 
J  have,  to  the  best  of  my  recollection.  I  went 
with  the  duke  of  Kingston,  I  hreakftsted  with 
him,  as  well  as  1  can  recollect,  tbe  monilng 
that  he  was  married :  we  then  agreed  lo  dina 
together  at  the  Thatched- House  Tnvem.  I 
went  into  the  city  wilh  his  grace  first  of  all  lo 
Dr.  Collier's  to  get  tbe  liceuce.  Dr.  Colliefa 
ivhen  we  came  there,  was  not  at  h'ime,  but  waa 
gone  lo  bis  grace's  house  with  the  licence  in  bi> 


taking  these  opinions  of  Dr.  Collier  P  whether 
it  arose  about  aoy  doubt  enlerlained  hy  Iha 
duke  or  the  lady,  or  both,  wliether  they  wera 
at  liberty  to  marry  i' — Laroche.  The  duke  cer^ 
tsinly  had  a  doubt  upon  his  breast,  until  the 
suit  of  jactitation  was  over.  In  consequeoca 
of  that  sentence,  at  the  decree  of  which  I  waa 
present,  and  which  declared  her  a  single  W9- 
man,  heapplied  to  Dr.  Collier  to  know  whether 
ibcre  was  any  thing  further  to  go  on  that  roigbC 
impede  bit  marriage?  He  naa  told,  No,  tnat 
the  was  a  tingle  wuman,  and  be  might  marry 

Were  these  conrersations  pending  the  ani^ 
or  afUr  the  suit  was  determined?— Tbe  Isst 
eonveisation  was  afler  tbe  suit  was  over. 
During  tbe  time  of  the  suit,  I  have  frcoucntly, 
1  luppoaa  when  1  wu  ia  town  1  mUuA  fiit 


Jhr  Bigfimff, 

Uty  with  the  iluke,  ami 
o  knoiT  Iiotr  the  (uit 
weol  on. 

l>i>  yini  recollecl  lion  laoff  (lie  suU  had  heen 
detcrniinml  berore  ihe  marrii^  witb  the  duke 
of  KioKtiODf— 1  should  Ihiok,  to  the  best  ol' 
my  recolleclion — I  belieTe  wilhin  three  weeks. 
Ta«rf>  were  14  days  to  put  in  an  appeal ;  the 
■pltral  was  revoked,  and  1  beliere  tliey  uiKr- 
fira  the  week  ailer. 

Uiil  the  duke's  daubl  conliuiie  antil  the  day 
of  llie  marriage? — He  had  no  doubt  allei-  he 
b»d  applied  for  the  hceoce,  and  the  licence  hud 
becD  granied. 

What  nasihe  occasion  of  (be  conversation 
(hat  pMsed  upon  the  raoraing  of  the  marriage 
beweeii  ibe  duke  and  Dr.  Collier? — There  was 
00  coDvenation  upon  il,  as  1  remember,  he- 
iwMn  llien  upon  ibe  niorniog  of  (lie  mnr- 

Wbrn  did  Dr.  Collier  ioforoi  Ibe  duke,  that 
\«t  oiigbt  marry  r_ll  was,  I  beliere,  ot'ler  the 
i-vnculiun  of  the  appeal;  but  il  "as  afler  the 
Knwoce  waa  obtained. 

Will  you  he  so  good  as  to  fix  the  lime  as 
sitrly  u  you  can,  when  both  Ibese  conversa- 
tiona  paased  between  Dr,  Collier  and  the  duke, 
mi  Dr.  Collier  aiid  the  duchess? — As  for  as- 
Ceilaininf;  a  lime,  I  caiiool;  but  it  was  from 
>Ih)  mtKUng  of  tlie  [tarliamenl  in  the  mouth  of 
(Mober  ITfiS.  If  1  remember  right,  it  was 
Uic  bediming  of  the  eessious  of  parliament  he- 
l"it  JMt ;  and  during  ibal  lime  I  used  often  lo 
"Ilk  with  the  duke  to  Dr.  Collier'a. 

Bow  many  days  waa  it  before  the  marriage, 
tf  I  in  tnitlakea  in  supposiog  you  said  the  day 
rflbt  marriage 7 — It  Diigbl  be  ihree  or  four 
Mtt,  or  within  a  week. 

Do  you  know  that  Dr.  Collier  bad  been  in 
fcel  inrarmed,  llial  there  bad  been  a  marriage 
hwwnUie  laily  and  Mr.  Hcncy? — I  luiow 
BNUagBtklUflhal. 

le  that 


A.  D.  1776. 


[GifZ 


Uy  and  Mr.  Uer 


a  marriage  belW' 
vey  ? — i  Duver  knew  thai 
».  «;c. .  u..rnBge. 
A  you  bwu  BO  inlormed.  was  my  i|uet- 
— From  hear.say,  and  noihini;  else,  I 
■Nid  Ibere  was  a  siiapiciun  ufa  marringe,  and 
IkW  abe  bad  nut  him  upon  the  proof  uf  that 
Bviii4(e,  and  that  be  bad  failed  In  liis  proof. 

Had  yAu,  or  had  you  not,  been  iafoniied  of 
kt marriage  by  the  lady  herself? — Never. 

" nable  iheir  lordships  to  judge,  what 

aioo  that  drew  the  duke  and  du- 

«  nuke  lliis  applicatioD  lo'  Dr.  Collier  sc 

nCMly  before  ihe  marriage,  aud  so  long  alUt 

tttMnumcef— I  anppose,  the  meaning  of  Ibe 

12      ilt'l  Miair   llK^e   »as  lo  ask   Ur.  Collier, 

ig      *lia  had  the  whole  management  of  Ihe  al- 

Air.vlMtbar  he  could  with  safely  marry  Ihe 

fin  you  kaow  whether  any  body  had 

sated  •  doubt   upon  (be   subject? — 

I  b»en  a  doubt  before  the  acoleoce, 

r  the  aciiteoiie  there  was  nu  doubt ;  but 

Ktl  Ui&ti(ttt  pro^Kt  to  ask  liim,  levauge 


-     atmaiT 
h       Cwyt 

Z    mito. 


there  was  an  appeal :  that  appeal  was  revoked, 
and  af^er  tliat  appeal  he  married. 

Vilr.  Manitield.  If  your  lurdshipi  will  per* 
mit  me,  I  will  ask  one  question  of  Rlr.  Laroohe. 
Whether  in  the  upinion  that  Dr.  Collier  gave  lo 
the  duke  of  Kingston  in  his  hearing.  Dr.  Col- 
lier  fouuded  bis  opinion  upon  the  effect  of  that 
sentence  wblch  bad  passed  ? — Lareche.  Ha 
certainly  did,  in  my  conceplioti  iif  the  matter. 

Mr.  Dunning.  I  should  be  glad  to  know, 
whether  Ibe  witnesa  meant  lo  have  il  under* 
stood  upon  what  Dr.  Collier  founded  his  opi. 
nion,  that  luch  a  marriage,  if  it  bad  been  law- 
ful, could  be  set  aside  bv  those  proceedings  ? — 
Lansche.  Tlie  words  1  heard  were  these :  You 
may  safely  mari^  Miss  Cbudleigh,  my  lord, 
for  you  neither  onend  against  the  laivs  of  God 

Lord  Faucmiy'idgc.  After  this,  had  they 
any  doiibl  that  they  might  lawfully  merry? — 
Laroche.  AWer  the  Hentenc«  iironouncfd  in  Ibe 
Ecclesiastical  Court,  1  am  firmly  of  opinion, 
that  neither  of  them  bad  a  doubt  as  to  the  le- 
gality of  the  marriage. 

Mr.  Watlact.  My  lords,  I  have  many  wll- 
neases  to  prove  facts,  which  1  believe  will  b« 
admitted  by  Ibe  gentlemen  no  the  other  side, 
because  they  have  already  been  proved  in  ano- 
ther place :  Ihey  are  aucli  as,  the  lady  at  iha 
bar  liviDgcontinually  in  the  state  of  a  singla 
woman,  and  transacting  in  that  character  inal- 
tersof  consequence  relalire  to  property:  they 
are  alreaily  contained  in  depositions  in  another 
place,  and  I  shall  oRer  lo  your  lordships  now 
that  HCDience  which  has  been  pronounced  in 
Doctors'  Cnmmons :  the  officer  swear*  lit 
brought  it  from  Doctors'  Commous.  Your 
lordships  are  ia  poMessiou  of  it. 

Att.  Gen.  I  have  alteady  staled  to  your 
lordships  the  measure  which  was  observed  in 
giving  evidence  in  that  case  in  Docmrs'  Com- 
mons, both  upon  one  side  end  the  other ;  and 
I  stated  the  measure  observed  upon  the  part  of 
the  prisoner  in  Doctors' Commons  to  he  that 
of  her  having  given  evidence,  that  she  acted  aa 
a  single  woman  in  a  great  many  traoKaclions. 

Mr.   Wallace.    Then,  my  lords,  1  call  no 


Sol.  Gen.  My  lords,  the  cuitom  which  haa 
prevailed  in  trials  at  your  lordsliips*  bar,  aulbo- 
rlzes  the  counsel  on  the  part  of  the  prosecution 
to  observe  upon  the  evidence  that  bas  been  laid 
before  your  lordships,  and  to  apply  that  evi- 
dence to  the  charge.  Ia  the  present  case, 
wishing  lo  discharge  my  duly  as  counsel  in  a 
public  prosecution  without  the  least  d^ee  of 
unnecessary  severity,  or  occasioning  a  mo- 
mentary reflection  of  pain  to  the  advene  party 
who  standB  at  your  lordships'  bar;  reflecting 
on  the  whole  course  of  Ibe  evidence  (bat  haa 
been  given ;  bnng  in  niy  oivn  mind  so  clearly 
convinced  as  I  am,  that  the  evidence  ollered  in 
support  of  (he  prosecution  Iiai  not  in  Ihe  lean 
di'tftee  hceii  toiwered  by  any  eviduuce  that  ba< 


I 

I 
I 


619]  16  GEORGE  III.  Trial  n/the  Dwhrfs  ^^igi/XiKgston, 

Collier ;  anJ  I  sliall  fbllow  thai,  my  lord*,  with 
a  |)rool'  nf  wlial  >iJtic<;  be  ^ve  10  (he  noble 
luilj  at  the  bar  niiil  llie  duke  uf  Klugdlon  in  Ihe 
preaence  uf  a  wiinesa  I  hare  in  pruiluce.  M^ 
jonlfi,  we  have  seat,  bul  IidiI  Ihere  is  no  possi- 
bilily  uf  hrJDgiag  Dr.  Collier,  or  he  slioiili] 
'  beeD    here.— VV<     wdl    aovr    cull    Dr. 


[6Sf 


War 

Dr.  Werrcn  iworn. 

Mr.  Wallace.  I  wish  Dr.  WarrpD  would  in- 
form  ynur  lord«hi|iS|  wbellierhe  bus  lately  seen 
Sr.  Cullier. 

Dr.  Warren.  I  tisileil  Dr.  Collier  yesterday, 
about  eight  o'clock  in  lb«  aderaooD,  and  tbuuil 
lilm  tery  ill  under  a  variely  of  complain  t-i,  par- 
ticularly a  Si.  Antboay'a  Bre  in  hii  head  and 
face,  by  which  one  iiidt:  of  it  wav  so  much 
Bwelled,  Ihnt  the  eye  was  almost  closed  up. 
It  ap|ienred  lome  that  he  could  not  venture  out 
vilbout  great  hazard. 

Atlarney-Generol.     I  beg  Dr.  Warren  Trr- 
be   asked,  whether  he  thinks    Dr.    ViM. 
condition  such,  that  he  could  not  stir  out  ^< 
out  danger? — Dr.  Warren.      1  said   t<-, 

Allornty  General.  What  sort  of  t!.' 
do  you  mean,  when  you  speak  of  the  li 
under  which  be  would  come  out? — Dr.  II ' 
1  think  ibat  be  is  in  danger.  I  cuiuki 
thai  it  would  certainly  kill  him,  but  il  »-iii 
very  imprudent  in  me  to  ailtise  him  i'< 
ouL  [Ordered  to  will. <:i 

Hr.  Mantjidd.  Thewitnew  nowinlin  ' 
he  produced  (o  your  lortUhips  is  Mr.  I.nr 
The  purpose  for  which  he  ia  to  be  priolri' ' 
to  tell  your  lordships,  that  he  saw  Ur.  < 
frequently  with  the  lady  at  the  Imr  ,ii 
late  duke  of  KIngvlon,  during  t]<< 
Ecclesiailical Court;  that  ho  Iim-  :. 
Dr.  Collier  awure  bolb   the  \^v. 
duke  uf  Kingston  andlbe  lady  >')  ^   '   " 
that  ■eolencc  in  the  Spiritual  C»iiii,  in.x  i 
■were  perfectly  free  to  marry,  and  might  i"  —  — _^^ 
any  one  they  pleased. 

Mr,  Larockc  bwi 

Mr.  Laroehe.  My  lonls, 
until  wilhiu  these  few  minui 
be  necessary  to  call  me.  1  < 
recollect  lolbe  best  of  my  kni 
eot  some  memorandums  in  <i 
hope  I  may  be  at  liberty  to  rt 

Lord  High  Steward.  Are  i 
writing? — Laroehe.  A  copy 
been  in  my  possession  erer  si' 

A  Lord.    Copied  by  bii  iteMre  f- 
Yes,  from  my  own  notes,*  and  Id  im 
and  has  been  in  my  own  custody 
Eiamined  by  Mr.  M^'^: 

Did  you  know  the  late  tli  1 
■nd  On  yoD  know  Dr.  Colli- 
knew  his  grace  the  duke  of  >> 
Collier. 


Verpyoii  [iiT-f  .  jtI  If rMDib*,  ThoBBaa  lord 
heliir  aniliiK-  '.'^b.nl.ttinfielcl,  Horatio  lord 
iVaa  Or.  i:.,ili-.  ..,  ud  H/de,  Vere  lord  Vere, 
■r  ?~-llr  ■.-.  ■  — »,  /adrew  lord  Archer, 

).  lu,  Milthew  lord   For- 

I  li)fd  Broee,    Edward 

rit  EilgecuRibe,  Htnry 
I  .irib.   Francis  lord  Go- 

King,  Robert  lord  Itum- 
<i:l.tlelnn,  Edmund  Invd 
.  I<,rd  Cathrart,  William 
<!il  CKIton,  Uenry  lord 
'Ailliughby  of  Parhaosy 
:!-l>by  deBroke.GeMa 
.  .rilcv,  George  lord  Abtf 
...;  Le  Despencer,    GuilQ 

1   1         ^^^HuiUaynard,  Thomas' 
":-    ^^6»owt»iscountTorrlnpton,  Pfl 
till*'  ^^^^   llolingbroke   and  St,  Jolil 
V '  ~  .^^  gtamwnt,   Thomas   ri^cMa 

tiewge    viscount    TdwdsIism 
^-wiil  Siy  and  Sele,  Anthony  J< 

.,1   MuoHgue,    Edward    -' " 

t^uihv,  upon  my  honour. 

af  AillsUruugh,  John  earl  SM 

nrl  of   Radnor,   Robert   eail  < 

-.  Unify  carl  Fauoonberg,  H< 

(Wn,  niilip  earl  of  Ilardwii 

,.«iI1e  earl  Temple,  William 

JtfhD  ea>l  of   UuckiDgbamtl 

fVLMke,  WilliaiBearlof  Harri 

j^  ,ul  of  tCIIiugham.  John  cai 

n,   Joha   earl    Waldegtave,   J 

riiomai  earl  of  Macclifsfield,  Pbil 

.-|ie.  lltMry  earl  of  Sussex,  Henen 

.  ,«fai4,  ChaHes  earl  of  Tankervill 

„|  iif  Siratfurd.  Edward  earl  of  < 

^  fcH  Mnnimer,  Niel  esrl  of  Roseb«<i 
^  Bnme  earl  of  Marclir-onl,  John  eafl  ^ 
^^^•e,  Geoit;e  carl  of  Dathousie.  Jd 
_  J  t«»doun,  Johuearl  of  Galloway.  Jam 
^      ■  rf  iktreoru,  George  James  eati  of  Cho 
^^rr,  George     Busay   earl   ol*    Jer*« 
_  ^^ 'William  earl   of   Coventry,   Will^-^ 
t-rt  tarl  of  RochfonI,  Richard  Lumlev 
f«^r«(igh,    Other   enrl   of   Pl^nio 
'i^rf***^  <*'  Gaiuaborotigh,  Frederick   in 
Z2lMl  of  Berkeley,  Henry  earl  of  Dm 
J^Fi*derick  earl  of  Carlisle,  William  Am 
jj,^  till  of  Esaex,  John  earl  of  SaudwioltJ 
^[fjBe  rtrl  of  Thanet,  George  earl  of  Win- 
„ta«aawl  Nollinghani,  George   Harry   eari 
<  •tMB^Fd,  Basil  earl  of  Denbigh,  Henrv  es'' 
'(iulMk  *"^  Berkshire,  Francis  earl  nf  Hm 
"L^,  Tidward  eatl  of  Derby .     Gnilly,  u— 


*  SeeDoeViPerkiiUiSl 


-.koonnr, 

fVilliam  e«rl   Talbol,   lord   steward  of  t 
:iou*kDld.    Guilty,  upon  my  honour. 
Chs'l'*  ^^IB""  marquis  of  Rociiin 
_  •    — '   ',    H,i>llT.  upon  ""y  honour. 
Aj^-'-'^  I     Hiich  d"''e  "*■  North umberlend. 
_m,  my  honour. 
lU«y  fie'i's  Pelhain  duke  of  Nevn 


OS] 


f^r  Bigamy. 


Bmkf  «RMwoodji  but  not  inlealioDally,  apon 
Bj  boiMHir.* 

Fnaeia  duke  of  Briilg^ewater,  John  .Frede- 
rick d«ike  of  Dorset,  James  duke  of  Cbando§, 
Geoffge  duke  of  Manchester,  William  Henry 
Cavcodisb  duke  of  Portland,  Alexander  duke 
of  Gordon,  George  duke  of  Marlborough,  Wil- 
lian  duke  of  Devonshire,  Harry  duke  of  Bol- 
ton, George  duke  of  St.  Albans,  Henry  duke 
of  Beaufort,  Augustus  Henry  duke  of  Grafton, 
Cbfirles  duke  of  Richmond.  Guilty,  upon  iny 
honour. 

William  earl  of  Dartmouth,  lord  privy  seal. 
Guiky,  upon  my  honoiir. 

Granville  Leveson  earl  Gower,  lord  president 
ff  the  council.     Guilty,  upon  my  honour. 

His  royal  highness  Henry  Frederick  duke  of 
Csmberland  and  Strathern.  Guilty,  upon  my 
iMMwr. 

Then  the  Lord  High  Steward,  standing  an- 
eovered  at  the  chair, laying  his  hand  upon  his 
breast,  said, 

I.  H,  S.  Mv  lords,  I  am  of  opinion  that  the 
priioner  is  Guilty,  upon  my  honour. 

L  H,  S.  My  lords,  all  your  lordships  have 
ftiod  the  prisoner  Guilty  of  the  felony  whereof 
iht  stands  indicted,  one  lord  only  excepted  ; 
who  Slid,  that  she  was  guilty — *  erroneously, 
hrt  not  intentionally :'  is  it  your  lordships'  plea- 
MM  that  she  should  be  called  in  and  acquaint- 
d  therewith  ? — Lords.  Ay,  ay. 

Proclamation  was  then  made  for  the  deputy- 
odier  of  the  black  rod  to  bring  her  grace  the 
Ivehess  of  Kingston  to  the  bar ;  which  was 
^ute.  Afterwards  proclamation  was  made  for 
lilaiGe,  ns  usual. 

L,  H.  S,  Madam,  the  lords  have  considered 
Ibe  charge  and  evidence  brought  against  vou, 
•ad  have  likewise  considered  of  every  thing 
wfaieb  you  have  alleged  in  your  defence ;  and, 
ipso  the  whole  matter,  their  lordships  have 
nsod  you  guilty  of  the  felony  whereof  you 
Mud  indicted.  What  have  you  to  allege 
ifiinsl  judgment  being  pronounced  upon  you? 

The  duchess  of  Kingston  delivered  a  pa|[ier, 
wherein  her  grace  prayed  the  benefit  of  the 
peerage  according  to  the  statutes. 

Then  bis  grace  the  Lord  High  Steward  ask* 
cd  the  counsel  for  the  prosecution,  whether 
thty  bad  any  objection  to  the  duchess's  cfaiim 
cf  the  benefit  of  the  peerage  ? 

Ait,  Gen,  My  lords,  not  expecting  to  be  call- 

td  npon,  1  did  not  attend  to  the  form  of  words 

■led  by  the  primer.     However,  I  understand, 

Ihit  she  claims  the  benefit  of  the  statutes ;  not 

•Mifining  herself,  I  suppose,  in  the  form  of  her 

chum,  to  one  statute ;    bnt  alleging  herself  to 

W  a  peereAS,  claims  the  benefit  of  both  ;  mean- 

isg  to  insist,  that  the  act,  which  exempts  women 

friin  judgment  of  death,  is  to  be  construed  with 

irferenee  to  that,  which  allows  clergy  to  lords 

sf  parliameot. 

«  Sen  vnl.  19,  p.  669. 
TOL.  XX, 


A.  D.  1778.  [(M 

M^  lords,  upon  this  claim  I  soppooe  tw^ 
questions  will  naturally  arise ;  one,  whether  it 
be  competent  in  her  situation  to  claim  that 
judgment,  or  an  analogous  ju«igment  to  that, 
which  would  have  been  pronbiinceil  upon  a  lord 
in  parliament  convicted  of  the  like  ofience; 
the  other,  what  would  be  the  extent,  or  possible 
extent  of  that  judgment  upon  a  lord  of  parlia- 
ment, so  convicted. 

My  lords,  I  speak  to  both  these  questions  ; 
because.I  conceive,  that,  without  aggravating 
the  ofience,  I  may  fairly  assume,  that  all  the 
qualifications,  which  were  put  upon  it,  have 
been  fullv  and  effectually  proved ;  the  mar- 
riage; the  issue  of  that  marriage;  the  fraud 
upon  public  justice ;  the  additional  aggrava* 
tion,  that  it  was  no  less  a  surprize  u|M)n  the 
duke  of  Kingston,  than  a  scandal  to  the  rest  of 
the  world. 

This  being  the  true  state  of  the  case,  it  must 
occur  to  every  noble  lord's  mind,  that  the  lawa 
of  this  country  would  be  considerably  disgraced, 
if  it  were  possible  to  state  to  such  a  court  sucb 
a  crime,  attended  with  all  its  circumstances  and 
qnahfioations,  as  an  object  of  perfect  impunity. 

In  this  point  of  view,  I  shall  take  it  for  cer- 
tain, that,  if  I  can  establish  in  the  judgment 
of  your  lordships  my  own  firm  persunsioui 
that  this  claim  to  avoid  judgment  of  death 
cannot  be  made  under  the  statute  of  Edward 
6,  or  with  any  reference  to  it,  but  must  resort 
to  the  act  of  William  and  Mary,  I  shall  thea 
have  laid  before  your  lordships  that  opportu- 
nity, which  justice,  undoubtedly,  will  be  de- 
sirous to  lay  hold  on,  of  pronouncing  a  judg- 
ment somewhat  more  adequate  to  the  ofience  ; 
though  perhaps,  in  the  opinion  of  many,  far 
enough  from  edequate.  Or,  if,  contrary  to  my 
present  thoughts,  she  may  claim  any  benefit 
from  the  first  statute,  yet  the  act  of  £iizal>eth 
will  enable  your  lordships  to  make  some  slight 
satisfaction  to  the  law  for  so  enormous  a  viola- 
tion of  it. 

My  lords,  this  1  take  to  be  a  clear  proposi- 
tion, that,  from  the  beginning  of  time  to  this 
hour,  clergy  was  never  demandable  by  women. 
By  the  ancient  law  of  the  land  this  privilege 
was  so  fiavonrably  used,  that  reading  was  suffi- 
cient proof  of  clergy :  and  all  were  taken  to 
be  clerks,  who  by  under  do  indispensable  im* 
pediment  to  receive  orders.  This  rule  is  laid 
down  in  all  the  books.  Several  statutes,  nay 
the  Provincial  Constitution  of  15251,  adopt  the 
distinction  thus  made  between  persons  in  holy 
orders,  and  other  clerks,  or  lay  clerks.  But 
women  were  under  this  indispensable  impedi- 
ment. They  might  be  professed,  and  become 
religious ;  but  even  a  nun  could  not  claim  this 
privilege.  This  is  proved  by  the  same  books : 
and  lord  Hale  puts  the  case  of  manslaughter, 
where  the  husband  shall  have  his  clergy,  and 
the  wife  no  privilege.  The  statutes,  whicb 
exempt  women  from  judgment  of  death,  ex- 
pressly recite,  that  they  were  not  entitled  to  cler- 
gy ;  and  distinctly  provide  a  new  and  drflerent 
species  of  exemption. 

Having  reminded  your   kirdalMpi  of  tkie 

ss 


627] 


16  GEORGE  III. 


Trial  of  the  Ducheu  of  Kingston, 


\m 


dear  rale  in  the  lavr,  I  shall  take  ap  the  sta- 
tutes, which  are  material  to  this  argument,  in 
tlieir  order  of  time.  This  will  lead  me  tu 
consider;  first,  what  is  the  true  nature  aud  ex- 
tent of  that  exemption  from  capital  punish- 
ment, which  his  clergy  gives  to  a  lord  of  par- 
liament, by  the  first  of  Edward  the  6th,  and 
the  18th  of  Elizabeth ;  secondly,  whether  the 
Slst  of  James,  or  the  third  and  fourth  of  Wil- 
liam and  Mary,  contain  any  reference  to  those 
other  laws. 

lu  order  to  explain  the  true  effect  of  the  sta- 
tute of  Edward  the  6th,  I  shall  consider  the 
situation  in  whrch  the  peerage  stood  with  re- 
spect to  clergy  at  the  time  of  making  it.  I  say, 
the  situation  of  the  peerage  as  to  clergy ;  be- 
cause it  will  not  be  doubted,  1  suppose,  that 
they  were  entitled  to  this  Taluable  privilege  in 
common  with  others.  So  peculiar  and  cruel 
•■distinction  could  not  have  remained  in  perfect 
•tleuce  for  such  a  number  of  years.  Nor,  if 
they  had  been  entitled  to  claim  it  upon  peculiar 
terms,  would  those  ha?e  been  unnoticed.  Be- 
sides, if  there  be  no  evidence  of  such  a  privi- 
lege at  any  time,  how  can  it  be  claimed  now  ? 

Although  the  allowance  of  clergy  was  setting 
aside  the  conviction  as  to  the  person  of  the  of- 
fender, his  goods  remained  forfeit,  and  the 
king  seized  his  lands  under  the  record.  By  the 
4th  of  Hen.  7;  c.  13,  it  was  to  be  allowed  but 
once;  and  the  convict  was  to  be  branded  in 
open  court,  before  the  judge.  And  in  the  very 
vear  of  the  statute  now  ander  consideration,  a 
loBg  list  of  offences  was  deprived  of  it ;  and, 
even  where  it  remained,  slavery,  with  an  iron 
Toke,  was  inflicted  on  the  convict,  as  a  vaga- 
bond. 

It  was  thought  too  much  to  leave  the  lords 
of  parliament  exposed  to  those  cruel  and  shame  • 
ful  stigmata ;  especially  in  cases,  where  they 
might  make  purgation  and  so  be  restored  to 
the  exercise  of  their  high  functions.  Nay,  in 
such  instances  even  forfeiture  was  thought  too 
much.  It  was  also  conceived  by  their  lord- 
ahips,  that,  in  their  case,  capital  punishment 
had  extended  too  far.  It  was  also  thought 
proper  to  deliver  a  lord  of  parliament  from  the 
necessity  of  proving  his  title  to  clergy  in  the 
ordinary  way.  Therefore  by  the  1  £.  6,  c. 
12,  §  14,  it  was  enacted,  **  That  in  ail  and 
every  case  and  cases,  where  any  of  the  king's 
majesty's  subjects  shall  and  may,  upon  his 
prayer,  have  the  privilege  of  clergy,  as  a  clerk 
convict,  that  may  make  purgation  ;  in  all  those 
cases  and  every  of  them,  and  also  in  all  and 
every  case  and  cases  of  felony,  wherein  the 
privilege  and  benefit  of  clersry  is  restrained, 
excepted,  or  taken  away  by  this  statute  or  act 
(wilful  murder  and  poisoning  uf  malice  pre- 
.penseil  only  excepted)  the  lord  and  lords  of  the 
parliament,  and  peer  and  peers  of  the  realm, 
having  place  and  voice  in  parliament,  d|>all,  by 
irirtue  of  this  present  act,  of  commoiT  grace, 
upon  his  or  their  request  or  prayer,  alMging 
that  he  is  a  lord  or  peer  of  this  realm,  and  claim- 
ing the  benefit  of  this  act,  though  he  cannot 
Mad,  without  any  barniiig  in  the  hand,  loao  of 


i 


inheritance,  or  corruption  of  his  blood,  be  ad- 
judged,  deemed,  taken,  and  used,  for  the  firrt 
time  only,  to  all  intents,  constructions,  and  pur- 
poses, as  a  clerk  convict,  and  shall  be  io  casa 
of  a  clerk  convict,  which  may  make  pur^tion, 
without  any  further  or  otiter  benefit  or  privilege 
of  clergy  to  any  such  lord  or  peer  from  thence- 
forth at  any  time  aller  for  any  cause  to  be  al- 
lowed, adjudged,  or  admitted ;  any  law,  otatatei 
usage,  custom,  or  any  other  thing  to  the  con- 
trary in  any  wise  notwithstanding.**  More 
shortly  thus — At  present,  men  prove  their  der- 
gy  by  reading ;  aud  must  forfeit,  and  be  brand* 
ed,  before  it  may  be  obtained.  For  the  futorc^ 
all  cases,  where  any  of  the  king's  subjects  my 
now  obtain  privilege,  as  a  clerk  convict,who  may 
make  purgation,  a  lord  of  parliament,  without 
reading,  burning  or  forfeiture,  shall  be  adjwto' 
ed  and  used  as  a  clerk  convict,  who  may  mifci 
purgation.  All  that  was  harsh  in  the  law, 
was  taken  off  the  peerage:  all  that  was  left 
was  privilege.  The  trial  by  the  bishop  and  bif 
clerks  (which  differed  from  trial  by  peers,  M 
more  in  the  case  of  a  lord  than  of  a  commoDer) 
was  not  substituted  in  the  place  of  legal  trill, 
but  superadded  lo  it,  for  his  advantage.  Tbii 
was  the  only  way,  which  had  then  beeo 
thought  of,  in  any  case,  to  avoid  judgmtotif 
death.  The  reason  of  the  thing,  and  the  a- 
press  letter  of  the  statute  unite  to  prove,  tht^ 
till  the  eighteenth  of  Elizabeth,  a  lord  of  pir- 
liament,  convicted  of  a  clergyable  crime,  uA 
being  capable  of  purgation,  must  have  bcca  ■ 
deemed  and  treated  as  a  clerk  convict,  wbo 
might  make  puruation,  and  delivered  over  !• 
the  ordinary  for  that  purpose. 

The  learned  and  laliorious  Staunford,  oor 
ablest  writer,  at  least  on  this  branch  of  the  bw, 
treats  it  as  a  thing  without  question.  Fol.  190. 
*'  A  lord  shall  have  privilege  of  clergy,  where 
a  common  person  shall  not  have  it.  He  ooKbt 
to  make  purgation  ;  and  if  so,  he  must  beoe- 
hferetl  to  the  ordinary,  to  be  kept,  till  he  bii 
made  his  purgation.  If  he  confesses,  abjures, 
oris  outlawed,  he  canuot  have  the  benefit sf 
this  statute;  because  he  cannot  make  purga- 
tion.*' Staunford  flourished  wlitn  this  stalutt 
was  made  ;  wrote  a  few  years  after;  and  difd 
before  the  eighteenth  of  Elizabeth.  His  there- 
fore is  a  contemporary  exposition  of  it,  uoen- 
tangled  with  the  casual  phrase  of  any  subse- 
quent act. 

Hale,  in  his  second  volume,  fol.  376,  wbeff 
he  seems  to  differ  from  Staunford,  as  to  the  ex^ 
tent  of  the  statute,  agrees  with  him  as  to  tbf 
nature  of  the  privilege ;  which  he  calls  Tbs 
Clergy  of  Noblemen.    At  one  time,  judgci 
would  not  deliver  clerks  to  the  ordinary,  wbo 
had  become  incapable  uf  purgation,  by  confes- 
sion or  othcTwise.     The  church  alleged,  that 
nothing  done  before  an  unlawful  judge  wassuf- 
ficient  to  suKtain  their  process,  or  sentencti 
Whereupon  the  Articuli  CUri  [See  voL  9,  p* 
131],  provided,  that  all  clerks  shall  be  delivered 
to  their  ordinaries.  But  they  were  delivered,  ii 
the  instances  mentioned  by  Staunford,  oAifat 
purgatiQw/adtndd»    Now  tlie  ctae  pot  ia  tki 


SS9] 


for  Bigamy. 


A.  D.  1776. 


[6S0 


tetote  M,  where  any  man  may  have  the  pri- 
riUve  of  clergy,  as  a  clerk  convict  that  may 
nake  pur|(ation.  And  a  lord  of  parliament,  be- 
Off  ID  ibeaame  predicament,  was  put  in  the  case 
Aclerk  convict  that  may  make  piirijfation,with- 
Nit  reading'  or  nnder{jroiii{r  the  pains  whicii  at- 
onded  a  commoner  under  those  circumstances. 
teaonford  therefore  thought,  that  these  ex- 
mptions  did  not  reach  to  tiie  case,  where,  be- 
bre  the  statute*  there  could  be  no  purgation 
or  any  man.  And  the  opinion  was  so  proba- 
4e,  at  least,  that  a  very  en»inent  lawyer,  of  on- 
sceptioaable  character,  in  the  time  of  the  great 
cbellioo,  actually  burnt  a  peer,  who  confessed. 
9ale  doubts;  especially  at  this  day,  when  de- 
ivery  to  the  ordinary  and  purgation  are  both 
jdcen  away  by  the  eighteenth  of  Elizabeth. 
It  is  not  obvious  what  difference  that  makes. 
'*  I  think,*'  says  he,  **  it  was  never  meant,  that 
a  peer  of  tlie  realm  should  be  pot  to  read,  or 
bt  burnt,  where  a  common  person  should  be 
pot  to  bis  clergy.''  Both  agiee,  that  the  peer 
iboald  have  had  bis  clergy,  and  have  been  de- 
Evcredto  the  ordinary,  and  have  made  purga- 
tiiMi,  exempt  from  the  concomitant  penalties; 
IB  some  cases,  savs  Staunford ;  in  all,  says 
Hale.  But  even  Hale  makes  no  doubt  of  peers 
koag  liable  to  imprisonment. 
^  lo  the  trial  of  lord  Warwick,  the  chief  jus- 
tice lays  it  down,  that  the  statute  of  Edward  6 
Qttmpted  peers  from  the  penahies  of  burning, 
iod  re|)ealed  the  statute  of  Henry  7,  as  to  so 
BDcb.  Then  a  peer  was  liable  to  burning  be- 
ftre;  and  by  the  act  of  Henry  7,  which,  in 
terns,  puts  it  upon  persons  admitted  to  their 
dergy.  But  how  could  it  be  seriously  ar- 
goed,  that  a  thing  so  anxiously  repealed  never 
oiited  ?  I  have  consulted  oti  this  occasion  as 
nioy  books  as  I  could  think  of  referring  to ; 
lad  I  do  not  recollect  one,  which  supposes  a 
line  when  a  peer  had  not  the  benefit  of  his 


lotbing,  it  must  be  confessed,  conid  be 
■ore  unprincipled,  and  incongruous,  than  to 
uffinr  the  truth  or  justice  of  a  conviction  at 
OMiUDon  law  to  be  questioned  in  the  Ecclesias- 
tical Court.  But  the  church  had  not  then  lost 
ill  bold  upon  men's  minds ;  nor  would,  pro- 
bUy,  for  some  ages,  but  for  its  own  glaring 
Biscouduct. 

The  trial  called  purgation,  as  it  was  had  in 
Ibe  bishop's  court,  was  a  ridiculous  mockery 
pT justice;  or  became  serious,  only  by  the  per- 
jsry  which  it  produced.  It  was  therefore  abo- 
liihed.  But  simply  to  abolish  it  would  also 
bave  cut  off  that  imprisonment,  which  followed 

I  conviction  in  the  bishop's  court,  and  which 
fit  should  have  beea  presumed)  would  always 
bUow  actual  guilt.  To  remedy  which,  it  was 
tbooght  fit  to  give  the  court  authority  to  pu- 
Uth  by  imprisonment  for  any  time  less  than  a 
rear.  This  was  proper  in  alt  cases ;  but  par- 
icolarly  so  in  the  cases  of  peers,  and  persons 
B  holy  orders,  who  were  not  liable  to  burning 

II  the  band.  It  was  therefore  enacted  by  the 
Uteentb  of  Elizabeth,  c.  7,  s.  2,  and  3, 
'That  efery  pcnon  and  persons,  which  at 


any  time,  aAer  this  present  session  of  parlia- 
ment, shall  be  admitted  and  allowed  to  have 
the  benefit  or  privile{;e  of  his  or  their  clergy, 
shall  not  thereupon  be  delivered  to  the  ordi- 
nary, as  hath  (»e6U  accustomed ;  but,  after 
such  clergy  allowed,  and  homing  in  the  hand 
according  to  the  statute  in  that  behalf  provided, 
shall  forthwith  be  enlarged,  and  delivered  out 
of  prison,  by  the  justices,  before  w  hom  such 
clergy  shall  be  granted,  that  cause  uotwith- 
standmg. 

*'  Provided,  nevertheless,  nnd  be  it  also  en- 
acted, that  the  justices,  before  whom  such  al- 
lowance of  clergy  shall  be  had,  shall  and  may, 
for  the  further  oorrection  of  such  persons,  to 
whom  such  clergy  shall  be  allowed,  ^leiaia 
and  keep  them  in  prison,  for  such  convenient 
time,  aa  the  same  justices  in  their  discretion 
shall  think  convenient ;  so  as  the  same  do  not 
exceed  one  year's  imprisonment ;  any  law  or 
usage,  heretofore  had  or  used  to  the  contrary 
notwithstanding." 

The  effect  of  these  words,  *  shall  forthwith  ha 
enlarged  and  delivered  out  of  prison,  that  causft 
notwithstanding,'  is  to  give  the  person  w\  en- 
larged  exactly  the  same  state  and  condition 
which  he  would  have  obtained,  under  the  for- 
mer dispensation  of  law,  by  going  through  the 
process  of  purgation,  and  so  being  delivered 
from  the  offence.    This  part  of  the  act  carries 
a  great  effect  upon   the  construction  of  the 
whole.      In  conversation,   I  have  heard  the 
words,  <  after  burning  in  the  hand,'  supposed  to 
be  the  phrase,  upon  which  some  doubt  might 
turn»  whether  peers  are  included  in  the  act. 
But,  in  the  construction  of  such  a  statute,  it  ia 
not  enough  to  fiud  a  phrase,  upon  which  tome 
doubt  might  turu.     It  would  be  fitter  for  those 
who  conceive  the  doubt,  to  proceed  at  least  ona 
step  further ;  and  state,  to  what  extent  their 
doubt  goes.    Is  it  doubted,  whether  purgation 
be  taken  away  in  the  case  of  a  peer,  and  the 
peer  be  restored  to  his  law  without  it  ?  Will 
any  gentleman  argue,  that,  at  this  day,  a  peer 
convicted  of  a  clergyable  crime,  shall  not  be 
forthwith  enlarged;  hut  must  be  delivere<l  to 
the  ordinary  to  make  his  purgation?    Thia 
point,  I  believe,  never  has,  nor  ever  will  be  ar- 
gued.    If  he  is  not  to  undergo  purgation,  quQ 
jure  is  he  exempt?    Does  any  other  statute 
exennpt  a  peer  from  his  purgation,  ordiscliarge 
him  from  his  attainder,  but  this  general  statute 
of  the  eighteenth  of  Elizabeth  ;  which,  in  its 
large  phrase,  comprehen<ls  every  body  ?  I  pro- 
test 1  know  of  none.    Or,  does  this  statute 
exempt  any,  but  those,  who  shall  be  thereafter 
admitted  to  clergy  ?  The  words,  *•  afler  burning 
in  the  hand,'  do  not  make  an  essential  or  necea* 
sary  article  in  the  description  of  the  persons  to 
be  discharged ;  nor  create  any  term,  or  condi- 
tion, upon  which  the  discharge  is  to  obtain. 
The  description  of  the  persons  to  be  discban^ed 
is  absolfed  in  these  words,  *  all  persons  who 
shall  be  allowed  the  benefit  of  their  clergy.' 
They  are  to  be  discharged  absolutely.     But 
when?  and  in  what  manner?  Why,  afler  the 
allowaDoe  of  dergyi  and  buraiojf  id  the  banil 


631] 


16  GEORGE  III. 


Trial  of  the  Duckest  ofh'ingslor 


[6*1 


whl>-h  U  to  say,  in 
.■tilled  hy  t1ieilBtaie;or  wbicli  llie 
Gisp  "fa  (leer  i*  nor.mi'. 

Tlif  H  liiilp  consp'iiiiriiKc  M  no  more  llian  tlii<<, 
that,  in  a  case  rlrciiiiiilHnued  like  ihe  prmnt, 
wliere  ilie  Imnour  of  the  law  and  tlic  purily  of 
ntjimn'™  ric[oire  some  eximpio  to  be  rowle, 
your  liirifilii|«  may  rnlloii'  ihe  bent  of  your 
ttitcrcTinn,  by  reiioriinij  lo  Ihr  lait  clause  in 
the  IBIli  of'Eliznbeth.  This  I  sny,  upon  a 
•iipposliinii,  ibat  Bume  peer  stood  cooviciFil  of 
the  like  oRV-nce,  willi  iimilar  «B-^rav«lioii  ;  or 
that,  upon  the  i%st  of  the  ii^iiuient,  il  ivlll  lip 
p'luiihte  lo  gite  any  woman  the  benefii  of 
Kny  statute,  pan  raluine,  as  peers  hare  Ihe  he- 
nefli  nf  clerfry,  uiiiirr  itie  Rrst  of  Edward  6. 
But  I  lio|ie  Ici  prnie  soon,  that  it  is  Impossible 
to  cutiKtrne  ihe  aiiliteqiient  atalute  iu  that  man- 
ner, CiinscqiiPoily  there  will  he  due  to  ihlt 
crime  a  »ery  dilTtreut  sort  of  punish Dietit  than 
that  which  I  have  alluded  to. 

Il  will  hnrdly  be  said,  thai  these  statutes  re- 
hle  to  uomeii  of  bdv  condition.  The  eii|ires- 
■ion  excludes  iheai  dislinclly  enough.  If  that 
had  breo  innre  general,  the  subject  matter  ex- 
clude Ihem  ahMdutely.  They  are  ou  more 
clerks,  than  lords  of  parliament.  Tliey  nerer 
underwent  puri^lirm  ;  nor  were  delicered  In 
the  ordinary ;  they  were  therefore  inc«|iBbls  of 
receiting these  ptiriteges ;  fnf  these  acts  were 
merely  to  rcEUlale  an  old  t\f,\\l,  not  to  gite  a 
Bulh  the  Elalulea,  nhicli  gate  ihem 


their  eiempiion.  ri 

Whate  1  e*en  8«< 
wherein  any  condi 
cixenipl,  hut  by  virt 
presi-Mlly.  Ii  rem 
whether  the  exet 
law,  bus  aoy  re  I 
ward  e. 

ThetirBtElBiu 
capita]  punisUiuf 
twenty'Iint  of  Ji 


general  prn]>oai' 
ere  not  entitled  lo  clergy. 
n  any  statute,  case,  or  book, 
ion  of  women  is  supposed 
leof  the  laws  1  shall  stale 
lins  then  lo  be  eonsidered, 
iptjon  provided  by  ihnae 
ieoce  to  the  statute  of  Ed- 


e,  which  exein])tB  wo 
nt  in  any  case  of  felony  is  me 
,  .    raes  1,  c.  6,  which  runs  thus: 

"  Whereas,  by  Ihe  laws  of  this  realm,  Ihe 
benrflt  of  clergy  is  not  allowed  to  women  con- 
TiWed  of  fehiny  ;  hy  reason  whereof  many 
women  do  suffer  death  I'or  small  causes ;  be  il 
enaeteU  by  the  authority  of  this  present  par- 
liameitt.  that  any  wnman,  being  lawfully  con- 
victed by  her  tiiinfeSBiun,  or  hy  the  venlicl  of 
twelve  men,  of,  or  for  Ihe  felonious  taking  of 
any  money,  goods,  or  chattels  above  Ihe  value 
cf  Iwelve-jience,  and  under  the  value  of  ten 
ahillings ;  or  as  acressary  to  any  such  offence  ; 
Ibe  said  offence  being  no  burglary,  nor  robbery 
in  or  near  Ibe  highway,  nor  the  fFlonious  taking 
of  any  money,  gooJs,  or  cliatteln,  from  the 
liersoii  of  any  man  or  womau  orivily,  without 
his  or  Ibeir  bnuHledge,  hut  only  such  an  of- 
fence as  in  the  like  case  a  man  might  have  hla 
clergy,  shall,  lor  the  first  offence  be  branded, 
and  marked  inihr  hand,  upon  the  biawn  of  the 
left  thumb,  with  a  hot  burning  iroo,  having  ■ 
TOman  T  upon  the  ^aiil  iron  ;  ihe  said  mark  to 
be  made  by  the  gaoler  openly,  in  the  Court, 
before  (be  judge;  and  also  lo  be  further  pu- 


nished by  imprisonment,  whipping,  stocking, 
or  seniling  to  the  house  of  correction,  in  such 
tort,  manner,  and  form,  and  for  so  loug  lime 
(nnt  exceeding  the  space  of  one  whole  year)  ■■ 
the  juilge,  judges,  or  other  justice*,  belore 
whom  she  shall  be  so  convicted,  or  which  ahall 
have  authority  in  the  cause,  shall,  in  iheir  dia- 
cretion,  think  meet  according  to  the  quality  of 
the  oflence.  end  then  to  be  delivered  out  tf 
prison  for  that  offence ;  any  law,  cusMn 
usage  to  the  cunirary  ant  with  standing," 

This  statute  at  least  excludes  all  colon 
reference  to  the  first  of  Edward  6. 
woman  convicted  nf  grand  larceny  (if  ft  be  ti 
n  Bimple  f-lony,  clerKjablein  a  man)  ahalH 
burnt.  Mbe  was  not  put  to  demand  bmiefll; 
Ihe  statntt: ;  lo  pray  her  clergy  would  bfl 
been  too  absurd  ;  but,  Ihe  larceny  being  sIM 
in  the  record  lo  lie  committed  by  a  mouti 
judgment  was  forthwilli  entered  of  bumil 
and  so  forth.  The  statute  is,  moreover,  e 
fined  lo  such  larcenies,  where,  in  Ihe  likeei 
a  man  might  have  his  cletirT.  1  take  oaf 
of  these  words  at  present,  only  for  Ihe  safci 
remarking  that,  in  this  statute,  at  lean,  tl 
must  relate  lo  the  quality  of  Ihe  oAace,  not 
the  condition  of  the  offender. 

My  lords,  the  only  statute,  of  which  the  pi 
Booer  can  claim  the  beneHis  against  judgm 
nf  (tealh,  is  ibe  third  aud  fuunh  of  fVilli 
and  Marv,  c.  9,  s.  6,  whichruns  in  these  wor 
"  And  whereas,  by  the  laws  of  this  real 
women  convicted  of  felony,  tor  aleallD^  : 
goods  and  chat  tela  of  the  value  iif  ten  shillr 
and  upwards,  and  for  oilier  felonies,  wh< 
man  is  to  hate  the  benefit  nfhis  clet^y,BK 
suffer  death ;  be  il  therefore  enacted  anrf  I 
•Inred  by  Ihe  aullioriiy  aforeftaid,  that,  w 
a  man,  being  convicted  uf  nny  felony,  for  w 
he  may  demand  the  benefit  of  his  clergy,  I 
woman  be  convicted  for  the  samr  or  fiKe  i 
fence,  U|i"ii  herpiajer  lu  have  Ibe  lieoeAl 
this  slHlule,  judgment  of  death  shall  out' 
given  against  her  upon  such  comiciion; 
execution  awarded  upon  any  outlawry  for  si 
offence  ;  but  slinll  suffer  Ihe  same  fiunixhin. 
as  a  man  should  suffer  th>it  baa  the  benefit 
bis  clergy  allowed  him  in  the  like  oase  ;  tl 
is  to  say,  shall  be  burnt  in  ihe  band  by  I 
gaoler,  in  open  eiiurl,  and  he  further  kept 
prison  for  such  lime  as  the  juslieea  in  ih 
discretion  shall  think  fii,  so  as  the  same  do  i 
exceed  one  year's  imprisonment."  UlM 
ihis  act,  to  avoid  judgment  uf  death,  the  p 
■onermuit  pray  the  benelit  of  this  statute. 

I  collect  fmm  conversa'ion,  perhaps  too  H 
Id  be  referred  to,  thit  the  argument  will  he  h 
thus.  A  woman  convicted  of  a  felony  wbl 
HOuld  be  clergyable  io  a  raao,  shall  suffer  ■ 
same  punuhmenl  as  a  man  nuuld  iu  the  H 
CBnp,  tliU  is,  as  ■  roan  of  the  same  conditli 
with  herself:  but  a  peer  would  suffer  nu  p| 
uishmenl :  therefore  a  woman  of  that  condilh 
shall  sulfer  none. 

The  words,  '  in  the  like  case,'  mnsl  mean  tli 
same  here,  as  in  ibe  tweoty-flrsi  of  .lames, 'cd 
vicied  of  the  like  ofTeoce,'    And  the  wotda'' 


SS3] 


SiiT  Bigamy. 


tlie  nine  condition'  must  be  wholly  superadded, 
if  Ibey  are  admitted  at  all.  But  it  is  imfiossl- 
^e  to  conceife,  that,  if  the  legislature  had 
aicaat  to  create  m  important  a  distinction  be- 
tween difff>rent  orders  of  women,  it  would  have 
Med  BO  words  for  that  purpose.  Nor,  indeed, 
CM  tucb  a  distinction  be  so  created  by  any  ope- 
ritioo  of  law. 

If,  in  favour  of  the  prisoner,  the  slightest  de- 
cree of  ptmishment,  which  any  man  can  suffer 
n  the  like  case,  is  to  be  intended,  every  woman 
poold  claim  exemption  from  burning,  because 
ttferior  ecclesiastics  are  not  burnt ;  and  from 
brfirittnre,  because  lords  of  parliament  are 
idtker  bornt  nor  forfeit.  But  thia  absurd  con- 
Ametion  happens  to  be  thrown  out  by  the  act 
Ifdf,  which  appoints  the  punishment,  it  means, 
o  be  hamiog  and  imprisonment.  The  statofe 
kerefbre  will  not  suffer  it  to  be  understood, 
bat  any  wonoan  convicted  of  any  felony,  shall 
ailler  bo  other  punishment,  than  those  who,  it 
■  BOW  contended,  are  to  Huffer  no  punishment 
.tall. 

Upon  these  grounds  I  submit  to  your  lord- 
liipa,  that  the  judgment  to  be  pronounced  upon 
Tery  woman,  of  whatever  quality  or  denomi- 
lation,  is  that,  which  is  prescribed  by  the  third' 
md  fourth  of  William  and  Mary ;  and  that 
here  is  no  ground  or  warrant  of  law  to  insist, 
hat  a  peeress  can  avoid  judgment  of  death 
ipoB  any  other  terms. 

My  lords,  the  whole  question  is  upon  bum- 
Dg.  The  imprisonment  is  the  same  either 
Way.  Now,  if  there  be  prudence  or  propriety 
of  any  sort  in  estabtishine  such  an  exemption 
for  peeresses,  let  that  prudence  or  propriety  be 
Haled,  where  by  the  constitution  of  this  coon- 
try  such  an  application  ought  to  be  made,  to 
pirfisment.  If  the  parliament  should  think  fit 
to  create  new  priTile^^es,  or  add  new  distinc- 
tioot  to  any  order  of  men,  or  women,  they 
are  competent  to  do  it.  But  it  would  be  as- 
loming  too  much  for  any  court  of  justice. 
Your  lordships  sit  here  merely  as  a  court  of 
jirtice,  not  as  a  house  of  legishiture.  To  do 
that  by  forced  and  arbitrary  interpretation  of 
bar,  which  ought  only  to  be  done  by  act  of 
kfislature,  is  too  much  enhancing  the  preroga- 
tive of  the  judge;  and  too  much  confounding 
tbose  authorities,  which  onght  to  have  plainer 
Barks  and  broader  limits  set  between  them. 

Mr.  Wallace.  My  lords,  I  did  not  suppose 
it  would  have  fallen  to  my  share  to  give  your 
Isrdships  any  trouble  upon  this  subject;  and 
fbrefore  I  have  not  very  lately  lookeil  into  the 
ilatDtefl  which  have  been  mentioned  j  but  I 
^  state  to  your  lordships  in  general,  what  I 
^Cfstand  to  be  the  privilege  of  peeresses  at 
tkiiday. 

By  the  20th  Hen.  0,  chap.  9,  to  obviate 
^m»  which  had  arisen  upon  Magna  Cherta, 
lyreasea  are  put  upon  a  footing  with  peers 
^respect  to  trial  and  punishment;  and  by  ao 
*|iiitable  construction,  peeresses  by  titles  since 
^NMad,  ta  marcbioDesaei  and  f  iscoanteaaca^ 
^widiia  tbe  act 


A.  D.  177&  t6S* 

At  the  time  of  passing  the  act  of  Edward  tbe 
6tb,  the  lords  of  parliament  are  meniioned, 
which  at  that  time  of  day  compreliemied  the 
whole  peerage.  In  this  situation  were  peers  at 
the  time  of  paRsing  the  stMtute  of  the  J8th  of 
Elisabeth,  which  statute  cannot  relate  to  tliem. 
Every  person,  who  is  to  be  admitted  or  allowed 
to  have  the  benefit  or  privilege  of  clergy, 
should  not  after  burning  in  the  band  be  deli- 
vered to  the  ordinary,  us  has  been  customary, 
but  may  be  detained  in  prison.  This  provisiun 
dearly  refers  to  the  situaiion  of  commoners, 
and  not  of  peers :  it  refers  to  those  who  were 
at  the  time  of  making  the  act  liable ;  whereat 
peers  were  not  in  that  condition ;  they  were 
not  to  pray  their  clergy,  but  the  benefit  of  that 
act,  and  to  be  delivered  out  without  burning  in 
tbe  hand.  Tbe  direction  given  by  the  act  is  to 
justices:  an  expression  never  appli<-d,  I  be* 
lieve,  in  any  act  lo  the  lords  in  par liameut  sit- 
ting in  their  judicial  capacity  as  a  criminal 
court :  tbe  justices  are  to  keep  such  persons  in 
prison  after  tbey  are  burnt  in  the  liaml ;  which 
is  a  demonstration  that  inferior  courts  are  al- 
luded to;  and  it  is  nnder  this  statute  iiiifirisou- 
ment  is  inflicted  opon  persons  intitled  to  their 
clei^. 

At  the  time  of  passing  the  statute  of  the  9d. 
and  4th  of  William  and  Mary,  peers  were 
exempt  from  burning  in  the  hand  and  impri- 
sonment in  clergyable  cases,  which  coiuinonera 
were  subject  to.  By  this  law  women  are  put 
on  the  same  footing  with  men,  and  the  courts 
before  whom  they  are  tried  are  to  inflict  the 
same  punishment  as  they  are  authorize<t  to  do 
upon  men.  These  provisions  make  it,  in  my 
apprehension,  extremely  clear,  that  the  peer- 
esses were  intended  to  be  placed  in  tbe  same 
comlition  with  peers,  as  they  were  by  Magna 
Charta,  explained  by  the  statute  of  Edward  the 
6th.  Would  it  not  be  the  most  harHJi  and  cruel 
interpretation,  if  the  act  was  even  donbtful,  to 
subject  a  peeress  to  a  punishment  for  tbe  same 
crime  which  her  husband  is  exenqit  from  ?  The 
conditions  of  persons  create  distinctions  in  the 
constniction  of  taws;  but  the  attempt  now 
made  is  to  confonnd  all  ranks,  and  by  sup]K>8ed 
literal  interpretation  to  involve  one  of  your  lord- 
ships* own  situation  in  the  punishment,  which 
the  legislature  has  been  so  anxious  to  extricate 
yon  from.  - 

IVfr.  Mansfield,  It  is  not  till  this  moment, 
that  I  had  any  apprehension  myself,  that  any 
question  of  this  sort  would  be  agitated  before 
your  lordships ;  and  therefore  I  can  only  S|>eak 
of  the  several  statutes  referred  to  from  my  ge* 
nerai  memory  of  them ;  but  I  apprehend  that 
the  construction  of  these  statutes  will  not,  can- 
not be  inch  as  is  now  contended  for  on  tlie  part 
of  the  prosecutor.  Tbe  object  of  the  construc- 
tion wished  by  the  prosecutor  is  this :  that  the 
laws  of  this  coiratry  are  to  make  a  difference 
between  one  sex  and  the  other ;  that  they  are 
now  at  this  time  of  day  to  be  ao  determined  as 
to  biflfot  a  more  aevere,  a  more  cruel  punish- 
ment open  a  woman  than  on  a  man,  though 


|^5J  16  GEORGE  III.  Trial  qf  ihe  Duckesi  nf  Kingston,  [63G 

!  ofTence  commlllod  be  the  Mme.  Noir,  -  ffiTing  llie  l>eDelit  of  ckrgy  to  wooieo,  I  sbould 
t  aMcli  a  coiMlroctian  your  loril>bi|ii  would  neTcr  i  Ihink  il  Jmpossliile  lo  say.  iW  pet reion  cun- 
I  •ufTer,  nor  any  r.ourl  at  justice  iii  IhU  coonlry  |  vicleil  ufa  clereyabk  ofTptire  were  not  lo  htve 


Mrily  requires  it:  and  takioij  the  sereral  si 
I    totes  together  reUliog  lo  this  sulijecl,  I  apprC' 
\   ^Dd  yoiir  lordilii)]!  will  be  of  opinion,  ibat  I 

Ibese  Hlaliiles  ilo  nut  only  not  require,  but  tbai  , 


niy  lurd«,  iribere  be  my  rule  arconstructioa 
1  tbe  law,  wliich  \i,  intliipuiable,  tiir  eTpouud- 

ig  Gtalulet,  il  is  this  ;  that  slatutrs,  ai  we  saj, 
1  pari  vtutcrii,  relatiug  10  one  subiect, 


\   tbey  exclude,  such  absurdity,  such  inhumanily.  i  he  coosidEred  as  one  law,  lakeo  and  inter|iri>ie4 


igeihe 


lluowjag'  ligbl  one  upon  the  other, 
or  conHlruclion  is  better  eatablriiheit, 
that  rule  of  cnnstruclioD  here.  Tak% 
general  law  for  the  trial  of  peercMeS) 


My  lords,  the 
must  be  rouDileil, 

flOth  of  king  Henry  ibe  6th,  which, 
1  recollect  from  niy  memory,  is  ch. 

firel  prorides  expresEly,  though  I  beliere  it  \f  ,  and  the  juilgmeot  of  peeresses  Id  llie  ■ 
'cODKiilered  only  as  adeclarstion  of  the  cammon  manner  as  of  peels  ;  then  take  the  general 
hw.   hut  pretidee,  that   peeresses  should  be  !  giving  Ihi    '        "-     '-    ■  -    - 

trieil,  and,  if  I  Tccnllecl  the  words  riglilly, 
thnuid  not  only  be  iricil,  but  should  he  jadeed 
in  tbe  Mme  tnanuer  as  peers:  Hndremember- 
tng  nhsl  has  hapnetied  upon  thai  statute,  I 
niiisl  pul  your  lordships  in  mind,  that  such  has 
been  the  henlgnily  of  the  conntructirui  upon  it, 
tfaiii  ibnugh  only  three  ranks  of  peeresses  are 
■Bineii,  il  has  been  clearly  held  in  cinsiruction 
to  extend  lo  all.  The  three  that  are  mentioned, 
.]  think,  are  ducheatcs,  cnunlesses,  and  bsrou' 
Mum.  The  conntruclion  is,  that  it  extends  to 
aiBrt'hi->ups''ea  aud  vitcouoleisei,  because  ibey 
are  iiilitte<l  in  the  tpiril  and  meania^  of  the  law 
lo  ihe  sanip  privitrge  which  is  given  to  the 
•titer  ladies  by  iisine.  The  clear  result  and 
effeel  of  ibis  statute  I*,  lo  say  In  general  terrna, 
U»l  women 'of  Ibnt  high  rank  should  be  tried 
pjid  should  be  judged  In  ihe  same  manner  as 
men.  The  terms  used  in  the  act  are  general. 
Whoever  reads  thul  law.  will  be  astonished  to 
hear  any  man  contending,  that  in  Imposing 
judgment  u|iiid  a  peeres*.  your  lordships  ire 
to  he  guided  by  a  diflereDl  rule  from  tbal  which 
you  would  follow  if  yim  were  passing  judg. 
Blent  upon  a  peer.  The  uest  slaluie  to  be 
tianiidered  after  thi«,  as  a  general  slalute  upon 
the  subject,  is  thai  of  the  Sd  and  4lh  uf  klng^ 
William  the  third.  ]iid  that  alalule  mean.— 
vere  tbe  legialators  lliai  made  il  so  forgell'iil  of 
what  was  due  to  hunianily.  and  to  themselves 
•ad  thflr  own  characters,  as  lo  mean, — that  a 
4islinclioo  ID  punishment  should  prevail  be* 


inly  not ; 
if  that  statute  is, 
Out  women  convicted  of  otfences  iulilled  lo  the 
<1lFDe6l  of  clergy  should  suffer  in  the  same 
•Banner  as  men  would  suffer  convicted  uf  Ihe 
fkme  ofleuces. 

My  lords,  no  mao,  who  can  read  that  sla- 

Ste,  and  reason  op'in  it,  can  help  concluding 
at  it  was  the  object  of  that  law  to  say,  that 
flhere  women  were  convicted  i>l  clergyable  of- 
frnces,  tbey  should  be  in  as  gooil  a  situation  as 
BKii  who  were  convicted  of  the  like. 

My  lords,  taking  these  two  slalules  of  ibe 
SOtb  of  Henry  the  sixth  providing  fur  the  trial 
and  judgment  of  peeresses,  and  tbe  general 
tUtnte  of  the  3d  and  ith  of  WJlliain  the  third 


'fit  of  clergy  to  women  id  ibaj 
same  manner  as  to  men ;  and  who  will  not  at 
Ihatlhal  rule  of  construction  does  not  necesaariljTi' 
lend  lo  put  both,  upon  the  rank  of  men  an4- 
wom'en,  in  tbe  same  condition,  when  convicleit. 
uf  Ihe  same  B|.ecies  of  offence?  But  what  u% 
the  particular  acts  of  [larliamenl,  which  bat^ 
beea  referred  to  as  requiting  a  differeni  cod- 
fttruclion?  By  the  first  of  Edward  tbesixlli,  il 
is  extremely  clear,  ihal  peers  are  not  to  undeiM 
the  ignominious  punii^hmenl  of  burning^.  Tm 
elalule  ihal  follows  that  of  Edward  tbe  auclh,  11 
Ihe  Itllb  of  Elizabeth,  ubicb  takes  twsy  lb; 
delivery  to  the  ordinary,  suUiiiules  burning  ii 
its  place,  and  then  gives  a  power  to  imuria 
Whoever  reads  that  act,  will  see  that  it  ceh, 

nly  was  confined  to  cases,  where  punisbd 
'  "  to  be  inflicted  by  justices  upon  per*, 
sons  oi  an  ntditiDry  descriplion,  nut  pctsonc  of 
■be  rank  ofpeersi  and  the  staluie  Gtiiclly  ami 
clearly  relates  only  lo  persons  so  having  clergy 
allowed,  as  is  prescribed  by  that  statute :  and  if 
the  imh  of  Elizabeth  ii  to  have  the  construe-, 
lion  which  is  contended  for,  I  understand  it 
must  have  effect  also  to  inflict  ibe  punishment 
of  burning  upon  iieers.  Sti  much,  my  lords, 
for  the  stiilute  of  tbe  ISlh  of  Elizabeth.  The 
31st  of  king  James  was  mentioned  a 
part  giving  clergy  10  women :  the  3d  and  4lh 
of  king  William  the  Uiird  is  mentioned  as  i 
luding  to  il.  It  docs  so,  but  the  promiuiis 
the  3d  and  4ib  of  king  IVilliani  tbe  third  a 
general,  that  is,  a  general  law  extendioff  lh4|X 
benefit  of  clergy  to  nimien  in  all  cases.  J'  " 
it  is  said  there,  that  Ihey  shall  have  tbe  H  _ 
puniBhmenl  as  men  ;  they  are  to  he  in  tbe  lilc«  j 
situation  as  men.  Then  1  head  goes  on 
ihal  IK  to  sny,  burning  and  imprisoning. 

My  lords,  what  is  thefaireonslructioa  ortbiij 
lawf  Why,  that  women  shall  be  in  the  samt' 
situation  as  roeu  ;  and  *  here  men  are  of  sacli 
condition,  that  they  would  be  burnt  iu  the 
hand,  that  they  would  b«  liable  to  be  impri- 
soned, women  in  Uke  manner  sliouhl  be  subject 
lo  burning  in  the  hand,  and  should  be  subject 
lo  imprisonmcnl:  bul  no  one  ever  heard,  that 
Ihe  severe  pari  of  a  law  inBicling  a  punish- 
menl  should  Ire  extended  su  by  const ruci ion, 
where  it  was  no  I  bo  expressed.  Nowyoumus^^ 
act  against  the  clear  provisloa  uf  ibat  taw, 
that  woDieD  should  be  in  tbe  same  situttlioit  uj 


lb 
il- 

\ 


tar] 


for  Bigamy. 


A.  D.  1776. 


[638 


^^1 


a* 

m 
m 

Tb 

fit  J 

» t 

»•: 
,  r 

r* 


•Lb 

»»4 


neo,  if  yna  were  to  say,  that  a  peeress  con- 
victed of  a  clen^yabte  oflTence  should   either 
undergo  the  punisbmentof  bumiogf,  or  the  pu- 
nishment of  imprisimment.    No  one  can  say 
upon  the  statote  of  Edward  the  sixth,  that  they 
are  subject  tu  either.    The  object  of  the  statute 
of  William  the  third  was  to  make  the  punish- 
ment of  such  offenders  precisely  the  same  with 
regard  to  one  sex  as  the  other ;  and  the  true 
ipirit  and  ({Teat  object  of  that  law  must  be  di- 
rectly acted  asrainst,  if  a  peeress  was  to  be  put 
in  a  different  situation  from  that  of  a  peer,  and  to 
hate  a  more  severe  and  cruel  punishment  inflict- 
ed opon  her,  than  would  be  upon  him.  These  are 
the  only  general  observations  that  occur  to  me 
now  in  taking  the  whole  scope  of  the  law :  1 
therefore  submit  to  your  lordships,  that  the 
BsUe  lady  at  the  bar  is  entitled  to  the  benefit  of 
theie  statutes. 


Attorney  General.  My  lords,  concerning  the 

riiot  which  is  now  depending  before  the  House, 
fiurly  confess,  that,  when  your  lordships  first 
Cillea  upon  me  to  give  my  reasons  why  judg- 
neotof  death  should  not  be  suspended  upon  the 
ynjtr  of  the  prisoner,  made  in  the  manner  in 
whicb  that  prayer  was  conceived,  and  upon 
theeflects  and  consequences  of  alio  wing  her  the 
beaefit  of  the  statute  in  a  more  regular  course, 
1  would  rather,  if  1  might,  have  been  excused 
from  laying  my  thoughts  before  your  lordships. 
I  hid  beard  a  rumour,  that  men,  whose  learn- 

S'  and  authority  1  greatly  reference,  held  a 
erent  opinion.  This  could  not  fail  to  raise 
■oeb  distrust  of  my  own  conclusions,  al- 
Ihoagh  I  bad  thoroughly  considered  the  sub- 
je^ ;  and  although  I  never  read  any  proposi- 
tioQ  with  more  j^rfect  conviction  of  the  truth 
•Til,  since  I  learnt  to  read. 

My  lords,  that  idea,  the  only  one  1  have  been 
tk\t  to  form,  or  adopt,  is  now  very  much 
itrengthened.  That  cloud,  which  came  over  it 
froan  the  nimoured  prevalence  of  contrarr  no- 
tioD,  is  very  much  removed.  Because,  if  there 
^DO  opinion  to  the  contrary,  but  what  is  to  be 
foQoded  on  the  argument  I  have  heard  to-day 
frem  those  who  are  best  able  to  sustain  the  con- 
tnry  opinion,  I  am  perfectly  satisfied,  it  is  im- 
pswible  this  should  pass  as  a  point  of  law,  or  re- 
eeifethe  sanction  ofyour  lordships*  concurrence. 

My  lords,  what  are  the  arguments  ?  First, 
it  it  utterly  inconceivable,  that  the  law  should 
pat  such  difference  between  the  two  sexes. 
My  k>rtls,  if  the  subject  was  laid  by  for  a  mo- 
^t,  only  to  make  a  haniiHome  compliment  to 
I  very  respectable  part  of  this  assembly,  which 
^^  deserves  all  the  attention  it  commands,  it 
B  impossible  to  quarrel  with  a  turn  of  gallantry. 
Bttt,  resuming  the  subject,  we  are  all  agreed, 
^t  the*  law  did  actually  put  that  very  diffe- 
'vooe  between  the  sexes  fur  many  centuries. 
And  this  uncourtiv  statute  of  Edward  the  sixth, 
pnieeeding  upon  the  law  as  it  found  it,  did  not 
(hiak  of  abolishing  the  distinction.  It  was 
^le  beside  the  purpose  of  that  act,  which  did 
•stflieao  to  quality  the  severity  of  the  criminal 
bv  w  general,  much  less  tu  make  an  equal 


distribatioD  of  it  amon^  the  sobject*  at  large. 
But,  taking  the  law  as  it  stood,  it  was  found  in- 
convenient, incompatible,  and  shocking  to  rea- 
son, that  lords  of  parliament,  who  were  to  give 
their  voices  upon  the  most  arduous  affairs  of  a 
great  empire,  should  do  so  under  apparent 
stigmata  and  circumstances  of  open  infamy. 
I  don't  rely  on  the  gender  of  the  words,  but 
on  the  purpose  of  the  act.  Women  are  ex- 
cluded by  both.  Thev  were  neither  liable  to 
the  stigmata,  nor  held  the  high  o£Bce  whidi 
made  them  intolerable.  Therefore  bishops, 
whom  the  38th  and  33nd  of  Henry  the  8th  had, 
at  that  time,  made  liable  to  the  whole  case  of 
other  clerks  convict,  were  included :  wonaen 
certainly  not  The  privilege  was  given,  not  to 
the  peerage^  but  to  the  house  of  parliament,  to 
be  claimed  by  the  members  as  such.  It  was 
not  substantive;  but  an  iograftment  on  the 
right  to  clergy,  which  women  never  bad.  In 
truth,  [  have  not  heard  a  hint  from  the  coun- 
sel on  the  other  side  to  question  the  existence  of 
tbia  difference  down  to  the  third  and  fourth  of 
William  and  Mary,  upon  which  act  they  have 
chiefly  relied  in  argument  They  lay  it  down, 
that  peers  convict  of  clergyable  crimes  are  ex- 
empt from  all  punishment,  not  being  within 
the  18th  of  Elizabeth  ;  that  peeresses  are  to  be 
tried  and  judged  like  peers ;  that  the  3d  and 
4th  of  William  and  Mary  puts  women  convict 
in  the  same  condition  as  men;  and  that  by 
some  tacit  reference  to  the  former  statutety 
peeresses  convict  are  not  to  be  punished  at  all. 

I  have  troubled  your  lordships  already  with 
my  reasons  for  thinking,  that  in  old  time,  peers 
enioyed  the  benefit  of  clergy  in  common  with 
other  men,  and  upon  the  same  terms ;  that  in 
the  4th  of  Henry  the  7tb,  burning  was  inflicted 
upon  them  as  lay- clerks ;  that  the  statute  of 
Edward  the  6th,  in  the  very  moment  of  exempt- 
ing them  from  the  penalties  incurred  at  law  by 
conviction,  adjudges  them  clerks,  and  delivers 
them  for  purgation  in  the  bishop's  court;  that 
the  statute  of  Elizabeth  delivers  all,  who  shall 
thereaHer  be  admitted  to  clergy,  from  purga- 
tion, and  discharges  them,  subiect  to  such  cor- 
rection by  imprisonment  for  less  than  a  year, 
as  the  Court  shall  think  fit. 

It  is  not  denied,  that  these  words,  in  their 
plain  and  natural  sense,  embrace  the  case  of 
peers.  But,  in  this  context,  it  is  supposed  they  do 
not,  because  the  clerks  convict  are  to  be  dis- 
charged after  allowance  of  their  clergy,  and 
after  burning  in  the  hand  according  to  the  sta- 
tute. This  last  provision,  they  say,  cannot 
refer  to  peers.  Nay,  one  learned  gentleman 
thouf^ht,  that,  if  it  should  be  construed  to  in- 
clude peers,  they  must,  by  force  of  these 
words,  be  burnt  in  the  band. 

1  cannot  follow  this  idea.  I  have  no  way  of 
conceiving,  how  an  act  which  inflicts,  or  rather 
reserves  a  penalty,  according  to  the  law  as  it 
then  stood,  can  lie  interpreted  to  create  a  new 
penalty  ;  or,  by  what  chain  of  reasoning  it  is 
concluded,  that  where  all  convicts  are  to  be 
discharged  upon  the  allowance  of  clergy,  and 
such  burning  as  the  law  directs,  those  are  not 


630] 


IS  GEORGE  m. 


Trial  (/iJie  Ducfmt  ofKingiton, 


t«» 


I 


tn  k»  iltschHfc^  al  all,  for  whom  (he  l«ir  has 
nM ilirccled  burniDK.    tiliiipiiwtliekingihoiilil 

(■d»a  tl)D  bunuDKi  it  »»  lhuu)(ht,  in  loi  ' 
Vaiianik's  tame,  thU  would  be  a  pvri'ecl  Uii 
th>ru«.  Bimiliie  wa«  out  subaliluteJ  in  III 
yUpc  ofpiKi^Uinn  :  Ihal  was  a  nieru  sli|i '  it 
cnairurji  lo  ihe  hiitary ;  burninir  rxiateil  bcfura 
Um  18tb  of  Elizabeth,  in  just  iiw  tame  eKtent 
ai  afitr.  ImgiriaoiimrDi,  al  tbe  discreliun  iif 
Ibp  lemparal  jud^ce,  wiu  ilie  siibHiiluie  i'm  p«r- 
iratien;  aiid  l»  ntrnded  «k)imsly  In  all,  who 
«n>  ilitrubHi^ed  t'nim  purgatiun.  Bill  il  scciiih 
lao  lata  uj  ari^w  ibis.  Was  i(  iiul  rXfin-Baly 
Avciikii  in  the  cate  uf  SpkH  and  Williami, 
wlusn  tiniliibiiion  wertt  lo  stay  Ibc  deprivalina 
of  a  parwiB,  »bo  bad  bcrn  cimvicted  of  man- 
«iiiUKbt*T,  aud  d I unh linked  iiiider  the  IStb  of 
Kliaahrlli,  alihauifli  be  could  ont  be  burnt  ? 
"  Var  wliFu  lb«  staiule  sayi  ntUr  liinilii!;,  il 
tin|ioi-la,  where  l>urahi|f  ou|{lit  to  be ;  oibcr- 
uiae  theitjiule  would  do  iio  (fniid  lo  cliTka.  for 
Mhoin  it  was  mast  inlended."  Tbe  cate  ia 
MpiMieil  lu  Hi'harl.  The  ttatiile  apeabs  nui- 
»efially  of  etery  body,  those  who  were,  and 
Ibuae  who  were  not  liable  lu  burning  ;  and  dii- 
Cbar;{e8  them  all,  alier  allowance  of  clenfy, 
and  biiroing  aconrdini;  lo  law,  as  il  bad  stood 
before  ;  that  is,  ■  te<lden<lo  liagula  singulis.* 

Tbe  next  ulijeclioD  is,  that  Ihe  word  'juaticea' 
will  Dot  api'ly  to  your  lordship»,  ereo  while 
•yua  are  tilling  merely  in  ibe  charactera  of 
iudttei.  rb>^reforc  a  sialule,  which  is  to  be 
executed  by  Juaiieea,  caunol  relate  ID  a  peer, 
Wha  ig  not  triable  by  jiutices. 

la  it  tbm  leriouaty  cciilendsil,  that  your 
lardahijiB,  exercising  your  juriailiclian  in  ibe 
trial  ol  a  peer,  will  not  do  all  tbe  same  acta  of 
juatice,  which  ja<l|(ea  umU  do  in  Iht  trial  of  a 
Oomnaoner?  Cpon  rending  many  ucisof  par- 
liaraeni,  your  lontahipa  will  liud,  eillier,  that 
jruu  bivenojunidiciionalall,or  that  you  must 
•xercite  il  under  the  characler  and  deaomioa- 
tion  of  jiiBlicea.  Tbe  same  objeclion  might 
haee  been  made  tn  lord  Feirers'a  exoculioij  ;• 
the  aame  lu  ihe  bumiug  a  |)eer  under  the  tla- 
hile  of  Henry  Ihe  7ih.  By  the  word  <  jiislices' 
]  undenlaml,  in  mir  law,  all  tnanner  of  ofScera 
wbn  are  entrusted  wiih  ibe  od ministration  of 
juallee.  So  Spel man  dc flues  1  lie  word.  In  hif{h 
.•Oliqiiity,  tbe  name  weut  lo  Ihe  greatest  subjecl 
Ja  this  country;  l«r  I  take  ihe  *  Juatitiarius 
Wiu)  AtiKlia'  lo  ha*e  been  above  tbe  'Seuea. 
tflaitu*  reijia  '  Your  lordships  therefore  will 
~1  disdaiD  the  name )  Ibr  ynu  ail  here  in  no 
_  jber  obaracler  iban  ihni,  whicb,  by  jnsi  and 
IMtttra)  ouDBlruolian.  is  attributed  to  the  word 
jualicei.'  Tberetbre,  if  no  better  objecliiins 
Ml  be  railed  lliau  these,  I  apprehenil  tbe 
VOrd*  ol'  the  slaiuie  suflieiently  cuinprixe  ibc 
This  olio  was  laid  duwu  io  tbe  trial 


as  tbe  statute  ealli  it,  to  a  criminal  found 
upuu  record  ;  but  to  rsMore  a  law,  which  I 
DOW  fur  mnuy  ages  heeu  understood  to  be  at 
end  ;  and  1  Hatter  myaelf,  cuusidering  the 
cuuut  wbli;h  ihe  boolu*  all  give  of  il,  that  |i 
ipilioa  in  at  un  end. 

But  I  am  called  upon  to  look  at  ibe  90th 
11.  e,  c.  9.  This  was  a  mere  d^clHralorj  tai 
ruciting  Ihe  39th  chapter  of  Magna  Uba* 
'  nullu*  liber  homo.'  and  so  furib,  noi) 
abaurd  doubt,  whrtber  '  buino'  include 
Kviiders;  and  declaring,  Ihal"  hidiea  shall 
put  to  aiiawtr,  aud  judjted  btfare  such  jud| 
aud  peers"  (here  by  the  way  jud){e«  and  pe 
are  gynonymouii)  "  as  peers  should  be."  I 
though,  by  Magua  Charia,  peereases  wera 
be  tried  by  their  peetw,  as  oiher  women  wi 
by  theirs,  there  the  privilcije  euda.  All  wc 
ujjon  ciinviction,  lo  receive  Ihe  like  judgmi 


a 


ind,  in  tbe  e 


death,  the  difference  was  not  between  I 
ranks,  but  ibe  sexes,  of  tbe  convicta.  And  . 
Ihe  law  undoubtedly  oonlinucd,  oolwithatant 
ing  ihis  slatule. 

But  IL  was  said,  that,  hy  the  cquiiy  of  |l 
slikute,  mnrcbioneases  and  Tiacnuntessea  tn 
iiiduded,  though  not  named.  This  was  lif  ^ 
en  II  n  tens  nee  to  the  rule,  ihal  all  ElalulesiafM 
Huierid  shall  be  coniirued  alike.  Thcria 
great  ;gfuod  sense  in  the  rule. 
and  viscoun leases  were  clearly 
declared ;  and  ennaequenlly  wiibin  the  reu 
ol'declariogit:  tlieietiireduiibesMa,  counloaM 
and  harouessea  were,  by  a  sort  «f  syoecbdad 
put  fur  all  peeresaee.  Ho  where  n  privila) 
is  sared  lo  certain  deiiominaliuns  of  people,  i 
others,  who  were  before  wilbiu  iheaainepf 
e,  will  he  within  ihe  aaviug,  if  lhei«  I 
Doibiiig  lu  the  conteNi  to  raise  a  diatlnciU 
aifainst  ibem ;  particularly,  if  Ibe  aaeiag  I 
only  di^vlaratory,  aud  not  a  positive  exoeptiw 
Nay,  in  a  new  law,  things,  equally  nilhin  ll 
11  of  it,  have  been  curopriaed  la  it  by  om 
lion.  But  Ibis  bonlera  upon  arburan 
parliametit  scenic  the  proiierrsi  judgeof  tb 
reusou.  If  peers,  disqualilieil  lo  «ate,  abool 
claim  tbe  benefit  of  Ibe  1st  of  Edward  the  fill 
il  mijfbl  be  argued  with  aoine  pluusihility,  thi 
Ihry  are  witliiu  the  reason  of  Ihe  act.  Tin 
are  mi  certainly,  in  every  peiul,  except  that  I 
voting ;  and  yet  I  should  think  it  ton  itiucb  I 
urerluob  so  material  a  distinction  made  by  l|i 
sliiliite  itself.  ItuI  if  women,  who  wer«  m 
concerned  in  any  part  of  the  subject  matta 
mnbe  the  same  claim,  it  would  be  making 
perfectly  new  law  to  include  tbera.  WIm 
then  is  thepeWfoimaleritf  between  the  act* 
Wdtiam  and  Mary,  tbr  exempliug  wnmrn  Iral 
capital  pnuishiuenl,  hnd  ilie  311th  «f  Menr 
ibe  Sth,  whicb  h»d  nnihin;:  ■"  lie  with  pnnisl 
iiienl ;  or  Ibe  Isl  uf  Edward  Hie  6lh,  wttMl 
hud  iiiithing  to  dn  wit 
I  dill  propose  two 
in  jiurt  Mulcri'a,  lb*  acts  of  Jaroea  an 
Uillinmanil  Mniy  ;  ihe  nnly  two  whioh 
(«-  iii'On  any  wuinun  any  cxeiiipliun 
piial  piHiiahmciit.    I  hare  nut  beanl  it 


fir  higemi/. 

■ltd  •mod  cwnricleil  of  ttie 

in  ihe  firsi  act,  iIik  jiunisli- 

ipedlM  iiiuti  bate  eiiaueil.      This 

iearilie<f  wonts,'  iii  lliplike  case.' 

I  tun  iwMUHVil  iln^n'ram,  ol'  iliis  ^rouad,  tbat 

"■    avi  of  Edwaril  llie  6lb  tliil  uot  tuudi  llie 

pal  bj  the  law  ol'  «lergj  belweeu 

n«r  itiai  of  Jamea  inHhu  toy  ttif- 

&mew  u  Id  ibe  xi'i'lily  of  >li«  uDVndcpr.      We 

Senlirel]'  n|ian  the  aci  o(  Williara  and  Mary. 
it  joavcurale  III  M^,  this  act  (luls  women 
ilto  llie  (tiDe  canililiiin  with  rnen  ;  and  atill 
more,  niib  men  of  the  same  uuality  res|wc~ 
ii>e1y.  There  U  autliiiiK  in  it  »buut  ihe  ciHidi- 
liooiif  ibe  peruii.  W'Uere  a  luaii,  CDnnicI  of 
■oy  fdooy,  has  oletgy ,  a  wornon,  cunviul  iif  the 
\ikt  offunL'*,  ihtll  D'll  hate  ju<l^nient  uf  death, 

i1)U«uffiRtheuaie|iUDiiihiiiciiiaaB  nian  would 
■At,  with  cleri^y.  in  the  hke  vuc.  Theie 
wWilt  rtter  all<^r(hei' 1o  iht^  ijiiality  of  the  uf- 
Ik«.  Tlial  »eij  crime,  ivliith  iii  one  recun), 
in^icil  to  a  man,  iiifi:n  juilument  of  death, 
H«i>iabt*  by  bit  cUim  ul  clergy,  applied  in 
tMbcc  Id  a  woman,  iulV-ra  the  nitecitic  judg- 
■nt  |iic(cri1ied  by  iheacl.  Nor  are  the  two 
mn  pal  into  the  same  condiiion,  eieo  aa  to 
fntlbraeat.  All  womeo  at uiiled  judgment  of 
Wli  (  nut  au  u(  all  men.  Some  were  mdin 
ftawbly  incapable  of  holy  orders :  sucli  can- 
Mbave  their  clergy  at  this  day  ;  nor  had  any 
MteBumpiioafroni  death  lietbre  the  dib  of 
Ini,  Voine  could  nnl  prove  iheir  title  lo 
■Itqjr  by  readiug.  Men  could  bate  ilieir 
4^fy  but  once;  wotneti  (he  beneBt  of  ihii 
■Uow  tolki  guotun,  till  a  subsequent  act  alter- 
"^  dtbcbw  ID  this  respect. 

""  an  tlie  words  be  twisted  lo  create  a 

to  the  rauk  uf  the  offender.     It  i« 

iyt«  learned  geulleinan,  to  put  ihe  se- 


l«      ISlbm 


uol  ppnol.  But  the  shorter  answer 
ire  uul  two  cunsltui^uons  lo  cbuse  be- 
If  ibe  phiaie  had  been  lell  gcoenl, 
'  Ibt  aanae  nanisbineiit  as  ■  man  kbuuld  suffer 
Ita  bad  hiaclwgy  in  the  like  case,'  it  might 
hnlceit  Ibougbt  uncerlaiu  what  that  puuisb- 
■■t  abottld  be;  because  different  orders  of 
were  liable  lo  dilTerent  measure  uf  punish- 
the  like  vase ;  Ihr  bulk  of  men  lu  fur- 
bunting,  and  discTclionary  imprison- 
iuferior  ecclMiuilica  lo  forltilure  and  im- 
i  lorUsofpailiauienltoinipmouuieoi 
■■1)1.  In  aiicb  a  leit  there  might  hace  heeu 
■dm  i«  oonlend  for  a  fatourable  cunitrucliou  ; 
MtjctiCTCQ  then,  I  should  hate  thought  that 
iWniMMire  afpunithinentallntied  to  the  bulk 
rfnaokind,  undistinguished  hy  peculiar  pri- 
\  'i%r*,  mual  bate  beeu  deemed  the  laeinii^ 
tf  Silc|{i»lalure,  Uul  wbateter  might  have 
.  lb*  eoiulruelioa  of  such  a  text,  it  must 
J  ki#Bppn«di^uslly  lo  all  women.  They  could 
I  M  hava  ht«n  daaned  in  casU,  according  lo  Ihe 
I  of  their  rc>[>ective  busbao£;  the 
t  lord  ftf  parliament  to  be  impiisoned ; 
■  iulivioi  ecdeaiastic  lo  be  inipriauiied  aud 
l!pt;  of  other  man  to  be  imprisoued,  lo 
t,  Mtil  b«  bunil.    Tbe  sumie  bowercr  hu 


put  IB  nd  l«  aU  riaealion,  by  rtBlintr  exprenl* 
■he  rery  measuieof  jiuni^hmeut  alloiied  to  all 

Durai  ill  tlie  hand  in  open  court,  il  is  said, 
shall  Dtit  apply  lo  peeresses,  because  ihey  were 
iieter  liable  to  be  huroi  at  all.  The  pontiLin  i* 
true,  not  ut  peert^sei  alone,  bul  uf  ait  wornen. 
But  ihev  were  liable  lo  judgment  of  d«alb  ;  foe 
wbii*h  Ibis  slighter  puniahmeot  was  a  desirable 


My  lurds,  if  there  be  any  thing,  in  Ibe  na< 
ture  of  tbe  punjahmeol,  unreasonable,  or  ini- 
proijer  to  be  applied  to  women  in  general,  or  la 
iiobleitoiueii  in  particular,  let  the  matter  cnma 
before  parliament.  It  is  a  legislaiite  consiile- 
ralioD,  and  pailiuuent  will  eulerlain  il  accurd- 
in|{to  Ihe  ekteul  of  tbe  ptiociple,  which  cer* 
lainiy  will  apply  lo  many  noblewomen  uf  iiiucb 
higher  rank  Ihan  some  peeresaea,  wbu,  as  ilie 
law  now  slaads,  are  liable  lo  that  puniihioent. 
So,  I  ihiuk,  Ihey  ought  la  remain.  Guili  levels 
rank.  A  Dohlewoman,  coiered  wiih  Ibe  igno- 
miny of  such  a  couTictioo,  cannot  forfeit  leia 
than  her  eslimalion. 

niy  lords,  tbe  unlv  quealion  is  this:  bas  any 
pesiUTe  law  granted  itie  ekemplion  now  de- 
manded, to  wiud  up  such  a  record  as  this  with 
perfect  impunity,  a  ridiculous  diiigrace  lo  pub- 
lic justice?  Has  Ibis  been  dune  in  expMM 
terms  ;  or  in  terms,  whosp  nece^aary  onslruc- 

My  lords,  when  I  hare  qualilied  the  qnet* 
tion  in  that  manner,  1  hate  gone  lo  tbe  verg* 
oljuilicial  Buihority.  And  I  do  desire  tn  preM 
this  upon  your  lordships  as  an  uniteraal 
maxim  :  no  more  dangerous  idea  (wn  creep 
into  the  mind  uf  a  judge,  than  tbe  imagina- 
lion  that  he  is  wiser  ihsu  ihe  law.  I  coiiiiDB 
this  lo  no  judge,  whaleier  be  his  deuumiua- 
tion,  but  entend  it  to  all.  And,  s|iea1iiug  at  the 
bar  of  an  English  murl  ol'jusiice,  1  make  sur« 
of  your  lordship*'  approbauun,  when  I  com- 
prize eten  your  lordships,  silling  in  West- 
minster-hall. It  Is  B  grierous  example  lo 
other  judges.  If  yuur  lordships  assume  Ihiti 
silting  in  judgment,  why  not  Ibe  Kiog's- 
bench  ?  Why  not  coministiuoera  of  Oyer  and 
Terminer?  Iflbey  do  an,  why  not  Ihe  Quarter 
sesaioua?  Ingeuious  men  may  strain  Ihe  latv 
very  far — but,  to  pertert  it— -lo  new  model  it — 
the  genius  of  our  coniUlutlon  says,  judge* 
bare  no  such  authority,  nor  shall  presume  10 


*  Die  Lunie,  31  Aprilii,  1110. 

Ordered  by  the  IjOrds  spiritual  and  temporal 
in  parliament  asembted,  thai  the  following 
Question  be  put  to  the  Judge*,  viz. 

Whether  a  peeress,  couricted  by  her  peen  «f 
a  clergyable  felony,  is  by  taw  iniiiled  lo  the 
benetilortbeslalutra,  av  as  lo  excuse  her  rmn 
capital  punisbment,  without  being  humi  in  lb* 
hand,  or  beiug  liable  tu  any  impiisunmeut .' 


643] 


16  GEORGE  III. 


Trial  of. the  Ducheti  of  Kingston, 


[6(4 


there  the  House  adjourned  again  into  West* 
mioRter-  hall ;  ivben,  after  the  usual  pmclama- 
tion  for  silence,  his  grace  the  Lord  High  Stew- 
ard addressed  the  prisoner  to  the  following 
effect: 

Whereupon  the  Lord  Chief  Baron  of  the 
Court  of  Exchequer,  having  conferred  with 
the  rest  of  the  judges  present,  delifered  their 
unanimous  Opinion  upon  the  said  Question, 
with  his  reasons,  as  follow,  viz. 
•  My  lords ;  the  question  proposed  by  your 
lordships  for  our  opinion  is^ 

Whether  a  peeress  convicted  by  her  oeers  of 
a  clergyable  felony,  is  by  law  intitl«a  to  the 
benefit  of  the  statutes,  so  as  to  excuse  her  from 
capital  punishment,  without  bein^  burnt  in  the 
band,  or  being  liable  to  any  iropnaonment?* 

My  lords,  yoor  lordships  would  probably 
expect,  that  on  a  question  of  this  importance 
the  judges  would  have  desired  tune  to  have 
considered  of  it;  but,  as  it  was  easy  to  foresee 
from  the  first  appointment  of  this  trial,  that  a 
question  of  this  sort  would  probably  arise,  we 
Aave  all  looked  into  the  several  statutes,  from 
which  any  light  conld  be  expected  :  and  as  on 
inch  a  conaideration  we  have  been  able  to  form 
an  opinion,  in  which  we  all  concur,  we  thought 
k  onr  duty  to  deliver  it  immediately,  and  not 
obstruct  the  public  business  by  unnecessarily 
protractinir  this  trial,  which  has  already  taken 
Up  so  much  of  your  lordships'  time. 

1  am  therefore  authorized  by  my  brothers 
to  sa^,  we  all  concur  in  opinion,  that  a  peeress 
convicted  by  her  peers  of  a  clergyable  felony 
it  by  law  intitled  to  the  benefit  of  the  statutes, 
•o  as  to  excuse  her  from  capital  punishment, 
without  being  burnt  in  the  hand,  or  being  liable 
to  any  imprisonment. 

My  lords,  the  question  depends  on  several 
acts  of  parliament.  The  fii-st  1  shall  trouble 
your  lordships  with,  is  the  Q9  Hen.  8,t  c  9, 
whicii  reciter,  **  that  by  Magna  Charta  no 
freemon  shall  be  taken,  or  imprisoned,  or  dis- 
seised of  his  freehold,  or  his  liberties  or  free 
customs,  or  shall  be  outlawed,  or  in  any  wise 
destroyed,  that  is,  forejudged  of  life  or  limb, 
or  pot  to  death,  or  shall  be  condemned  at  the 
king's  suit,  either  before  the  king  in  his  bench, 
that  is,  the  King's-liench,  or  betbre  ativ  other 
oommivsioner  or  juil((e  whatsoever,  but* by  the 
lawful  judgment  of  his  peers,  or  by  the  law  of 
the  land ;  in  which  statute,  (that  is,  Magna 
Charta,)  no  mention  is  made  how  women, 
ladies  of  great. estate  in  respect  of  their  hus- 
bands peers  of  the  land,  married  or  sole,  that  is 
t6  sa^,  duchesses,  countesses,  or  baronesses, 
shall  be  put  to  auKwer,  or  before  what  judges 
tliey  shall  be  judged  upon  indictments  of  trea- 
nous  or  felonies  l>y  tlieni  committed  or  done ; 
in  regard  whereof  it  is  a  doubt  in  the  law  of 
£ngland,  before  whom   and   by  whom  such 

*  See  Leach's  Hawkins's  Pleas  of  the  Crown, 
bit.  d,  c.  83,  s.  8. 

t  The  ttat.  90  fl.  6,  seepui  to  be  here  ip* 
tended. 


X.  H.  S.  Madam,  the  lords  have  considered 
of  the  prayer  you  have  made,  to  have  the 
benefit  of  the  statutes,  and  the  lords  allow  it 
you. 

But,  Madam,  let  me  add,  that  altliougb  very 

ladies  so  indicted  shall  be  put  to  answer  tod  be 
judged :  our  said  lord  the  king,  willing  to  pat 
out  such  ambiguities  and  doubts,  bath  declared 
by  authority  aforesaid,  that  such  ladies  so  in- 
dicted, or  hereafter  to  be  indicted  of  any  treaeoe 
or  felony  by  them  done  or  hereafter  to  be  doii% 
whether  they  be  married  or  sole,  that  tbey 
thereof  shall  be  brought  to  answer,  end  pot  to 
answer  and  judged  before  aucb  jadgee  awl 
peers  of  the  realm,  as  peers  of  the  realm  sbeoM 
be,  if  they  were  indicted  or  impeached  of  sock 
treasons  or  felonies  done  or  hereafter  to  be  dooi^ 
and  in  like  (autiel)  manner  and  form,  and  noit 
otherwise." 

Your  lordships  will  observe,  that  tini  slatite 
does  not  introduce  a  new  \mw^  but  is  a  deeUn- 
tive  law,  explaining  what  the  true  meaning  tf 
Magna  Charta  was.  *  Peers'  in  that  staiale 
means  equals ;  and  therefore  any  of  the  no- 
bility most  by  Magna  Charta  be  tried  b;^  lbs 
nobility  who  are  their  peers;  for  all  nobility, 
whether  barons  the  lowest,  or  dukes  tw 
highest  degree  of  nobility,  are  all  equals  ia  Ihii 
respect:  and  lord  Coke,  Sd  luat.  4.5,  saji^ 
**  though  duchesses,  countesses,  and  baraeum 
are  only  named  in  this  declaratory  statute,  vU 
marchionesses  and  viscountesses  are  oraittod, 
notwhhstanding,  they  are  also  compreheeded 
in  this  39th  chapter  of  Magna  Charta." 

*  Peers,*  though  originally  meaning  oaly 
equals,  is  now  by  common  use  applied  to  a  par- 
ticular part  of  the  nation,  distinguislied  fteei  tbs 
rest  by  superior  rank  and  privileges,  which  they 
derive  from  the  king  originally  by  writ  or  hir 
ters  patent  granted  to  them  or  their  anceston; 
and  in  cases  of  such  ladies  as  are  not  so  ee* 
uobled,  they  obtain  that  nobility  by  marrii^ 
to  those  who  are  so  ennobled. 

As  the  next  statute,  1  £.  6,  c.  13,  a..  14» 
speaks  of  the  benefit  of  clergy,  it  will  be  as* 
cessary  to  say  something  upon  that  subject 
Lord  liale,  in  his  second  volume  of  his  Histoiy 
of  Pieus  of  the  Crown,  page  325,  says,  that 
*'  anciently  princes  and  states  converted  to 
Christianity  granted  the  clergy  exemptions  of 
places  consecrated  to  religious  duties  from  a^ 
rests  for  crimes,  which  was  the  original  of  saoe- 
tuaries;  and  secondly,  exemptions  of  their  pe^ 
sons  from  criminal  proceedings  in  some  cais> 
capital  before  secular  judges,  which  was  the 
true  original  of  this  privilegium  clericale.  Tbr 
clergy  inci-easing  in  wealth,  power,  honour, 
number,  and  interest,  claimed  as  a  right  wbit 
they  at  first  obtained  by  the  favour  ol  princei 
and  states,  and  by  degrees  extended  these  eS- 
enipiions  to  all  that  hud  any  kind  ofi«ubofJi" 
iiate  ministration  relative  to  the  church." 

These  exemptions  never  rose  to  so  grttl 
an  height  in  this  kingdom  as  in  other  placeii 
end  therefore  the  clergy  were  nut  exempUd 
here  fh»m  civil  saits,  nor  wtui  fSbiM  friM^naf 


i 

I 


i 


M5] 


for  Bigamy. 


A.D.  1776. 


t6«6 


ittle  pnoiihiiieot,  or  none,  can  now  be  inflicted, 
he  mlingB  of  your  own  conscience  wilt  eup- 
ilj  tbat  Mfect.  And  let  me  giro  yon  this  in- 
dmntion  likewise,  tbat  you  can  never  have  the 

isrvttfe  allowed  in  the  lowest  crimes  not  ca- 
Mtaly  nor  wherein  they  were  not  to  lose  life  or 
imb,  nor  in  high  treason  touching  the  king 
limMlf,  or  his  royal  majesty :  but  by  S5  £.  3, 
L  4,  de  Clero,  in  all  other  felonies  the  ordinary 
o^t  demand  the  prisoner  as  a  clerk,  or  the 
moDcr  himaelf  might  demand  the  benefit  of 
iba  clergy.  "  The  canon  law  gave  the  privilege 
nly  to  men  in  holy  orders :   our  law,  in  fiivour 
lolatiiiingand  thedesire  of  the  English  bishops, 
meDdod  it  to  lay  clerks,  i.  e.  any  layman,  that 
hr  reason  of  his  ability  to  read  was  in  anossi- 
blitj  of  being  made  a  priest."    C.  J.  IMiy, 
Bee  vol.  IS,  p.  1015.     The  means  of  try- 
ing whether  he  was  entitled   to  it  was  by 
reading.    If  he  could  read,  he  was  delivered  to 
Ibe  ordinary,  tbat  is,  the  bishop  or  the  person 
who  had  ordinary  jurisdiction  there :  but  the 
wdinary  was  so  much  the  minister  of  the  tem- 
psral  courts,  and  so  subordinate  to  them,  that  if 
the  ordinary  refused  to  let  the  prisoner  read,  the 
knporal  court  could  control,  and  order  a  book 
Is  be  delivered  to  him  ;  and  if  the  ordinary  said 
be  canld  read  when  he  could  not,  or  vict  verta^ 
Ibit  be  could  not  read  when  in  reality  he  oould, 
lbs  temporal  courts  gave  judgment  according 
Is  the  truth  of  the  case ;  and  those  oourfci  like* 
vile  directed,  whether  the  prisoner  should  be 
Mivered  to  the  ordinary  with  purgation,  or 
vithout  purgation.    In  the  last  case  they  were 
H  be  kept  in  the  ordinary's  prison  for  life :    if 
Mivered  with  purgation ,  then  the  ordinary 
tried  him  for  the  fact  whereof  he  was  accusecl, 
kya  jury  of  twelve  clerks ;  and  if  he  was  ac- 

EittMl,  1M  was  generally  the  case,  he  was 
ibarged  out  of  prison.  Purgation  was  the 
eoovict's  clearing  himself  of  the  crime  by  his 
•wn  oath,  and  the  oaths  or  verdict  of  an  inquest 
•f  twelve  clerks  as  compurgators.  The  pr(»- 
ittding  wsfi  before  the  orainary  ;  and  old  books 
speak  of  their  making  proclamation  for  persons 
tooome  in  against  bis  purgation,  ond  of  their 

a  airing  into  his  life,  conversation,  and  fame, 
of  other  formalities  ;  in  all  which,  several 
Haiotea  say,  there  were  great  abuses. 

The  statute  4  U.  7,  c.  IS,  reciting  that 
^'vpOQ  trust  of  the  privilege  of  the  church  di- 
mpersons  have  been  the  more  bold  to  commit 
ttirder,  rape,  robbery,  theft,  and  all  other  aiis- 
•cbievoQB  deeds,  because  they  have  been  con  - 
tiaoally  admitted  to  the  benefit  of  the  clergy, 
•i  oAas  they  offended  :'*  it  enacts,  that  **  every 
ferson  not  being  within  orders,  which  hath 
aaoe  been  admitted  to  the  benefit  of  his  clergy, 
ksing  a^in  arraiq^ed  of  any  such  offence,  be 
not  adjDitted  to  have  the  benefit  or  privile^  of 
Ibe  clergy ;  and  that  every  person  so  convicted 
■ftr  moi4er  fwhich  was  tlien  n  cleigvable  of- 
»)  ahoQid  be  marked  with  an  M  nn  the 
of  the  left  thumb ;  and  if  he  be  for  any 
Salooy,  to  be  marked  with  a  T  in  the 
pbo0  of  tl|t  thumb ;  and  those  marks  to 


like  benefit  a  second  time,  but  another  offence  of 
the  same  kind  will  be  capital. 

Madam,  you  are  discharged,  paying  your 
fees. 

be  made  by  the  gaoler  openly  in  the  court  be- 
fore the  judge,  before  tbat  such  persons  be  de- 
livered to  the  ordinary." 

This  statute  prevented  laymen  having  their 
clergy  more  than  once ;  and  the  brandmg  an- 
awered  the  purpose  of  discovering  whether  they 
had  had  the  benefit  of  their  clergy  before,thoug!h 
it  was  necessary  to  prove  it  by  other  means,  to 
prevent  their  having  clergy  a  second  time. 

The  1  £.  6,  c.  13,  will  come  next  to  be  con- 
sidered ;  which,  after  repealing  several  new- 
created  treasona  and  fekinies,  and  taking  away 
clergy  in  several  other  felonies,  in  sec.  14, 
enacts,  that  **  in  all  and  every  case,  where  any 
of  the  king's  majesty's  subjects  shall  and  may, 
upon  his  prayer,  have  the  privilege  of  clergy  as 
a  clerk  convict  that  may  make  purgation  ;  in 
all  these  cases  and  every  of  them^  and  also  in  all 
and  every  caae  and  cases  of  fek>ny.  wherein  the 
privilege  and  benefit  of  clergy  is  restrained, 
excepted,  or  taken  away  by  this  statute  (wilful 
murder  and  poisoning  of  malice  prepensed  only 
excepted)  the  km!  and  lords  of  the  parliament, 
and  peer  and  peers  of  the  realm,  liaving  place 
and  {voice  in  nariiament,  shall  by  virtue  of  tbii 
present  act,  or  common  grace,  upon  his  or  their 
request  or  prayer,  alledgin^  that  he  is  a  lord  or 
peer  of  this  realm,  and  claiming  the  benefit  of 
this  act,  though  he  cannot  reiul,  without  anj 
burning  in  the  hand,  loss  of  inheritance,  or 
corruption  of  his  bkrad,'be  adjudged,  deemedt 
taken,  and  used,. for  his  first  time  only,  to  all 
intents,  constructkms,  and  purpoaea  as  a  clerk 
convict,  and  ahall  be  in  case  of  a  clerk  con- 
vict which  may  make  purgation,  without  any 
further  or  other  benefit  or  privilege  of  clergy 
to  any  such  lord  or  peer  from  thenceforth  at 
any  time  after  for  any  cause  to  be  alk»wed,  ad- 
jndgfHl  or  admitted  ;  any  law,  statute,  usage, 
or  custom,  or  any  other  thing  to  the  contrary 
notwithstanding :  provided  always,  that  if  any 
nf  the  said  lords  of  the  parliament,  or  any  of 
the  peers  of  this  realm  for  the  time  being,  skall 
fortune  to  be  indicted  of  any  of  tlie  ofi'enoea 
limited  in  this  act,  that  then  they  and  every 
of  them  lahall  have  his  or  their  trial  by  their 
peers,  as  it  hath  been  used  heretofore  in  caaes 
of  treason." 

From  the  time  of  this  statute,  whenever  a 
peer  has  been  convicted  of  any  felony,  for 
which  a  commoner  might  have  the  benefit  of 
clergy,  such  peer,  on  praying  the  benefit  of 
this  statute,  has  always  been  discharged  with- 
out burning  or  delivering  to  the  orilinary  :  and 
there  are  a  series  of  presents  from  k>rd  Mor- 
ley's  case,  1066,  [vol.  6,  p.769],  till  one  in  this 
reign  as  late  as  1765;*  and  C.J.  Treby  says, 

*  See  the  Case  of  lord  Byron  in  this  Collec- 
tion, vol.  19,  p.  1178.  8ee  also  more  concem- 
inir  benefit  of  clergy  in  vol.  19,  p.  CSl,  and 
the  other  cases  and  books  there  referred  to. 

1 


647] 


16  GEORGE  111. 


Trial  of  the  Duchess  of  Kingston, 

X.  H.  8,  My  lords,  this  triil  being  si  to  end, 
Both  ins  remains  to  be  done  here,  but  to  deter- 
mine the  cororoinion. 

Lords,   Ay,  ay. 


**  the  statate  1 E.  6,  exempts  the  peers  coniict 
•r clergyable  felonies  from  naming  in  the  hand, 
and  Tirtuslly  repeals  the  statute,  4  H.  7,  as  to 
no  much;  and  the  statute  18  Eliz.  requires 
bnming  in  the  hand  only  according  to  the 
statute  in  that  behalf  before  profided;  and 
there  being  no  statute  then  or  now  in  force  to 
«ubject  peers  to  such  brand,  they  are  in  such 
<»se  (upon  the  allowing  the  benefit  of  the  said 
•tatute  of  E.  6,  which  is  as  much  ms  clergy 
without  reading  or  burning)  freed  from  discre- 
dit and  other  penalties  of  the  felony,  as  much 
•8  commoners  are  by  having  dergy  formally  al- 
lowed, and  being  burnt*'  Voi,  13,  p.  1014.  And 
Jbe  sa^s,  *'  a  peer  shall  hare  this  benefit  with- 
out either  clergy  or  burning,  a  derk  in  orders 
upon  clergy  alone  without  burning,  and  a  lay- 
clerk  not  without  clergy  and  burning."  Vol. 
13,  p.  1019.  And  I  beliefe  nobody  can  dispute 
but  the  law  is  so.  The  question  therefore  is, 
whether  a  peeress  is  not  entitled  to  the  same 
prifilege  ?  and  we  are  of  opinion  that  she  is. 

*  Peers'  is  a  word  capable  of  induding  the 
whole  body  of  the  peerage,  females  as  well  as 
males;  and  erery  personal  prifilege  conferred 
•n  peers  is  by  operation  of  law  communicated 
to  peeresses  whether  by  Mood  or  marria|[e, 
though  only  males  are  mentioned.  As  trial 
by  peers,  though  recognized  in  Magna  Charta 
only  as  belonging  to  the  male  sex,  *  nee 
*  super  eum  ibiraus,  nee  super  eum  mittemus,' 
did  by  construction  of  law  belong  to  females, 
as  appears  by  20  H.  6,  which  is  only  a  de- 
claratory law ;  so  any  other  personal  priTilege, 
granted  or  confirmed  to  peers  generally,  is  com  • 
muoicated  to  females,  if  it  is  of  a  nature  capa- 
ble of  being  ooromunicated  to  and  enjoyed  by 
them ;  as  trial  by  peers,  freedom  from  arrest : 
Countess  of  Rutland's  case,  Moor  769,  and  3 
Co.  52.  And  if  those  privileges  are  so  commu- 
nicated, as  they  certainly  are,  why  should  not 
this  i^iven  by  1  £.  6,  the  consequence  of  which 
is  so  reasonable  and  agreeable  to  justice,  that  a 
female  offender  shall  not  undergo  a  greater  pu- 
niaUment  than  a  male  of  her  own  rank  would  do 
for  a  crime  of  the  same  sort  ?  But  it  was  insisted 
at  the  bar,  that  between  1  E.  6,  and  18  Eliz.  a 
peer  found  guilty  of  a  clergyable  offence  should 
he  delivered  to  the  ordinary  as  a  clerk  convict : 
and  8taunford,  130,  is  quoted  for  that  purpose, 
that  by  the  words  of  this  statute  a  peer  ought  to 
make  his  purgation ;  and  ifsn,  he  ought  to  be 
delivered  to  the  ordinary  to  be  kept  till  he  has 
made  his  purgation.  That  opinion  of  8taun- 
ford  seems  contrary  to  law  in  many  particulars. 
The  1  E.  6,  c.  3,  bad  in  effect  8U8|>ended  pur- 
gation, even  as  to  commoners:  therefore  the 
legislatnre  could  never  mean  to  introduce  and 
establish  purgation  as  to  a  peer,  which  Ilobart 
says,  S89,  '*  is  no  ordinance  of  the  common 
law,  but  is  a  practice  among  themselves,  i.  e. 
the  dergy  I  rather  oferaeea  and  winked  at  than 


(648 

L.  H,  S.  Let  proclamation  be  made  fiir 
dissolving  the  commission  of  High  Steward. 

Serjeant  at  Arms,  Oyez !  oyez !  oyes !  oar 
sovereign  lord  the  king  does  strictly  charge 


approved  by  the  common  law :"  and  page  S91, 
he  says,  **  the  perjuries  were  sundry  in  the 
witnesses  and  oompurjpuors,  in  the  jury  of 
clerks,  and  the  judge  himsdf  was  not  dear,  sll 
turning  the  solemn  trial  of  truth  b^  oath  into  a 
oeremonious  and  formal  lie."    It  is  not  proba- 
ble the  parliament,  intending  a  great  dislioetion 
in  favour  of  peers,  so  as  to  dispense  with  read- 
ing and  burning  in  the  hand,  meant  to  leave  a 
peer  a  priaoner  in  the  custody  of  the  orduiary, 
and  to  hare  hie  credit  and  capacity  to  aoqoifs 
penonal  property,  and  enjoy  the  profits  of  fail 
lands,  to  be  decided  upon  in  such  a  mock  trial; 
and  in  fact  there  is  no  instance  in  any  of  tbc 
law  books,  where  a  peer  convicted  of  a  defin- 
able felony  has  ever  been  delivered  to  the  ordi- 
nary, or  has  made  purgation :  and  the  iuriidic- 
tion  of  the  ordinary  to  pursue  the  clerk  relitei 
only  to  clerks  in  onfers,  or  such  as  the  commoa 
law  considered  as  clerks  ;  and  a  peer  n6t  brii^; 
a  clerk,  be  could  not  make  purgation,  the  onK- 
nary  having  no  jurisdiction  over  him ;  and  the 
words  here,  "  have  the  privilege  of  clergy  ut 
derk  convict  that  may  make  purgation,  aad 
shall  be  adjudged,  deemed,  taken,  and  used  for 
his  first  time  only  to  alt  intents,  constructiflBS, 
and  purposes  as  a  clerk  convict,  and  shall  beio 
case  of  a  clerk  convict  which  may  make  por* 
gatien,"  do  not  import  or  direct  that  he  ibill 
make  purgation ;  but  give  a  {leer  the  same  ad- 
vantage as  a  clerk  convict  who  might  ntks 
purgation,  i.  e.  an  absolute  discharge  from  ill 
further   punishment ;    and  the  statute,  ai  to 
him,  is  to  be  construed  to  be  a  pardon  :  aad  it 
seems  most  probable,  that  peers  never  did  make 
purgation;  because,  as  all  who  made  purgitioa 
were  to  be  tried  by  a  jury  of  clerks,  such  tritl 
would  be  derogatory  to  their  inherent  privilege 
of  being  tried  by  their  peers.     Lord  chief  jof 
tice  Hale,  on  this  statute  (2  H.  H.  P.  C.  376) 
says,   '*  I  think  it  was  never  meant  that  a  peer 
of^be  realm  should  be  put  to  read,  or  be  burnt 
in  the  hand,  where  a  common  person  sbookl 
be  put  to  his  clergy  ;  neither  is  it  said,  that  be 
shall  be  discharged  by  his  prating  of  the  bene* 
fit  of  this  statute,  where  a  common  person  shall 
have  the  privilege  of  clergy  and  may  make  his 
purgation;  but  only  where  he  may  have  the 
benefit  of  his  clergy  in  the  first  clause  of  tke 
statute :  the  other  clause  *  shall  be  in  case  if 
a  clerk  convict  that  may  make  purgation'  ie 
only  for  his  speedier  discharge  and  further  ad- 
vantage, and  not  to  restrain  the  general  clause* 
But  it  is  objected,  that  the  statute  1  E.  6,  c.  11,** 

S'ves  this  privilege  only  to  **  lord  and  lord^sT 
e  parliament,  and  peer  and  peers  of  the  n>alai 
having  place  and  voice  in  the  parliament  ;*'  and 
that  a  peeress,  not  having  place  and  voice  ia 
parliament,  cannot  have  the  benefit  of  this  sta- 
tute. This  expression,  *'  having  pUce  sad 
voice  In  parliameut,"  cannot  mean  to  exduds 
all  peers  but  sudi  as  sat  in  parliameot  i  buM» 


Jot  Bigamy, 

^leomnnd  >ll  nwnneT  of  prrMot  hm  pr^-  ■orereigo  loni  Die  kin^,  Tor  lili  ffmm  my  Lonl 

il  ihot  lime  here  attKnileil,  i»  itepart  Hicli  &«vard  ol*  (ireal  Itrlliuii  iiilends  i 

I  lli<  iieai^e  of  GuJ,  anil  <if  our  "  ''  •-•■-•- ■—■.— 


I  rilir  vrnne  »<'  llie  incldenls  if  jieers^E,  or  iii 

<i>il«  1imIh>|ib,  wIio  are  lorils  uf  imrliamenl 

n>^-ht>ot  pvtrt:  anil  If  lUrae  wurrli  ■lioulil 

t.iii!  the  beileAt  of  this  stilule  la  lliow  noly 

"  '.<  •  iclimlly  sut  in  parliaiiicni,  it  woulil  excluJe 

jn-nrj  tpinor*,  siii)  [iii|ri9l  [leer*,  who,  tiy  atntiile 

90  Car.  it,  (Ul.  2,  c,  1,  are  now  reiiJercil  iooa- 

pable  of  (iiiinji;  or  riling  in  parliamenl:  thp 

Hcnls  ilierefare  are  merrly  ileacriplire,  and  not 

'     iiictiTF.    An<l  whul  makes  il  very  plain  Is, 

' ,  in  the  4ih  and  5lh  P.  and  M.  c.  4,  which 

1 '  1  «woy  clergy  fruin  acceasarirti  before  ihe 

'ci  II)  murder  Hiid  aeteral  olhiT  uHeacei,  ihere 

»  a  protiio  that  every  loni  and  lorttii  of  Ihe 

C'liamml,  and  peer  and  peeri  of  Ibis  realm, 
'iog  |d*ce  and  voice  in  parhament,  apon 
•t*ry  mil icT merit  for  any  of  itie  olTences  afore- 
aiHl,  thall  be  tried  by  llieir  peen,  aa  halh  Imn 
acciiitomed  by  Ibe  Idas  ui'  ihi>  realm.  Here 
>ic  the  very  won  Is  me  J  inl£,  6,  e.  12;  yet 
il  cunid  never  be  doubted,  but  notwithitandiug 
lb«W  wordi.  peeresK*  muil  be  tried  by  Iheir 

Cwi  for  otfcDcn  aeaioit  tbat  atalule  ;  and 
dy  Somersel  [«ee  ler  case,  vol.  2,  p.  951] 
■M  tried  by  her  peers  for  being  acceswry 
UIhe  niurdrr  of  sir  Thomas  Overbury,  nhicli 
MI  M  uffciice  aninst  Ihai  very  statulo. 
What  gate  riie  proLablj  lo  this  hialute,  1  E. 
t,  e.  li,  was  anoilier  stalule  passed  the 
Wdb  year,  e.  3,  providing  for  the  punish- 
RKDl  nf  vigabonds,  by  making  them  sinies  for 
two  ymra  5  in  wbicli  act  was  a  clause,  lliat  no 
tKk  convict  (ball  make  bis  piir^rition,  but 
thtlt  be  *  slave  for  one  year  lo  him  who  nill 
ic  bound  with  two  sureties  lo  Ihe  orilinary 
him  into  hlB  serrice,  and  be  tliall  be 
w  a  vagabond  ;  and  a  clerk  allainled  or 
,  which  by  Ian  cannot  make  his  pur- 
I,  may  hy  the  ordinary  hedelivered  loanv 
f,  who  will  give  security  to  keen  him  as  hFs 
i  fnr  6rv  years ;  and  it  shall  be  lawful  lu 
y  penon,  la  whom  an^  shnll  he  adjadged 
't,  Id  put  a  ring  of  iron  almal  his  neck, 
r  leg.  To  avoid  all  possible  question 
-■  p*er  could  be  subject  to  any  of  these 
-,  Ihi*  att,  1  E.  6,  c.  li.  provide*  for 
rdiale  delivrry,  on  prnyiu);  Ihe  be- 
liile.  Till*  titatuti:  1  E,  6,  c.  3, 
■d  and  4tb  E.  0,  c,  IQ,  but  wa» 
E.  6.  c.  IV,  was  made.  The 
hstute,  IB  Elia.  c.  7,  provides,  thai  every 
^vhiehsballbeailmilled  and  allowed  in 
•  hincfit  of  privilege  of  his  clergy,  shall 
~npon  tw  d«livereil  lo  Ihe  ordinary,  as 
'  Hcmlonied ;  but,  sfier  auch  clergy 
Md  bumtog  ia  ihe  hand,  according  lo 
>  In  that  behalf  |>rovidHJ,  shall  fonh- 
'  it  aod  delivered  out  of  priaon  by 
br«  wltom  snoh  clergy  shall  tie 
,  Ibal  CRUM  notwithsiaudin^.  Then 
-So  (letMiw),  Ibal  ilie  jusiieet,  belbre 
*  aiteh  diowancc  of  ckrey  vhull  be 
1  mh)  tuay,  ttt  tba  further  eerrcc- 


liun  iif  such  persons  li>  whom  clergy  sliull  b« 
nllowed,  delnin  anil  krep  Ihem  in  pricim  liir 
inch  convenient  lime  as  the  luime  jnslite*  in 
ihrir  discretions  shall  think  convi^ulcul,  tu  as 
Ihe  same  do  nut  eii^ett  one  yen'*  iiiiprjion- 
ment.  This  proviso  plainly  relates  only  lo 
those  persona  inentioneil  In  the  clause,  that  is, 
such  |>ersons  as  had  been  burnt  in  the  hand  oc- 
cording  l»  the  aiaiiilc  in  that  cane  made  and 
provided,  meaning  4  H .  T.  Aa  peers  thereliire 
are  not  in  be  bnrnl  in  the  hand,  lb<^  caniioi  he 
imprisoned ;  for  those  only  are  lo  be  impiisuned 
who  have  been  burnt  in  the  hand;  and  the 
word 'juMices,'  is  more  properly  apiilicable  (n 
other  courts  of  judicatnre  ihan  to  this  home. 
TLeSlJa.  1,  c.  T,  cannot  relate  to  Ibis  ques- 
tion; for  il  relates  to  common  persons,  anil  was 
iolended  lo  put  women  on  Ihe  same  fooling 
with  men,  as  lo  small  larceuies;  and  3d  and 
4ih  W.  and  M.  c.  9,  does  the  same  in  aH 
clergyable  leloniea.  This  bbeivs  Ihe  justice  of 
alloning  tu  tbe  peeresses  the  same  henefil  tif 
J  E.  6,  c.  IS,  as  peers  have  ;  and  il  is  natural 
to  suppose,  tUal  when  the  legislature  were  pal- 
ting  women  of  iaferinr  nuik  on  the  same  loot- 
ing as  men,  they  would  have  put  peeresses  on 
the  same  l<K>ting  wiib  peers,  had  it  not  been 
conceived  that  the  same  privileges  were  already 
extended  to  both. 

Upon  Ibe  whole  therefore,  by  «lal,  1  E.  6, 
a  peer  convicted  of  a  clergyable  felony  is  in. 
titled  to  his  imniedisle  discbar|;e,  wilhoul  read- 
ing or  burning  in  Ihe  hand,  or  being  liable  to 
imprisonment  by  18  Eliz. 

This  orivilege,  g\rea  by  statute,  being  such 
as  may  be  enjoyed  by  a  peeress,  is  by  operation 
of  law  communicated  lo  her,  and  puts  her  in 
the  same  situalinu  as  a  peer ;  tbe  consei{uencG 
of  which  is,  (bat  a  peeress,  convicted  of  a  cler- 
gy able  felony,  praying  lliebenclil  ofthissta- 


wilbonl  being  burnt  in  Ibe  hand,  or  liaUe  lo 
■oy  iujpriionmenl. 

To  IhetneDlinniiivol.  13,  p.  03-1,  ti  leq.  of 
jlljleralenets  in  the  clergy,  Dnd  in  |iersnii«  oi 
ilislinction  among  the  laily.  may  be  added  from 
Mr.  llDrringlOB,  ■'  tlial  so  Inte  as  tbe  year 
Vtti,  Adam  Gordon  earl  ofSiilhcrUnd  and  liic 
countess,  lubsctibe  tbeir  names  with  a  pen  led 
by  a  notary  public,  as  appears  in  the  coseof  tbe 

^teiia  of  Sutherland   iu  Horn.   iVoc.  a.  d. 

...J."     ObtervaliuiiB  on  I  II.  6.  p.  393,  Note 
[r]  4tb  edition  of  17TA.    What  Mr.  Barringtou 


n  the  same  note  says  of  Edward  ibe  1st  when, 
princcof  WnleHldnnollborou^hly  uuderxland. 
For  iither  parliculors  reapeclinu  such  illilcr- 
aieness,  see  Wartnn's  Life  of  sir  Xtinmas  Popt, 
and  the  passage  in  Pox  cil.  bv  Ml.  Walter  Soou 
Hi  note  2,  to  canto  3,  of  tbe  Lady  of  Ihe  Lake. 
Voltaire,  <Dict.  Pbilos.  art.  Ctcrc)  mMiMilM. 


651] 


17  G£ORG£  III.  Proceedings  against  John  Hornet  [66t 


Then  the  white  Ktaff  beiogf  delifered  to 
tbe  Lord  Hifrfa  Steward  by  the  gentlemaB 
wber  of  the  Black  Rod  on  bis  knee,  his  (ptice 
stood  ap  nncofered,  and  boldiofi^  the  staff  in 
both  bis  hands,  broke  it  in  two,  and  declared 
tbe  eoannaisHioQ  to  be  dissohred  ;  and  then, 
leavint^  the  chair,  came  down  to  the  wool  pack, 
and  said.  Is  it  your  lordships'  pleasure  to  ad- 
journ to  the  CMmber  of  Parliament  P 


Befit  of  clergy.  Tbe  passage  affords  an  amoo- 
iBg  instance  oif  tbe  ease  with  which  bis  senten- 
^ous  flipi>ancy  compresses  into  a  very  small 
•pace  a  copious  mass  of  false  statement  and 
iBpertioent  reflection.  **  On  ^tait  si  sarant 
Ters  le  dixibme  et  onsi^me  si^ole,  qn*il  s'intro- 
duisit  one  contmne  ayant  force  de  loi  en 
Prance,  en  Allemngne,  en  Anj^Wterre,  de  faire 
gmee  de  la  oorde  a  tout  crimiuel  condamn^ 
aoi  sarait  lire ;  tant  un  bomme  de  oelte^ruili- 
lion  ^tait  nfoissaire  ^  T^tat.  Guillaume  le  bft.| 
tard,  conqu^rant  de  I'An^leterre,  y  porta  cette 
ooflitume.  Cela  s*appelknt  b^n^fice  de  clergie, 
*  beaeficioB  clericomro  aut  clergioorum.' 

**  Nous  tf  ons  remarqu^  en  plus  d*un  endroit, 
^ne  de  vieuv  usages  perdus  ailleurs  se  retrou- 
yretki  en  Anglelerre,  eomme  on  retroura  dans 
rUe  de  fiamotbmce  lea  ancieus  myst^res  d'Or- 

Sb^  Aojourd'hui  ro6me  encore  ce  b^n^fice 
e  clergie  iobeifltechez  les  Anehus  dans  toutesa 
Ibroe  pour  on  meurtre  commis  sans  dessein,  et 
poor  UD  premier  yoI,  qui  ne  passe  pas  cinq  cents 


Lords,  Ay,  ay. 

X.  H.  S.  This  House  is  ad|Oorned  to  tbt 
Chamber  of  Parliament. 

Then  tbe  peers  and  others,  returned  back  It 
the  Chamber  of  Parliament  in  the  sanse  order 
they  came  down,  except  that  his  myM  high- 
ness the  duke  of  Cnmberhmd  walked  aifler  tbs 
lord  chancellor. 

lirres  sterlin^if.  Le  criminel  qui  sait  lire  de- 
mande  un  b^A^fice  de  clergie :  on  ne  pent  k 
Ini  refuser.  Le  juge,  qui  ^tait  r^pnl6  p« 
I'ancienne  loi  nesaroir  pas  lire  Ini-mfeme,  s'a 
rapporte  encore  au  cbnpelaio  de  la  prison,  ^il 
prtente  un  livre  au  condamn^.  Ensnite  il  d»- 
mandeau  cbapelain, '  Leffit  P'  lit-il?  Lecbspe- 
lain  p^pond,  *  Legit  ut  cTericus,'  ii  lit  conoM 
un  clerc.  £t  alors  on  ae  contente  de  fum 
marquer  d'un  fer  chaud  le  criminel  ^  la  pauaie 
de  la  main.  On  a  eu  soin  de  rendoire  de 
graiasey  le  fer  fume  et  fait  un  siflement,  mm 
fiure  aucnn  mat  au  patient  r^putd  cl«nc." 

Conoeminff  the  doubt  (mentioned,  p.  (MO 
and  aAerwai3s),  whether  '  homo'  incliiddlbrtb 
genders,  see  Barrington*s  Ohserv.  on  10  fid.  I, 
sUt.  3;  SO  H.  6,  c.  9,  and  1  £dw.  6. 

For  more  concerning  trials  of  Peers  asd 
Peeresses,  aee  the  Case  of  lord  Ferren,  fd 
19,  p.  986. 


552.  Proceedings  against  John  Horne,  Clerk,  on  an  Informatioa 
in  the  King's-Bench  by  the  Attorney-General,  for  a  Libel: 
17  George  III.  a.  d.  1777. 

said  present  sorereign  lord  the  king  prosecolff 
in  this  behalf,  in  his  proper  person  comes  isM 
the  court  of  our  said  present  sovereign  lord  tbe 
king  before  the  king  himself,  at  Westminster, 
in  tbe  county  of  Middlesex,  on  Thuradar  aeit 
after  fifteen  days  from  the  day  of  Ht.  Msrtio 
in  this  same  term,  and  for  our  said  loni  tbe 
kiunr  pfiveth  the  court  here  to  understand  sad 
be  ini«)rmed,  that  John  Home  late  of  Loodoa, 
clerk,  being,  a  wicked,  malicious,  seditious,  sod 
ill  dis{MMed  person,  and  being  greatly  di«affrcl- 
ed  to  our  said  present  sovereign  lord  tbe  kiig 
and  to  his  administration  of  the  government  tf 
this  kingdom  and  tlie  dominions  thereunto  b^ 
lunging,  and  wickedly,  maliciously,  and  sedi- 
tiously intending,  devising,  and  contriving  It 
stir  u|i  and  excite  discontents  and  seditiM^ 
among  his  majesty's  subjects,  and  to  alieMit 
and  withdraw  the  affection,  fidelity,  and  aBl" 
gianceof  his  said  majesty's  subjects  from  hil 
said  majesty,  and  to  iusinuate  and  cause  it  loli 
believed  that  divei*s  of  his  nu^esty'a  inooedl 
and  deserving  subjects  had  been  inhuroaiil^ 


In  this  Case,  the  report  of  the  proceedings 
had  upon  tbe  Trial  at  Guildhall,  and  upon 
tlie  Attorney-Generars  Motion  for  Judg- 
ment in  the  Court  of  KJug's-bench  at  West- 
minster, was  published*  by  the  Defendant, 
Mr.  Home.  I  have  subjoined  an  account, 
(compiled  from  Mr.  Cowper's  Reports  and 
Brown's  Cases  in  Parliament)  of  the  subse- 
qtient  proceedincfs  before  tbe  House  of  Lords. 

1.   The  Trial  at  Guildhall. 

London^  to  wit.  ij£  it  remembered,  That 
Edward  Thurlow,  esq.  attorney  general  of  our 
present  sovereign  lord  the  kin;;,  who  for  our 

•  With  the  following  title:  •  The  Trial  at 

*  large  of  John  Hume,  esq.,  upon  an  Inforina- 

*  tion  filed  Ex  Officio  bv  bis  majesty's  attorney- 
<  general,  tor  a  Libel,  before  the  right  hon 

*  William  earl  of  Manstield,   in  tlie  court  of 

*  ]K.ing's-bench,  Guil'.thall,  on  Friday  the  4tli 

*  of  July,  1777.    Published  by  the  defendant 

*  from  Mr.  Gorney's  short-hand  notes. 

•  ———Nee  belltia  tetrior  ulla  est. 

•  Uuaok  ferri  rabies  in  libera  coUa  furcDtis.' 


*  As  to  tbe  operatk>n  of  tbcte  words,  iM 
lord  Ellenborough's  Judgment  in  tbe  Canrf 
the  King  against  Pbillippt,  6  Enit,  40C 


>r  ft  Ui 


Hy'^MCnld  majesly't  troop*  iaib* 
Mm_v,  or  (ilatilaliuo  «f  llie  Husa- 
•y  in~New.liii);UDd,  ID  Americ*.  lip. 
tlie  erotic  ol*  Ureal- BriUJD,  ■nil  un- 
id  iricWMlty  Id  inluce  mil  encourage 
''■  inibjtrcM  in  tbe  raiil  proriuce,  ca- 
iniaiiuo,  to  ttmit  aud  uppoae  hie  ni*> 
FrnmenI,  on  the  8tli  ituy  ot  June,  in 
Mr  of  Ihe  reign  of' our  present  aove- 
Opotm  the  third,  by  the  erue  of 
reai-liritmin,  France,  anj  Ireland, 
In-  of  tbe  faith,  dec,  nith  force  >nd 
iHniiol)  ■(orenid,  in  the  pariah  of  St. 
Aw.iD  theVnril  of  Ciiea|i,  wiokedl;, 
I,  and  Militluutly  did  write  and  pun- 
atwe  and  procure  in  be  written  and 
*  certain  fatee,  wicked,  roallcioui, 
,  and  aeditioua  lil>rl  oF'  anil  cnncem- 
majnly't  ^terriment  and  the  em- 
•f  hia  tnmps,  according'  to  tiie  tenor 
fgllowinir:  '  Kint['it-Arros  tateni, 
'Ja»l,  1775.  Atasp«a»tme«in|f 
~  *e«erftl  membera  nf  the  C'lnalilu- 
V,  riiirinK  an  odjttunimeiil,  a  i;en- 
,  inI  that  a  anlwcription  should  be 
ifyenleredialoby  aiicb  of  the  iiiein* 
nit  who  miiiht  npiirnte  tlie  pur^iose, 
~  Ihe  »iim  of  100/,  to  be  ippbcd  to 
of  tbe  widD»a.  iirphani,  and  ai^ed 
'  otir  bf-inveil  Anierienn  fellow  nub- 
>t  faithful  tn  tlie  chanicterof  Eng- 
preferrinir  dralh  lualafery,  wereftr 
I  only  iohunnnly  iminlt^t'd  by  tlic 
MninKhiaaaidinajeitiy'*^ '  tniupBal 
xinftiin  anil  Cnnenri,  m  tbe  pro- 
'lasacbucela'  (nieanm)[tbpiiaiitpro- 
ly,  or  planiailun  of  the  Uanachu- 
Nen^England,  in  America,)  '  on 
•f  hist  April;  which  sum  being  im- 
eel1«cted,  it  waf  Ihirenpiin  rcBulral 
Home'  (iileauiit|(  himself  the  said 
()  'dopay  lo-morrnwioto  the  hands 
BroWBn  and  Cidlinsoii,  on  account 
ninliliu,  Ihe  aairl  nu|ti  of  100/.  and 
FranVlin  be  requcaied  to  apply  the 
he  atMire'raeniiuned  purpOM ;  John 
(nwtniog  hiaiKi-lf  ihe  said  John 
~  npl  of  our  aaid  lord  the  klag, 
of  the  lawa  of  tbia  kingdom, 
perniciouH  example  of  ill  others 
Mfeoffbodio?.  nod  alna^insllhe 
^^ir  aaid  nreaent  sorereigii  loril  tbe 
~"v  and  dignity  :  and  the  aaid  at- 
•f  our  aaid  lord  tho  king  for  our 
let  fnRber  give*  ihe  court  here 
and  be  infni'mcil,  thai  the  laid 
irinB  aucb  prsun  as  aforevaid, 
inllwfiilly,  wickedly,  anil  seditiousi  v 
'*  ""*  indfODtrivingaaalhrraaid, 
n  ilif  «ih  day  of  June  in 
...11.  l/irreonil  arm* at 
.li  Mijil  wanlafore- 
und  ■edJIiuusly 
lll^'■d  and  pcocuretl 
il  nuJ  |<iiMf>li''il,  lU  a  errtain  newa- 
Tho  Murning  Chrouicle  and 
■  ttftaii   other  r»lw, 


D.  1777.  [6! 

wielmd',    mallvioiM,   •eindBlao*.  and  aediiii 
concerniug  hi^  said  nmjeaiy'a  ; 


accnnliii^  to  the  tmior  and  effect  (ullnwlnsl 
that  ii  In  (ty,  ■  King'a  Arm*  tarern,  CombM 

•  June   7,  1175.      At  a  ajieeial   meeting  IB 

'  day  of  aereral  members  of  the  ConatltuliaB_ 

■  ikicieiy,  during  an  adjonrtiinpDl,  a  gentle m|| 
'  propuaed  thai  a  subacriptton  should  be  imm  '^ 

■  diately  rniered  into  by  such  of  the  membe 

■  present  who  might  apiirore  the  purpaae,  fofe 

■  raiaiug  llie  aum  of  looi.  to  be  applied  to  th£ 

■  relief  of  the  widows,  orphans,  and  aged  pl^fl 

■  reals  of  our  beloved  American  fellaw^ulijeal^ 

■  who,  failblul  to  the  chai'acter  of  Englisbmai 
'  preferring  deOth  lo  slavery,  were  for  lliai  roil 
'  Bon  unlv  inbLiiuanly  mur^WciI  by  ihe  kiog^ 
(again  niGaoing  bis  majeiiiy'a)  *  IroojM  al   ^ 

■  near  Lexington  and  Cuuconl,  in  the  pnivi 
'  of  M)i«aacbiiselB'  ^meaning  ihe  said  prorii 
rolooy,    or   plautntino    of   the    Haasaehua 
Bsy  in   New  England,  in  America)  'o 
'  liiih  oflast  April;  which  turn  being  ii 
'  diatelv  collecteil,  it  wna  tlierviipon  recolrtf. 

•  ihni  Mr.  Ilorne'  (■i[ait)  meaning  himself  llwfl 
ssid  JdIid  Rome)  '  du  pay  lo-murrow  into  tf' 

•  hands  nf  Mi^-s.  Browncs  and  Collln<on,  i 

>  Ihe  account  of  Ur.  Franklin,  the  asld  sum  4| 
'  100/.  and  llisl  Dr.  Franklin  be  rRjumleil  I 
'  apply  Ihe  same  to  the  a bnrr- mentioned  pnv 

■  poae;  John  Home'  (agnin  ninaning  hin  "' 
the  said  John  Horne)  in  conlempi  of  our 
lord  the  king,  in  open  vinlaiii'ii  of  ibe  lawa  f 
this  kiDgilnm,  In  the  eril  anil  peniiFiona  esaM 
pie  of  all  others  in  the  like  case  offending.  fMl 
against  tbe  |>eacp  uf  our  said  lord  the  king,  I' 
Crown  and  digniiy:  and  ihe  saiit  atiomev  | 
□eral  uf  our  said  lord  the  king  for  our  aafd 

':  the  king  forlher  gifea  the  Court  liere  lo 

deratand  and  l«  informed,  thai  the  ssid  . 
I  Horne  being  sncb  |)er«on  as  nforesaiil,  and 
;  triring  and  wickedly  and  mahcinualy  rietln 
,  and  intending  as  aluresaid,  allprwanltr,  Ir  ~ 

on  tbeptb  day  of  June,  in  the  td<h  yrtr  t 
'  said,  with  force  and  arms  at  Londoa  ~'~ 
I  in  tbe  parish  and  ward  aforeiaid, 
I  maliciously,  and  seditiously  did  print 

linb,  and  cause  and  procure  to  be  p 
'  published,  in  a  certain  other  new>.p, 
'  tieil.  The   London    Packet,  or   Flew   Uoj 
I  r:»eiiinff  Poet,  a  cerlam  other  (  ' 
I  scRodaiouB,  malicious,  and  aediliai 
I  cnncerning  his  oaid  roajcaly'a  g 
I  the  eaiploymeul  of  hi*  iraopa,  ai 
'  tenor    aod   effect  fbllowwg ;   t 
I  ■  King's  Arm*  larera,  C««M, 

'  At  a  Hpecial  rncdmr  iUa  4t 
I  ■  membersof  theC«iBH*«w«rfSi 
'  ■  on  adJuurDmeni,  «  g*m  ' 

'  a  subscription  fteiM  fca 
I  '  into  (by  sue 
i  *  might  appm 

'*um«flOOt,tot*ai 
'  •  widosm,  « 
I  >  lelof  ed  A* 
J  'fill  tcthcri 


B55] 


17  GEORGE  III. 


Proceedings  against  John  Home, 


[656 


■  inhumanly  mordered  by  the  kinf^V  (meaning 
his  said  majesty's)  *  troops  at  or  near  Lexiog- 

■  ton  ami  Concord,  in  the  pro? ioce  of  Blassa- 

*  chuseta'  (meaning  the  said  province,  colony, 
or  plantation  of  the  Maasachusets  Bay  in  New 
England^  iu  America)  *  on  the  19th  of  last 

*  April ;   which  sum  being  immediately  col- 

*  Irttfd,  it  was  therenpon  resolved,  that  Mr. 

*  Home'  (again  meaning  himself  the  said  John 
Home)  *  do  pay  to-morrow  into  the  hands  of 

■  Bless.  Brownes  and  Collinson,  on  the  account 
<  of  Dr.  Franklin,  the  said  aum  of  100/.  and 
'that  Dr.  Franklin  be  requeated  to  apply  the 

*  aame  to  the  above-mentioned  purpose ;  John 

*  Home'  (again  meaning  himself  the  said  John 
Home)  in  contempt  of  our  said  lord  the  king) 
in  open  violation  of  the  laws  of  this  kingdom,  to 
the  evil  and  peraicloos  example  of  all  others  io 
the  like  case  offending,  ana  also  against  the 
peace  of  our  said  lord  the  king,  his  crown  and 
dignity  :  and  the  said  attorney  general  of  our 
aaid  lord  the  king  for  our  said  lord  the  king 
further  gives  the  Court  here  to  understand  and 
be  informed,  that  the  said  John  Home  being 
•ucli  person  as  aforesaid,  and  contriving  ana 
wickedly  and  maliciously  devising  and  intend- 
ing as  aforesaid,  afterwards,  to  wit,  on  the  9th 
day  of  June  in  the  15th  year  aforesaid,  at 
London  aforesaid,  in  the  parish  and  ward  afore- 
said, wickedly,  roalicionaly,  and  seditiously  did 
print  and  publish,  and  cause  and  procura  to  be 
printed  and  published,  in  a  certain  other  news- 
paper, entitled,  The  Public  Advertiser,  a  cer- 
tain other  false,  wicked,  scandalous,  malicious, 
and  seditious  libel  of  and  conceming  his  said 
majesty's  government  and  the  employment  of 
bis  troops,  according  to  the  tenor  and  effect 
following ;  that  is  to  say, '  King's  Arms  tavern, 

*  Comhill,  June  7.  At  a  special  meeting  this 
'  day  of  several  members  of  the  Constitutional 
'  Society,  during  an  adjonrnment,  a  gentleman 

*  proposed  that  a  subscription  be  immediately 

*  entered  into  (by  such  of  the  members  present 
(  who  might  approve  the  purpose)  for  raising 

*  the  sum  of  100/.  to  be  applied  to  the  relief  of 

*  the  widows,  orphans,  and  aged  parents  of  our 

*  beloved  American  fellow-subjects,  who,  faith- 

*  ful  to  the  character  of  Englishmen,  preferring 

*  death  to  slavery,  were  for  that  reason  only 
<  inhumanly  murdered  by  the  king's'  (meaning 
his  said  majesty's)  *  troops  at  or  near  Lexiiig- 

*  ton  and  Concord,  in  the  province  of  Massa- 

*  chusets*  (meaning  the  said  province,  colony, 
or  plantation  of  the  Maasachusets  Bay  in 
New  England,  in  America^  <  on  the  19th  of 
'  last  April ;    which  sum  oeing  immediately 

*  collected,  it  was  thereupon  resolved  that  Mr. 

*  Home'  (again  meaning  himself  the  said  John 
Home)  *  do  pay  to-morrow  into  the  hands  of 
^  Mess.  Brownes  and  Collinson,  on  the  account 

*  of  Dr.  Franklin,  the  said  sum  of  loO/.  and 

*  that  Dr.  Franklin  be  re<}uested  to  apply  the 
'same  to  the  abovementioned purpose ;  John 

*  Home'  (agaiQ  meaning  himself  the  said  John 
Qome)  ID  contaBpt  of  our  said  lord  the  king, 
ID  opoD  vwlaticp  of  the  lawa  of  this  kingdoaa, 
10  the«fil  uiA  fcmuaow  exwiplo  of  oil  others 


in  the  like  case  offending, and  agaiBSt  the  peace 
of  our  said  lord  the  kiiig,  his  crown  and  dig- 
nity :  and  the  aaid  attornty  general  of  our  said 
{>resent  sovereign  lord  the  king  for  our  saiil 
ord  the  king  further  gives  the  Court  here  to 
understand  and  be  informed,  that  the  said  John 
Horne  being  such  person  as  aforesaid,  and 
contriving  and  wickedly  and  maliciously  de- 
vising and  intending  as  aforesaid,  afWwardf, 
to  wit,  on  the  9th  day  of  June  iu  the  15tb  year 
aforesaid,  with  force  and  ariDS  at  London  a'fure- 
said,  in  the  parish  and  ward  aforesaid,  wick- 
edly, maliciously,  and  seditiously  did  print  and 
publish,  and  cause  and  procure  to  be  priatd 
and  published,  a  certain  other  false,  wicked, 
malicious,  scandalous,  and  seditious  libel  ofuid 
conceming  his  said  majesty's  government  lad 
the  employment  of  his  troops,  according  to  tba 
tenor  and   effect  following ;   that  is  to  sty, 
'  Kind's  Arms  tavern,  Comhill,  June  7.    At  a 
'  special  meeting  this  day  of  several  men- 
'  bers  of  the  Constitutional   Society,  durii^ 
'  an  adjournment,  a  gentleman  proposed  tbit 
subscription  should  be  inimedjately  eotered 


j  '  dowa,  orphans,  and  age<l  parents  of  our  bekff" 
'  ed  American  fellow-subjects,  who,  faitbfol  Is 
'  the  character  of  Englishmen,  preferring  desth 
'  to  slavery,  wera  for  thai  reason  only  iahB' 
I  manly  murdered^by  the  king's'  (again  racia- 
ing  Ilia  aaid  majesty's)  *  troops  at  or  near  Lei- 

*  ington  and  Concord,  in  the  province  of  Mu- 

*  sachusets'  (meaning  the  aaid  province,  colssyi 
or  plantation  of  thcMassachuveta-bay  in  Ncv- 
Engtand,  in  America)  *  on  the  19tli  of  Uit 
'April;  which  sum  being  immediately  col- 
'  lected,  it  was  thereupon  resolved  that  Mr. 

*  Uorne'  (again  meaning  himself  the  said  Joha 
Horne)  ^  du  pay  to-morrow  into  the  hands  of 
'  Bless.  Brownes  and  Collinson,  on  accouct  of 
<  Dr.  Franklin,  the  said  sum  of  100/.  and  that 
'  Dr.  Franklin  be  requested  to  apply  the  sans 
Mo  the  above-mentioned  purpose ;  John  Home' 
(again  meaning  himself  the  said  John  Home) 
in  contempt  of  our  said  lord  the  king,  in  open 
violation  of  the  laws  of  this  kingdom,  to  tbe 
evil  and  pernicious  example  of  all  others  io  the 
like  case  offending,  and  also  against  the  peace 
of  oUr  said  present  sovereiflfu  lord  the  king,  hii 
crown  and  dignity :  and  the  said  attorney-g^ 
neral  of  our  said  present  sovereign  lord  ths 
king  for  our  said  lord  the  king  further  gives 
the  Court  here  to  understand  and  be  informedf 
that  the  said  John  Home  being  such  persoa 
as  aforesaid,  and  contriving  and  wickedly  and 
maliciously  devising  and  intending  as  aforeuid, 
afterwards,  to  wit,  on  the  9th  of  June  in  the 
15th  year  aforesaid,  with  force  and  arma  at 
London  aforesaid,  in  the  parish  and  ward  afore- 
said, wickedly,  maliciously,  and  seditiously  did 
print  and  publish,  and  cauae  and  procure  to  be 
printed  and  published,  a  cerUin  other  falset 
wicked,  malicious,  scandaloua,  and  aeditiooi 
libel,  in  whkh  aaid  last-mentioned  libel  an 
GQntuDed,  amoDgat  othier  thiDgs,  difcro  bk% 


I 
\ 

f 

i 


for  a  LibcL 

out,  malicioas,  and  seditious  matters  of  | 
otrninfif  his  majesty's  government,  and  i 
»loyment  of  his  troops,  according  to  the  ! 
mo  effect  foUoiviiiir ;  that  is  to  say,  ! 
I  Anns  Tavern,  Cornhill,  June  7.  At  a 
I  meeting  this  day  of  several  memliers  i 
:  Constitutional  Society,  durins:  ^^  &d-  •' 
nent,  a  gentleman  proposed  that  a  sub-  i 
on  should  be  immediately  entered  into  •; 
eh  of  the  members  present  who  might 
re  the  purpose)  for  raising  the  sum  of  : 
:o  be  applied  to  the  reliet'of  the  widows,  i 
IS,  and  aged  parents  of  our  beloved  ' 
can  fellow  subjects,  who,  faithfvt  to  the  ' 
:ter  of  Englishmen,  preferring  death  to  ' 
^,  were  for  that  reason  only  inhumanly  ' 
red  by  the  kin;;*8'  (again  meaning  his  i 
ijesty'h)  •  troops  at  or  near  Lexington  ! 
locord,  in  the  pro\inceof  Massachusets'  ■ 
ig  the  said  provinco,  colony,  or  plan-  j 
r  the  Massachusets  Bay  in  New  Eng-  < 

America)  *  on  the  19th  of  last  April/  | 
mpt  of  «>nr  said  lord  the  king,  in  open 
1  of  the  laws  of  this  kingdom,  to  the 
« I>ernicious  example  of  all  others  in  the 
e  offending,  and  albo  against  the  peace  , 
taid  present  sovereign  lord  the  king,  his  , 
,nd  dignity:  and  the  said  attorney- fife-  , 

our  ftdid  lord  the  king  for  our  said  lord 
;  further  (fives  the  Court  here  to  under- 
nd  be  informed,  that  the  said  John 
being  such  ptrson  as  aforesaid,  and 
ulawfully,  wickedly,  malicioutdy,  and 
»ly  intending,  devising,  and  contriving 
Raid,  afierwnrds,  to  wit,  on  the  14th  day 

in  the  15tli  year  aforesuid,  with  force 
IS  at  L'Uidon  aforesaid,  in  the  parish 
ird  aforenaid,  wickedly,  maliciuuftly, 
liouHJv  did  write  and  puiilish,  and  cause 
;ure  to  be  m liiten  and  publislied,  a  eer- 
ie, wicked,  malicious,  scandalous  and 
i  libel  of  ami  C(»ncerning  his  said  ma- 
governnient  and  the  enipluynient  of 
tps,  according  to  tlir  tenor  and  effect 
^;  *■  I*  (meaning  himself  the  said  John 
*■  think  it  prop,  r  to  give  the  unki:own 
tutor  this  ni»lice,  ihut  I' (again  mean- 
"-.elf  the  said  John  llorne)  *•  did  yester- 
y  to  Messieurs  Hrounesand  Collioson, 

account  of  Dr.  Franklin,  the  sum  of  , 
:d  that  1*  (ugain  meaning  himsi'lf  the  ! 
n  Home)  *  will  write  to  I)r.  Frankliu,  | 
ling  him  to  apply  the  ?;ame  to  the  relief 
widows,  orphans,  nnd  agrd  parents  of 
loved  American  fellow-subjects,  uho, 
1  to  the  character  of  Englishmen,  pre- 

death  to  Mavery,  were  fur  thui  reason 
nhumanly  murdered  by  the  kingV 
g  his  said  mHJt'^iy's)  '  troops  ai  or 
lexington  and  Concord,  in  the  pro\ince 
Bochusets,' (meaning  (he  said  province, 
i>r  plantation  of  the  IMassachnscts  Bay  ; 
England,  in  America)  '  on  the  19th  of 
pril;  John  Home/  (again  meaning 
the  naid  John  Home)  in  contempt  of 

lord  the  king,  in  open  violation  of  the 
thia  kingdoQi}  to  the  evil  and  peroici- 

XX. 


A.  D.  1777.  [658 

Otis  example  of  all  others  in  the  like  case  of- 
fending, and  also  against  the  peace  of  our  said 
present  sovereign  loni  the  king,  his  crown  and 
dignity :  and  the  said  attorney-general  of  our 
said  lord  the  king  for  our  said  lord  the  kiofl^ 
further  gives  the  Court  here  to  understand  and 
be  informed,  that  the  said  John  Home  hein^ 
such  person  as  aforesaid,  andai;ain  unlaw  fully, 
wickedly,  and  seditiously  iutei>4>DK:t  devising, 
and  contriving  as  aforesaid,  afterwards,  1o  wit, 
on  the  15th  day  of  July,  in  the  15th  year  afore- 
said, v^ith  force  and  arms  at  Loudon  aforesaid^ 
in  the  parish  and  ward  aforesuid,  wickedly,  ma- 
liciously, and  seditiously  printed  and  uubiisbed, 
and  caused  and  procured  to  be  printed  and  pub- 
lished, in  a  certain  other  news- paper,  intitled. 
The  Public  Advertiser,  a  certain  other  false, 
wicked,  malicious,  scandalous,  and  seilitJous 
libel  of  and  concerning  his  said  majesty's  go- 
vernment and  the  employment  of  bis  troops, 
according  to  the  effect  folloxting;  tliat  is  to 
say,'  <  V  ^meaning  himself  the  said  John 
Horne^  *  tbink  it  proper  to  give  the  unknown 
'  contributor  this  notice,  that  1'  (again  meaning 
himself  the  said  John  Home)  '  did  yesterday 
'  pay  to  Mess.  Brownes  and  CoHinson,  on  the 

*  account  of  Dr.  Franklin,  the  sum  of  50/.  and 
'  that  1'  (again  meaning  himself  the  said  John 
Home)  *  will  write  to  Dr.  Franklin,  requesting 

*  bim  to  apply  the  same  to  the  relief  of  the 
<  widows,  orphans,  and  aged  parents  of  our  be- 
'  loved  American  fellow-subjects,  who,  faithful 
'  to  the  character  of  Englishmen,  preferring 

*  death  to  slavery,  were*  (for  that  reason  only) 

*  inhumanly  murdered  by  the  king's'  (again 
meaning  his  said  majesty's)  *  troops  at  or  near 

*  Lexington  and  Concord,  in  the  province  of 

*  Massachusets'  (meaning  the  said  province, 
colony,  or  plantation  of  the  Massachusets  Bay 
in  New  England,  in  America)  *on  the  19th  of 

*  last  April;  John  Horue,' (again  meaning  him- 
self the  said  John  Home,)  in  contempt  of  our 
said  lord  the  king,  in  open  violation  of  the  laws 
of  this  kingdom,  to  the  evil  and  pernicious  ex- 
ample of  all  others  in  the  like  case  offending, 
and  also  against  the  peace  of  our  said  lord  the 
king,  his  crown  and  dignity  :  and  the  said  at- 
torney-general of  our  said  present  sovereign 
lord  the  king  for  our  said  lord  the  king  further 
gives  the  Court  here  to  understand  and  be  in- 
formed, that  the  said  John  Home  beinp^  such 
person  as  aforesaid,  ami  contriving  and  wickedly 
and  maliciously  devising  and  intending  at 
aforesaid,  afterwards,  to  wit,  on  the  said  15tK 
day  of  July  in  the  15ih  year  aforesaid,  with 
force  and  arms  at  London  aforesaid,  in  the 
parish  and  ward  aforesaid,  wickedly,  malici- 
ously, and  seditiously  |did  print  and  publish, 
nml  cause  and  procure  to  he  printed  and  pub- 
lishr  d,  a  certain  other  false,  wicked,  malicious, 
scandalous,  and  seditious  libel  of  and  concern- 
ing his  majesty's  government  and  the  employ- 
ment of  his  tro«>ps,  according  to  the  tenor  and 
effect  following;  that  is  to  say,  *■  V  (meaning 
himself  the  said  John  Home)  *  think  itpni|>er 

*  to  give  the  unknown  contributor  this  notice^ 

*  that  I'  (m«aiiiog  himself  the  stud  John  Home) 


659] 


17  GEORGE  III. 


Proceedings  against  John  Horne, 


[eeo 


:  *  (lid  yeslerday  pay  to  Messieurs  Brownes  oncl 

*  Colliosoii,  on  the  account  of*  Dr.  Franklin, 

*  the  sum  of  50/.  and  that  1'  (again  meaoinc^ 
himself  the  said  John  Horne)  *  will  write  to 
'  Dr.  Franklin,  reque&tinp:  him  to  apply  the 
*■  same  to  the  relief  of  the  widows,  orphans,  and 

*  aged  parents  of  our  heloved  American  fellow- 

*  suhjects,  who,   faithful  to  the  character  of 

*  Kuglishmen,  pre/erring  death  to  slavery, 
'  were  for  that  reason  only  inhumanly  mur- 

*  dered  by  the  kingV  (again  meaniusir  his  said 
majesty's)  *  troops  at  or  near  Lexington  and 

*  Concord,  in  the  pro? i nee  of  Massachusels' 
(meaning  the  said  province,  colony,  and  plan- 
tation of  the  Massachusets-Bay  in  New  Eng- 
land, in  America)  *  on  the  19th  of  last  April; 

*  John  Home*  (again  meaning  himself  the  said 
John  Home)  in  contempt  of  our  said  lord  the 
king,  in  open  violation  of  the  laws  of  this  king- 
dom, to  the  evil  and  pernicious  example  of  all 
others  in  the  like  case  offending,  and  against 
the  peace  of  our  said  present  sovereign  lord  the 
king,  his  crown  and  dignity  :  whereupon  the 
said  attorney -general  of  our  said  lord  the  king, 
vrho  for  our,  said  present  sovereign  lord  the 
king  prosecutes  in  this  behalf,  prays  the  consi' 
deration  of  the  com  t  here  in  the  premises,  and 
that  due  process  of  law  may  be  awarded  against 
bim  the  said  John  Horne  in  this  behalf,  to  make 
hi  111  answer  to  our  said  present  sovereign  lord 
the  king  touching  and  concerning  the  premises 
.afoi;esaid,  &c.  £.  Tuurlow.* 


Fridaif,  Julif  4,  1777. 

As  soon  as  the  court  was  opened,  the  special 
jury  were  called  over  :  eleven  ouly  appearing, 
Mr.  Attorney  General  prayed  a  tales.  The 
•box  containing  the  names  uf  the  cninmon  jury 
standing  open  upon  the  table,  tlit*  Associate 
took  outapQper,  and,  shewing  it  to  31r.  Horne, 
nsked,  if  he  had  any  objection  to  that  man's 
lining  sworn  on  the  jury  ?  3Ir.  Horne  rt  plied, 
*'  I  object  to  that  name,  and  for  this  reason :  1 
desire  that  the  box  may  be  shut  and  shaken  ; 
and  when  that  is  done,  I  shall  have  no  objec- 
tion to  any  name.''  The  box  was  accordingly 
■hut  and  shaken,  and  a  name  drawn  out ;  but 
another  of  the  special  jury  coming  into  court, 
the  talesman  was  not  sworn. 

The  following  Special  Jury  were  sworn : 

Joseph  Dalmer,  Cursitor-street,  merchant. 
Philip  Buikley,  Fleet- street,  druggist. 
James  Brant,  Cheapside,  silkman. 
David  Bnffar,  Cheapside,  woollen-draper. 
William  Watts,  Fore-street,  goldsmith. 
Nathaniel  Lucas,  Fore -street,  merchant. 
William  Abdy,  Oat- lane,  goldsmith. 
Thomas  Smith,  Milk-street,  merchant. 
Tho.  Brooks,  Cateaton-street,  linen-draper. 
AI.  Stanton,  Aldermanbury,  warehouseman. 
Win.  Loydd,  Christ-church,  woollen-draper. 
Henry  Morris,  Fleet-street,  silversmith. 

*  *  Aflerirardf  lord  Thurlow  and  Lord  Chan* 
eellor. 


Then  the  Information  was  opened  by  Mr. 
Buller. 

Mr.  Horne,  My  lord,  with  your  kirdship'i 
permission,  1  believe  it  is  proper  for  me,  at  this 
time,  before  Mr.  Attorney-General  proceeds,  to 
make  an  objection ;  and  to  request  your  lonf;- 
ship*s  decision  concerning  a  point  of  practice 
in  the  proceeding  of  this  trial.  Have  1  your 
lordship's  leave  P 

Lord  Mansfield.    Certainly. 

Mr.  Horne,    Gentlemen  of  the  jury— — 

Lard  Mansfield.  No.  Not  to  the  jury.  If 
you  make  an  objection  to  the  iriegularily  of 
the  proceedings,  you  must  address  me. 

31r.  Horne.  i  am- well  aware  of  it:  and  f 
hope  that  ^our  lordship  will,  U(K)n  this  uA 
other  occasions,  hear  me  before  you  suppoie 
roe  to  be  in  the  wrong.  1  was  not  guinir  to 
address  my  argument  nor  my  objection  to  the 
jury  ;  if  your  lordship  will  only  permit  me  to 
request  their  attention ;  because  I  hare  fre- 
quently observed  upon  trials,  that  in  all  ctsai 
almost,  when  application  has  been  made  to  tbe 
judge  to  decide  upon  any  ol-jection,  tbe  jury 
have  been  generally  supposed  to  be  in  a  maDoer 
out  of  court ;  and  I  therefore  now  address  my* 
self  to  the  jury,  only  to  request  their  attentMNii 
and  for  no  other  purpose. 

Lord  Mamjield.    Very  well.     Go  on. 

Mr.  Home.  Gentlemen  of  the  jury,  wkit 
1  have  said  to  his  lordship,  if  you  heard  it,  may 
perhaps  make  it  unnecessary  for  me  to  addrcH 
you.  Gentlemen,  though  ^^hat  1  am  goiflff 
to  say  to  his  lordship  respects  a  matter  oi 
law  and  practice  of  the  Court,  yet  1  meant  ta 
request  your  attention,  because  you  may  fial 
perhaps  that  the  decision  may  concern  \ouia 
hear  it.  My  lord,  I  understand  (andltbink* 
I  see  good  reasons  why  it  should  be  so)  that  it 
is  the  usual  practice  and  wholsome  custom  of 
the  Court,  in  trials  of  this  kind,  that  unless  tht 
defendant  exauiines  witnesses  in  his  defence^ 
the  defenilant's  answer  closes  the  pleadio((: 
and  it  is  not  the  practice,  in  that  case,  that  the 
counsel  for  the  prosecution  should  re)>ly.  Bat, 
m^  lurd,  in  the  late  (rials  of  the  printers,  for 
prmting  and  (lublisl.iug  the  advertisement  now 
in  question,  1  ob-crved  that  Mr.  Attorney-Gc' 
neral  claimed  and  exercised  the  peculiar  prifi- 
lege  of  replying,  notwithstanding  .that  no  wit- 
nesses had  been  called  for  the  defendant.  My 
lord,  with  your  lordship's  permis<>.ion,  I  men 
to  submit  my  reasons  to  your  lordship  in  sup- 
port of  my  objection  to  this  claim  of  Mr.  At- 
torney-General in  the  present  trial. 

Lord  Mans/itld.  You  come  too  early  fir 
the  objection ;  because  the  (d)jecti(»n,  if  there  it 
any  foundation  in  it,  shouhl  be  when  be  getaaf 
to  reply. 

Mr.  Horne.  My  lord,  I  own  I  did  expect 
that  Mr.  Attorney-General  would  urge  sooia* 
thing  of  that  kind  against  what  1  have  said.  \ 
stopped,  expecting  that  answer  from  him ;  be? 
cause,  my  lord,  he  may,  verv  likely,  imagint 
'  it  to  be  a  part  of  the  duty  of  bis  office  to  bafll 
me  in  any  manner,  and  lo  take  all  ailfiBligit 

2 


S613 


fir  a  Libel. 


A.  D.  1777. 


[66S 


vhicb  be  etn,  whether  fair  or  unfair,  against 
me,  and  to  obtain  a  verdict  against  me  by  any 
means — there  are  reasons  why  he  should  at- 
leiD|ittodo  so;  and  therefore,  1  own,  1  ex- 
pected that  the  Attorney -General  would  have 
urged  that  against  me.  But,  my  lord,  1  ap- 
prehend, with  great  submission,  that  this,  and 
this  only,  is  the  proper  moment 

Lord  Mansfield.  Mr.  Home,  I  will  do  so 
far  for  you.  •  If  the  defence  that  you  are  to 
make  may  in  any  manner  be  guided  or  go- 
verned by  a  knowledge,  whether  the  Attorney- 
General  has  or  has  not  a  right  to  reply  ;  if  Mr. 
Attorney-General  acquiesces  in  it,  1  have  no 
tbjection  to  your  being  apprized  how  it  stands 
iM^orehand  ;  because  otherwise  it  would  come 
ifter  you  had  made  your  defence:  and  if  you 
nean  to  calculate  your  defence  in  some  way 
differentl}',  upon  tlie  expectation  of  his  having  or 
his  not  having  a  rijrhtto  reply,  f  will  willingly 
(I  dare  say  tlie  Attorney-General  makes  no  ob- 
jection to  It)  hear  you  upon  that  point  now. 
Ait.  Gen.  None  in  the  world. 
Ur.  Home.  Your  lordship  has  hit  upon  one 
efthe  very  reasons  that  I  was  going  to  lay  be- 
fore you.  But,  uiy  lord,  1  had  rather  that  this 
kad  come  as  a  matter  ot  justice,  than  as  an  ao- 
fuescence  from  the  Attorney- General;  be- 
cause 1  suppose  that  every  defendant,  who 
ihall  hereafter  Ntand  in  my  situation,  will  have 
tbesame  ri^ht ;  ami,  if  ii  comes  as  a  matter  of 
hfow  froui  the  Aiu»rney-General,  those  for 
whom  1  am  murh  m(»re  concerned  than  my- 
idf,  may  not  perhaps  meet  with  that  i;onteel 
acquiescence.  However,  1  thank  the  Attorney- 
Gojerai.  I  shall  hetr  then,  my  lord,  at  present 
to  make  my  olijeciion.  1  am  sure  I  should 
kfe  been  peniuited  to  make  it,  because  the 
aq^uments  Hliich  I  had  to  use  would  have  been 
aacb  as  v^ou'd  more  particulnrly  have  affected 

{our  lordsiiip\  mind.     It' then  1  am  permitted, 
ioppose  that  I  um  now  to  object  to  the  right 
if  reply. 

Lord  Mantfitid.    You  are  now  to  object  to 
die  ri}(ht  ot  reply. 

}lth.  Home.  My  lord,  if  I  should  forget 
aay  thing  upon  this  occasion,  so  new  to  me, 
asd  make  any  mistakes,  I  shall  beg  leave  to 
refresh  my  mVmory  \%itli  what  I  have  written 
down.  Mv  lord,  I  have  been  taug^ht  by  the 
best  authoritii^s,  that  the  estublished  practice 
and  apjiroted  rules  of  the  court  are  so,  only 
because  they  are  reason,  and  reason  approve>d 
by  long  experience;  and  they  obtain  as  rules 
aad  practice  only  tor  that  cause.  My  lord,  I 
believe  I  .vhall  nfit  be  contradicted  by  your  lord- 
ibip,  when  1  aver,  that  it  is  the  established 
practice  and  approved  rule  of  the  Court,  in  \ 
trials  of  this  kind  (where  the  Attorney- General 
does  not  prosecute)  that  if  the  evidence  brought 
fiir  the  prusi  cution  is  not  controverted  by  any 
Hber  evidence  on  the  part  of  the  defendant,  but 
tbe  fact,  as  far  as  it  depends  upon  testimony, 
tlkeo  as  the  prosecutor's  evidence  left  it ;  that 
Ikea  the  defendant's  answer  closes  the  plead - 
iif.  And  this,  my  lord,  has  obtained  and  been 
tWlMiilitd  as  the  approved  rule  and  practice 


of  the  Court,  because  it  is  supposed  the  method 
best  calculated  for  the  obtaining  of  justice; 
that  is,  for  the  conviction  of  the  guilty  and  the 
acquittal  of  the  innocent ;  for  both  are  to  be 
regarded :  and  when  that  is  done,  then  only,  I 
suppose,  is  Justice  done.  Now,  my  lord,  the 
reason  of  this  practice  is  not,  like  some  others, 
so  covered  over  by  the  rust  of  ages,  or  disguised 
by  the  change  of  circumstances,  as  that  it 
should  be  difficult  now  to  discover  it.  On  the 
contrary,  it  is,  to  my  understanding  and  appre- 
hension, as  plain  and  evident  now  as  it  was  the 
first  day  that  it  was  introduced.  But  that  Is  no 
part  ot  my  business  to  enter  into :  the  reason 
of  the  practice  it  does  not  belong  to  me  to 
give.  It  is  sufficient  for  me  to  say  that  such  is 
the  practice,  and  being  the  practice,  it  must  be 
supposed  the  best  method  of  obtaining  justice. 
Then,  my  lord,  I  humbly  submit  it  to  your 
lonlship,  that  if  this  is  the  best  method  for  ob- 
taining of  ju£tice,  a  contrary  method  rou^t  be 
attempted  for  some  other  end ;  and  that  end 
must  be  injustice,  or  the  conviction  of  the  ac- 
cused by  any  means.  3Iy  lord,  the  practicei 
and  this  exemption  from  it,  which  Mr.  Attor- 
ney-General claims,  cannot  both  stand :  one  or 
the  other  must  be  given  up ;  because  they  can- 
not both  be  the  best  method  and  most  likely 
means  for  the  obtaining  of  justice.  Now,  my 
lord,  that  the  king,  or  that  the  attorney- ge- 
neral in  his  name,  should  be  permitted  to  pursue 
any  other  method  or  practice  than  that  esta- 
blished method  which  is  best  calculated  for  the 
obtaining  of  justice,  seems  to  me  completely 
absurd.  For  the  king,  such  as  the  law  and 
such  as  reason  conceive  him,  can  have  no 
other  interest  but  in  the  obtaining  of  justice, 
impartial  justice.  And  if  it  was  possible,  my 
lord,  to  conceive  a  king  even  with  a  leaning  or 
an  inclination  on  either  side,  it  must  rather  be 
that  his  subjects  should  be  found  innocent  than 
guilty.  But  this  claim  of  Mr.  Attorney-Ge- 
neral, my  lord,  absurdly  supposes  the  contrary  ; 
and  that  the  kint;  has  an  interest  in  their  being 
convicted;  and  that  therefore  easier  and  readier 
menn9,  and  greater  means,  are  to  be  allowed  to 
the  king  for  obtaining  a  conviction,  than  are 
allowed  to  any  other  person,  my  equal  or  my 
inferior.  And  y(-t,  my  lord,  1  must  acknow- 
ledge that  the  claim  which  I  am  now  objecting 
to,  is  not  a  new  one.  My  lord,  in  the  reign  of 
James  the  second,  that  man  (fur  he  never  was 
for  one  moment  a  king)  clainked  the  peculiar 
rii^ht,  prerogative,  and  |»ower  of  dispensing 
with  the  lavisof  the  laud.  Sir  Edw.  Herbert, 
the  chief  justice  of  those  days,  and  the  other 
jud<;es,  decided  in  favour  of  that  claim.*  Thank 
God,  my  lord,  the  glorious  Kevolution — (and  I 
call  it  so :  it  shall  not  have  less  praise  from  me 
because  it  is  now  grown  ancourtly) — the  glo- 
rious Revolution  put  an  end  to  that  iniquity.. 
Unfortunately  for  this  conntry,  the  principles 
which  produced  that  and  many  other  iniquities 
are  now   again  revived   and    fostered;    and 

*  See  the  Case  of  air  £dward  UaI^*  v<»'-  ^  ^» 
p.  11^,  of  Ibis  Collection. 


I 


e63] 


17  GEORGfi  IIL  Pnee^Bngt  agmntl  John  Home, 


t864 


•moogit  many  other  most  ihtmeful  doctrinet,' 
this  doctrine  of  a  dtspensiDg  poirer  if  now  re- 
▼i?ed  agiiQ — ooder  another  shape  and  form 
indeed ;  but  it  is  the  same  power.  It  is  now 
a  prr rogative  to  dispense  with  the  rules  and 
methods  of  proceeding ;  that  is,  my  lord,  to 
dispense  with  the  laws:  for  the  roles  and 
methods  of  proceeding  (and  I  have  heard  your 
lordship  say  it  in  other  cases)  are  parts  of  the 
laws  ot  the  land.  My  lord,  I  have  been  told 
(and  that  by  a  greater  authority  than  any  al- 
most that  now  lives)  that  **  the  metho<M  and 
forms  of  justice  are  essential  to  justice  itself.'^ 
And,  my  lord,  the  forms  and  methods  of  pro- 
ceeding are  particularly  tender  in  that  part  of 
the  laws  which  is  calculated  for  the  protection  of 
innocence.  My  lord,  the  ]>enal  laws  are  made 
to  bring  criminals  and  offenders  to  justice ;  but 
the  fornM  and  methods  of  proceeding  of  the 
courts  of  justice  are  appointed  singly  to  distin- 
guish the  innocent  from  the  guilty,  and  to  pro- 
tect tliem  against  exorbitant  power.  My  lord, 
in  the  case  of  this  particular  privilege  which 
the  Attorney- General  claims,  I  think  1  could 
spend  a  day  in  shewing  how  many  received 
1ml  maxims  and  truths  it  violates :  for  truth  is 
Ofsuch  a  nature  that  it  has  a  thousand  branches 
issuing  from  it ;  and  falshood,  let  it  be  as  care- 
fol  as  it  can,  will  run  against  some  one  or  other 
of  them.  I  do  really  believe  I  could  fairly 
iqpend  a  day  in  shewing  the  absurdity  of  this 
claim.  But  yet,  to  my  great  disadvantage  and 
my  great  sorrow,  when,  in  the  Iste  trial  of  the 
pnnters,  the  defendant's  counsel  objected  to 
this  claim  of  Mr.  Attorney-General,  your  lord- 
ship interfered  hastily,  and  saved  Mr.  Attorney 
General  the  trouble  of  vindicating  his  claim. 
Your  lordship  saved  him  from  the  embarrass- 
ment he  would  then  have  found,  and  which  I 
am  confident  he  will  now  find,  to  produce  one 
single  argument  of  reason  or  justice  in  behalf 
of  bis  claim :  arii  this  your  lordship  did  by  an 
absolute  overbearing  of  the  objection,  without 
even  permitting  an  argument.  And,  my  lord, 
that  is  a  very  isreat  disadvantage  to  me,  as  well 
as  it  was  to  the  defendant  in  whose  cause  he 
made  it:  for,  my  lord,  the  very  ingenious  coun- 
sel— (I  beg  the  gentleman^s  pardon  for  at- 
tempting to  distinguish  him  by  that  epithet ; 
there  is  no  want  of  ingenuity  at  the  bar) — hut 
the  very  honest  counsel  who  made  that  objec- 
tion, would  have  been  able  to  support  it  in  a 
very  different  manner  from  any  in  which  I  can 
ex|»ect  to  do  it.  My  lord,  the  trial  may  take 
up  some  time;  therefore  I  will  no  longer  hold 
you  on  this  objection.  I  shall  reserve  to  my- 
self the  right,  which  I  did  exercise  in  con- 
demning the  action  of  the  king's  troops  (which 
I  did  then  call,  and  do  still,  and  will  to-mnrrow 
call,  because  contrary  to  law,  a  murder)  so  I 
•hall  reserve  it  to  myself,  and  not  now  take  up 
more  of  the  time,  to  say  what  I  shall  think 
proper  by  argument  and  reason  on  the  decision 
of  your  lonlship ;  which  decision  roust  come 
mAer  your  lordship  shall  have  heard  the  At- 
torney-General's answer,  and  my  reply  : — for 
I  tike  it  I  ha?e  a  right  to  reply.    1  shall  then 


reserve  that  power  to  myself  to  speak  at  fredy 
of  it  as  I  should  do  of  any  other  mdifferent  ac- 
tion in  the  world. 

ImvA  Mansfield,  There  is  no  occasion  finr  Mr. 
Attorney- General  to  say  any  thing.    I  am  most 
clear  that  the  Attorney -General  has  a  right  tc 
reply  if  he  thinks  fit,  and  that  I  cannot  dcprira 
him  of  it ;  and  there  is  no  such  mle,  that  ro  no 
case  a  private  prosecutor  or  private  plaiiftiff 
shall  not  reply,  if  new  matter  is  urged  which 
calls  for  a  reply ;    new  questions  of  law,  aeir 
observations,  or  any  matter  that  makes  a  reply 
necessary.    No  authority   at   law   has    beca 
quoted  to  the  contrary.     A  party  that  kegina 
has  a  right  to  reply  ;  there  is  not  a  State  Tiiat 
where  the  solicitor-general  or  the  attorney- g«i- 
neral  have  not  replied  ;  and  I  know  of  m>  law 
that  says  in  any  case  the  prosecutor  may  not 
reply.    But,  fur  the  saving  of  time,  rules  by 
usage  of  the  bar  are  received.    Two  gentle* 
men  don't  examine  the  same  witness,  but  yet 
they  do  very  of^en.^    They  don't  reply  when 
there  is  no  evidence  for  a  defendant,  and  no- 
thing new  to  make  it  necessary  to  reply :  tbsa 
they  don't  do  it ;  but  if  a  question  of  law  wa^ 
started,  which  nobody  thought  of  in  the  begin* 
ning,  they  do  it  then :  then  they  have  a  right 
to  reply,  and  must  reply,  for  the  sake  of  jas« 
tice.  And  therefore  I  apprize  Mr.  Home  that  the 
Attorney- General  certainly  has  a  right  to  reply. 
Mr.  Heritf.  Your  lordship  must  be  very  sen- 
sible how  untoward  is  my  situation  in  this  case. 
This  is  only  a  repetition  of  what  happened  be« 
fore ;  if  your  lordship  will  thus  do  the  business 
of  Mr.  Attoniey- General  for  him.    Aly  lord, 
you  now  take  from  me  what  you  ffive  to  hin ; 
you  take  from  me  that  rii^ht  of  reply  which  by 
the  practice  of  the  court  I  have,  whilst  yoa 
give  to  him  that  ri^ht  of  reply  which  by  the 
practice  of  the  court  he  has  not.     1  have  a  rifj^ht 
to  reply  to  the  Attorney  •  General's  answer  to  my 
objection,  but  f  have  no  ri^ht  to  reply  upon  the 
judge.     1  beg  the  Attorney- General  may  do  hif 
own  business.     He  is  full  of  reason  and  ar^Q' 
ment.     He   smiles.     Indeed    he    well   may. 
My  lord,  he  can  surely  prove  the  justice  of  l»i» 
claim  himself,  if  there  is  any  in  it.     My  lord- 
Lord  Mansfield.     Sir — hear — Your  proper 
reply  to  the  juilginent  I  have  given  is  a  roottoa 
to  the  Court ;  I  never  here  decide. —  It  is  speak- 
ing to  no  purpose  to  persuade  me  where  I  htvc 
no  doubt. — The  Attorney-General  here  will  be 
of  the  same  opinion  ^^  ilh  me.     Hut  your  proper 
reply  to  me,  is  a  motion   to  the  court ;  and  if 
the  suffering  him  to  re[ily  is  a^^ainst  law,  itti 
an  irregularity  in  the  (rial,  for  which  the  ver- 
dict .will  he  set  aside.     You  will  have  a  remedy* 
Mr.  Home,  O,  my  lord,  1  have  already  siu* 
fered  under  your  lordship's  directing  me  to  re« 
medies.+    "f  he  most  cruel  of  all  poi*u>uers  arc 
those  who  poison  our  remedies.     Has  yoar 
lordship  forgotten  ? — I  am  sure  you  have  sot 
forgotten  that  1  have,  once  before  in  my  li^f* 
had  the  honour  to  be  tried  before  your  lordsbif 

*  See  the  Case  of  Doe  v.  Roe,  2  CampbeH** 
Nisi  Priui  Kep.  280.         f  See  vol.  0,  p.  tl^ 


665] 


Jbr  a  LiteL 


for  ft  pictnded  libel.    My  lord,  this  AiUer  of 
replj  I  know  to  well  to  be  the  practice,  not 
omjr  from  the  intelligence  I  have  bad  npon  that 
flvlgecl,  hut  from  that  very  trial  at  Guildford, 
on  the  action  brought  against  me  by  the  present 
lord  Onslow.    My  lord,  I  could  then  have  con- 
tradicted his  evidence.    1  will  just  mention  two 
or  three  particulars  in  thu  case.     It  was  the 
OMSt  scandaloos  one  that  ever  came  before  a 
oonrt    (Your  lordship  cannot  forget  the  parti- 
culars in  that  trial.)    1  was  prosecuted  by  him 
Ibr   a    libel.     On  the  first  action  which    he 
brought,  I  obtained  a  nonsuit.    Upon  that,  a 
fresh  action  was  brought.    To  that  fresh  ac- 
tion (in  order  to  try  it  in  Surrey,  where  the 
pbintiflT  bad  his  influence)  in  that  fresh  action, 
words  spoken  a  year  or  two  before  were  added, 
words  of  a  different  nature,  and  upon  a  different 
sniNect.     W  e  came  to  trial  before  your  lordship, 
and  I  do  remember  some  very  strong  cases 
(which  indeed  1  intended  to  have  published)  of 
voor  lordship's  practice  in  that  trial.    But,  my 
lord,  however  impatient  I  may  bethought  to  be, 
I  am  very  patient  under  personal  injuries.    I 
have  never  complained  of  the  practices  used 
•gainst  me  on  that  trial,  nor  of  the  mistakes  f  to 
sneak    gently)    which    your    lordship  made. 
Your  lordship  then  told  me,  as  now,  that  I 
ihootd  have  a  remedy — 

JUiomey- General.  I  beg  leave  to  object  to 
this  way  of'  proceeding  in  a  trial.  What  can  it 
Is  to  the  issue  that  is  joined  in  this  cause,  any 
part  of  the  history  of  what  related  to  the  trial  at 
Qsildfbrd  f 

Lord  Manifield.  If  I  remember  right,  you 
bad  a  remedy  there,  for  it  was' determined  not 
to  be  actionable. 

Mr.  Home.  True,  my  lord ;  but  it  cost  me 
900/.  The  remedy  was  almost  as  bad  as  the 
verdict  would  have  been. 

Lord  Mansfield.  There  must  be  an  end. 

Bir.  Home.  Not  of  thiii  objection. 

Lord  Man%field.  No ;  an  end  of  going  out 
^tbe  cause.  You  must  behave  decently  and 
properly. 

Mr.  Home.  1  will  surely  behave  properly. 

Lord  Mansfield.  This  is  over,  i  tell  you 
beforehand,  I  apprize  you  of  it  (which  is  going 
^t  of  tlie  way),  that  it  is  not  in  my  power  to  de- 
^ve  the  prosecutor  of  replying,  if  he  sees 
canse  to  desire  it. 

Mr.  Home.  Now  then,  my  lord,  I  entreat 
3^00  to  let  me  decently  tell  yon  of  the  situation 
you  put  me  into.  When  I  offer  to  prove  by 
^rgoment  the  ri(;ht  which  I  have  to  make  my 
objection  at  this  time,  your  lordship  kindly 
ttops  me,  and  takes  it  for  granted.  Then,  at- 
terwarils,  it  seems,  it  is  you  who  apprized  me. 
Tou  tell  me  you  have,  out  of  the  rule,  apprized 
me :  yet,  because  I  accepted  that  which  I  knew 
to  be  my  right,  as  an  apprisal  which  you  were 
wilting  to  gif e  me,  not  meaning  however  to 
froclude  myself  from  the  argument,  your  lord- 
ship makes  use  of  my  acceptauce  of  this  ap- 
prisal to  defeat  my  objection.  First,  your  lord- 
ship interferes  to  save  Mr.  Attorney-General 
fton  attempting  to  give  a  reason,  which  you 


A.  D.  1777.  [06^ 

both  know  I^  cannot  give ;  and  then  Mr.  At* 
tomey-General  gets  np  to  save  your  lordship  in 
his  torn,  and  to  stop  me  from  explaining  vour 
lordship's  conduct.  Thus  between  jronr  lord* 
ship  and  Mr.  Attomev- General,  a  defendant  ia 
in  a  blesoed  situation  f  [Here  some  promtscoooa 
altereation  ensued,  after  which  Mr.  Home  pro« 
ceeded.]    What  I  was  speaking  of  was  merely 

this ;  that  the  practice [Here  again  some 

interruption]  I  was  going  to  shew  your  lord- 
ship (in  answer  to  what  fell  from  you,  and  not 
distinct  from  this  cause,  nor  from  what  yonr 
lordship  had  said)  I  was  going,  and  decently 
going,  to  shew  your  lordsiiip,  that  it  was  the 
practice  of  the  oonrt  that  the  prosecutor  should 
not  reply  unless  eridence  is  called  for  the  defen* 
dant    I  was  going  to  shew  it  to  your  lordship 
from  my  own  particular  case  before  your  lord* 
ship  at  Guildford,  and  that  I  suffered  under  it 
considerably;  and  I  mentioned  the  instance. 
I  am  tfure  that  is  not  wandering  from  the  pobt, 
when  your  lordship  has  said,  that  it  was  nof 
the  practice  of  the  court.    If  the  Attorney '  Ge- 
neral had  said  so,  I  should  have  had  a  right  to 
reply  to  him.    But  I  must  say,  as  before,  if 
your  lordship  is  to  do  the  Attorney- Generara 
business,  ami  so  cut  off  my  reply,  and  then 
Mr.  Attorney- General  is  to  get  up  and  say. 
This  has  nothtog  to  do  with  the  cause ;  betneen 
the  Chief  Justice  and  the  Attorney*  General, 
what  am  I  to  do  ?  My  lord,  I  l»eg  leave  to  men-* 
tion  to  your  lordship,  that  if  the  Attorney-Gene- 
ral had  said  truly,  snd  if  I  had  wandered  from 
the  case,  it  would  not  be  wonderful  that  I,  unused 
to  these  matters,  should  warider  a  little ;  and 
your  lordship  should  have  some  indnlgence  to 
my  situation.    My  lord,  I  was  going  to  men- 
tion to  your  lordship  my  own  case :  all  1  know 
of  law  IS  from  my  own  case,  and  from  what  I 
have  been  a  witness  of  myself.    I,  in  that  case, 
at  Guildford,  did  suffer  a  false  evidence  to  pro- 
cure (by  your  lordship's  mistaken  direction)  a 
bad,  fafse  verdict ;  becauKe  I  uas  told  by  my 
counsel  (some  of  the  first  couoKel  in  this  coun- 
try) that  the  words  themselves  were  not  action- 
able;   and  therefore,    though    I  could   have 
proved  by  gentlemen  in  court  that  the  words 
sworn  against  me  were  not  sfioken  by  me ;  yet 
my  counsel  told  me  it  was  hetter  for  me  to  let 
those  words  go  as  proved,  than,  by  calling  evi- 
dence, to  give  to  the  prosecutor  a  right  of  reply, 
which  otherwise  he  would  not  have:  therefore 
I  suffered  the  words  to  he  supposed  to  have 
been  spoken,  rather  than  give  to  my  adversary 
a  right  to  a  reply.  But  now  1  find  he  had  that 
right  without  my  calling  evidence;  that  is,  I 
am  told  so  by  your  lordship,  though  I   have 
been  told  otiierwise  by  all  the  counsel  and  all 
the  trials  I  have  ever  been  at.     My  lord,  as  for 
quoting  laws  for  the  practice,  I  hope  your  lord- 
ship does  not  expect  me  to  quote  law  in  a  mat- 
ter of  practice,  and  indeed  in  hardly  any  other 
matter,  except  the  law  that  1  have  learned  from 
your  lordship.    I  was  a  constant  attender  of 
your  lordship  some  years  ago,  and  I  have  ga- 
thered from  your  practice  some  things  whicn  I 
take  to  be,  and  some  which  i  take  not  to  b« 


667] 


17  GEORGE  m. 


Proceedings  agaitiH  John  Home^ 


[66S 


inaxims  of  lavr.  Now,  in  that  case  I  mentioiied 
at  Guildford,  1  suffered  words  to  go  as  pro?ed, 
whicb  1  could  bave  disproved — aod  there  are 
gentlemeD  in  court  now  who  know  the  fact, 
and  would  ha?e  been  the  e? idences — I  suffered 
words  to  go  as  proved,  because  I  would  not 

{five  the  prosecutor  a  right  to  reply.  Your 
ordship  directed  the  jury  to  find  a  verdict  for 
tlie  words;  and  your  lorasbip  said,  if  your  di- 
rection was  mistaken  (because  my  counsel  had 
argued  that  the  words  were  not  actionable)  your 
loniship  told  my  counsel — (he  published  a 
pamphlet  aflerwards : — he  was  much  hurt  at 
It)  you  said  that  what  be  bad  advanced  sur- 

Srized  you  ;  that  it  was  new  law ;  such  as  you 
ad  never  heard  before— (be  was  much  hurt  at 
it;  he  felt  it:  be  was  hurt  at  your  lordship's 
declaration:  he  published  a  pamphlet  after- 
wards addressed  to  your  lordship,  which  I  am 
inire  you  must  remember).-— My  lord,  in  con- 
sequence of  your  lordship's  direction,  a  verdict 
was  given  against  me  for  400/  ;  and  you  said, 
if  you  were  mistaken  in  vour  directions,  that  I 
had  a  remedy  ;  1  need  only  appeal  to  the  court : 
I  had  a  remedy.  What  sort  of  a  remedy  ?  The 
expence  of  the  remedy  was  almost  equal  to  the 
verdict.  The  verdict  was  set  aside,  that  is 
true ;  but  your  lordship  knows  that  a  verdict 
makes  the  defendant  pay  his  own  costs.  I 
■bould  have  had  the  costs,  if  the  verdict  had 
iiot  been  given  against  me.  What  sort  of  re- 
medies are  these,  that  are  worse  than  the  fair 
bonest  punishment  that  can  be  inflicted  upon 
the  charge  ?  Therefore  I  do  iotreat  that  your 
lordship  will  not  send  ine  to  reme<lies  which  I 
hardly  know  how  to  take  ;  especially  as  I  have 
always  found  that  such  kind  of  remedies  from 
your  lordship  are  like  giving  a  roan  a  wound, 
and  then  telling  him  where  he  may  find  a 
plaister:  it  is  not  a  thing  that  I  should  uish  to 
do,  nor  would  your  lords^hip  like  to  suffer  it. 
And  as  your  lordship  says  that  no  law  has  been 
quoted  to  prevent  his  reply,  I  intreat  that  I 
may  hear  from  Mr.  Attorney-General,  or  from 
yourself,  that  law  that  gives  him  a  right  to 
reply. 

Lord  Mansfield  (to  the  Attorney-Qeneral). 
Go  on  with  the  trial. 

Mr.  Home.  I  shall  hear  no  reason  then 
from  either  of  you?  Well!  if  so,  I  mustsub- 
tuii  under  it. 

Attornej/  General.  My  lord,  and  gentle- 
men of  the  jury,  there  is  nothing  in  this  case 
(unless  the  behaviour  of  the  deteudant  should 
constitute  that  soniothin*^)  that  can  make  it  at 
all  different  from  the  most  ordinary  case  of  a 
plain  delinquent  in  a  most  gross  oifence  being 
brought  before  a  court  of  jusiicc.  J  have  looked 
round  with  a  degree  of  examination  to  see  if  1 
could  see  whether  there  was  one  amongst  the 
numerous  bystanders  that  I  saw  here,  who  had 
conceived  a  favourable  iuiprcs^iiou  fi-om  so  ex- 
traordinary an  interposition  as  one  has  heard 
to-day.  1  certainly  should  not  rise  to  take  off 
or  repel  loose  slander  scattered  about  without 
being  pointed  «t  any  one  individual  particularly, 


much  less  shouM  I  take  notice  of  that  sort  of 
slander  which,  affecting  to  point  itself,  only 
disgraced  itself  in  the  manner  of  that  affecta- 
tion. For  my  own  part,  1  should  think  I  was 
stooping  exceedingly  below  that  character  and 
that  situation  in  the  world  which  I  hope  I  am 
entitled  to,  if  I  were  to  set  myself  to  defend  my 
own  peculiar  part  from  anv  aspersions  that  have 
been  thrown  upon  me.  It  is  the  duty  of  my 
office  to  prosecute  with  inte^ity  those  whom, 
according  to  the  best  of  my  judgment,  I  believe 
to  be  fair  objects  of  prosecution.  It  is  the  duty 
of  my  office,  as  far  as  I  can  govern  that  duty, 
to  conduct  the  prosecution  with  the  utmost 
clearness  and  the  fullest  honour.  And  if  I  have 
taken  a  part  in  this,  or  in  any  prosecution  that 
any  man  can  fairly  stand  forth,  in  a  manly  style, 
and  challenge  directly  and  pointedly,  let  it  be 
challenged,  and  let  me  be  called  upon  to  answer 
it.  But  to  be  told  that  I  stand  here  read  v  to 
take  all  manner  of  advantages,  fair  or  unfair, 
aj^nst  the  delinquents  whom  1  call  into  jus- 
tice, it  is  a  sort  of  aspersion  below  refutation; 
and  I  will  not  stoop  to  take  notice  of  it,  unless 
it  should  condescend  upon  some  particular  act 
in  my  conduct  that  makes  me  an  object  of  thai 
species  of  animadversion.  Whether  1  am 
whether  I  am  not  to  reply  in  such  a  ca 
as  this,  it  is,  in  this  moment  of  it,  not 
much  irregular  to  advance  it,  as  impossible  i 
foresee.  When  I  read  over  the  case,  when 
consider  the  effect  of  it,  1  cannot  forctel  th 
slightest  occasion  to  trouble  you  by  way  o> 
reply  :  for  of  all  the  plain  and  simple  mat 
that  ever  I  had  occasion  to  lay  before  a  cour^^s 
of  justice,  there  is  the  least  degree  of  compli  ^ 
cation  in  that  which  I  am  about  to  state  to  yo«aj 
now. 

This  is  an  information  brought  against  Mv« 
ITorne  for  being  the  author  and  the  origin&:B.I 
publisher  of  tiiis  libel.     Tlie  crime  that  I  puC 
most  upon  is  that  which  I  staled  last,  that  Ise 
was  the  original  puMi^her  of  this  libel.     It  is 
in  that  respect  that  his  crime  ai^pears  to  nie  to 
differ  most  from  those  that  have  been  called 
into  justice  before.     The  circunislance  of  bis 
name  being  printed  at  tiie  lM>ttoui  of  the  lil>e/ 
was  an  additional  at^i;ravati(>n  in  this  respect, 
because  it  seemed  to  imply  a  holder  insult  upon 
manners  and  decency,   and   the   laws  of  the 
countr},  than  a  simple  publication  of  a  libel 
without  that  name  would  have  been.     It  .^ccwcd 
to  imply  this,  because,  while  that  name  lay  bid 
behind  the  printer  of  the  paper,  the  st(»uiest 
champion  for  sedition  could  not  have  defied  the 
laws  with  greater  security  ;  for,  thoui^h  it  stood 
in  capitals  upon  the  front  of  many  thousaoa 
pages,  yet  it  was  as  in^icrutable  and  impossible 
for  me  to  follow,  as  if  the  name  had   nut  ap' 
peared  upon  the  paper  at  all.      For  the  rest  o» 
it,  I  put  it  u|>ou  the  puMication,  chiefly  b^' 
cause  that  seems  to  be  the  whole  object  ais^^ 
drift  of  the  composer  ot   the  libel :    lor  as   ^ 
composition  it  is  absolutely  nothing.     I  do  n€T^ 
mean  to  speak  of  ii  by  way  of  derogation  froi^^ 
the  parts  and  talciits  of  the  ingenious  gentle 
man  (whose  parts  and  talents  I  ubver  baani 


i: 


for  a  LibeL 

IB  T  have  done  to-i]av)  I  do  not  mean 
t  io  deroi;ation  of  tliem  ;  no  doubt  but 
hafe  writ  a  belter  (hin>jf :  but  his  un- 
ig  n  as  industriously  let  down  and  sup- 
and  the  vtry  purpose  of  this  writintj^ 
ake  it  ribaldry  and  trash.  For  the 
if  it  was  (lis  it  appears  to  me)  the  in- 
it  was  notiiinf^  more  than  to  defy  the 
juKtirr  of  the  country,  proclaiminj^, 
e,  thus:  either  punish  this  libel,  or 
at  there  are  no  laws  in  the  rountry 
a  libel  ran  he  ptmi^hed.  Others  have 
d  vutDcient  malice  ag'ain^t  this  conn- 
rs  hate  been  anxious  enouf^b  to  ex- 
30 ;  hut  this  is  written  chiefly  with 
Me  of  trllinf^  iiuiukind — **  Thus  I  dare 
e  insult  the  laws  without  havin^j^  any 
liin^  to  state  to  the  public,  except  an 
Ki  the  laws."  Sometimes  a  hbel  is 
hou^h  thinly  covered  fnoiigh)  with 
ice  of  informing'  mankind,  or  of  dis- 
ublic  subjects  for  the  use  of  mankind : 
•t  even  the  affectation  of  giving^  infor- 
liere  is  not  even  the  affectation  of  dis- 
but  the  writer  tells  you  in  so  many 
nls  (of  no  kind  of  meaning'  in  the 
t  to  convey  reproach  and  scandal) 
ersons  who  were  employed  by  the 
nt  arc  guilty  of  murder;  and  the 
bo  employed  them  con^jcpiently  in- 
the  same  (^uilt.  For  what  is  the  na- 
he  libel  that  is  published — '*  King's 
'ern — At  a  meetiuij:  held  during  an 
ent"  (1  do  not  mean  to  make  any 
n  u()on  the  meeting  durinsf  an  ad- 
I) — **  a  gentleman  proposed  that  a 
on  sboulil  be  entered  into*^^-(thi8  1 
It  be  a  device — not  a  very  rich  one  in 
uvention — but  a  device  to  introduce 
'h  followii)  '*  a  gentleman  proposed 
bscrption  should  be  entered  into  by 
in  members  preseht  who  might  ap. 
.he  samf>,  for  the  purjiose  of  raising 
of  100/.  to  be  a[>p!ied  to  the  relief  of 
s,  orfihitns,  and  aged  parents  of  our 
American  fellow -subjects,  who,  faith- 
I'liaracter  of  Encrlishmeu,  preferring 
liivery,  were  for  that  reason  only  in- 
niunlered  by  the  king's  troops."* — 
by  the  king's  troops  !  What  kind  of 
(justitication  it  is  absurd  and  non- 
II Ik  of)  but  what  kind  of  palliation 
iven  to  the  charging  men  with  the 
nurder,  by  writing  against  them  in  a 
er .'  Is  it  to  be  laid  down  for  law, 
f  to  be  tolerated  in  a  civilized  coun- 
Times  of  the  most  heinous  sort  »hall 
mI  to  men  by  a  public  reviter  in  a 
*r,  who  yet  dares  not  stand  forth  as 
r  ?  Is  that  to  be  tolerated  in  a  civilized 
-the  writing  against  men  that  they  are 
murder  who  are  not  to  be  accused  of 
?  ?    Is  it  to  be  tolerated  in  a  country 

*.  account  of  this  business  is  exhibited 
is*8  Memoirs  of  Home  Tooke,  vol.  1, 
t  teg* 


A.  D.  1777. 


[670 


where  an  orderly  g<»vernroent  preraila,  and 
while  the  form  of  government  subsists,  to  write 
against  the  transactions  of  that  government,  at 
ir  stained  with  all  the  crimes  noder  heaven,  and 
calculated  for  no  eaithly  purpose  but  of  com- 
mitting those  crimes  ?  To  suppress  liberty  (the 
only  object  for  which  government  is  or  ought 
to  be  erected)  to  sunpress'that  Hberty  by  the 
means  of  murder,  is  miputed  to  the  transactions 
of  the  government  of  the  freest  country  now 
under  heaven!  and  it  is  called  liberty  to  ito 
that !  whereas  men  must  be  short-sighted  id-* 
deed,  a  man  must  l>e  drivelling  like  an  idiot 
that  does  not  see  that  the  maintaining  of  regu- 
lar government  is  the  true,  the  only  means  of 
maintaining  liberty.  Js  it  libertjr  to  pat  the 
characters  of  persons,  the  properties  of  every 
individual,  under  the  tyrannous  hand  of  anar- 
chy, and  of  every  roan  that  thinks  proper  te 
seize  them,  uncontrolcd  by  law  P  Is  that  li- 
berty? And  is  there  any  one  by-stander  of 
the  most  ordinary  understanding  that  hears  me 
now  speak,  that  has  so  gross  an  understandinr 
as  to  imagine  that  be  would  be  more  free  if  it 
were  in  the  power  of  any  man  that  thought 
proper  to  revile  his  character,  (which  is  the 
linestion  which  is  now  immediately  sub- 
jected to  you)  or  to  injure  him  in  his  person  or 
fortune,  or  in  any  other  manner  whatever? 
This  therefore  is  not  to  be  coloured,  as  far  aa 
I  can  foresee,  by  any  kind  of  argument  what- 
ever. The  nature  of  the  libel  is  too  gross  to  be 
commented  u|)on;  it  does  no  honour  to  anj 
body  that  baa  been  concerned  in  making  it. 

I  shall  content  myself  with  proving  the  fact 
of  this  paper  havini^  been  written,  of  this  paper 
having  been  published  originally  by  Mr. 
Home ;  and  the  conclusion  to  be  made  upon 
that  is  too  obvious  a  one,  and  too  broad  a  one, 
for  me  to  foresee  at  least  any  kind  of  difHcultj 
about  it.  It  was  my  duty  to  lay  it  before  you. 
1,  charged  with  the  duty  of  my  office,  have 
brought  it  here;  it  is  your  duly  to  judge  of  it. 
j  You,  charged  by  the  oatli  that  you  have  taken, 
1  are  to  determine  upon  it.  If  you  can  be  of 
opinion  that  this  licentiousness  is  fit  to  be  tole- 
rated, according  to  the  old  and  established  lawa 
of  this  country  ;  if  you  are  of  opinion  that  the 
fact  is  not  proved  upon  the  defendant  in  the 
manner  in  which  it  is  stated  by  the  witnesses ; 
it  will  be  vourduty,  your  oaths  will  bind  you 
to  acquit  him :  but  if'the  fact  should  be  proved, 
if  it  should  stand  as  clear  as  to  my  judgment 
and  apprehension  it  now  stands,  you  will  be 
constrained  by  the  same  necessity  of  duty,  and 
Uy  the  additional  sanction  of  an  oath,  to  enter- 
tain exactly  the  opinion  of  it  which  I  have 
found  myself  constrained  to  entertain.  I  have 
no  wish  (I  did  not  know  Mr.  Borne)  1  have  no 
wish  to  prosecute  any  one  individual ;  nor  have 
I  been  desired,  if  1  had  such  a  wish,  to  proaecute 
him.  And  I  hope  I  may  add,  that  no  desire 
could  have  compelled  me  to  prosecute  a  man 
whom  I  myself  had  not  thought  guilty,  not- 
withstanding any  thing  that  has  been  said  od 
the  contrary  side.  I  go  upon  the  evidence  aa 
it  if  in  my  poaseifioii ;  I  go  upon  the  efideuce 


i 


671] 


17  GEORGE  III.  Proceedingt  agaimt  John  HonUf 


[67S 


at  it  is  iQ  my  power  to  produce  it.  If  there  be 
•By  evidence  on  the  oiner  side,  and  if  that  is 
■ufficient  to  refute  tlie  imputation  which  the 
evidence  that  I  have  to  produce  lays  upon  him, 
I  shall  be  as  ready  to  examine  that  with  exactly 
jibe  same  decree  of  candour,  and,  1  hope,  of 
nprightoess,  as  I  have  done  the  present.  My 
duty  is  done  by  laying  the  matter  before  you. 
Your  duty,  I  am  sure,  will  be  done  to  your 
•WD  honour  and  the  support  of  public  justice 
by  the  verdict  you  will  \^iye  upon  the  occasion. 

Evidence  for  the  Paosecdtion. 

Tkomoi  Wilton  sworn. 

Examined  by  Mr.  Solicitor  General,^ 

SoL  Gen.  Look  at  those  papers.  (The  se- 
rtnA  Manuscripts  from  which  the  advertiso- 
ments  were  printed  in  the  newspapers.  The 
witness  inspects  them.) 

Do  you  know  whose  hand -writing  those 
fapers  are?— They  look  like  Mr.  Home's 
liaod-writinff. 

00  ]^ou  know  Mr.  Horoe? — I  have  seen 
him  write. 

Do  you  take  these  to  be  his  hand -writing^? 
—They  are  like  his  hand-writingf.  1  will  not 
upon  mv  oath  say  that  they  are  bis  baud- writ- 
ings ;  I  believe  that  they  are. 

(The  manuscripts  ot  the  two  advertisements 
read  in  court.) 

Henry  Sampton  WoodfallBwom, 
Examined  by  Mr.  Wallace. 

What  business  are  you  ? — A  printer. 

Do  you  print  any  newspaper? — Yes. 

M'bat  paper? — The  Public  Advertiser. 

Mr.  Wallace,  Look  at  these  two  papers 
(shewing^  the  witness  the  manuscripts  of  the 
advertisements.  The  witness  inspects  the  ma- 
nuscripts.) 

Have  you  ever  seen  these  papers  before  ? — 
Yes. 

When  did  you  see  the  first  of  them  ?-— About 
the  7th  of  June  1775,  as  near  as  I  can  recollect. 

By  what  means  did  you  come  by  the  sight 
jof  it  ? — Mr.  Home,  the  defendant,  ij^ave  it  me. 

For  what  purpose? — To  publish  in  the  Pub- 
lic Advertiser. 

Did  you  accordingly  publish  it  ? — 1  did. 

Had  you  any  other  directions  from  Mr. 
Home? — Yes.  He  desired  me  to  send  it  to 
several  other  papers,  which  I  did. 

Do  you  recollect  the  names  of  any  of  them  ? 
—The  whole,  I  believe,  of  them  ;  I  cannot  ex- 
actly recollect. 

Did  you  follow  his  directions? — I  did. 

Was  anv  thiner  paid  for  it?— Yes.  Mr. 
Home  paid  the  bill. 

For  the  publication? — Yes. 
Mr.  Wallace.    Look  at  those  news -papers 
(•hewing  the  witness  the  Public  Advertiser  of 

*  Aleiaoder  Wedderburo,  afterwards  earl  of 
Boaslyii,  and  sooocsiivaly  Chief  Joitice  of  C. 
S.  and  Loia  ChuoiUor* 


June  the  9th,  and  of  July  14, 1775.    The  wit- 
ness inspects  newspapers.) 

Are  those  papers  published  by  yo«  ?— -I  print 
that  paper,  and  1  auppoee  they  are. 

Cross-examined  by  the  Defendant 

Mr.  Home,  I  am  very  glad  to  see  yon,  Mr, 
Woodfall.  I  desire  to  ask  you  some  questions. 
Pray  what  was  your  motive  for  inserting  that 
advertisement?— Your  desire. 

Had  you  no  other  motive  ?.«-l  was  paid  lor 
it,  as  the  advertisement  is  paid  for. 

Pray  was  it  by  accident,  or  by  my  desire, 
that  there  should  be  witnesses  to  see  me  write 
that  advertisement  ? — By  your  desire. 

And  did  I,  or  did  f  not,  formally,  before  that.^ 
witness,  when  called  in,  deliver  that  paper  ai^ 
my  act  and  deed,  as  if  it  had  been  a  bond  ? 
Yes. 

It  is  true,  I  did.  Did  I  not  always  di 
you,  if  called  upon,  to  furnish  the  fullest  pi 
that  yon  could  give  ?— You  did,  Sir. 

Now  then.  Sir,  if  you  please,  say  whether 
have  ever  written  any  thing  in  your 
paper  before  ?■—  Yes,  ^ueotly. 

How  many  years  ago,  do  you  think  ?— ' 
first  renoarkabie  thing  that  I  remember, 
something  about  sir  John  Gibbons,  aboot 
mistaking  Easter  for  a  feast  or  a  fast. 

How  long  ago  is  that  ? — About  the  y 
1768,  aboutthe election  time. 

That  is  about  nine  years  ago  ? — Yes. 

Have  1  at  any  time  desired  you  to  screen  IB9 
from  the  laws?— No. 

Has  not  the  method  of  my  transactions  with 
}rou  at  all  times  beep,  that  you  should  at  all 
times,  for  your  own  sake,  if  called  iipon,  give 
me  up  to  justice  ? — Certainly  ;  that  has  always 
been  your  desire. 

Pray,  Sir,  were  you  not  once  called  upon  hy 
the  House  of  Commons  for  Rometliiiig  that  I 
wrote  in  your  paper  ? — Yes,  Sir. 

Do  you  remember  that  I  did  or  did  not,  wheD 
I  took  care  to  furnish  such  full  proof  of  thif 
advertisement,  give  you  the  reason  for  it?— I 
cannot  say  1  recollect  the  reason. 

I  will  mention  it.  Whet  her  was  this  ibe 
reason  ?  That  in  the  last  transaction  before  the  ^ 
House  of  Commons  it  was  pretentled  they  let  i^ 
me  off,  because  they  could  not  {^et  foil  evi*  ^^ 
dence.  Do  you  remember  wliether  I  rehearsed  i  J^ 
that  or  not ;  and  said,  that  if  they  now  chose  1^ 
to  take  notice  ofthis  advertisement,  they  should  |^H 
not  want  full  evidence?—!  do  recollect  thit 
conversation. 

You  remember  that  was  the  reason  I  gare? 
—I  do. 

Will  you  please  to  look  at  these  newspapers? 
(shewing  several  papers  of  the  Public  A(lve^ 
tiser  to  the  witness.  The  witness  inipect* 
them).  Do  you  know  these  news- papers f^ 
I  do. 

Do  you  believe  tliat  you  published  themf"' 
I  do. 

Look  at  the  dates.    I  will  call  them  over  to 

Jou  from  a  list— May  the  30th  and  the  3U^» 
una  the  6thy  the  9th,  the  10th,  the  ISHh,  ^ 


^ 


»■« 


87S} 


jbraLM* 


A.l>.  in%' 


[«74 


15th,  ud  Hie  10tb,  17^5  f^I  hare  looked  8l 
the  ptnen :  tbev  are  all  of  m  j  publieatkrD :  the 
date  ur  one  of  them  I  cannot  make  out;  it  if 
lane  aoroetbing. 

We  will  go  on — Jnne  the  3l8t  and  tbe  37tb, 
1775;  then  there  is  January  tbe  llth,  Fe- 
bruary the  8th,  February  the  7th,  the  llth, 
Inne  the  9d,  and  June  the  SOth,  1777  P— They 
ire  likewise  of  my  publishing. 

Pray,  Sir,  do  you  recollect  the  contents  of 
the  paper  of  May  30,  1775  T^No,  upon  my 
■ool,  I  do  not. 

You  are  upon  your  oath. — I  know  that  in- 
3eed. 

Read  that  part  (pointing  a  part  out) ;  read 
Tom  **  In  proviDcial  congress,  April  36, 1774," 
Sown  to  that  part  (poiotinic  it  out). 

Mr.  Wallace,  The  officer  sminld  read  it; 
tliongh  not  now.  You  will  be  intitled  to  read 
t,  wbenyou  come  to  your  defence. 

Mr.  aorne.  Pray  do  you  know  Mr.  Arthur 
Lee?— Yes. 

Did  you  ever  receive  any  account  from  him 
*clatjTe  to  the  persons  who  were  killed  at  Lex- 
LBgton  and  Concord  f — I  really  do  not  recollect. 

Do  you  recollect  that  you  erer  published  his 
same  to  an  account? — I  think  I  did  ;  rekting 
he  bis  agency  for  some  coIodt. 

Look  at  that,  and  see  whether  you  remember 
kliat,  and  how  you  received  it?  (Witness  in- 
•petrU  Public  Advertiser  of  May  31,  1775.)— 
Yes.    1  think  I  received  this  from  Mr.  Arthur 


Pray  who  was  Mr.  Arthur  Lee  ? — He  is  of 
Uie  bar.  1  have  seen  him  in  Westminster- 
kail.  He  was  there  at  the  trial  of  Mr.  Wright 
the  printer,  upoo  this  very  affair.  1  believe  be 
wu  retained  there. 

Pray  was  he  retained  in  your  cause  when 
yon  were  to  be  prosecuted  for  this  advertise- 
hwat?— -Hewas. 

And  why  did  you  retain  him  ?  Had  you  any 
partieular  reason  ? — I  presumed  he  knew  more 
•f  tbe  subject  of  the  advertisement  than  I  did. 

Did  he  ever  tell  yon  any  thing  upon  the 
iQl>|ect?— We  have  had  private  conversation 
tsgftber  as  a  matter  of  news. 

Did  he  ever  tell  yon  he  had  lodgeil  affidavits 
Whh  tbe  lord  mayor  of  London  ? — He  did. 

Sic,  did  you  ever  tell  me  so?— I  do  not  re- 
collect 

Pray  when  had  you,  for  the  first  time,  any 
■otice  of  a  prosecution  for  the  publishing  of 
Ibii  advertisement  ? — Al)nut  two  years  ago. 

Pray  did  that  prosecution  go  on  ?~No. 

Do  you  know  why  ? — Yes.  1  let  judgment 
|ft  by  default. 

The  fiMt  time? — I  was  never  called  upon 
lill  last  January. 

It  began  two  years  ago ;  and  yon  were  never 
^lled  forward  \ipon  it  till  last  January?— I 
thiuk  that  was  al>out  the  montli. 

As  near  as  you  can  recollect  ? — Yes. 

Wheu  were  you  first  applied  to,  or  were  you 
*ver  applied  to,  to  be  a  witness  in  this  cause? 
**!  was  not. 

You  never  were?— Noi 


Ho#  enm^  yon  to  be  an  evMMiee  f — 1  b^rd 
Ibat  If  I  oouul  produce  my  author,  tnattetil 
might  be  better  for  me ;  and  as  you  hM  ntl 
sort  of  objection  (which  you  told  me  M  tlM 
time)  1  did  of  course  produce  those  copien  that 
appeared  there  to  Messrs.  Chamberlayne  and 
White,  the  solicitors  for  the  treasury. 

Should  you  at  any  time,  if  ?ou  had  beeil 
called  upon,  have  declared  that  I  was  the  an« 
thor  of  that  advertisement  P— Most  certainly  ; 
fbr  you  desi^d  it. 

Ami  would  have  given  your  evidence? — Yefi 

Whom  was  the  application  made  by? — U 
was  no  aort  of  application  at  all ;  I  beard  of  it. 

By  whom  ? — My  brother. 

You  never  refused  tofurniab  evidence  againul 
tbeatrtbor?— No.  ^ 

Yon  never  were  applied  to,  todohf-^N^t 
I  was  not. 

You  have  said  that  I  nerer  desired  you  to 
conceal  me  from  the  law  for  any  thing  ybik 
pttblished  from  me.  Did  you  ever  reeeive  anjf 
letter  or  meaaage  from  sir  ThomA  Mills  i* 
your  Kfe  ? — A  private  letter  I  have. 

But  did  not  that  pif  vate  letter  relate  to  th* 
public  paper  ?— Never. 

Did  you  never  receive  any  message  not  to 
insert  any  thing  in  your  paper  about  lord  Mans- 
field's earldom  ?— No. 

Upon  your  oath  ? — Upon  my  oath,  to  tb^ 
best  of  my  recollection,  I  never  did. 

From  any  quarter  ? — ^No. 

Sir,  were  you  ever  sent  for  by  lord  Bute  f-^ 
No ;  I  never  saw  him. 

Were  you  not  oent  for  for  inserting  u  peral^ 
graph  about  tbe  kmg's  marriage  ?— No ;  2  ana 
not  consulted  by  Um  higher  powers,  1  tssure 
you.  ■ 

If  I  had  tliought  you  were,  T  net^  shoUlA 
have  trusted  you :  i  do  not  think  you  are.-^ 
1  am  much  obliged  to  you  for  your  good  opi- 
nion.' 

Mr.  Home,  I  will  give  you  no  more  troiAle. 

William  Woodfall  sworn. 
Examined  by  Mr.  Walleee* 

Please  to  look  at  that  paper  (ahewing  tbto 
witless  the  manuscript  of  the  adrertisement. 
The  witness  inspects  it).  Have  you  seen  that 
paper  before  ? — f  have.  f  * 

When  did  you  first  see  it  ? — Mr.  Home  de- 
livered it  into  my  hands  in  my  brother's  compt- 
ing-house  on  the  8th  of  June^  to  be  inserted  in 
the  Loudon  Packet  and  Morning  Chronicle  ; 
both  which  papers  I  print. 

Was  it  accordingly  inserted  in  those  papers  f 
—It  was. 

Look  at  those  papers  (shewiAr  the  witness 
several  papers  of  the  Morning  Chronicle  and 
London  Packet.  The  witness  inspects  them). 
Are  those  papers  published  by  you? — ^They 
are. 

Cross-examined  by  the  Defendant. 

Mr.  Borne,  Mr.  William  Woodfall,  I  will 
not  repeat  all  the  same  quetitions  to  you.  Did 
you  ever  receive  any  — "— -'-^  »        •»-- 


C75] 

Your 


17  GEORGE  HI. 

iiwer  is  or  (be  rjuicbeit    Hkd  you 

hear  the  question? — I  |ire*uTne  jron 

ii>  nsk  Ihe  Mine  i|iin.tiiin  you  put  to  my 

;  u  you  laiil  ■□  emphuis  upon  Ihe  word 


taire, 


or  ilenire,  or  m|UF«t,  iifmny  kir 
ner,  not  lo  inserl  any  ibioif  in  your  pi|i«r  reU- 
'()•«  to  larit  ItlaiicfifM'*  earldom, on  jour  oatbT 
•—On  my  uilti,  1  neter  recei«eil  any  letter. 

Messagp,  or  requral,  of  any  biuil,  io  any 
pnauner,  Mir,  Trom  air  Thomaa  Alilla,  I  aik 
you?— No,  I  iliinkniit. 

Vou  Qiuat  be  ■  bitle  tnor«  p4>nti>e,  becauEc 
my  qiirntion  mil  not  admiiot  a  '  tliiuk,' — 1  ilo 
IMt  ruculkcl  f  did. 

Tbeii  take  a  little  lime— I  don't  rerullect 
Uul  I  did.  I  bnxw  very  well,  ihni  aume  per- 
>on  or  o'ber,  once,  mei)tii>Dr<l  it  in  rae. 

Tliat  ia  an  applH-iiiiiin.     To  mention  it  lo 

fou  la  ■  aln)nK<'r  applicHtlun  thau  a  teller. — 
had  some  rouveraaiian  about  it.  I  dim't  re- 
collrcl  thut  1  WBt  dfsireil  not  to  puMisb  it. 

Was  il  In  rrqupst  ynu  not  lo  inicrt  uuibl  or 
may  lhm|[  ?_l  recuUeci  I  M  insert  it. 

What? — Lord  Alan^ibeld's  promolioo  loan 
•arhlom. 

What  «u  Ihat  appUcalion  ?  That  you 
'  w-iuld'  ioKerl  paragrajibs  sUoul  it,  or  '  would 
sot'  ?  —  It  was  a  convvraatiun,  not  of  the  nature 
of  biuinem ;  nor  soy  exprrai  detire  lo  me  ; 
some  (uotcrsaliuu,  as  migbt  be  belwees  two 

Upon  your  oaili,  you  bad  ne'er  any  appli- 
cation 10  omit  iaaerling  any  thing ot'ihat  Liod? 
•—Upon  my  oath,  I  don't  recollect  Ihdt  I  bad. 

Norbiiveyoueier  aaJd  thai  yon  had?— If 
1  don't  recolfeci  that  I  received  any  applicaiiou 
to  keep  oul  any  thing  reldlive  lo  ii,  1  conie- 
quently  csnunt  hate  sjioken  of  it. 

l>id  yon,  or  did  you  not,  ever  speak  of  it  7 — 
>Joilhatlnmawjreof 

But  you  will  not  twear  noMiitefy  yoo  Deter 
did  ? — I  had  DO  direct  appliuaiion  to  me  to  keep 
out  any  Ihiog. 

'  Direct' — My  qunlion  waa  '  direct'  or  '  in- 
direct,' or  of  any  kind.^Iiuean  loaniwer  'di- 
teci.'  I  don't  recollect  that  1  was  erer  applied 
to,  Id  keep  out  any  thing ;  or  that  1  eiCT  aairi  I 
vai applied  10,  to  keep  out  any  thing. 

More  than  that  you  cannot  recollect  F — No. 

[The  A^sneiale  read  the  adiertiaementa  io 
the  ceTeral  papem  that  had  been  proved  and 
put  inio  court  on  Ibe  pari  of  ihe  prn»ecutioa.] 

Alt.  Cen.    My  lord,  we  have  done. 

Hr.  llorne.  GeotlemeD  of  Ihe  jury ;  Ism 
much  bapiiier,  i[entleineu,  io  addrviaiiig'  my- 
self lo  you.  and  I  hope  and  beliete  I  ahall  b« 
much  more  tbrtunate  as  well  aa  bappy,  iban 
in  addreaiing  mynell'  to  the  jud^je.  i  have 
been  betrayed,  genileoien,  I  hnpe,  into  no  un- 
■eeinly  uarmlh  ;  hut  yet  into  eome  warmth, 
i  ha«e  tell  myaelf  hke  •  man  Grat  put  into  hot 
water ;  but  I  liaie  non  been  long  enough  in  il 
lo  b«  perfectly  cool.    Aud,  ([entleniep,  lome 


againit  John  Home,  [679 

small  allowaocea  roii>bt  have  beea  nude  fi« 
me  by  my  jodge  who  preiidea  upon  ihia  caua^ 
when  he  coniidera  Ibe  peculiar  diisdiBDiaga*^ 
in  which  1  stand  here  betiire  him.  Geiillemeib 
1  am  an  absolute  novice  in  these  matters ;  bM' 
yet  opposed  to  gentlemen  some  of  Ibe  moalemii 
neat  in  their  professinu,  sod  some  of  ihe  motfc 
conversant  in  practice.  But  Ihat  ii  not  all;  T 
bare  a  farther  disailTaoiage.  I  aland  ber^ 
genileroen,  before  you,  a  culprit  as  well  ■■  a 
pleader;  personally  and  very  materially  in- 
lerented  in  the  issue  of  Ihe  cause  which  1  ban 
lo  defend.  And  every  geotlrman  in  the  court 
must  know — (some  perhaps  by  iheir  on 
perience.  all  by  ibe  reaaon  nf  the  Ihing)- 
*ery  different  la  the  Eporlfiil  ciimbat  will 
from  ihat  which  is  seriously  disputed  itilb 
baled  swnrds;  and  how  frequently  Ihe  flull 
iog  of  ihe  heart,  in  Ihe  latter  siluaiinD,  ha*  ' 
known  to  enfeeble  the  steadiest  wrist,  as 
dazzle  Ihe  clearest  and  motiqnick-sighiede] 
Gentlemen,  I  have  read  even  of  cuunael, 
neni  In  Iheir  profession,  cooiersant  in  praeli 
approved  anti  sp|dauded  for  their  ingenuity 
the  defence  of  others,  who,  ubea  Ihey  car  ~ 
slaud  in  the  aame  ailualion  io  which  I 
sland,  have  cnmplaineil  In  the  Court  (and 
with  an  indulgeuce  which  I  bate  not),  ll 
ba*e  cotoplainrd  to  Ihe  Cnurt  of  Ibe  aame  i 
adsiolage  which  I  now  frel.  GeDllemeDi  ^ 
ba»e  lialened  lo  Mr.  AtlDrney -General's  decl** 
mition  with  as  much  patience,  and,  I  beliere^ 
with  Oiuch  more  pleasure,  than  any  one  in  tb« 
cnuK.  That  pleasure  I  do  acknon  ledge  was 
personal  lo  myself;  arising  from  the  futility  of 
Ihe  support  which  Mr.  Attorney-General  hae 
attempted  to  gire  to  the  serious  charge  wbicfa 
he  has  brought  against  nie ;  a  pleasure,  bow* 
ever,  mik:ed  wiih  some  pain,  when  1  consider 
Ihe  wretched  times  at  which  we  are  arrised  ; 
when  s  geullemau  of  bis  uaiural  asgacily  ia,  I 
own,  jusiilied  by  recent  expenence  for  aup- 
poaiog  il  poKsibJe  lo  oblain  from  a  London  jucjf 

a  Terdict  tor  the  crown,  Ujion  a  mere  coir 

place  ileclamalion  against  acandal  and 
cency  in  general,  withnul  one  single  syllanie  i 
reasou,  or  law,  or  argument,  applicable  m  thi 
particular  charge  which  lie  has  brought  ^ai« 
nie,  anil  wbicb  you  art^  now  upon  your  o«ll 
to  decide,  tieoilemen,  you  know,  as  Weill 
I  do,  that  I  am  personally  aod  io  all  re*pe« 
an  abwlote  ilmoger  to  every  one  of  you. 
am  glad  of  it.  I  do  not  expect  or  deaire  Trfl 
you  either  friendship,  or  farour,  or  indiitgeaa 
It  is  ynnr  duty  to  un  impartial  justice,  ami 
only  request  yanrBltention.  I  began  irilhn 
qoealiog  il ;  aod  I  requested  your  allentiw 
ihfit  ynu  may  be  able  lo  judge  for  voarKin 
and  that  the  verdict  which  you  ahall  £iT«< 
personally  as  il  respects  myself  it  is  totally  1 
different  W  me— but  thai  the  terdict  whii 
you  shall  give,  may  be  really  your  own,  •■ 
ought  to  be,  and  not  the  judge's.  That  is  ll 
only  thing  I  request  of  you,  and  I  requeal  j 
because  il  is  your  duiv  and  your  oath. 

Gentlemen,  ai  for  ibe  charge  ibat  is  braug 
againat  me,  you  cannot  b«  ignoratil  that  J  n 


en] 


for  a  Libel. 
ipardoDiblt  crinie 


liiugtA  with  the   only 

wbicb  ean,  at  tliU  time,  ue  coiumiiieii.     i  bid 

Meiian)  of  a  libtl- 

Hnnler  and  (odomy,  you  koow,  haie  in 
Amu  out  'lays  oftbn  I'ound  succesal'ut  solicitors ; 
ud  the  lawt  aguiosl  pn|>ery  (Itiuugh  nnre- 
pciled  aod  in  lull  leg^l  force)  art,  when  re- 
■nud  to,  ibought,  by  ilic  maj^iilrale  who  pre- 
|M«a  hrre,  too  rigornuii  to  \ie  guffered  lo  httve 
Ihcir  ftce  course  ai^iiisi  a  reli^oo  so  deitruc- 
tmoTlhe  ci«il  riubii  o(  maDkiud,  aad  lo  la- 
Toarable  to  aUnduie  and  arbitrary  ])o<ver.  Bui 
whiln  thai  has  Wen  laTuurtd  beyoiiil  the  laws, 
iuibiii|;  Iwyond  t)ie  Hwt  has  been  Ihnuglit  ri- 
piraui  aud  (Tfere  eoouijh  aj^ainsl  the  charge 
oflilicl.  Murder,  attended  with  the  muni  ai{- 
(ravaiing  circuinslances,  hw  lieen  rfptiaiedly 
pariloned ;  and  treason,  the  blackest  Ireasnii, 
•jiaiait  lh«  family  on  the  throne,  and  (whnl  is 
of  much  more  consequence  lo  us  than  any  To- 
■aily)  almost  llie  Tree  consiiiution  uCihis  cnuu- 
Irj,  tiu  been  iint  Only  pardoned,  but  lakfl 


tiidlhe. 


'5  har 


«m«*  the  hi|;heNt  niountsins  of  iniquity,  has  any 
one  or  yiiu  pter  spieil  ihe  stiiallest  tiiulei  de- 
s«vuit>n)|  Kiwanlt  the  valley  of  the  hbellerP 
UasMiiy  inanctiarffed  Hiih  a  librl  (and  what 
hBBMDMU  charged  as  a  libel?)  — has  any  man 
a«ebar|[ed  eier  yet  met  with  ineri-y  F  (ieiitte- 
Eo,  I  da  not  call  lisck  a^ain  these  things  lo 
Mr  remembrauce  in  order  lo  arraigii  ihi'in  ; 
It  i*  not  my  ^eteni  huMiiFM :  I  only  men- 
n  Ihem  to  cain  lr»m  you,  llie  only  thing  I 
with,  your  attention.  You  wdl  hv  pleased  then, 
rMtilrineii,  -js  one  motive  Inr  your  atlenlinn,  lo 
■emroilwr  the  nature  of  Ibe  crime  charged. 

Gentlemen,  if  the  ttatiire  of  the  crime  and 
l)w  THficuur  with  which  it  ia  pursiieil,  if  that 
strong  resson  thr  your  jiarticular  cau- 
care  and  aiienlinn  in  ihissnrl  ol't'ials, 
ft  lB<tch  stronger  reasiin  i'lderd  uill  he  aRurded 
— 1  bj  liie  nature  uC  the  picnecutiuD,  It  is 
ffl  an  inl'-noatinD  ix  officio.^     The  term  ex 


r.  Huriie'i  mention  of  the  resloraiion  n( 
■lea  "f  ci'Ovicl  Irattora  alludes  10  ihe 
'if'-iivrsl  Fraser,  i-ldesi  sun  of  lord  Luvni 
IS  rxeculnl  in  17  16.  See  ibe  proceed. 
xinst  him,  vol.  18.  p.  530.  Iliee,  alHn, 
;  14  O.  3.  e.  %-t ;  S4  U.  »,  star.  S,  .^.  57 ; 
).  3,  «.  63. 
^In  tbecHehnled  'Letter,' wbicb  has  heen 
~M  V)  Loid  Chaucrllor  CmiHlen,  an<l  nlin 
r.  8»licilDr  General  Dunning,  '  ruiiceniiui; 
Warrants,  llw  Beisure  uf  Pap<-Ta,  ami 
a  for  Ihe  Peace  or  Behaviour,  tie.  by 
leFxher  of  Candur,'  are  alleKed  with  t^tciil 
r  many  objeciiont  B);iiin«i  ihe  Atlomey 
9,  of  which  ihe 
,  n  my  apprehen- 
I,  *ety  alarming;  and  a  thinking  man  can- 
Mat  refrain  from  lurprise,  thai  a  free  peojite 
ilMid  mtfer  to  odious  a  prerogative  lo  exi^l. 
U  bM  fctw,  Kid  maj  most  ceriBinly  be  agBin, 


Graersrs  latbrtnatioi 


[6» 


t  tt  lu  you.   wlim  be  boasied  of  hit 
i:e,  and  his  intrgrily,  and  duty  ;  for  it 


Ihe  mpaus  of  great  peraecutioD,  In  iruth  it 
seems  s  power  necessary  fur  no  good  purjiose, 
and  capable  of  bein^  put  to  a  very  bad  one. 
For,  although  a  man  may  doubt  ivheiber  ■ 
grand  Jury  in  liiues  of  violent  party  would 
always  liud  a  bill  of  indictment  or  present,  yet 
there  can  be  none  bui  that  a  court  of  Kiog's- 
beuch  would  grant  an  Inrormaliun,  wherever  it 
cnnld,  by  any  adtniuiHtratiOD,  be  applied  for 
with  ihe  least  Ibundatinn." 

Aud  in  another  place  he  says,  '*  The  prero- 
irative  which  an  Attorney- General  ansunies  of 
tilinit  an  lalnnnalion  against  whomsoever  be 
pleases,  is  certainly  a  reproach  to  a  free  peo- 
ple; and  if  the  regular  iiiformaiion  awarded 
tinon  special  tiiotion  by  the  Kinu'a  bench  wera 
hkeuise  taken  away,  I  do  doI  think  thecon- 
nlituiion  would  lie  injured  by  it:  in  which  caM 
the  uld  common  Uw  methoil  of  indicting  tor* 
libel,  as  a  violation  nf  the  peace,  would  be  Ihe 
means  thai  every  Ixidy  must  resort  to;  and  in 
my  opinion  a  grand  jury  are  very  competent 
and  the  propcrest  judges,  whether  any  puhli. 
cation  lie  dextructive  to  the  w  etiare  ul  the  state 
or  not."  And  for  ibis  last  clause  which  I  bav* 
cited,  he  refers  to  llie  valuable  treatlKe  upon 
Grand  Juries,  called,  >  The  Sfcurily  of  Eng- 
lishmen's Lives,'  atiribuied  to  Mr.  Soianieis. 

The  attempt  11  ihe  lime  of  ihe  Hevolulion  19 
lake  away  Infnrmatinns  in  the  court  of  King'** 
bench,  ia  noticed  in  the  '  Letter  cnnci-rning 
Libels,  Warnints,'  &c.  ;  bui  I  had  not  the  pas- 
sage in  iny  reculleuliun  when  1  wrote  the  Note 
10  Ihe  Case  uf  sir  William  Williams,  tol.  13, 
p.  1360.  In  the  case  of  Rex  n.  Mary  June* 
and  another,  mentioned  in  that  Note,  the  vexa- 
tious ojieralion  of  the  Altorney-Geoeral's  Infiir- 
malinn  was,  that  it  caused  two  poor  Welsh 
persons,  cunviciedof  aminoroflenceagniostlhe 
revenue  laws,  to  come  from  the  pi  incinalitj 
to  the  bar  uf  llie  court  of  King'n-bench  ul  West- 
miuslrr,  in  order  to  rt-ceive  Judgment,  which 
would  have  been  passed  tipon  them  iu  llieir  owa 
neighbourhood,  if  the  proceeding  against  tbem 
had  been  by  indictni'-ui. 

In  (he  case  of  PhilippB  and  oihers,  Tn'n. 
4  G.  3.  U  Burr.  1Sti4,  lord  Hunstield  declared, 
ihat  ihe  Cuiiri  wouM  iievr  grant  an  Informa- 
tion upon  the  appticaliaii  of  ilx'  Atlamey  Ge- 
neral, in  cases  prmeculed  hv  the  vmwn;  be* 
cause  the  Alt omey- General  has  o  right  hini- 
selffT  officio  10  Filiibit  one:  and  in  the  same 
case  lie  »aid.  "ihe Atlorney-Ueoeral  may,  if 
he  think.*  proper,  suinmoii  the  parties  to  vbe^ 
CBitae,  why  an  Inforiiistloi)  should  not  be  ex- 
hibited, before  he  signs  it." 

And  in  the  caie  of  the  King  t>.  Wjtllani 
Davis  Phillips,  esq.  Pasrh.  T  G.  3.  4  Iturmw, 
9069,  Ue  Grey,  Attorney -Gen  era  I,  having  (on 
the  pan  of  the  crown)  moved  for  a  rule  npon 
the  defendant  lo  shew  cause,  why  an  lolunaa- 
lioQ  sbotild  Dot  be  yarned  agaiiut  biia,  (b* 


.    ?79] 


n  GEORGE  lU. 


u  cerUinly  so]— m  o^io  meaoi,  tbal  wbleh 
lie  don  froin  a  aeuse  ul'  duly,  ir  in  this  yoa 
iyniidi^r  only  jast  what  meets  ibe  ear,  Ihere  is 
lio  liBtin  ID  i\ ;  il  is  a  gooU  ltua]f :  iluly  h  & 
good  lliifif .  But  ir  ^ou  examine  tbe  real  furce 
(ind  ci'iike^npiiceii  ot  Ibe  term,  as  bi^rc  upplied, 
jrou  will  bad  il  ta  coDlaiii  ef  cry  ihing  tbat  cud 
be  itDugiurd  illegal,  unjusl,  HJckeil,  anit  o|i- 

SresBiTe.  Fot  ni,v  own  part,  I  am  utuiiisbed 
lat  Boy  iDBD,  at  this  lim«  uf  day,  exercising 
■uch  powers  as  are  not  according  lu  law,  and 
are  mucb  lesB  according  to  reason,  sbould  talk 
io  jou,  with  an  open  face,  of  inli^'rily,  of  ho- 
tiour,  of  duty,  ofconacieDCe  ;  aad  that,  im-lead 
AfBegravaliiig  aud  sheniog  you  in  ivhst  ibe 
char)(e  ivbicli  be  has  brout^bt  again:,!  mi^,  in 
whal  my  crime  consists,  be  has  employed  baU' 
fcia  barangne  in  Loasliu)^  of  bis  uvrn  cliaracler. 
ir  any  man  in  Ibe  court  who  had  not  known 
fbal  1  was  ibe  defendant  bad  come  io  at  the 
time  ibal  Ibat  gealleman  was  talking  nf  bis  in- 
tegrity, bis  cuQscience,  and  bis  duty  ;  I  auk. 
would  be  ruil  immediately  bave  concluded  that 
Hr.  A tloroey- General  was  ibe  defendant  tben 
making  bis  defence  P  He  must  Let  tbe  gen- 
tleiitau'i  lulegrity  and  honour  be  as  grcstas  be 
tetlsyou  itis;  wbul  baa  Ibal  to  do  niib  me  P 
Wbal  has  Ibat  In  do  with  tbe  change  which  be 
bas  broughl  against  me?  eiccfit  indeed  this; 
thai,  having  notbing  really  Io  charge  me  wilb, 
pe  sets  up  liis  own  ^real,  lumnculate  cbaracler 
■u  oppoaiiJDD  In  mine;  that  you   may  gite  a 


Proceedmgt  againtt  John  Home, 
Terdict  against  me,  berauK  he  i«  i 


Ibe  A  Homey- General  ibongbt  it  right,  ibai  ati 
InforruBiion  shouM  be  granted,  lie  migbt  grinl 
h  himaelf  i  if  he  did  not  think  so,  he  could  not 
crpecltbe  Court  to  do  It:  and  lord  niansfSeld 
Uid,  •'  If  tbe  AltorDey.Geoergl  should  have 
any  dnuhl  about  ibe  propriety  of  it,  he  might 
iend  Io  tbe  person  complained  against,  to  !ibew 
Iiim  cause  why  he  should  not  grant  it." 

Willi  respect  to  an  Attorney- General  send- 
ing to  a  perKOD  to  Ehew  caiuic  why  an  Infor- 
Jnalion  should  not  be  Hied  agsinst  him,  see 
,  what  was  said  in  parliament  upon  tbe  conduct 
of  the  Attorney -General  of  Ireland  in  the  case 
ofPilzpairick,  ad.  18IU,  33  Purl.  Deb.  pp. 
99G.  998.  1081.  1086,  1CS7-  1111,  tt  K7. 

For  more  concerning  the  Infnrmalion  ez 
^cio,  see  the  Case  uf  sir  Wilbam  Williams, 
Tol.  IS,  p.  1SG9.  See,  also,  16  New  I'arl.  Hist, 
pp.  40.  1137.  1175. 

Mr.  Hargrave  has,  more  exteusitely  than  has 
•ytt  appearrd  in  print,  investigated  the  subject 
ttf  the  Information  e.c  officio,  as  well  as  that  of 
Ibe  ejiamioablcness  of  commilmeuts  by  a  tlonso 
nf  Parliament  or  Court  of  Justice,  for  cuntemjil 
or  breach  of  privilege.  1 1  is  Io  he  hoped  thai 
Uie  result  of  bis  investigaliotiB  may  be  made 
pubhc. 

See,  also,  diitinctioos  an  to  the  rights  of  ibe 
Attorney. General  in  mailers  of  prBCii(»t  when 
Be  proceeda  for  l|i«  critwu  as  format  prose- 
cutor ;  and  when  he  prore^ds  for  the  cronn  as 
actual  prosecutor,  iu  S  Slra.  316,  (cit.  Tol.  17, 
p.  3I1J,  audlBurr.  ijlMf- 


d  that  e.r  offieio  eonlaincl 
IS  illegal,  unjust,  wicked 
I  will  prove  it  to  you.    £|i 


tow 

nour,  an  uncorrupi  man,  a  pure  mao  of  intai 
grity,  and  would  not  charge  ne,  if  he  did  oOf 
ibink  me  guilty.  Let  him  think  what  ha 
pleases ;  if  yuu  do  not  think  me  guilty,  I  cae|| 
very  liille  wbal  he  profeanes  to  ibiiik.  I  kn»it 
that  he  is  manly  enough  ;  and  I  honour  thai 
part  of  his  character.  He  bears  a  mail's  bean 
in  bis  bosom,  and  (though  bis  office  has  mwit 
bim  bold  tbe  iMiguage  he  does)  I  defy  him  n«^ 
to  respect  me.  I  know  be  does.  I  am  sut^ 
olit. 

Gentlemen,  1  siid 
every  thing  that  was 
and  oppressive ;  and  I 

o^ciu— (a  liille  specimen  of  il  you  baTescen}^ 
ei  officio  means  a  power  to  dispenae  with  aO 
the  lurms  and  proceedings  of  Ibe  courts  uf  jtu^ 
lice,  with  all  those  wise  precauiions  which  our 
laws  have  laken  lu  preienl  the  iuiioceni  Iroai 
being    oppressed    by    exurbitant    and    uiifuU 

Gentlemen,  I  was  llirown  olTmy  guard.  I 
OH'D  I  was.  I  bad  prepared  an  argumenii 
which  I  believe  bis  loriUbip  perceived:  b* 
therefore  granteil  me  wbal  1  iolended  to  hav* 
iulbrced;  and,  hating  granted  it  to  me,  thai 
grant  was  made  use  of  to  pievenl  we  from 
gaining  any  argument  in  tnawer,  ol'anj'  kind. 
You  must  have  taken  notice  uf  it )  ii  is  yoar 
duly  to  take  notice.  Juries  bave  been  loa 
much  considered  as  men  out  of  court ;  anil 
when  an  apphcaliun  has  been  made  lu  the 
judge  to  determine  upon  a  puini  nf  law,  ib* 
jury  has  been  considered  as  having  nothing  to 
do  with  the  matter.  Nu  more  they  bate,  in- 
deed, to  decide  il.  But  tbe  jury  has  this  to  do 
with  the  matter:  Ihey  aie  to  make  a  true  de- 
liverance ;  and  they  will  see  and  will  judge 
whether  the  defendant  has  justice  done  Itiin 
or  not,  even  in  the  practice  of  the  court.  I 
know  nolbingof  tbe  law  :  I  am  not  sorry  for 
Ibal:  this  is  not  a  queslion  of  law;  and  I  am 
happy  Io  bave  Mr.  Altorney-Geoeral's  autlio- 
rily  to  say,  that  it  is  "  the  plainest,  the  siiu* 

E lest  question ;  and  that  it  was  too  obvious  fui 
im  to  foresee  adifficully  inll."  Hesaid.  itwat 
"  the  pUiinesI  of  all  ibe  plain  and  simple  mat- 
Ifrs  thai  were  ever  laid  belbre  acouri;"  and 
being  so,  you  are  the  best  jodges  of  it.  Afl4 
indeed  the  nature  of  a  lihcl  always  makes  a 
jury  tbe  best  judges  of  it;  fur  a  lilwl  (if  il  b* 
m)  is  intended  foi-  miMhief :  it  must  therefore 
be  inlelligible  to  the  people,  or  no  mischief 
could  be  produced  by  it.  If  a  man  writes  a 
lihel  that  a  common  jury  could  not  undernaud, 
(aud  you  are  a  special  jury,  genllrmen)  ha 
must  tail  in  his  design.  Obseive  iheu,  grallc- 
men,  this  adTerlisement  is  Ibe  plaiiieht  aud 
simplest  uf  all  the  mailers  that  were  ever  laid 
before  a  court  io  which  the  Attorney -Geaeral 
UBS  concerned :  and  in  ibese  two  yeun  and  a 
quarter  Ibal  be  has  bad  Io  bring  it  to  trial,  faa 
has  not  been  able  to  see  a  difficully  in  il;  aarf 
yet  he  bs>  had  a  special  jury  lo  delenniue  tl ; 
a  commoD  jury  could  not.be  left  10  delcrmin* 
it:  and  (ball  will  ezplaiaWjaubuufuti  I 


JiiT  a  ImkH, 

VTvy  veil,  that  not  only  juries,  but  many 

other  penNoit  wbo  apply  ef  en  lo  tlic  praciiue  of 
the  la»,  never  trouble  itieir  bead*  lo  inke  inl« 
GOiMMlerMion  allof  el1i«r  the  epurniou!!  wkke4- 
nn*  of  ibe  imwcri  cJaitneiJ  in  ituu  »nfl  ol'  [iro- 
aecutioD.  Il  ilioll  he  my  buiiness  therelbrt  to 
«x{ilain  it  to  yun.  You  fhall  judge  of  the  ho- 
Buur,  anil  integrity ,  ■nilcuUBcienoenftlusgcu- 

tFD  whn  UK  lliHiii  and  eujny  tliem. 
id,  finl  of  til,  an  iolorinalion  mrans  no 
idiaa  an  accusatiuo.  Ap^teaj,  inilicirneni, 
nwlktn,  are,  as  I  take  il  (sihI  1  ahall  hi 
eted  if  I  am  wrong;  it  will  be  well  cor. 
J  bulb  by  tbe  Atlurney- General  and  Uie 
Itidge) — I  take  il  ibey  mean  uo  inure  ibati  ac- 
cuMtKin  ;  and  Ibey  have  a  ililTerent  specific 
name  lircauae  orihe  different  maiioer  in  wliicL 
Ibal  aecuMlion  ii  brought  liirwnrda,  Th«ii, 
ffroUeoieii,  ihi*  ia  an  accunatiun  by  duly  ;  oul 
ulduiy:  and  by  this  ineaos,  by  ibis  his  duly, 
}hc  AllOruey-CIeneral  is  enabled,  contrary  to 
~'  ~  'iwanl'tuelaad,  lu  accuse  w bum  lie  pleases, 
|fbai  be  pleases,  and  Hlien  be  plesaeR. 
^he  pleaset)  lie  nnly  accuses  llkem,  and 

■  brin^  it  to  trial :  he  guea  on  barassini^ 
pbjecl  wiib  inform ulioii  upou  jnrormatioD, 

■  fleaaea,  and  never   brinics  ibu  man  to 
If,  biiwefcr,  out  of  his  mercy,  or  oul  of 

Nttment,  be  iluex  cbuse  ai  U«i  to  briufr 
Irial  i  wby,  genliemea,  he,  in  general, 
llbjr  whom  be  pleuaes.  Gentleman,  when 
~  ea  to  trial,  he  trie*  it  iu  what  manuer  be 
I,  he  takes  wbat  adTtutages  he  pleases, 
be  eiveu  I'lir  those  advan- 
I  (•entleinen,  during  the  cuurae  and  pro- 
»f  tbe  trial,  il',  11011*  itbaland in g  ihose  ad- 
B  baa  al(>-ady  taken,  be  aeei  anine 
Mpcct  that  the  rcrdict  i*  likely  to  go 
),  ba  dainia  a  right  to  stop  it  if  he 
I,  willtuut  any  ilecitiun  ;  for  be  claims  a 
(i«hi  to  wiibdraw  a  juror,  aa  il  ia  called  ;  ihal 
uioaay.  You  ahall  uol  come  on  lo  a  verdict. 
Tbe  Atlnrtiey-Genvral  muil  not  deny  it,  unless 
Udeed  the  practice  of  the  Court  i*  cbauged  in 
Ikat  particular. 

Tb«  practice  of  tbe  Court  we  see  does  sooie- 
li»ci  clisnge ;  for  I  have  it  oovr  from  the 
Ja4((,  that  iu  all  eases  the  jirasecutur  bus  a 
ti^  to  re|ily  1  whidi  truly  1  did  nut  belure 
%»k  in  be  tbe  practice ;  but,  bowrtrr.  tbe  Bar 
Miiake  uolii^  now  ;  for  tbey  wid  smiu  have 
(UN  ID  whicb  they  may  enjny  that  bcnetit  and 
tritil«((e,  il  it  be  one ;  the  proaeciMar  baa  a 
iifhl  ID  r«ply,  even  tbougb  uo  erkletu.'?  ii 
taHad  lor  the  iMouilsat.  I  altnlt  aee  mms 
■M«  iMW  lUTlboda  of  pruceeding  in  Inula  ;  I 
^a  seen  a  good  many.     I  tbink  Ibere  mum 

Mas  with  ■pLTitBuaugb. — suuu;  gi^nilaiwiB  or 

Inuov  I  hope  ihere  are,  wlwi  will  (ufmii 
bI  wMra  tbey  niaji  be  (irnsecuton),  who 
s  U>Bl  aillaillag*  that  has  liecu  allowed 
mU  viH  O&r  m  reply  where  aned- 
iwlhij  'I'bere  w<r«  sime  ball'  wonta 
'  drapiwd  al»nl  xiaitar  ul'  law,  but  1 
ilin»beBBd«(il*)n. 
i-kuif.Uw.A»>miej>-0«nc>ltlo»Mil 


A.  D.  1777. 


ffiSS 


■lop  Uie  cawe  triihnut  coming  lo  a  deciiion, 
bill  thinks  be  ahall  get  a  verdict  in  bis  ow« 
favour,  and  iheielore  auflers  tlie  cause  lo  ga 
on  ;  if  be  loties  ibe  verdict,  be  suiTers  noue  of 
ibuse  displeaxiiig  iM>oae4uencea  which  olber 
Dieo  mull  auffer ;  rvr  the  i;rt)wn  pays  no  coals—. 
linnaat  all: — he  can  pniaecule  aa  ofleo  as  bt 
(deases,  and  wbmn  he  pleacen,  and  paya  ■• 
cults!  Out  ihal  is  uol  all.  Muppoie  be  baa 
f^inrlclrd  sis,  bcven.  or  eight  men  iiir  tbe  saoM 
oSeuee,  he  exercises  the  sovereign  power  of 
pardon ;  be  calls  to  judgment  whii'h  of  tbem 
be  pleuea.  and  leis  go  by  wbidi  of  ibem  Ii« 
pleases.  It  haa  huppeaed  in  tbe  proseciititn 
iiir  Ihis  very  paper: — out  of  Several  cuaiicu^ 
but  ibiee  have  been  called  up  to  jiiitgment. 
Tliat  to  aome  part  1  shall  explain  to  yon.  BtK 
Ibst  ia  not  all :  the  man  or  ibe  men  whom  h* 
Cilia  up  tojudgmenl,  lie,  llie  pruieculor,  ag. 
gravaies  their  punisbinenl  a*  Ite  pleaaaa;  »a^ 
that  I  will  prove  to  you.  Iu  Ibal,  I  Ibiuk,  J 
ahall  not  be  conlradicled,  becauae  1  have  ibc 
aulboriiy  of  Ibe  judge  who  is  uow  Iryiugtbas 

So  tlial  in  every  stage  of  Ibe  busineaa  voa 
will  fiod  that  there  is  an  uojual,  an  illqal,  a 
wicked,  and  an  oppressive  adrauiage.  And 
that  you  may  net  think  that  1  am  ileclattning 
wilhoiil  any  pruufs,  I  will  bo  far  trespaia  ii)Hm 
your  lime  as  to  coiue  a  bllle  more  to  parti' 

Aod  firat,  gentlemen,  for  Ibe  beginning  of 
such  a  prosecution.  He  brings  it  on  aa  ha 
pleases;  he  bas  no  resort  to  a  grand  jury,  vt 
Ibecoiiniry  Iu  accuse;  but,  contrary  toexprest 
law,  and  what  ia  much  stronger,  contrary  M 
the  tlrangfist  sad  tbe  very  fundamental  reHoo 
of  tbat  law,  be  has  no  recourse  at  all  u>  a  grand 
jury  ;  and  tbat  beosnie  il  ia  tlie  preleiided  suit 
of  the  crown.  Now,  genileiiien,  if  we  waM 
10  eQi|uire  (wbicb  is  not  ofien  done,  I  know, 
iu  court*  ol  Justice)  wby  any  gi'aud  jury  i'  why 
a  grand  jury  at  all?  It  is  not  owing  lo  lUa 
oalure  of  the  iilTeave;  grand  juries  are  id 
capital  ulTeiicea  and  in  sioall  nffences.  Wby 
are  a  grand  jury  to  find  the  accusaiion  ?  for 
vou  must  luit  be  Ird  away  by  technical  leriM. 
Inl'orination,  appeal,  iudiclioeut.  all  mean  OM 
and  the  '  "       '         '     ' 


Tlien  why  Bgrand  jurv?  I  would  lell  ynn 
in  my  own  words,  il  1  liatl  nut  ibe  wonls  of 
a  (lermu  more  to  b«  reliecl  upon.  Sir  Jobn 
tUwlensay* — these  are  Ins  words — "Tbetrua 
reason  of  a  grand  jury — " 

But,  genikiiuen,  I  aball  jiiat  obviala  an  ob- 
jeetioQ  firai,  because  1  shall  not  have  an  op- 
pi)i«untiy  slier  11  is  made.  It  may  lie  objeoitiii, 
ihat  i  bute  take!)  ihis  from  Ibe  :*ute  Trials; 
anil  I  ba*e  beard  from  tiie  beueh  tbat  the  S[aM 
Tnsls  are  no  aulboriiy.  I  bave  aUu  beard 
I'roHi  an  ufKcir  >ery  high  in  the  law,  atiJ  of 
very  great  ai-knowleilged  abilities,  who  ajts  by 
Uie  Side  of  tbe  Atlamey-Geaanl,  tbat  lUcy  ate 


683] 


17  GEORGE  ni. 


Proeeedingi  againtt  John  HonUf 


rflu 


ft  mocli  better  aatbority  (1  fpeak  it  beetnee 
1  heard  bim  say  so)  that  they  are  a  much 
better  aothority  than  the  scrawl  of  a  Dame- 
len  Reporter.  But  I  will  tell  you  why  the 
Bute  Trials  ia  certain  cases  are  the  best  ao- 
thority ;  and  thatgis,  for  this  reason:  becaose 
they  are  equally  good  authority,  whether  what 
Aey  relate  is  true  or  false.  It  is  a  strange  as- 
•ertiOD,  but  their  aothority  is  eaually  good  for 
the  purpose  for  which  they  are  brought,  wher 
thef  the  things  they  tell  are  true  or  false,  t 
hsfe  heard  them  called  from  the  bench  (and 
called  so  for  very  good  reasons)  "  libels  opon 
the  jud^."— ''  The  State  Trials  are  so  far 
from  being  an  authority,  that  they  are  libels 
vpon  the  judges.'* — ^Are  they  so  ?  Then  they 
are  stHI  better  suthority  than  if  they  were  true ; 
that  is,  authority  for  the  purposes  for  which 
they  are  brought ;  that  is,  for  the  condemna- 
tion of  the  wioced  doctrines  which  they  expose. 
For  are  they  libels  upon  the  judges  ?  Was  the 
intention  of  those  who  wrote  them  to  blacken 
their  characters?  Would  the  libellers  then  at 
that  time  of  day  (some  a  hundred,  two,  or  three 
hundred  years  back,  or  according  to  the  length 
of  time)  would  an  enemy  hare  put  into  the 
judges'  mouths  doctrines  which  were  honour* 
able  P  No ;  if  he  intended  to  libel  them,  be  has 
falsely  made  them  the  propagators  of  those 
doctrines  which  their  souls  abhorred.  Can 
there  then  be  a  stronger  evidence  abo|it  the 
opinion  which  men  had  formerly  concerning 
these  doctriues?  If  there  cannot,  then  there 
can  be  no  stronger  autliority  against  the  doc- 
trines exposed  by  the  State  Trials.  True  or 
false,  the  State  Trials  are  the  l>f st  authority 
which  can  be  had ;  and  better  if  they  are  false 
than  if  true. 

Then,  gentlemen,  1  will  proceed  to  my  au- 
thority :  **  The  true  reason  of  a  crraud  jury  is 
the  vast  inequality  of  tbe  plaintiff  and  defen- 
dant ;  and  therefore  the  taw  has  given  tlits  pri- 
vilege to  tbe  defendant  on  purpose,  if  it  were 
possible,  to  make  them  equal  in  the  prosecution 
and  defence,  that  e<|ual  justice  may  be  done 
between  both.  It  considers  that  the  judges, 
tbe  witnesses,  and  the  jury,  are  more  likely  to 
be  influenced  by  the  king  than  by  the  defen- 
dant :  the  judges,  xs  having  been  made  by  him, 
and  as  it  is  in  his  •  <>wer  to  prefer  or  reward 
them  higher:  and  i hough  there  are  no  just 
causes  fortbeni  to  Siiain  the  law,  yet  there  are 
such  cau:  3S  nhich.  in  ail  ages,  have  taken 
place,  an«<  pn»lMbly  .-ilways  will.  Nor  was  it, 
nor  is  it,  possible  but  haf  tbe  great  power  of 
enriohing,  iionouring,  :!nd  rewarding,  lodged  in 
the  king,  -ilwa^s  had  .ind  yet  must  have  an 
influence  ;m  the  witne:  * '  s  and  jury ;  and  tliere- 
fore  ii  is  .hat  tlie  bw  \:.\s  ordered  that  at  the 
king's  pr^xiecution  no  u.-An  shall  be  criminally 
question*':"  (this  is  a  r-iminal  question)  **  no 
man  sb'jtO  be  criminal  v  questioned  unless  a 
grand  jot  y,  upon  their  oi-«i  knowledge,  or  upon 
Sie  evidence  given  them,  ^''ill  girea  verdict  that 
they  reaiiy  Mitve.tbe  ai  jusation  is  true.''* 

.    .  ;  Sea  vol.  b,  p.  898. 


1ft  i^entlemen,  there  are  other  roaaoni  flbr  a 
grand  jury  than  these,  if  there  are  othen,  yo« 
will  have  them ;  and  though  it  will  oot  be  par* 
roitled  to  me  to  do  (what  with  the  utaaost  ci- 
tent  of  my  ignorsnce  of  the  kw,  which  it  vciy 
great,  I  am  atill  aure  I  could  do  by  coHMaeo* 
sense  and  reason— i  toean,  refute  those  n^ 
reaaoDs;)  1  aay,  though  I  ahall  not  bo  per- 
mitted to  do  that  here,  voo  and  all  the  worU 
will  be  able,  at  your  cooler  boors,  lo  determine 
opon  the  force  of  those  reasons  that  shall  ks 
given,  from  whatever  authority  they  bmj 
come.  And  in  this  respect  1  shsll  be  happy; 
for  1'  shall  have  the  honesty  and  tbe  unocr* 
atanding  of  the  public  at  laive  to  judge  of  tboM 
doctrinea  which  my  imbecility  might  not  per- 
mit me  sufficiently  to  refute. 

Gentlemen,  it  is  true  that  the  court  of  Kin^t* 
bench  haa  also  assumed  a  power  of  aecoM 
men.  They  say  they  may  safely  be  trauM 
with  it.  1  believe  their  claim  illegal;  but  I 
have  nothing  to  do  with  it:  and  1  acknowlsdga 
that  it  is  much  aaier  there,  than  in  the  bsMi 
of  an  Attorney- General,  who  is  whipped  iassd 
whipiied  out  just  as  the  minister,  whose  fiiml 
he  is,  goes  in  or  out.  ■ 

But  that  is  not  all.  The  court  of  King*!- 
bench  cannot  grant  an  information  without  m 
affidavit,  without  an  accusation  upon  oatb ;  ai 
one  of  the  judges  of  the  court  of  King's-bcsch 
can  do  it ;  and  yet  they  are  a  little  more  is- 
dependent  (they  nave  fewer  hopes,  and  there- 
fore fewer  fears)  than  the  Attorney- Genenl; 
yet  no  one  of  tbe  judges  of  the  court  oaa  ac- 
cuse a  man.  it  must  be  tbe  whole  court,  ui 
they  must  do  it  in  consequence  of  an  oath.  If 
I  am  wrong,  you  will  have  the  pleasure  ofcoa- 
tradicting  it  (tuniintr  to  tbe  Attorney  Gencrii). 
But  the  Attorney- General  accuses  men  neitlicr 
upon  the  oath  of  others,  nor  \et  upon  hisows 
oath.  If  he  believes  the  matter  of  ilie  atrcuii- 
tiou  true,  it  is  but  tlie  belief  of  oue  man,  %ni 
he  a  prejudicf>d  man,  and  the  most  im|tn»fier 
man  in  the  kingdom  for  hm  aultiorii}  to  be 
taken  in  such  a  case.  But,  ireiitteiiHMi,  what 
is  much  worse,  it  frequeiill\  ha|)|M*ns  that  oo 
man  whatever  avows  the  accusation,  or  bt-lievei 
it;  no,  not  the  Attorney -General  himMlf  wlis 
flies  the  inlbrmation.  *  I  will  pro%e  it  h>  and- 
by,  even  in  the  case  of  the  Attorney -(it-neral 
who  flled  this  declaration.  Genilemen.  I  sbaM 
desire  by-and-hy,  for  your  satisfuctum  and 
mine,  to  And  out  whether  there  is  one  man  ia 
the  country  that  believes  me  gtitlty  of  tbs 
crime  laid  to  my  charge ;  a  crime  of  that  oa* 
ture  that  is  to  have  a  punishment  ««hich  il 
called  by  the  law  a  temporary  death,  an  txda- 
sion  from  society,  imprison  nent.  Tlie  appa* 
rent  ot>ject  of  this  prosecution  is  to  take  t»lisl 
little  money  out  of  my  jKicket  I  may  bava 
there,  and  to  imprison  me,  and  so  exclude  las 
trom  that  society  of  which  1  hate  rendered 
myself  uaworthy.  However,  1  ha%e  the  pka* 
sure  to  see  that  there  sits  a  geutlemau  by  ilM 
judge  who  ia  now  trying  nse,  who,  aa  well « 
myself,  has  charged  the  kiog's  troops  with 
nuudcr }  a  charge  wbiok  si  Ibit  tint  tsoHi 


1 


le  fwgt  iiul  lb«I  {[Enileaisn  hare  been 
■u^biDif  »ll  lh«  time  of  iliia  Irist ;  tlif;  liate 
■lynynl  carlt  niher'a  cvm|jany  excesdingly  [a 
rreal  Uu^h  Tor  sonie  minulFs  of  the  h  hole  au- 
lienM'1.  VVfrll,  icenllemen.  (Iurniii|r  luvrards 
Mil  ManififUl  anU  Mr.  Wilkes)  I  hufecautei} 
iiMtlier  liugh  bctMtf  n  ilie  i^ntleiaen  ;  but  il 
fitn  Me  pkuure  tulhink,  thai  ireier  I  am  la 
Mm*  01)1  vf  iiriioti  aKairi  (if  you  arc  so  kiail  ai 
Lo  piit  me  iherf)  1  tai>  mny  liaf e  the  boonur  (if 
Il  be  onr)  ufsitlin)f  cbirck  hy  cheek  with  ibe 
iad»,  anil  laug^liing  at  tome  olber  libeller.  1 
NJiT,  if  I  cnine  out  a^in — becauie  ifil  ii  )>os- 
■ible  thai  I  ihuiili]  be  pul  Ibere  fur  lUi«  cbarge, 
1  hdtere  thai  will  neier  ba|i|ier).  I  will  never 
MMe  repMlini;  the  chaise  I  hare  made,  till 
IbiMM  men  are  leKallv  Irieil  anil  acquilled  nlm 
an  Euiliy  of  ^vliai  I  call  murUer.  I  will  not 
U e-mlentti)  with  one,  uor  »ii1i  ivro,  nor  with 
twftiiy  juHei.  I  will  repeat  Ibe  cbai^  nf 
Tmmler  ii|H>ii  ibe  Iroops  etery  ilay,  if  this  ilw- 
'■II. f  g««  M  far  even  as  tu  a'ltnubi ;  and  I  call 
,  <ri  (be  .(itoroej' -General  now,  if  he  may,  if 
'  >  i»n,  if  lie  will  venture  wilboiil  tbe  |ier- 
iiii%i.ion  of  lUute  luinislera  wboie  bnmbte  aer- 
tiW  alone  be  iaj  if  he  may  venture,  I  call 
Opun  bim  lu  pleil^  himtelf  lo  brinK  an  infnr- 
maiiau  for  a  anlitionit  libel  a)[ainii  Ihe  king 
••d  ibe  itorerniDent  every  time  1  cbaiiire  Ihe 
tnMpa  with  murder.  I  pro<niie  hiro  I  will  jipve 
liim  buiiiiMa  enough,  and  1  ho|i<^  he  will  (if  he 
tiuy  venture  to  do  ll}  iiromise  to  gtu  an  tnfor- 
muiDn  every  lime  I  charge  them  with  murder 
*hn  ihey  coramit  it. 

Bui,  gentlemen,  T  have  tvandpredi  lbou(;b. 
<f  I  iRi  lo  he  ihul  up  ID  soon,  a  few  excuriiona 
Wforc  it  may  lie  excnsed  me. 

The  Atlorney- General  iloea  not  apply  (hen 
to  Ilia  tcrand  jury,  and  there  is  no  peraun  nhose 
Keaaation  upon  oath  it  ia. 

Wben  be  has  filed  hia  infurmalion,  be  pro- 
wdi  or  not  opou  it  as  he  please*;  he  files 
'nab  iul'urmaiiona  if  be  pleases,  when  hi! 
llnaM,  M  often  as  be  pWaaea;  be  ums  il  if 
w  pleaaen  ai  a  vexatious  metliod  ivhich  may 
iiran  and  ruin  and  deslroy  the  {[realest  Ibr- 
hiae  ia  Ibix  ciiuutry.  Il  hna  been  used  vexa- 
Inuily.  I  do  nul  say  by  the  present  Atlnrncy- 
Uocral  I  I  do  altaalulefy  acijuil  him  of  thai ; 
k*  unit,  ibat  I  know  of,  ha«  been  ^uilly  of 
'•ill  prautive ;  but  I  do  know  Attorney-Ge- 
''ilt  who  bave  :  htil  that  1  may  not  seem  lo 
'I  ill  ibe  world,  I  will  not  meolion  them  nor 
-  (■*«.•  When  the  Atlnroey-General  has 
'  I'lflii  hii  BL'Ciisaliuni  and  renewed  und  de- 
'  '-'I  it  •*  murh  aa  he  pleitiea,  if  he  ehases  to 
'  '  It.  I  ««id,  he  Iriea  it  by  almoil  whoi:i  he 
.  'iva.  It  may  Brem  pcrbapa  a  atrangelbin^ 
>'  HIT  lo  aay  W  a  jury  who  are  Irying  my 
''"r  1  hut  il  1*  ■  foci ;  fur  he  is  alwaya  sure 
'  I'ltea  'pwialjiiry  lor  Ibe  trial  of  tbisaiirtof 
'i^-icr.  L-M  ID  always  irird  by 
i-  I      N-.W  ibia  «eem<i  a  trry 


^irthC" 


'  "HiH  ■lliiaion  w.is   I   Lebeve  Jesiirued 
Wr  M  air  UwUry  Itydcr. 


A.  D.  1777. 

KT  IBere  ja  an  expence  attending  il.  ^  _ 

lemao,  1  auppose,  would  not  be  thought  tu  btt 
jniiecessorilv  lavisbofllie  income oflbe  crown, 
which  has  lately  been  found  so  deficient  i  be 
surety  would  not  voluoiarily  throw  it  away. 
And  yet  a  man  thai  came  from  Brentford  (mj 
clerk  formerly)  had  two  {juinesB  for  bis  ex- 
pences.  He  is  a  very  honetl  man ;  it  was  ft 
very  luckv  mutlt^r  fur  him:  I  wish,  for  hii 
sake,  that  be  might  be  called  a  witness  against 
me  once  a  week  upon  such  a  prosecullon. 
Now  if  Ibe  ground  uf  the  charge  happens  lo 
be,  Bs  this  is,  "  of  all  plain  and  simple  rnattera 
that  ever  were  laid  hefure  a  court  the  moat 
simple ;"  il  is  a  very  strange  circumstance  that 
tbe  Allomey- General  shoidd  chuse  lu  have  ft 
apeeiat  jury  lo  try  a  lliiog  in  which  there  !■ 
nothing  special !  Special  juries  were  never  id- 
lended  or  appointed  fur  ibal  purpose.  They 
were  inlendeil  lo  examine  into  merchants  ko- 
couota,  or  any  criiital  or  nice  matter ;  for  yom 
know  we  are  told  that  you  have  nothing  to  do 
with  tbe  law  :  yon  do  not  therefore  want  anw 
legal  education ;  and  yelapecial  juries  are  al- 
ways made  usenf  in  mailers  of  libel.  And  in- 
deed why  should  Ibey  not  ?  Il  cosia  the  At- 
torney. General  noibiog.  In  the  ca»e  of  any 
other  prosecutor,  it  would  l>e  at  bisexpeoce; 
but  (be  crown  pays  this,  that  Is,  the  people  pay 
it  against  ihemselvea.     However,  ilial  is  no 


look  ai 


iflhe 


last  year  1776,  as  ibey  are  delivered  in  to  par- 
liament, you  will  find  that  they  arouunt  to  the 
lillle  io«ienificant  sum  of  60,000i.  A  defendtat 
against  ihe  crou  n  ia  in  a  blessed  siluatiun  1  But 
as  the  expence  Is  no  reason  against  Ihe  Allor- 
ney-General  chusing  lo  Iry  il  by  a  special  jury, 
lie  has  a  very  strong  reaacin  for  chusing  a  spe- 
cial jury  ;  and  thai  is,  because,  by  thai  means, 
he  Irien  It  by  almost  whom  he  pleases :  I  do 
not  mean  by  tbe  particular  individuala  whom 
he  pleases,  but  generally  by  Ibat  deacrlplion  nf 
men  that  he  iileases.  Now  Ibia,  genllemen,  is 
pnrlicuUrly  unfortunate  io  my  case  ;  for  tttc 
Attorney  General  said  {I  heard  bim  say  it  npoa 
the-firsi  trial  for  this  advrrlisemeni)  that  nine- 
(enihiof  the  people  appn>vcd  of  all  the  mea- 
sures of  Ihe  ministry  relative  to  America.  The 
method  uf  striking  a  special  jury  seems  at  first 
sight  fair  enough.  Forty. righi  men  are  itruck 
from  a  hook.  The  defnndaol  and  the  prose- 
cutor eacli  strikes  off  twelve.  Thai  seems  very 
fair  and  just;  but  it  is  vviy  far  from  being  so 
fair;  forifniue'teolba  of  the  petiple  (which  he 
h  I  msel  I  acknowledged)  are  ol  (bm  wny  of  think- 
ing (a  way  of  thinking  ronirary  (o  «bat  I  may 
well  seem  lo  he)  you  will  observe  thai  the  At- 
torney-General  strikes  off  iwo-teoihi  and  half 
a  tenth  out  ofthe  furty-eigbi ;  so  that  be  will 
be  sure  not  to  have  one  man  of  my  way  of 
(binkini;  concerning  America:  1  mean,  it  will 
be  so,  if  at  kaat  they  know  what  Ibey  a  eslwnt : 
so  thai  ytw  we  ihrre  is  sure  lo  be  a  litlle  pre- 
jiid  i-e  Btrsinst  the  drfendont  in  Ibe  minds  ol  lh« 
jury.  |i  h  line,  indeed.  iliaLlbe  opinion  i'<  th« 
jury  CDDCernrng  Ibe  measures  relative  to  Ani^ 


887] 


17  GEORGE  in.  Pneeedingt  agmuf  John  Home, 


[68S 


Item  hss  notbioif  fairly  to  do  in  this  caiim  ;  bat 
the  prejadice  may  be  extended  frooD  one  things 
to  the  other,  rfe  all  know  fery  well  bow 
men's  minds  are  apt  to  run.  But  that  is  not 
all.  This  prejodioe  .will  be  the  case,  even 
thougrh  the  special  jary  are  fsirly  struck :  but 
they  are  not  fairly  struck.  I  believed  so ;  but 
J  never  was  sure  of  it  till  this  case  of  mine : 
and  whatefer  I  may  suffer,  I  think  it  a  cheap 
purchase  to  know  what  I  now  know  by  this 
means.  The  suecial  jurors  in  the  counties, 
especially  in  Middlesex,  great  numbers  of  them, 
are  qualified  by  the  crown ;  they  are  esquired 
by  the  crown ;  and  these  crown  esquires  al- 
ways attend  upon  the  special  juries.  In  the 
ciiyt  gentlemen,  to  which  you  belong,  you 
know  fery  well  whether  the  description  of 
merchant  has  or  has  not  changed  within  some 
years  past.  You  know,  I  dare  say,  many  of 
you,  what  merchants  were— what  merchants 
are.  You  all  know  well  that  the  very  numerous 
and  extensiffe  contracts  which  are  going  for- 
ward bring  a  swarm  of  merchants  in  amongst 
you.  Every  man  that  has  a  contract  becomes 
a  merchant ;  every  man  that  has  a  contract  is 
liable  to  be  struck  upon  a  special  jury,  and  he 
is  siire  to  attend,  if  he  is  taken :  and  you  must 
observe  besides,  that  the  Solicitor  of  the  Trea- 
sury, who  is  constantly  in  this  employ  of  strik- 
ing special  juries,  knows  all  the  men,  their  sen- 
tinnents,  their  situations,  their  descriptions,  and 
the  distinction  of  men. 

Now,  gentlemen,  for  the  method  of  striking 
a  special  jury,  which  I  shall  not  wonder  that 
you  are  not  acquainted  with :  and  for  the  coun- 
sel, it  is  a  matter  that  they  are  not  concerned 
in.  Observe,  I  do  npt  lay  these  things  to  the 
charge  of  the  Attorney-Greneral ;  he  only  uses 
the  powers  which  others  put  into  his  hands..i— 
The  special  jury,  you  may  imagine,  are  taken 
indifferently,  and  as  it  may  happen,  from  a 
book  contaniing  all  tlie  names  of  those  who 
are  liable  to  serve.  I  thought  so  when  I  read 
the  act  of  parliament  appointing  the  manner  in 
which  they  should  be  taken ;  but  when  I  came 
to  attend  to  strike  the  special  jury,  a  book  with 
names  was  produced  by  the  sherifTs  officer.  I 
made  what  I  thought  an  unexceptionable  pro- 
posal: I  desired  the  Master  of  the  Crowu- 
Office,*  (whom  I  do  entirely  acquit,  and  do 

^  Within  the  period  of  a  few  years  after  this 
trial,  Mr.  Home  (I  have  not,  m  my  cursory 
inspection  of  Mr.  Stephens's  Memoirs  of  him, 
discovered  when  the  additional  name  of  Tooke 
was  assumed)  twice,  as  candidate  for  a  call  to 
the  bar,  presented  himself  to  the  Masters  of 
the  Bench  of  the  Inner  Temple :  and  upon 
both  occasions  sir  James  Burrow  voted  for  his 
call.  The  former  of  these  attempts  by  Mr. 
Home  Tonke  to  be  called  to  the  bar  was  made 
in  Trinity  term  1779;  when  only  three  benchers 

Sr  James  Burrow,  Mr.  Baroo  Maseres,  and 
r.  Wood)  voted  in  hisfkvofir,  and  eight  voted 
against  him.  Upon  tbia  occasion  the  benchers 
or  the  Inner  Tsnkple  bad  consnited  Hiose  of 
Ibt  otb«  thnt  luM  ^  Court  respectiog  the 


not  mean  the  slightest  charge  upon)  T  desired 
the  Master  of  the  Crown-Office  that  he  wookl 
be  pleased  to  take  that  book ;  open  it  where  be 
would ;  begin  where  he  wouldy  at  the  top  or 


propriety  of  calling  to  the  bar  a  gentlemift 
m  priest's  orders  (Mr.  Home  had  received 
priest's  orders).  Eleven  benchers  of  Lincola's- 
mn,  who  took  the  matter  into  consiteation,  re- 
ported, June  16, 1779,  their  unanimous  opioiHi 
that  it  was  not  proper  to  call  to  the  bar  a  per- 
son in  priest's  qrders.  And  a  verbal  answer, 
expressing  a  like  opinion,  was  sent  from  the 
benchers  of  the  Middle  Temple  and  of  Gray'ii- 
inn.  See  9  Luders's  Rep.  of  Election  Case^ 
p.  381,  Note. 

Mr.  Tooke  made  his  second  attempt  to  ks 
called  to  the  bar  in  Trinity  term  1789.  At  tkii 
time  lord  Shelbnrae,  af^rwards  the  first  mar* 
quess  of  Lansdowne,  was  First  Lord  of  tbs 
Treasury,  and  as  it  was  known  that  he  wished 
well  to  the  application  (as  did  his  fViend  M 
Ashburtoo),  It  is  probable  that  a  sQccessfal  is- 
sue was  expected :  the  attempt  however  faiM. 
I  believe  that  in  favour  of  Mr.  Tooke  voted  tbs 
earl  of  Suffolk,  sir  James  Burrow,  Mr.  Bana 
Maseres,  and  Messrs.  Coffin,  Jackson,  aid 
Wood ;  and  that  on  the  other  side  voted  Meiwii 
Annesley,  Daines  Barrington,  Baron,  BarMi 
Beareroft  (in  1788  Chief  Justice  of  Chester)^ 
Coventry,  and  Hall. 

In  Mich,  term  1793  the  benchers  of  the  loDcr 
Temple  sent  to  the  other  law  societies  an  ia- 
quir^,  whether  a  person  in  deacon's  orders  was 
admissible  to  the  bar.  In  Trin.  term  1794,  a  de- 
legation from  the  other  societies  met  a  depots- 
tion  from  the  Inner  Temple,  at  which  aggrvgals 
meeting  it  was  the  opinion  of  all  the  depntiniC 
the  four  Inns  of  Court,  that  a  |>erK(in  in  deaoon'i 
orders  ought  not  to  be  calleil  to  the  bar.  la 
that  same  term  Mr.  Tooke's  name  b^iug  agsia 
inserted  among  the  candidates  for  adnnssioB 
to  the  bar  no  bencher  moved  his  call. 

Particulars  concerning  the  last  mentioned 
proceedings  am  to  be  fuund  in  the  Order  Book 
of  the  Inner  Temple;  in  the  Black  Boi»k  of 
Lincoln's- inn,  under  dates  Dec.  IS,  1793,  Juss 
9,  July  9,  July  39,  1791 ;  and,  I  conjecturS| 
among  the  documents  of  the  other  societies. 

It  may  be  observed,  that  on  April  30th,  179f| 
Mr.  Tooke  had  in  person  conducted  hi«  defenos 
to  an  action  instituted  by  Mr.  Pox.  for  certiia 
costs  occasioned  by  a  petiti<m  against  his  retuni 
to  parliament  as  member  for  Westminster,  li 
the  minds  of  those  who  wished  to  preserve  tbs 
decencies  of  the  tribunals  (»f  justice,  and  IS 
guard  against  wanton  insults  to  her  minisieis, 
Mr.  Tooke's  de|K)rtnient  in  that  iraiMe  of  bis 
own,  could  not,  I  lliink,  excite  oreneourairesa 
inclination  to  authorise  him  to  conduct  tbS 
causes  of  ottiers. 

in  the  case  of  Hart  (Pasch.  20  Geo.  3,  fi* 
ported  in  Dougl.  353)  lord  Mansfield  Uid  down, 
that  *'  all  the  power  of  the  Inns  of  Court  roarer^ 
ing  admission  to  the  bar  is  delegated  to  ibeia 
from  the  judges,  and  that  in  every  instance  lb* 
eoadact  of  those  societies  ia  sulked  t»  ibe  cmi^ 


> 


s 

I 


i 


I 


I 

i 

1 


Jor  a  liheL 

mttODi ;  and  only  take  the  first  forty-  | 
lines  that  came.     I  aaid,  I  bopeil  that 
•  pro|io«il  the  Solicitor  of  the  Treasury 
ave  Dothinff  to  object.   I  was  mistaken ; 
ifomeihin^  t(»  object.     He  tboufjfht  that 
ir  way  (turning  round  to  the  Attorney-  ! 
I).    There  were  witnesses  enough  pre- 
nd  I  should  surety  be  ashamed  to  mis-  j 
It  what  ei^ht  or  nine  people  were  pre- 

He  thoiisfht  that  not  a  rair  way.  He  ' 
;  anil  pro|iosed  as  the  fairest  way,  that  . 
uld  be  taken  out  of  erery  leaf.    That  I 

tlie  judges  as  visitors.     A  Mandamus 

lie  to  compel  the  Masters  of  the  Bench 
III  of  Court  to  call  a  candidate  to  the 
'rom  the  first  traces  of  the  existence  of 
s  of  Court,  no  example  can  be  found  of 
|>osition  by  the  courts  of  Westminsler- 
jceedinpf  according  to  the  general  law 
ind  ;  but  the  judges  have  acted  as  in  a 
c  forum."  It  a  person  conceive  himself 
[grieved  by  the  Benchers  of  an  Inn  of 
1  refusing  to  call  him  to  the  bar,  ar  in 
og  him,  it  seems  that  the  proper  ap- 
1  fur  redress  is  a  petition  of  appeal  to 
ve  judges.  For  other  matter  connected 
s  subject,  see  the  reports  of  the  pro- 
B  in  the  House  of  Commons  on  the  pe- 
'  Mr.  Farquharaou,  presented  on  Feb. 
10,  Pari.  Deb.  vol.  15,  pp.  552  et  $eq.\ 

pp. '27**  et  $tq.\  45.  8ee,  also,  the 
CJunnin^hani  v.  WfCfg  etal.  2  Bro.  Rep. 
icery,  '241,  in  which  case  a  bill  fur  rc- 
f  leases  of  chambers  having  been  filed 

the  benciiers  and  other  oilicers  of 
inn,  the  defendants  pleaded  that  GrayV 

governed  by  bt'iichers,  who  coorerning 
ugof  chamlH*r8  make  rules,  subject  in 

dispute  to  an  appeal  to  the  I«ord  Chan- 
mi  the  twelve  Judges.  And,  by  lord 
V,  Chanc.  **  It  is  a  good  plea.  There 
istance  <)f  a  buit  relative  to  the  disci- 
'  the  property  of  cliamber*<,  in  an  inn  of 
The  defendants  say,  as  far  as  they  have 
liey  are  liable  to  the  jurisdiction  of  the 
It  is  a  claim  among  |>ersons  having 
e ;  therefore  this  is  not  the  proper  juris- 

respect  to  the  influence  of  episcopal 
an  by  im|>osition  of  bauds,  and  the  dis- 
( concerning  the  operation  of  this  in- 
in  the  different  cases  of  bibhops,  priests, 
,  et  aL  see  the  Debates  in  Dom.  Com. 
notion  for  a  new  writ  for  Old  Sarum, 
1801,  and  those  which  occurred  in  the 
USPS  of  Parliament  during  the  progress 
tat.  41  G.  3,  c.  63,  *  to  remove  doubts 
og  the  eligibility  of  |>er8on8  in  Holy 
to  sit  in  the  House  of  Commons.'  8ee, 
this  Collection,  vul.  5,  p.  754 ;  vol.  16, 

and  Mr.  Luders^s  report  of  the  case  of 

>ugh  of  Newport  17U5,  and  his  Notes 

Reports  or  the  proceedings  in  Com* 

of  the  House  of  Commons  upon  Con- 

1  Elections,  vol.  3,  pp.  269.  30B.  tdit. 

.XX. 


'     A.  a  1777.  [090. 

objected  to.  I  calleil  that  picking,  and  not 
striking,  the  jnry.  To  what  end  or  purpose 
does  the  law  permit  the  parties  to  attend,  if  two 
are  to  be  taken  by  the  Master  of  the  CrciviD- 
Office  out  of  every  leaf  P  Why  then  need  I  at« 
tend  ?  Two  may  as  well  be  picked  in  my  pre- 
sence as  in  mv  absence.  I  ol»jecte4l  to  that 
method.  The  blaster  of  the  Crown- Office  did 
not  seem  to  think  that  I  had  proposed  any 
thing  unreasonable.  He  began  to  take  the 
names ;  but  objected  thai  he  ci»uld  not  take  tho 
first  forty -eight  that  came,  because  they  were 
not  all  special  jurymen ;  and  that  the  names 
of  common  and  special  jurymen  were  mixed 
together,  and  that  it  would  be  a  hard  case  that 
the  party  should  pay  the  ex  pence  of  a  special 
jury  and  not  have  one ;  that  they  were  expected 
to  be  persons  of  a  superior  rank  to  common 
jurymen.  1  could  have  no  objection  to  that, 
provided  they  were  indifferently  taken.  1  said, 
Take  then  the  first  forty 'eight  special  jurymen 
that  come.  He  seemed  to  me  that  be  meant 
to  do  it.  He  began  ;  but  as  I  looked  over  tha 
book,  I  desired  him  to  inform  me  how  I  should 
know  whether  he  did  take  the  first  forty-eight 
s|>ecial  jurymen  that  came,  or  not ;  and  what 
mark  or  description  or  qualification  there  was 
in  the  book,  to  diMtinguish  a  special  from  a 
common  juryman  ?  He  told  me,  to  my  great 
surprize  (and  he  said  he  sup|M)sed  1  should 
wonder  at  it)  that  there  was  no  rule  by  which 
he  took  them.  Why  then  how  can  fjudge  f 
You  mnat  go  by  some  method.  What  is  your 
methoil?  At  last  the  method  was  this:  that 
when  he  came  to  a  man  a  woollen- draper,  sil- 
versmith, a  merchant  (if  merchant  was  opposite 
to  his  name)  of  course  he  was  a  S|>ecial  jnry- 
man)  but  a  woollen- draper,  a  silver-smith,  i5cc. 
he  said  that  there  were  persons  who  wer« 
working-men  of  those  trades,  and  there  wera 
others  in  a  situation  of  life  fit  to  be  taken. 
How  then  did  he  distinguish  ?  No  otherwisa 
than  this:  if  he  personally  knew  them  to  ba 
men  in  reputable  circumstauces,  he  said,  ha 
took  them  ;  if  he  did  not  know  them,  he  passed 
them  by.  Now,  gentlemen,  what  follows  from 
this  ? 

But  this  is  not  all.    The  sheriff's  officer 
stands  by,  the  Solicitor  of  the  Treasury,  bis 
clerk,  and  so  forth  ;  and  whilst  the  names  are 
taken,  if  a  name  (for  they  know  their  distinc- 
tion) if  a  name  which  they  do  not  like  occurs 
and  torus  up,  the  sheriff's  officer  says,.*'0. 
Sir,  he  is  dead."  The  defendant,  who  uofs  not 
know  all  the  world,  and  cannot  know  all  the 
names  in  that  book,  does  not  devire  a  dead  man 
for  his  juryman.  **  Sir,  that  man  has  retirtd." 
*<  That  man  does  not  live  any  longer  where 
he  did."    "  Sir,  that  roan  is  too  old."     ••  Sir, 
this  man  has  failed,  and  become  a  bankrupt." 
'«Sir,    this    man    will   not   attend."     «« O," 
(it  is  said  very  reasooablj^)  **  let  us  have  men 
that  will  attend,  otherwise  the  purpofte  of  a 
special  jury  is  defeated.**    It  seemed  very  ex- 
traordinary to  roe,  1  wrote  down  the  names, 
and  two  of  them  which  the  officer  <>hjvc\ei\  lo 
I  saved.     •*  1  begged  him  not  to  kill  i^^^  ^^^^ 


«91] 


17  GEORGE  IIL 


Procee£iig$  tgahst  John  Home, 


[69B 


without  remorse,  ms  they  have  doM  in  Ame- 
rica, merely  becaute  he  underatood  ihem  to  be 
friends  to  tiberty ;  tliat  it  waa  very  true,  we 
shall  see  them  alive  a^^ain  next  week  and  hap- 

Sy  ;  but  let  them  be  alive  to  this  cause.'*  The 
rat  name  I  took  notice  of  waa  Mr.  Sainsbury, 
a  tobacconiat  on  Lud|fate-hi1l.  The  aherilra 
officer  aaid,  be  had  been  dead  aeven  months. 
That  struck  me.  I  am  a  souflT-taker,  and  boy 
my  anuff  at  hia  shop ;  therefore  1  knew  Mr. 
Sainsburv  was  not  so  long  dead.  I  asked  him 
Strictly  if  be  was  sore  Mr.  Sainshory  wan  dead, 
and  bow  \ang  he  had  been  dead?  **  Six  or 
aeven  months."  **  Why,  I  read  hia  name  to- 
day ;  he  must  then  be  dead  within  a  day  or 
fwo :  fbr  1  saw  in  the  news-  papera  that  Mr. 
Sainabury  was  appointed  by  the  city  of  Lonilou 
ane  of  the  committee"  (it  happened  to  be  the 
Tery  aame  day)  **  to  receive  the  toll  of  the 
Thames  navif^ation :"  and  as  the  city  of  Lon- 
don doea  not  often  appoint  dead  men  for  these 
purposes,  I  concluiied  that  the  sherifrs  officer 
was  mistaken ;  and  Mr.  Sainsbury  was  per- 
mitted to  be  put  down  amongst  you,  gentle- 
men, appointed  for  this  special  jury. 

Another  gentleman  was  a  Mr.  Territ.  The 
book  aaid  be  lived,  1  think,  in  Puddle-dock. 
The  aherifPs  officer  said,  **  that  gentleman  was 
retired;  he  was  irone  into  the  country ;  he  did 
not  live  in  town."  It  is  true,  he  does  (as  I  am 
told)  frequently  go  into  the  country  (for  I  en- 
quired). His  name  was  likewise  admitted, 
with  some  struggle.  Now  what  followed  P 
This  dead  man  and  thia  retired  man  were  both 
struck  out  by  the  Solicitor  of  the  Treasury ; 
the  very  men  whom  the  .sheriflf a  officer  had 
killed  and  sent  into  the  country  were  struck 
out,  and  not  admitted  tp  be  of  the  jury.  Now, 
gentlemen,  what  doea  that  took  like?  There 
were  many  other  names  of  men  that  were  dead, 
and  had  retired,  which  were  left  out. 

There  is  something  more  unfortunate  in  the 
case  of  a  special  jury.  The  special  jurymen, 
if  tbey  fail  to  attend  that  trial  for  which  they 
are  appointed,  are  never  censured,  6ned,  nor 
punished  by  the  judge.  In  the  trial  of  one  of 
the  printers,  only  four  of  the  special  jury  at- 
tended. This  is  kind  in  the  Chief  Justice,  but 
it  has  a  very  unkind  consequence  to  the  de- 
fendant, especially  in  a  trial  of  this  nature ;  for 
1  Hill  tell  you  what  the  conaequence  is.  The 
best  men  and  the  worst  men  are  aure  to  attend 
upon  a  special  jury  where  the  crown  is  con- 
cerned ;  the  best  men,  from  a  nice  sense  of 
their  duty ;  the  worst  men,  from  a  sense  of 
their  interest.  The  best  men  are  known  by 
the  Solicitor  of  the  Treasury :  such  an  one 
cannot  be  in  above  one  or  two  verdicts ;  he  tries 
no  more  causes  for  the  crown.  There  is  a 
good  sort  of  a  man,  who  is  indeed  the  most 
pn»per  to  try  all  this  kind  of  causes;  an  im- 
partial, moderate,  prudent  man,  who  meddlea 
with  no  opinions.  That  man  will  not  attend  ; 
fbr  why  should  he  get  into  a  scrape  P  He  need 
not  attend  ;  he  ia  sure  not  to  l»e  censured;  why 
should  he  attend  P  The  consequence  folkiwa, 
that  fnquently  only  fpur  or  five  meo  attend. 


and  thoae  auch  as  particularly  ought  not  to  at* 
tend  in  a  crown  cauae.  I  no  not  any  that  it 
happens  now.  Not  that  I  care:  I  do  not  dmu 
to  coax  you,  gentlemen:  I  have  nothing  to 
fear.  You  have  more  to  fear  in  the  venlicl 
than  1  have,  because  your  conscieDces  are  il 
stake  in  the  verdict.  1  will  do  my  doty,  not 
for  the  aake  of  the  verdict.  Now  what  toUowi 
thm  permission  to  special  jurymen  to  attend  or 
not,  as  they  like  best  P  Why,  every  man  that 
is  gaping  for  a  contract,  or  who  haa  one,  ii 
sure  to  shew  his  eagerness  and  zeal; 

It  happened  so  in  the  trial  of  the  6rst  casfe 
fbr  thia  advertisement.  The  printer  sbewd 
me  the  list.  Amongst  them,  one  of  the  flrrt  1 
observed,  was  air  James  Esdaile,  aldernsoof 
liondon,  and  a  contractor  for  the  army  (tbnt 
were  several  others ;  1  do  not  mention  the  gea- 
tlemen*s  names).  He  would  have  struck  bin 
ont.  f  said.  No  ;  there  are  so  many  bad  that 
ouffht  to  be  struck  out,  leave  in  sir  James:  it 
is  impossible  that  a  magistrate  of  Loodsa! 
with  so  much  business !  a  contractor  under  Ibl 
crown  !  if  he  has  any  modesty !  he  cannot,  la 
alderman  of  London !  go  down  to  be  a  spceiil 
juryman  in  Middlesex! — He  was  the  forema 
of  the  jury.  He  waa  sure  to  attend.  And  m 
they  got  tne  first  verdict,  in  order  to  give  then 
this  influence  upon  men's  minds. — **  We  bavt 
got  a  verdict.  This  question  has  been  det«^ 
mined  by  a  jnry." 

Well,  gentlemen,  having  then  got  socb  I 
special  jury  as  he  usually  does  get  (for  it  seldsai 
happens  tliat  twelve  gentlemen  have  seoM 
enough  of  their  duty  to  attend,  as  happeas  It 
be  now  my  case^— the  Attorney-General  brisgl 
on  the  trial.  He  then  claims,  amongst  oditf 
things,  a  right  to  reply,  though  no  evidence  il 
called  for  the  defendant.  You  have  heani  whit 
passed  upon  \\\i%  subject  with  the  jutlge.  I 
will  leave  that  matter  now,  though  I  lliiDk  I 
have  enough  to  say  upon  it ;  however,  I  viO 
leave  it  unexamined  now :  I  hope  to  lire  to 
argue  that  point  for  my  client,  and  tlierefoif 
will  not  now  trouble  ^ou  with  that  argurorot 
You  will  yourselves  judge  whether  an}'  reasoo 
was  given  to  me,  or  to  you,  or  to  any  msa, 
why  the  Attorney-General,  prosecuting  fortbo 
crown,  having  all  the  influence,  power,  and  a^ 
vantage  that  he  can  possibly  have,  why  ba 
should  have  that  advantage  of  reply— -which 
my  equal  or  inferior  shall  not  have! 

But  besides  this,  I  told  you  before,  that  bt 
claims  a  right  of  stopping  it«  when  he  pIrasifSy 
by  withdrawing  a  juror.  I  should  be  glad  It 
hear  that  contradicted  and  given  up. 

But  further,  if  he  loses  the  venlict,  he  psyi 
no  cotsts :  the  crown  pays  no  costs.  I'lie  mi« 
serable  man  that  is  harassed,  even  thous^h  in* 
nocent,  though  gaining  a  verdict  under  all  i)i«^ 
disadvantages  (if  it  in  possible,  and  whirh  vel* 
dom  happen?),  yet  still  he  must  stand  t»\  liii 
costs;  and  they  maybe,  you  see,  wlniviff 
they  please  to  make  ihem.* 

*  "  The  aecrecy,  ease,  and  certuiiit y  t»t  l;« %■ 
ing  a  man  under  a  heavy  proaecuuou  m  tl'iO 


fr  Ife  AiMtMy-GtncrkI  giin*  k  v<r- 

iMthiit  wtiiiiii  li«  |>leiue$,  »nil  when 

I  ibinb  liierc  were  eight  cunilc- 

i>  adrerliiemenl,  yet  hill  thtee  bate 

I  up  (•>  juilgment.     One,   I  ihink, 

r,   hecauM  there  wai  ■  Tillle  fntie- 

)  the  vise  bv  »n  oAicer  under  the 

I  tllow  it  tu  nave  beeD  cerrainlv  a 

bwaiiu  he  ii  R  gpnlleman  of  cha- 

UJ  therefore  il  is  accounted  for  how 

^t  olf:  bul  how  the  olher  iirintera 

hinhvr  Irani  ibe  bpnevolence  of  Ibe 

^nml,  1  do  not  know. 

>  nol  oil.    He  B^jriTHiea  lbs  puoiib- 

die  |>enoa  a{^iiust  wliom  he  geli  • 

tf  lie  pleases.     1  ivas  prewal  in  court 

■trd  Ibe  judge  nbo  now  tries  me  (and 

^erliapt  ^ive  liic  euiue  intGlli^nce  la 

4>!ll  Ibe  AUorncj' General  oflliat  time 

uw  duef  Ju&lice  n{  the  Comraon- 

lea  be  noreil  thai  Ihe  con>icl  (who 


Kcc,  without  any  controul,  by  tliif 
ifarmalion,  are  what  rentier  il  much 
lidable  than  the  cuiiiinoo,  n-guUr  in- 
wbicb,  bv  lirlue  ofaataiuteuagied 
the  KcTDlutioD,"  [Il  » the  act  4  Si 
I.  c.  IB,  '  To  prf  vetil  ntBlicioui  In- 
W  in  the  court  of  Kin^'a-heucb.  aod 
mare  eoijr  RcTeritaJ  ofOuiliwrie*  in 
I  Court*]  "  caiinol  now  be  filed,  for 
wa  ur  iniidcnieaiior,  wilhoix  expresa 
iw  Kinij'a- bench,  and  the  inlortiieni 
ilo  a  rcrognizance  lb  pay  cnsia  Id  the 
MMquiilcd  upon  the  trtal,  or  if  Euch 
b  not  (iroceed  nilliin  a  year,  ur  pro* 
fil  Promjui.  The  Ailarney-titneral, 
t  imtarming  ei  officio,  never  pays  any 
^thMbe  loay  harass  lite  prac«U'  nny 
b«  mlM,  and  put  btm  to  a  g^riernui 
-  wilbtal  ever  trying  the  ntalter  at  all. 
)  eoata  of  tbe  Crown  Otfice  are  so 
L  Uutaay  maii  of  middlriig  circum- 
hII  be  undone  by  l wo  or  three  plun)[ea 
MM  bnnVaeUera  aod  piinlen  know  ihia 
•nd  benoe  so  lew  of  Lhero  cnit  be  got 
a  jrtrloiure  upon  auy  adminislraiion." 
i^>  Il  ■«  still  more  wonderful  that,  since 
knlire  it  endured,  there  has  been  no 
M  to  auliject  ihe  Attorpey-General, 
beiid  ao4  punue  hi)  infurmaiion,  or 
|l  mu  nauauiled,  or  hsd  a  TerilicI 
in.  to  ibc  payment  of  full  coats  lo  the 
■H."  Letlerconeeruini;  Libels,  War- 
^■Mttre  of  l*a|ieri,  and  Suretiea  fur 
■ArDetnvioar ;  with  a  viuwloaume 
Mdingt,  and  the  Defence  of  ilieui  by 
by,  7th  cditiou  of  1771. 
Krili  of  tlia  Attorney- General's  tz 
imialiMl  were  diacnssed  in  the  Ilouae 
M  dw  irUi  ot  July,  IU11.  in  a  de- 
Ihe  qnwliun  fur  the  second  readlui; 
wblcn  liad  liern  iiiimiiuceit  by  lord 
8m  tbe  Parliamentary  Uebatea  of 
«l,  >ol.  93,  p.  tl}69.  Hee,  also,  p. 
Lllll,ul'llwtaiDe  Volume. 


A.  D.  \m.  [«l 

jwigti  wbm  tlie  Atlorney- General  moved  duj 

Mr.  Wilkes  miglit  be  commillej  lo  the  K>ii|tV 
bench  prisou,  lord  Manifield  instantly  laid  % 
Mr.  De  Grey—"  The  king's  AlliirDey-Geoen' 
may  cbuae  his  priaun :  all  Ihe  prisoDS  are  if 
king's.  The  Ailornev-Geoeial  may,  if  I 
plewes,  move  lu  have  bim  tent  lo  Newgats,. 
Hit  lordship  mentioned  Newgale:  I  beard  {| 
And  observe,   this 


Allurney-Generd,  who  surely,  of  all  r 
the  world,  least  needs  inslruckion :  and 
in  a  case  where  he  was  prosecutor)  an 
criminal  mailer,  and  proiecutor  loo  f 
crown.  And  this  instruction  was  nel  ii 
to  oblainjuslice  against  tbe  offender ;  Ih 
past ;  he  bad  been  coniicled  many  years 
fore: — hut  it  was  merely  in  aggravation 
puoisbmenl.  I  did  not  know  norlieliete  ll 
the  Attorney- Geaeral  bad  that  righl:  I  ahoi 
not  have  known  it,  if  I  bad  nol  learned  '  '* 
so  ffrent  ai  autborit}'. 

Genllemen,  having  rehearsed  what  tbi 
claims  are,  1  intreat  you  to  consider  who  it 
thai  enjoys  these  powers;  superior  to 
powers  which  any  one  judge  in  this  cdd 
eBJoys  ;  superior  to  the  powera  which  evei 
courtsenjuy.  It isihe AUorney-Grneral.  Ni 
who  is  ihs  Atlorney ■  General  ?  who  i  " 
whose  ufBcer  is  lie  P  what  sort  of  olGcer 
1  will  tell  you  what  a  Scotch  author  of  raeril-w 
(Ibi*  is  nol  law,  but  it  is  very  good  reason  and 
great  truth]— I  will  tell  you  what  be  says  of 
Ihe  office  of  ibe  Attorney- General.  Wbai  I 
say  uow,  gentlemen,  does  not  go  against  the 

Cerson  now  inlruited  wilh  il ;  it  goes  agaioal 
is  office.  I  do  not  ipcak  of  this  genlleniaa 
parliculariy  ;  all  Attorney -Genera  Is.  at  least 
mosluf  ihbm  (some  ot  ihein  indeed  would  not, 
but  mOBl  of  Ihem  will)  use  these  utijusl  puwera. 
Mallet  says,  in  tbe  preface  lu  bin  life  of  lord 
cliBocellor  Bacon — "  The  offices  iif  Allnmey 
and  Solicitor-General  have  been  rocks  upon 
which  many  aspiring  lawyers  have  made  ship- 
wreck of  llieif  virtue  aod  human  naiurr.  Sums 
of  these  genllemen  have  acted  at  the  bar,  as  if 
they  thought  themselves,  by  ihe  duly  of  (heir 
places"  [tbiit  is,  a  officio)  "  ahiolteil  from  all 
Ibe  obligations  rif  truth,  hunnur,  and  decency" 
— (hut  not  absolved  you  find  from  talking  of 
Ihem) — "  hut  ibeir  namei"  (be  uys)  "  ar« 
upon  record,  and  will  be  trantmilled  In  afier 
ages  with  ihosecbaracleraof  reproaoh  and  ab- 
hurrente  that  are  due  lu"- (to  whom?  Tliia 
■nail  is  as  unlorlunalc  in  hii  style  as  mywlf} 
"  the  wiimt  sort  of  murderers,  llione  that 
murder  umler  the  lancllon  of  justice. " — Ha 
WIS  never  prosccuteil  fur  it.  He  charged  ibe 
office  of  Atlorney 'Generil  (which  i*  Mime- 
tiling  liinre  respectable  tlian  llie  uffice  of  a 
cii III luon  soldi et)  wilh  bring  the  wont  son  of 

Bui  tile  Atlomey-Geoeril,  ilii»id,  isehiMea 
by  ihe  king:  that  is  whsl  in  jireleDdeil.  He  >• 
Ihe  king's  officer ;  hut  he  h<dds  it  by  a  very 
Ilia  future  hopes 


V  i  hi< 
u  prvpurliuu.    Ubseri* 


I 


«953 


17  GEORGE  III. 


Proceedings  agaiiitl  John  Horne, 


[69S 


he  enjoy*  these  powers  on  the  behalf  of  the 
kiDg",  aij^diiist  wliom,  particularly,  all  those  pre- 
cautions were  lakeu  ;  for  these  precautions  are 
not  :aken  between  subjects  who  are  upon  a 
looting  ;%ut  all  these  precautions  and  ailvau- 
tair^s  for  innocence  (that  it  may  nut  be  op- 
pressed) they  are  all  taken,  not  a^^ainst  the 
Kinir«  hut  ag^ainst  the  crown  ;  against  that  power 
which  is  roor<  often  abused  than  any  other 
power;    more  liable  to  be  abused,    because 

freatest.  But,  gentlemen,  the  matter  is  a  great 
eal  worse  than  this.  He  is  not  the  king's 
officer.  He  knows  better  where  his  obligations 
lie.  He  is  not  so  ungrateful.  He  would  not, 
at  a  table  with  his  friends,  say  that  he  is  the 
king's  officer:  he  knows  a  great  deal  better 
than  that.  He  is  in  truth  tlie  officer  of  the 
minister :  and  if  the  minister  goes  out  to-iinor- 
row,  out  goes  the  Attoruey-GenGral.  We  can- 
not possibly  have  a  stronger  instance,  and  a 
happier  for  me,  of  this  rery  thing.  There  sits 
here  in  court  a  gentleman*  who  should  now 
have  been  Attorney-General  (he  lost  not  the 

Jilace,  I  8up|»ose,  for  want  of  sbilities)  who  re- 
used a  brief  in  this  very  cause ;  because  he 
thought  it  scandalous  at  the  distance  of  two 
years  and  a  quarter.  I  suppose  he  might  have 
still  stronger  reasons.  If  1  knew  them,  1  would 
use  them.  If  I  knew  his  reasons  why  he 
thought  this  prosecution  scandalous,  you  would 
hear  a  very  different  defence  from  any  which 
I  can  give  yon.  Put  in  then  another  minister, 
and  the  Attorney -General  thinks  me  a  very 
honest  man :  but  if  there  comes  a  different  mi- 
nister and  a  different  Attorney -General, — "  O, 
put  him  out  of  the  world ;  he  is  not  fit  for  hu- 
man society  ;  shut  him  up  like  a  mad -dog." — 
You  see  it  is  not  the  king's  officer,  it  is  the 
minister's  officer.  Gentlemen,  it  is  very  well 
known  that  the  Attorney  and  Solicitor-General 
make  a  considerable  part  of  every  administra- 
tion. They  sit  there  in  the  House  of  Com- 
mons on  each  side  of  the  minister;  the  two 
brazen  pillars,  the  Jachin  and  Boaz  of  the  mi- 
nister in  the  House  of  Commons.  However, 
gentlemen,  though  this  situation  of  theirs  may 
make  us  smile,  it  is  a  very  serious  thine,  espe- 
cially when  their  honour  and  conscienee  are 
to  go  to  you  for  proof,  and  instead  of  argu- 
ment. 

Now  let  us  see,  how  have  those  powers  been 
exercised  ?  I  have  shewn  you  what  they  are ; 
J  have  shewn  you  who  enjoys  them :  now  let 
us  see  how  they  have  used  tbeni ;  I  mean  the 
present  Attorney-General.  I  will  not  go  back 
to  tell  you  that  the  bishops  were  reckoned 
l^uilty  of  a  libel,  not  because  they  opposed  the 
introduction  of  the  Popish  religion,  but  because 
they,  would  not  lend  their  own  hands  to  the  in- 
troduction of  it.  But  how  has  it  been  used  by 
the  present  Attorney -General?  I  am  driven  to 
this  inquiry.  He  has  talked  much  of  his  con- 
acience,  and  that  if  he  had  nut  iinagioed  that 
lie  was  executing  his  duty,  he  never  shoukJ 
have  thought  of  the  prosecution:  he  did  not 

I  ■     ■         ■  ■    I  ■'■■■■■!  I       I      ■  I 

•  Mr.  Dunoiiig, 


know  me ;  it  was  merely  a  matter  of  duty. 
Now  1  did  not  apprehend  that  it  was  a  matter 
of  his  stirring,  and  that  his  motive  was  duty  ; 
but  as  he  takes  it  upon  himself,  upon  himself 
it  must  lie.     Now,  therefore, -how  has  be  exer- 
cised this  power  which  he  enjoys  io  right  of 
being  the  king's  offieei'  ?  I  say,  that  he  bu 
then  Cfqually  betrayed  his  own  conscience,  and 
the  dignity  and  prerogative  of  the  crown  (if 
injustice  must  pass  by  these  naraes)-^!  ssy 
that  he  has  betrayed  them  all :  for  he  has  acted, 
not  as  the  Attorney-General  of  the  king,  hot  is 
the  Attorney -General  of  the  House  of  Con- 
mons.    Never  before  this  gentleman's  time  did 
any  House  of  Commons,  I  believe,  I  am  sure, 
never  did  they  direct  any  Attorney -General  to 
file  an  information.     Who  enjoys  the  power 
then  ?  The  House  of  Commons  filet  informa- 
tions !  Worse  still ;  the  Attorney -General  filet 
informations,  not  from  his  own  mere  motioa, 
not  from  the  direction  of  tlie  crown,  but  by 
the  direction  of  the  most  corrupt  asseinUy 
of  men  that  ever   existed  upon  the  face  of 
the  earth.     It  may  be  called  indecent  to  cill 
them  so;  but,  gentlemen,  I  know,  tbatifevei^ 
man  was  to  speak  but  one  word  expressive  « 
his  opinion  concerning  what  I  say,  there  an 
those,  perhaps  within  hearing,  whose  betrts 
would  sink  within  them.    There  is  no  nil 
doubts  it,  and  1  shall  not  be  afraid  to  say  it. 
But,  gentlemen,  now  observe;  this  officer,  tto 
Attorney-General,  was  never  permitted  to  bsve 
a  seat  in  the  House  of  Commons  till-  the  tins 
of  sir  Francis  Bacon.     He  is  no  officer  of  tbt 
House  of  Commons ;  he  never  was  nenmtted 
to  sit  there  till  that  time ;  and  out  or  the  ex- 
treme veneration  which  they  paid  to  the  grestdt 
of  mankind  (for  he  was  so),  they  permitiei 
him,  for  the  first  time,  to  have  a  seat  as  a  pri* 
vate  member  in  the  House.     Now  where  bars 
we  got?  He  has  no  longer  a  seat  in  the  Home 
as  a  private  member ;  he  is  the  officer  of  iks 
House  of  Commons:  that  power  which  iiTpre- 
tended  to  be  exercised  lor  the  crown,  is  exsr* 
cised  for  the  minister.    The  House  of  Com* 
mons  is  the  minister's ;  for  he  would  not  be 
minister,  if  he  had  not  a  majority.    The  At* 
torney- General  is  broui^ht  in  by   him  ;  tbe 
House  directs  the   prosecution :    whereas  tbe 
method  formerly  was,  that  the  House  of  Com- 
mons used  to  address  the  crown,  to  desire  tb^ 
crown  to  order  the  Attorney-General  to  file  ti> 
information,  or  to  prosecute.     Never  till  ibif 
time  did  the  House  think  of  directing  the  kio^* 
officer  to  file  an  information.      The  coiise- 
quence  happened  to  be,  what  at  the  very  tioK 
it  was  natural  to  foresee  would  happen.    Tbe 
Attorney- General  prosecuted   men   vdiom  be 
thought  innocent.     I  happened  by  ctealth  (I 
am  not  of\en  permitted  to  be  there)— 1  btp* 
pened    by  stealth  to  hear  the  gentleman  ^ 
the   House  of  Commons  speak  a   langua^ 
which  no  man  could  mistake.     Whatisinl 
more,  on  one  of  the  prosecutions  brought,  tbs 
vote  fur  it  was  either  rescinded,  or  some  bealilf 
vote  was  afterwards  put  into  the  Journals  of 
the  House  of  Commons,  for  having  caused  a 


} 


A.  D.  1777. 


[698 


ntt  Bt  w^rt  •  ]icrMi>  * 
^  tuuntl  10  b«  iiinocviii.  Hrre  is  a  iliiiii,'i:roui 
>i  ■  r  inilrvil !  Wtio  iiiiy  not,  It'  tliis  t»  \yer- 
.  J  iinl,  f)lf  ail  uilcirinilion  Bgainsltliu  iuAi}vv\f 
w  hm  ■  priwerii  this  iii  llir  liHiiili  of*  (oiiii&ler 
tn  Tulu !  ri'r  il'l  vn  uoiriilntKl,  il  in  Ihr  gc-nlle- 
min'i  nurriij-.  1  tlimk  him  for  tint  mtrey  ; 
lor  he  iniglil  every  leriti  tite  hii  iaturtnotioD,  it' 
tie  plnufH. 

Kaw,  ([vnllcmen,  consiiler  in  whvl  Borl  of 
•  cliorse  lion  he  enjoy  ibrse  exlraoriliniry 
powrn.  Yum  will  finil.  ihKI  B»  he  is  the  last 
mm  in  the  worlil  (I  appak  nnl  oftUe  man,  but 
the  officf)  that  uu^bt  lu  be  (ranted  nitb  tbese 
psKirni,  Ml  be  mjoyi  llirm  in  (bat  kinil  of 
cliar^  in  wbieh  he  sliniiltl  leail  of  all  enjoy 
liieni.  I'ur,  ecDllenien,  libel  as  well  bh  Aiiur- 
..  y  General  itepenilt  very  much  upiin  the  ml- 
irr.  Why,  dun'l  we  all  hiiow  Tery  well, 
i.i  ihry  wlui  werepillnried't'ur  libel  in  ihe  la>t 
'■.'^a  are  peniloiieil  in  tins?  Wbat  then,  it)  Ihu 
i.>u  kini]  of  charge  iti  wliicb  tills  open  Joor  tn 
iipprMmun  ihould  be  left  to  tbe  Aitorney-Ge- 
oeral  and  in  the  minister  f  II  i«  not  for  crimes 
•piinn  the  ttute  ibat  this  power  iaterferei,  but 
for  partial  polltii'al  opinionn  ;  and  the  man  wbn 
n  ptllorled  or  itnpnaoned  to-ilay,  may,  lor  the 
nme  ant,  be  jieniioned  lo-marrow,  just  as  the 
Iniids  ebonge.  U'  thin  pnrty  goea  down,  it  ii 
hlieli  iFitromea  up,  It  il  merit,  la  it  in  thl« 
kuii)  ol  charge  tlial  au  AUurney- Genera  I  abonld 
enjoy  all  ihetc  unjuit  puwera?  I  need  not  bid 

!uu  oonudef  anil  recollact  what  aort  of  ihinBB 
M»  breu  Hitir^eii  a*  liliels:  there  i*  nothing 
lliil  hug  nut  lieeu  in  charged.  SermonH, — pe- 
liiioiii.^hoiika  against  playi.f — aaymg  ibat 
ouiiiry  >iill  firrupl  men,  nothing  but  barely 
niMiiiiiii'rii;  ilie  effecta  ot  money, — all  hare 
Wu  |i(»*''fiilF'il,  and  punished,  and  ear*  cut 
«f,  and  tbnae  thinga.  iur  libcla,  lii  abort,  gen- 
llraien,  yun  will  always  lind  (your  memories 
mU  go  back  enough  to  dad  it  without  reading) 
Ilul  whaieier  ii  contrary  to  the  iDcllnatioriK, 
■■tfTMIi,  or  even  Ihe  viuci  of  a  minialer,  his 
■1*ay«  Iieen,  and  ever  «ill  be,  charged  as  libel. 
Kiri  at  (Ilia  lirOE,  if  tlie  Attorney -General's 
fiitatt.  Mr.  Iligby,  bad  l>een  Attorney- General, 
or  (a  direct  ilie  Alli'mey-tii^nerul  to  file  Infur- 
niliaiu  for  liliels,  the  present  Speaker  of  the 
Housa  of  Commnn*  would  bare  been  ace uaed 
of  a  libel,  for  recommending  osconomy  to  (be 
crmen.  We  know  that  be  would ;  and  there 
"  iiriihing  extraordinary  thai  a  Speaker  of  tbe 
i'liine  ill  Commona  should  bare  an  iornrma- 
<i  a  tilHctti  tiled  icaind  him  for  a  libel.   The 

*Ttiil  alludea  to  Dr.  8liebbeare.  Id  tbe 
■f  Mr.  Grenaille'a!i|ieech  on  February 
9,  waiBtl  (be  motion  for  expelling  Mr. 
It  IS  policed  ihat  l>r.  Sliebbeire  was 
f  under  ilie  authority  of  a  general 


■gamal  Mr.  Wilkes. 
•  the  Caae*  of  liaobeverel,  toI.  IS, 
iTllM  !4cTen  BUhopa,  ral.  U.  \>.  163,  and 
tyiiB.  i«l.  9.  p.  *«!• 


"8pcd(«r,  nilliams,  bad  »oe  tiled  tRbmH  him 
for  puhlialiiog  ihe  .Imimnls  ot  ihe  IliHise.* 
Tbey  are  now  wiser.  Indeed  (ha(  case  baa 
been  acouled. 

If  llieii.  genllvnien,  lliese  enniiileraliODa 
thouhl  make  yi>u  cBruliil  and  atieniive  in  a 
trial  upon  a  proaecuiion  vl  ibis  hind ;  Ilie 
freijiiency  of  proM-cutimia  fur  libela.  I  aup^Kiae, 
slinuld  Slid  to  yonr  care  and  allentiuD.  F<ir, 
gentlemen,  when  ia  it  tbat  hbela  are  niifct 
frrijiirnl  ?  When  ia  it  Ibat  pmarculixna  lor 
libels  hare  been  most  fretpirni  ?  Hare  they 
lieen  under  the  best  gorcmmeois,  under 
the  best  adiDiniMraliona  (Iur  gnrernment  it  a 
word  abused:  I  mean  under  the  ministers)? 
Hare  tbey  been  most  frequent  under  tbe  beat, 
or  always  under  the  wonlf  It  is  only  bad  meo 
lliHl  will  accuai.'  tbe  good  :  gnod  men  don't  ac- 
cuse good  ihings:  uolwilbilandiog  which,  you 
will  lind  thai  under  the  best  admiaiilrationa 
few  libels,  and  mncb  fewer  proaecu- 
tions ;  and  undi^r  tbe  norsi  adminiatralions  ynit 
will  alwava  find  tliem  aitarm.  Whrifacr  it 
happens  that  under  tbe  worst  admiiiiatratinni 
(for  there  i«  always  lolly  wiib  wickrdnea!)  the 
miuister  is  an  loolisb,  as  that,  nut  atimding  to 
the  |irincipl(s  of  the  penon  recommend^  to 
him,  he,  by  mistake,  chusrsa  good  Attorney- 
General,  who  bus  skill  to  diacnrer  and  honesty 
pursue  those  crimes  which  are  detrimental 
society  ;  or  whether  It  happens,  tbat  a  good 
□ister  chuses  n  bad  Attorney -Gen  era  I,  who 
a  nu  hunour  or  understanding  to  care  for  or 
to  diseoTer  ibeir  evil  tendency,  and  therefore 
does  Dot  pnisecuie  at  all ; — but  so  it  happena, 
tbat  under  b  goud  minister  there  are  no  prose- 
itions  for  libvl,  under  a  bad  minialer  yon  meet 
iih  little  else. 

Gentlemen,  if  the  general  nature  ol  ihis  kind 
of  proseeutiun  calls  for  your  particular  atten- 
tion, tbe  parlicnlar  unfairness  uf  thia  prosecu- 
tion mnre  strongly  demands  i I.  Gentlemen, 
you  will  be  pleased  to  remember,  that  tbe  ad- 
rertiarment  which  is  now  brought  before  you 
wuB  published  on  the  Qih  of  June  1775.  Ob- 
serve, loo,  wliai  is  the  rhsrge.  Nut  any  harm 
that  it  has  done  ;  no,  but  only  a  tendency,  Th« 
charge  of  the  libel  is  a  tendency  to  exrile  sedi- 
tion ;  a  tendency  to  alienate  the  minda  of  bis 
majesty's  snhjecta ;  a  tendency  to  do  a  great 
many  other  bad  things:  I  do  not  rrciillect 
there,  nur  care  about  iliem.  What  1  come  two 
years  and  s  quarter  afierwarda  tn  prosecute  (ur 
a  tendency  (not  actual  miachiel,  but  a  tendency 
to  mischief)  li  was  so  dangerous  a  thing, 
tbat  it  trta  siiflrred  (o  rage  and  bare  its  full 
influence  without  any  check  or  cootroul ;  and 
then  two  years  after  (when  ila  tendency  must 
lung  since  have  ceaseil)  comes  (he  prosecution 
In  check  the  tendency!  1  believe  no  giand 
jury  would  bare  found  a  bill  lor  thia  proaeou- 
n  at  this  diilanve  of  time :  nay,  I  hrliera 
It  all  ihejudgea  of  ibe  King'a-tienoh  wouki 
t  baae  dona  it.  The  AttorDey-Uenerol  waa 
>ll  awareuf  tliia  olyection  upun  tli«  trial  af 

*  See  (be  Caae  ia  rol.  13,  p.  13eo. 


099J 


17  GEOUUC:  IIL 


Proceedings  againsi  John  Horne^ 


[700 


thefiral  printer.  «<  Why  DOt?"  laid  the  At- 
torney-General—"  Will  folly  uy,  that  that 
which  was  a  crime  in  1775  ii  no  crime  io 
1777?  Will  folly  say?"— Why,  wba^  will 
not  felly  aay  ?  Fully  will  say  any  things :  and 
what  wonder?  ,when  even  a  man  of  his  natural 
good  understanding,  if  placed  in  his  peculiar 
situation,  is  oflen  obliged  to  aay  wfiat  a  mode- 
rate folly  would  Mush  at.  «  Was  it  a  crime," 
■ays  he,  '*  two  years  ago,  and  is  it  no  crime 
BOW  ?"  That  is  not  the  question :  but,  whether 
ksboahl  be  prosecuted  now,  a(^r  two  veers 
delay  ?  Thai  was  the  question  which  he  should 
bave  spoken  to.  And  would  that  be  thought 
to  ridiculous  •  positioo  to  be  hourd  in  a  court 
of  common  law?  You  all  know  very  well,  thai 
A  simple  contract  debt  cannot  be  recovered  after 
six  years  is  snffered  to  elapse.  Now,  will  folly 
■ay  of  that  money,  and  the  benefits  of  it  which 
A  man  has  ei^yed  for  six  years,  was  it  a  debt 
tix  years  ago  and  is  it  no  debt  now  ?  No ;  no 
nan  will  pretend  that  the  debt  b  not  accumn- 
Jated.  But  what  then  ?  If  yon  have  soffcrad 
(hat  time  to  pass  by,  you  shall  not  sue  for  it 
now.  So  the  unjust  possession  of  an  esUte  for 
/orty  or  sixty  years  (according  to  the  rules 
which  the  Courts  have  laid  down)  the  unjust 
poisestion  of  an  estate  quiets  the  possesskm. 
Wkatthen,does  it  become  just?  Havel  robbed 
another  family  for  so  many  years;  retained 
the  principal  aiMl  the  income ;  and  does  it  now 
become  just?  No,  but  you  shall  not  recover  it; 
the  door  is  shut  against  j^oursuit.  Appeals 
for  fekinv,  for  rape,  and  for  murder,  they  must 
be  brought  within  a  year  and  a  day.  If  you 
let  slip  that  year,  you  ahall  not  prosecute. 
WhaM  Does  it  cease  to  be  felonv  ?  Does  it 
cease  to  be  rape  ?  Does  it  cease  to  be  murder  ? 
No;  there  never  was  anjr  such  folly  that 
said  that ;  no  folly  ever  said  it:  but  the  law 
says,  You  shall  not  prosecute :  you  hare  lost 
your  time.  But  there  is  still  a  stronger  cir- 
cumstance concerning  this  doctrine,  which  I 
love  best,  because  it  came  from  the  gentleman 
himself.  The  estate  of  a  man,  the  most  ob- 
noxious for  the  blackest  treason,  by  an  act  of 
parliament,  was  proposed  to  be  restored  to  the 
son.  J  rejoke  that  he  has  it :  but  the  argu- 
ment of  this  very  gentleman  was,  that — **  ob- 
lifioo  ought  to  pass  over  it :  it  was  treason,  to 
be  sure;  but  it  was  twenty  years  ago."  Good 
God !  if  twenty  years  shall  prescribe  against 
treason,  or  silence,  or  put  oblivion  upon  it ;  if 
forty  years  possession,  fur  a  large  landed  estate ; 
if  aix  years,  for  a  simple  contract  debt;  if  one 
year,  for  appeal  in  cases  of  rape,  felony,  or 
murder;  what  shall  not  the  mere  tendency— 
(not  actual  mischief)— but  the  mere  teudencv 
of  an  insignificant  libel  in  a  news-paper  (if  it 
was  a  libel ;  but  it  is  not)  what,  shall  not  that 
be  permitted  a  two  years  prescription  ?  I  shall 
have  others  besides  folly,  1  believe,  think  with 
ne  in  this  question. 

But,  gentlemen,  whether  it  shall  be  prose- 
cuted or  not,  the  hardship  is  equal  to  me.  I 
do  not  say,  that  it  is  absolute  law  that  it  should 
not  be  prosecuted ;  for  this  has  never  been  ad- 


judged :  indeed  the  case  baa  never  happened 
before.  The  Attorney- General  has  produced 
no  precedent  of  such  a  pruaecution  as  this ;  be 
can  produce  none  to  you.  But  1  desire  the 
Attorney-General  to  remember  what  I  now  say 
to  you  and  to  the  Court.  1  say,  that  thia  abuse 
of  his  power  and  prerogmtivo,  and  of  bis  uiyust 
claims,  will  cause  some  method  of  quieting 
men  in  respect  of  libeb,  as  men  have  been 
quieted  in  respect  of  possessions  a^inat  the 
crown.  It  will  be  necessary :  for  it  will  bt 
considered  that  the  nature  and  the  eflfecia  sf 
the  charge  of  libel  have  been  verv  coosideraUy 
changcNl  in  the  preaent  time.  The  charge  af 
libel  now  affrata  both  Houses  of  Parliameat 
Privilege  b  gone ;  expulsion  may  be  tke  eon* 
sequence ;  incapacitatton  foUowa  f  To  what  art 
they  exposed!  I  caat  my  eyea  by  accident  to- 
wards one—l  beg  the  gentleman's  pardon- 
there  aits  near  the  judge  one  of  the  moat  dis* 
tingnisbed  members  of  the  Uoose  of  Com- 
mons ;*  be  is  as  liable  to  an  information  lor  a 
libel  as  I  am  at  thia  minute.  In  bia  book,  in 
hia  book  the  charge  of  murder  is  aa  completely 
made  as  in  my  advertisement :  it  is  lately  pob- 
lisbed  ia  hia  Letter  to  tke  Freemen  of  Briatal: 
be  sUnds  as  liable  to  be  expelled,  to  be  punish* 
ed,  to  be  shot  up  firom  society  as  a  mad  dag  ai 
I  do,  and  with  the  aanse  pretence.  Gentle* 
men,  there  are  now  great  officera  of  atate  wbsm 
I  know  to  be  more  liable  to  a  prosecution  for 
libel  than  1  am ;  who  have  written  what  has 
much  more  the  aspect  of  a  libel,  than  anv  thing 
to  be  found  in  my  advertisement;  Midwkid 
may  l»e  proved  against  them  by  the  same  maa 
that  has  proved  my  publication.  It  istrue^ 
tboee,  wbo  are  not  concerned  in  the  GasHte, 
may  at  prasent  kave  lefi  off  the  practice :  bat 
what  aiginfies  that  ?  The  Attorney-  General  wiM 
tell  them,  that  the  number  of  yeara  aigaifts 
nothing:  it  is  folly  only  that  will  say  that; 
even  though  it  was  written  ten  or  twenty  years 
ago,  (fbr  he  has  drawn  no  line)  it  is  only  lolly 
that  will  say,  it  is  not  a  crime  now,  if  it  was  i 
crime  theu.  Crentlemen,  I  must  beg  you  par- 
ticularly for  your  own  direction  to  observe  the 
strong  reasons  against  this  practice  of  bringiog 
a  prosecution  for  a  libel,  long  af\er  the  csuie 
of  the  charge  was  given.  Consider  the  chaagei 
which  are  made  both  in  the  persons  charged, 
and  the  appearance  of  change  which  tliere  aisy 
be  in  the  thing  charged.  A  man  liereat'ter  ts 
be  charged  with  an  offence  so  uncertain  wi  i 
libel,  may,  thinking  himself  in  perfect  secorityi 
change  his  situation  ;  which  he  would  not  ksve 
done,  if  he  had  known  that  there  was  a  prose- 
cution fur  libel  hanging  over  his  head :  and 
perhaps  the  Attoroe^r-Geoeral  uould  net  have 
brought  that  prosecution,  if  he  bad  not  changed 
his  situation,  and  thereby  made  himself  vol* 
nersble,  wbo  was  not  so  t»efore.  Why,  a  man 
might  have  had  a  wife  and  children  since  ikt 
publication  of  this  libel ;  and  it  is  known  liiit 
to  have  them  is  called—**  giving  hostagea  la 
fortune." — A  man  might  mve  given  hootogift 

*  The  celehntad  Mr.  Buika. 


lo  fbrtnne,  inil  then  eompii «  vindiciiie  Aitor- 
ii«j-G«^cra1  Biiil  limes  Itim  Riray  rrnm  liis 
l<»c>l'ul  rrnnily  anil  Bre-siik,  dragt  him  away 
for  ft  liWI  wriilrn  ten  years  fgo :  Tor  he  hut 
drawn  ao  line)  1»  (lii«  III  be  Iximef  it  Ms  lii 
tw  •ufltn'ml  T  I  ihank  Goil,  iliu  is  nnt  ray  sitiia- 
ifio.  There  it,  however,  a  change  in  my 
iitaalinn  i  but  ul'  Ihal  1  ihilt  say  nolhiii);; 
tfaonjih  I  finnly  belicie,  that  that  change  in 
my  litualiun  ciitieil  thia  itinwculion :  and  you 
youmlf  f  a  ijiali  coniider.  It  is  uow  two  yean 
•nd  a  ntloolh  ago,  or  iherenlioiila,  upiranlt  of 
tirn  year*  oan.  thai  ihia  adverlifemeDt  was 
pufaliihtMl.  Thry  were  rery  aore  at  it ;  it  waa 
oouaiili-red  aa  an  affront  by  those  who  ncre 
f  Ud  that  the  men  were  killed.  ITovrerer.  of 
■hem  I  know  tinthing;  I  hare  not  accused 
■hem.  A  proaeeution  wni  soon  after  cnm- 
mrnceil  ag^mat  llie  prinlrr  n  ho  liia  here  been 
iileaceii|;ainaiine;  and  ll  glojiped:  he  heard 


A.  D.  1777. 


[702 


e  of  ii 


sleep,  nnd  v 


lakpn  up  aifain.  When? — Im mediately  after 
ii  waa  known  tomeuhere,  that  I  bad  (aHer  an 
interval  of  iweoiy  yearsj  eniercd  nfjain  into 
mnmttna  at  iheTeni|>le,  in  order  In  do  thot  Inr 
aih«r*  which  1  am  now  brought  here  to  do  fur 
BiyMir.*  Then  rr-commenced  the  proseca- 
lion ;  then  am  I  liecorne  a  libeller:  hut  it 
■Irep*  till  (hen;  It  was  hronglit  asaiD  fjresii 
into  life  by  that  act. 

Bill  bejiitei  this,  gcnlletneo,  there  i«  a  great 
{hang«  nnt  only  in  llie  person  chnrgcfl,  hut 
ikere  ia  a  grpal  change  also  in  the  ap|>earance 
if  the  thing  which  is  charged  to  that  pemon, 
iy  tengili  of  time.  Tliis  ndreriisenient  was 
"hiiea  in  a  lime  or  prolbuiid  peace.  A  civil 
«ir  bu  liiiee  taken  place;  much  bluod  haa 
btfo  ihed  :  mui-h  miichrief  of  all  aorls  has  lieen 
nSnvd;  and  I  wiih  I  could  »*y,  that  there 
•u  not  much  more  in  prngjiect.  You  cannot 
|Dur«elve«  tlierefure  eaaily  put  hark  your  minds 
»  Ihat  ailualioQ  in  which  they  would  hare 
tmi,  hail  the  proaectilJon  followed  cloie  upon 
Uiit  pnbhctiioo.  You  cannot  recollect  the 
'>In  when  certain  proclamatiotiB  itsued;  you 
ODaot  rKotlrct  the  dates  when  certain  iuiuries 
look  place:  un  I  cm  one  made  it  bii  parucular 
nudy,  there  ia  nnt  one  uf  you  can  tell,  whether 
'kitaolputed  nthia  time,  or  ibia  proclama- 
'"Ki  at  ifiit  lime.  If  there  i«  one  of  you  who 
«n  recollert.  yoii  will  And,  that  all  thtne  raea- 
•Urn  which  lake  place  againtit  reheli,  have  all 
^  itinct  lhai  ndvertiiement.  General  Oage, 
"bom  I  tuhprenaed.  and  who  would  not  attend 
)'>u,  who  liiya,  that  he  is  gone  away  to  Ger- 
htny,  he  abould  have  proved  to  you,  Ihat  he 
hblished  a  praolaniBlion  in  which  be  give* 
nouce  til  the  Americana  Ihemielvcs,  lotig  eder 
fill  afTuir  at  Lexingioa  and  Concurl.  He 
i<"li<^e  to  come  in,  and  warns  thrm 
1  111  BO,  otberwiao  they  should  be 
iiliela;  it  irai  not  therefore  known 
.1.  cunsidered,  In  America,  aa  re- 
1  (iroclamalioii  came.  That  pro- 
-     'I  BOtk  (ome  effect;  it  miiNt 

Note  in  p.  OBU. 


either  be  intended  to  make  them  rebeli  who 
were  otherwise  nut;  or  to  make  ihciii  known 
lo  be  sn,  wIhi  were  bii.  If  they  did  not  in 
America  know  that  they  wrie  lebeU,  till  that 
prm^Iamalion  came,  how  thauld  I  here  la  Etig- 
land  know  it  hjog  before  thai  proclamaiioD  did 
come  P  There  is  a  great  change  in  the  appear- 
ance of  llii*  adrertitement  brougbl  lorwaid 
fbr  prusecution  now,  from  what  il  woul4 
have  had  to  vour  minds  at  that  lime.  Thia 
vou  are  bounil  lo  consider.  Indeeil  it  was  said 
i'rom  the  bench,  on  the  trials  of  the  prioiers, 
that  ihis  advert iNemeDl  blamed,  and  censnreil, 
and  libelled  "  alt  the  measures  of  goveriifiienl" 


measures  of  gnvcmmeiil  I 
Ihal  happened  since  the  publtcatiooof  it,  anrrly  ! 
and  if  llie V  can  find  in  th»t  ndierliaemeni,  that 
it  censure's  all  the  meaiurea  hefure.  1  will  he 
canleni  to  lose  a  verdict.  You  wdl  nol,  (r^n- 
tiemen,  li>r  you  must  nol,  lake  it  upon  what 
Ihat  gentlemHn  sny«,  « hat  f  meani  and  what 
I  thnugltt  If  you  can  make  onl  that  meaning 
Irnm  the  advertisement,  then  do  ii;  hui  ynu 
will  6nd  DO  word  hinting  at  or  censurinif  any 
rain  or  any  measure  but  thai  one  measure  of 
the  Americana  being  put  to  death  by  the  i[uo|i9. 
If  you  can  find  in  ihal  advertisement  an  v  nunie 
hinled  at  or  alluded  lo,  or  any  thing  of  that 
bind,  the  Alloriiey-General  will  be  much 
obliged  Id  you;  for  he  cannot.  If  be  could, 
he  wouM  have  shewn  you  in  which  |iarl  il  waa. 
He  would  hare  siiil.  Here  ibii  measure  is  al> 
hided  to;  there  Ihat  great  ininialer  of  slate  >i 
nlludcd  (o.  lie  has  not,  nor  can  do  that :  ha 
has  a  reply  coming  forwaril,  and,  if  be  cen  do 
it.  he  will  do  it  then.  Therefore,  geuliemen, 
yoD  see  Ihal  tlial  migbl  be  a  libel,  if  ii  was 
wrillen  now,  which  was  not  a  libel  al  ihe  lime 
when  it  wai  wrilten.  Gentlemen,  I  don'i  iiiran 
that  my  advertisement  would  be  a  hliel,  if  it 
was  Hrillen  now.  I  know  Ihe  contrary  well ; 
and  so  well,  that,  if  it  is  become  adouht  in  thia 
country,  Ihat  il  is  a  sediiious  libel  against  the 
king  and  the  government  (o  charge  ihe  iroopa 
with  murder,  I  will  wrileit  again  and  again. 
If  il  is  not  a  question,  then  I  am  satisfied;  but 
ifit  is  made  a  qurslion  in  thiscouulrv,  ihit  »■> 
man  shall  charge  a  soldier  with  mmder  wllb- 
□ul  being  guilty  of  a  sedilious  libri  airainst  tba 
king  aou  the  government,  then  1  will  go  into 
prison  for  life:  for  I  will  regularly  charge  the 
king's  troops  wiih  murder  (if  they  put  men  to 
death  unauthorized  by  the  law)  regnlariy  and 
couitaoilv :  and  sn  I  would  do,  if  they  road* 
Ibe  puuianment  death.  Gentlemen,  it'  ihe  ad- 
rcriiseiDcut  had  the  aspect  of  a  libel,  il  shnold 
hare  been  pmsecutrii  aa  conn  a*  it  was  pul>- 
lished,  that  so  the  niisclilevous  leudency  ol'  it 
might  have  betn  prevrnied,  and  ihal  fair  play 
might  bare  been  done  to  me,  and  that  you 
might  uol  come  In  try  an  advertise  men  I.  for- 
getung  that  the  adveriisemenl  preci-ded,  and 
did  not  follow  the  rebellion.  But  if  Ihe  Altor- 
ney-Oeneral  has  piased  his  lime,  I  ought  then, 
gi-Dtleiiieu,  as  iu  all  other  cases  by  law  I  sbonld 
have,  to  have  Ihe  beneSl  of  the  tauli  of  my  a< 


T03J 


17  GEORGE  III. 


Proceedings  against  John  Home, 


[70t 


versary.  I  ought  not  by  his  neglect  and  faOlt 
to  be  put  iolo  a  worse  situation  than  1  ahould 
have  been,  if  he  had  done  hia  duty.  But  the 
iLitorney -General  said  at  first,  in  excuse  for 
that,  that  it  was  owing  to  an  accident.  If  true, 
so  much  the  more  fortunate  for  the  defendant. 
But  how  appears  it?  How  does  it  .appear  that 
it  happeneil  by  an  accident  ?  Is  that  to  be  so 
slightly  taken  up,  upon  the  Alturnev-General's 
just  hinting  it?  What  was  the  accident?  Has 
he  profed  it?  has  he  named  it?  He  cannot 
name  it.  Let  him  account  for  it.  I  heard  the 
late  Attorney-General  (the  present  Chief  Jus- 
tice of  the  Common- Pleas*)  declare,  that  it  was 
liis  doty  to  account  for  his  conduct  in  brintfing 
thai  prosecution  against  the  letter  of  Junius; 
which  was  brought  quick  too,  not  in  this  man- 
ner. He  said,  it  was  his  duty  to  account  why 
he  took  one  printer  before  another ;  because  he 
looked  upon  himself  in  filing  informations  to 
be  exercising  a  judicial,  oflicial  power,  and  not 
merely  an  advocate  at  the  bar;  he  thought 
himself  bound  to  justify  his  conduct.  Let  the 
Attorney- General  tell  us  the  accident.  I  know 
something  more  of  the  re*  commencement  of 
the  prosecution  than  he  thinks  I  do ;  and  a  ?ery 
strange  circumstance  it  was  that  brought  it  to 
my  knowledge :  however,  I  don't  think  1  want 
that  But  that  is  not  all.  An  accident,  he 
says,  prevented  the  prosecution  at  the  time 
when,  he  must  acknowledge,  it  ought  to  have 
been  prosecuted.  Aye,  but  there  is  another 
accident.  What  is  the  accident  which  has 
happened,  that  makes  it  be  prosecuted  now  ? 
There  are  two  accidents.  He  has  only  just 
hinted  one  of  them  (he  has  not  told  you  what 
that  is) ;  but  he  is  totally  silent  about  the  other. 
What  is  the  accident  that  makes  it  to  be  pro- 
secuted now,  at  the  distance  of  two  years? 
Yqu  see  there  is  one  accident  which  caused  it 
not  to  be  prosecuted  at  first,  in  a  proper  time ; 
there  is  another  accident  that  causes  it  to  be 
prosecuted  at  an  improper  time.  He  is  bound 
to  justify  himself  (not  only  to  you,  but  to  every 
man) ;  he  is  bound  to  tell  you  both  accidents. 
1  believe  he  will  explain  neither.  Gentlemen, 
I  am  sorry  to  take  up  so  much  of  your  time. 
1  protest  upon  my  honour,  it  is  not  to  gain  a 
verdict  for  myself :  1  have  business  to  do  that 
will  take  me  up  much  more  time  than  the 
judsi^rs  dare  to  confine  me  on  this  charge.  I 
am  already  a  prisoner :  I  have  been  a  prisoner 
in  my  own  room  much  longer  than  they  will 
chuse  to  imprison  me.  They  will  take  care. 
The  doctrines  concerning  libel  have  now  risen 
to  such  a  height,  that  they  call  for  some  re- 
medy ;  and  they  wilt  have  it.  The  coming 
necessity  of  the  times  will  produce  it :  and  if 
we  shall  not  have  it  from  justice  and  honour, 
we  shall  have  it  from  necebsity. 

Geutlemen,  there  are  many  other  unfair 
practices  in  this  case,  besides  this  delay  of  pro- 
secution. Oliserve  how  it  conies  on.  The  At- 
torney-General takes  the  printers  first.  Why 
not  lake  the  author  first?  He  has  said  indeed, 

•  Sir  William  Dc  Grey. 


that  though  it  was  signed  (and  he  makea  that  a^ 
great  piece  of  impudence)  lie  baa  said,  that 
though  it  is  signed  witli  my  name,  it  was—- 
*<  as  inscrutable  and  impossible  for  him  to  fol- 
low it,  as  if  the  name  had  not  been  put  there." 
These  are  the  very  words :  <*  as  inscrutable  and 
impossible,  as  if  my  name  had  not  been  p|it 
there." — Now,  what  said  the  evidence  that  be 
brought  to  you  ?  He  told  you  that  he  had  never 
refused ;  that  he  had  never  been  aaketl ;  tliat 
they  had  never  made  the  slightest  enquiry  aAer 
the  author.    Now  1  appeal  to  your  own  coo- 
sciences  :  is  there  a  man  in  this  court  that 
doubts  whether  the  Attorney- General  doubled 
or  not  that  I  wrote  that  advertisement?  Is 
there  a  man  in  this  court  thinks  so  Basely  and 
so  meanly  of  me,  that,  having  signed  my  name 
to  an  act  of  that  kind,  and  paid  (as  1  will  prove 
to  you)  the  money  to  the  banker ;  is  there  a 
man  in  this  court  that  doubts  that  the  Attorney 
General  would  have  found  a  difficulty  to  coiue 
at  me  ?  There  is  none  of  you  that  can  believe 
what  he  says  in  that  respect :  iudge  then  of  the 
rest.     Gentlemen,  he  took  tbe  printers  first 
I  will  tell  you  Vhy  he  did  that :  it  was  to  gain 
the  influence  of  a  verdict    He  meant  to  take 
nie ;  be  did  not  think  it  inscrutable  or  impos- 
sible.   AAer  he  had  gained  the  influence  of  a 
verdict  on  the  printers,  then  he  comes  to  tbe 
author.    The  question  now  comes  with  a  pre- 
judice before  you.     A  jury  has  determmed 
upon  it,  has  declared  it  to  he  a  crinoe.    Aly 
God !  where  is  his  honour  and  his  conscience? 
But  be  says,  that  he  did  not  know  the  author. 
He  did  know  it;  he  was  in  possession  of  tbe 
proof  before  he  tried  one  single  printer ;  sad 
therefore  the  printer,  who  is  now  the  evidence, 
was  not  brought  on  to  trial.*    Tbe  informattoa 
was  filed  against  him,  and  he  withdrew  bis 
plea,  upon  an  agreement  with  the  Attorney- 
General  ;  thinking  perhaps  (you  may  suppose) 
that  1  should  play  him  some  cunning  trick,  and 
sink  the  evidence.     I  mention  this,  because  it 
has  been  thrown  out,  as  if  I  had  escaped  from 
the  power  of  the  House  of  Commons  for  \^aiit 
of  evidence.    The  gentlemen  (looking  at  tti« 
Attorney  and  Solicitor-General)  know  the  case 
better  ;  they  know  better..    1  know  the  gentle- 
men and  their  understanding's. — They  knofr 
how  I  escaped,  and  I  will  tell  you  presently. 

But,  gentlemen,  he  takes  the  printers  Hrst ; 
and  which  printer? — He  who  printeil  it  Jastot' 
all  the  others.  Now,  why  did  he  take  kiui 
first  ?  1  will  not  tell  you  myself,  but  the  priatrr 
shall  tell  you.  He  was  a  strnnger  to  me,  aD>l 
he  writes  to  me  this  letter— "  The  printer  of 
the  Whitehall  £vening-Post  presents  his  mo»t 
respectful  compliments  to  Mr.  Hurne,  sod 
takes  the  liberty  of  sending  Mr.  Home  a  copy 

*  "  The  fashion,  now  (a.  d.  1764)  ininn 
ducing  (for  the  first  lime  since  the  Revolution) 
of  proceeding  against  printers  after  the  author 
is  known,  breathes  a  spirit  of  persecution  (I 
may  say  cruelty)  hardly  to  be  endured.** 
Letter  concerning  Libels,  WArrants,  ScixuTt 
of  Papers,  &c. 


I 


Jot  a  Ltbef. 

oT  the  ioibnnUion  filed  i^inst  him  Tor  pnb- 
lisbin^  iheadTertiaeDieDlsigncil  by  Mr.  Hnrii 
on  babalfof  the  CnuMituilooal  .Socitly  ;  Biid 
the  priotcT  hu  Rreal  reawiD  Id  Ltlieve,  I'rotn  Ilia 
living  in  HidiUcae]!,  ihat  BiliniaisCralluD  wi 
male*  (beir  Krat  attack  upon  LIm,  as  lli«y  ge 
tierally  deem  themsHiea  sure  of  a  jury  in  thi 
co«iiiy,"  S(c. — Genilcnen,  Ihat  was  there! 
•on  why  they  look  the  printers  (iral,  and  that 
frioler  firM:  anil  (which  la  a  rery  lin^lar 
llnllir)  thuuifh  lliey  convicled  thai  printer,  ihey 
baiv  neier  broiii{bl  him  tip  l<i  juilginent.  But 
ttr.  Attomey-Getieral  said  (and  I  had  like  to 
bale  forsol  to  mpniion  it)  ihat  he  dill  not  ki 
that  I  was  the  auihor.  1  have  prnTfd  In  _ 
thai  be  did  kaow  it  barore  Ihti  trial  uf  the 
piialen.  Coinnmn  Ben«e  shews  to  you  Ihat  be 
did  know  it,  and  bat!  evidence  a^ainsl  rue,  But 
then,  I  suppose,  he  will  aay,  he  did  not  slop 
(he  trial  ui'  ibe  printers,  because  that  Hould 
k*te  caused  a  delay. — It  would  liare  caused  a 
delt>l  What,  afier  staying- two  yesrs  unrea- 
MoaMvatMl  unjustly  ?—li  would  bate  cuuied 
Utdotay  itfalerm  Id  rake  the  aullmr  first,  nud 
fm  bim  lair  play.  Will  he  hy-and-by  say, 
dttlbr  dill  not  slop  ihe  printers'  lr'al->,  and  bring 
B»e  OD    firoi,  merely    lo    avoid  delay  f    Tbe 

rterv  would  haie  been  much  oliliKed  lo  bim 
the  delay;  tbev  wished  and  deinred  It. 
Tbajp  offered  bim  evideacc.  1  totd  this  hniiert 
tHa  (trhoae  face  I  never  saw  before}  when  he 
now  la  me — (Ihr  Ihe  printera  were  not  de- 
falked in  the  manner  I  wished  ihem  to  lie  da- 
faadcd  ;  the  lillje  advite  I  (rave  was  not  ful- 
ln*d)— atnenest  ihe  rest  I  lold  ibis  printer  of 
IhilVhiiebull  Evenin^.posl,  ihnt  I  ilid  not  be- 
Kete  he  cuuld  escape  bring  trind  Ural;  butl 
M  him  he  should  send  biii  altoruey  lo  Ihe  Al- 
twavy-tieoeral,  and  ni^ke  excuses,  and  heg 
aai  pray  Ibsl  he  mieht  nut  then  be  brought  on 
It  trial,  but  sMy  till  alirr  Ibe  London  jurien 
kidlHed  the  cause  ;  and  I  advised— (ne  had  a 
MMiiigi  1  roijfut  to  ask  the  witness  the  ques' 
■il)  aod  I  ihen  advisKi  ihat  printer  who  was 
ttQMldence,  ihat  Ihe  Loiidoo  printers  should 
vadesTOur  to  press  nn  Iheir  trials ;  and  ur|(e 
ttsi  Kiispeuee  waa  worse  to  them  limn  any 
Viineihalvonld  follow  a  cunviclioa ;  and  that 
Ihe  Middlesex  printer  should  beg  for  deluy. — 
*al  ib»t  ibe  Aitorney-General  might  be  im- 

KU|H>n ;— nu,  it  would  have  been  nothing 
Fit  and  reasonable :— Imt  becnUFe  I  would 
VJIbn  coviT  a  insu  h  iih  slitime.  if  he  refused 
i^  OTM  least  (and  so  far  kindly)  prevent  him, 
ifpuuilda,  from  csposing  himself,  by  pretend- 
i^L-tliU  all  this  is  the  natural  course  of  acoi- 
''  til ;  ihul  il  was  dune  lo  avoid  delay  ;  that  it 
""inieilrity,  hnno'ir,  purily,  and  conscience. 
~HoMeTer,  I  Dould  lint  prevail:  so  ^eal  is 
dw  loflueuce  ol*  that  genllemaii's  office,  and 
cnnitecliuiia  which  it  causes.  Thuii)[h 
pnnirr  was  esijer  for  il,  his  atlomry  said, 
'  I  csn'l  be  coucemed  in  the  cause;  1 
not  foi  500J.  1  cau't  speak  to  tbe  Aiior- 
■ay-Gcnemt ;  for  Und's  sake,  g^i  auoiher  al- 
"     ■■  No,  Mr,    1  doii'l  mean  Ihat  yon 


L      lilbsf 


fOL.  XX. 


In 


A.D.  177T.  1706 

j-oil  conM  have  no  objeclion  la  go  to  the  A  t- 
toriiey- General  and  pray  drlay,  till  after  the 
olher  printera  hud  beeu  iried  ;  ynnr  client'c 
wife  is  near  being  hroaifht  lo-hed." — .Sn  lii* 
Middlesex  printer  was  tried  first,  and  s  verdict 
gained.  I  did  ool  wonder  at  il :  I  expreied 
it.  Genlli'tncn,  thnu|{h  ibis  wasan  aci'idenl,  I 
musi  be^  you  to  observe  It  la  an  accident  which 
has  always  occurred.  For  In  Ihe  cai.e  of  Ihat 
teller  of  Junius  whirh  was  pro«eculeil,ihefirat 
person  pri>secuted  was  Almon  (who  waa  not  the 
pablisber,  but  had  sold  II  at  bis  shop)  wha 
[ived  iu  Westminster.  Here  loo  was  llie  same 
■eodent;  and  it  had  the  same  consequence; 
except,  indeed,  ibat  In  that  cose  the  Loiidua 
juries  recollected  ihemwlvcs  ;  and  Ibuutjh  tltef 
had. a  verdict^of  a  Middlesex  jury,  Ihe  Loodoa 
juries  cast  il  out.  There  was  liowever,  a  slruj^ 
gle  in  their  rcrillcts  i  there  was  toineihing — 
hut  I  will  nut  enter  lnti>  that  now  :  Ihvy  would 
not,  hoHerer,  autTer  their  minds  lo  be  eiiltreljr 
influenced  and  alTecled  by  the  prior  verdict  so 
obtained.  A  e^ollemao  who  was  a  juryman 
upon  that  occasion  in  Mkldlesex,  is  uow  a  btr 
mnel,*  and  of  greal  eonivqueiice  at  ibe  lndia> 
house.  Grnllemen,  if  you  make  yuursetves 
useful,  there  is  a  better  (rack  open  to  y>iu  than 
Ihe  honourable  and  just  nins  of  yunr  pro- 
l-essiun.  You  will  observe  then  that  llie  lam* 
acciJpnls  always  return,  and  ihey  are  never 
explained. 

Gentlemen,  there  is  one  part  of  the  treatment 
of  me  in  Ihii  ptosecullon  that  1  think  1  have  a 
ri^hl  to  comiituin  of  aa  mat)  to  man.  I  gave 
Iheoi  no  trouble ;  I  made  no  nhjeclions ;  1  re- 
quested when  ihe  jury  waa  struck,  from  theSn- 
licilor  uf  the  Treasury  (before  witness)  I  told 
him  I  lived  in  Ibe  country,  that  I  was  alwaya 
at  home — I  desired  he  wuuld  save  me  uiinecM- 
aary  trouble,  and  Ihat  be  would  do,  ns  men  saj 
to  ibe  executioner,  Uo  your  office  like  a  gentle- 
man.  He  seemed  to  l>e  well  disposed  towards 
It,  and  treated  me  with  great  civility  sud  cgin- 
plaisance.      I  desired  bim  to  present  ray  com- 


il  myself)  and  deaira  he  would  lel  me  know  on 
what  day  be  wttuld  chuse  lo  have  tbe  trial. 
The  solicitor  promised  rae  he  would.  He  kept 
me  upwards  of  a  forlnlgbt,  never  letting  me 
know  that  It  would  ur  would  uot  be  tried.  !)• 
kept  me  till  seven  o'clock  at  nig^ht  the  day  be- 
fore the  last  day  of  the  siltins>>  uncertain  wh*- 
llier  I  was  to  conie  here  or  not  the  uext  morn- 
lug'.  What  waslhecoDseqiience?  I  had  told  bitn 
tbe  consequriice.  t  had  a  wiiness  lo  send  liirone 
hundred  and  Ally  miles.  I  sent  for  him,  and  I 
have  again  bmught  him  (I  am  ashamed  of  the 
trouble  1  gave  Ibe  genllemnn,  a  stranger  to  me, 
I  never  sa>*  him  till  now)  I  gave  him  the 
trouble  to  ceine  and  to  go  back  two  hundred 
aod  eiifhiy  miles  The  jiersnn — (and  it  is  not 
a  common  person,  a  porter,  or  innsenger  ibal 
can  be  sent  with  asuiipcann,  when  ynu  douot 
koow  whether  the  wiliicsb  will  conic  or  lioi) — 


TOT] 


17  GEORGE  in. 


Proeeedingt  agaimt  John  Horne, 


[708 


J  Hasi  forced  to  send  him  the  same  way.  The 
Solicitor  for  the  Treasury  knew  it ;  yet  he 
never  would  let  me  koow  till  last  Tuesday 
Diffht  (last  Tuesday  afterouon  I  suppose  oiy 
solicitor  knew  it)  wbeo  the  trial  would  come  od. 
My  witness  was  forced  to  go  back  aud  come 
•f^in.  Now,  what  is  your  verdict,  (suppose  it 
filfased  the  Attorney-G^oeral  to  go  on  so  two 
or  three  sittings  more)  what  is  the  effect  of 
your  verdict  compared  with  that  expence? 
Your  replict  is  the  gentlest  part  of  the  prose- 
cution. When  1  say  your  verdict,  it  is  because 
then  follows  the  judge  s  senti-nce. 

Gentlemen,  if  you  don't  know,  it  is  proper 
that  1  should  inform  you  how  the  London  ver- 
dicts were  obtained.  I  was  present  in  the  court. 
One  jury,  I  think,  brought  it  in  (at  first)  i^uilty 
4»f  printing  and  publishing  [See  the  case  of 
H'oodfall,  A.  D.  1770.]  a  most  stupid  verdict ! 
I  am  sorry  that  honest  men  should  be  so  im- 
posed upon.  Guilty  "f  printing  and  publish- 
ing! I  beard  a  gentleman  once  say,  who  has 
some  skill  in  the  law,  that  there  was  but  one 
possible  (Tuilt  that  there  could  be  in  printing 
and  publishing;  and  that  was,  if  it  was  printed 
upon  gilt  paper.  The  pyn  is  poor  enough  ; 
but  not  too  stupid  for  the  doctrine,  not  a  bit. 
There  happened  upon  the  trial  of  another  of 
tlie  printers  to  be  some  difference  of  opinion  in 
the  jury.  They  came  into  court ;  they  de- 
aired  to  be  heard,  A  juryman  desired  to  know 
^'  whether  or  not  th^  were  to  find  their 
verdict  according  to  the  mformation  :'*  that  was 
his  question  (I  don't  know  bis  name)  which  he 
desired  to  know.  It  was  plain  enough  what 
that  honest  man  meant.  It  is  true,  he  did  not 
express  himself  in  the  technical  legal  terms  of 
the  Uw,  perhaps;  but  i  did  then  say  aloud 
(and  1  firmly  believe  that  his  lordship  heard 
me ;  there  are  gentlemen  in  court  that  stood 
by  and  heard  me)  1  did  say  (a  little  heated) 
**  hrs  lordship  dares  not  answer  that  question." 
I  said  it  out  loud  (I  might  well  be  supposed  to 
feel  a  little)  **  he  daf^es  not  answer  that  ques- 
tion ;  for  he  dares  not  deny  it ;  it  is  too  gross : 
be  dares  not  own  it ;  fur  then  he  loses  the  ver- 
dict." His  lordship  did  not  answer  it ;  his 
lordship  did  not.  Are  you  to  find  according  to 
the  information  ? — Why  you  are  to  find  the  in- 
formation according  to  the  evidence.  You  are 
to  find  the  thing,  with  which  I  am  charged, 
firoved.  The  juryman  said — according  to  the 
information — Why,  he  was  to  find  according  ; 
for  according  means  agreeing,  and  means  no- 
thing else.  The  evidence  agreeing  with  the 
information  !  Why  yes,  to  be  sure,  what  is  he 
to  find  else  ?  f  le  must  find  that  or  nothing,  for 
that  is  tlie  only  thing  before  him.  However, 
that  question  was  not  answered.  Then  a  little 
conversation,  of  a  strange  nature,  took  place-^ 
(his  lordship  loves  conversations  with  the  jury) 
•—a  liitJe  conversation  took  place  about  inten- 
tion. 1  hope,  gentlemen,  1  tihall  at  least  have 
this  benefit  by  my  trial,  that  the  doctrine  of  in- 
tention will  come  out  fairly  and  unequivocally 
to  you ;  whether  the  jury  have  a  right,  whe- 
^^'~  it  if  their  duty  (it  it  the  very  gist  of  the 


i^hole  matter)  to  determine  vrbat  was  the  in* 
tention.  The  laws  have  confined  the  jury  to 
one  single  word  (so  careful  have  they  been.) 
That  word  is  guilt ;  that  guilt  which  ia  charged. 
Guilt  there  ttitk  be  none  without  intentioo;  If 
guilt  can  be  found  without  intentioQ,  ao  be  it ; 
l)ut  I  hope  that  you,  gentlemen  of  the  jury,  nor 
this  court,  will  not  be  permitted  to  go  away 
from,  hence  with  these  equiv4»cal  sayings  whida 
hitherto  have  been.  Let  it  cume  out  fairly,  aod 
let  us  know,  in  the  name  of  God,  what  the  doc- 
trine is. 

Gentlemen,  1  did  object,  if  you  remember  it 
^-(1  don't  now  intend  to  go  into  it,  for  I  shall 
still  be   longer   than  I  wish  ;  but    I  thiuk  I 
ought  to  mention  it,  and  I  hope  you  will  ex* 
cose  the   loss  of  your  time)— gentlemen,  wt 
talked  something  ainut  the  right  of  the  Attor- 
ney-General to  reply — If  there  comes,  said  hit 
lordship,  fresh  matter. — There  can  come  no 
fresh  matter,  unless  there  comes  fre^h  evidence. 
The  evidence  is  the  matter ;  the  pleading  is  a 
different  thing.     The  prosecutor  is  bound  to 
foresee  all  that  can  be  urged  in  defence  by  tbt 
pei'son  accused ;    and  to  answer  it  before  it 
comes :  that  is,  he  is  to  make  gooil  bis  charge. 
If  it  is  not  so»  see  the  other  case ;   see,  oa 
the    other   hand,  what  1  am    to  do.    I  am 
then  to  foresee  what  he   has  to  urge  agaitit 
me ;    and  if  1  do  not,  what   follows  ?  WbT, 
all  that  he  urges    in   hia  reply  (as  he  csUs 
it)  is  a  new  part  of  the  accusation,  which  I 
shall  have  no  opportunity  of  answering.    Tba 
fact  of  publishing  the  advertisement  is  not  dis- 
puted ;  I  never  disputed  it ;  the  whole  matter 
that  we  have  to  do  together  is,  for  him  to  prove 
it   a  crime  by   law  or  argument :    therefore 
whatever  argument  he  uses  in  hia  reply,  if  it 
has  any  effect  upon  your  minds,  I  may  be  con- 
victed (if  convicteil  upon  such  argument)  with- 
out ever  having  offered  the  least  defence  ;  tliit 
is  the  blessed  consequence  of  his  right  to  reply : 
so  that  he  is  not  to  foresee  what  may  be  tin 
swered  to  his  arguments ;  but  the  roan  charged 
is  to  foresee  what  arguments  may  be  urged 
against  him. 

Gentlemen,  there  lives  this  day  a  Tery  great 
man  in  this  country,  whose  doctrine  and  wboie 
practices  were  diametrically  opposite.     He  ea- 
joyed  the  office  of  Attorney- General.     He  bu 
been  a  chief  justice.     He,  as  I  am  informed, 
never  prosecuted  but  one  libel,  and  that  was 
Dr.  Shebbeare,  who  is  now  pensioned  by  those 
who  made  this  gentleman  Attorney-General. 
What  was  bis  conduct.'*  If  ever  there  was  aa 
infamous  libel  against  government,   surely  it 
was  that  (it  is  a  great  many  yeara  ago,  but  I 
read  it).      What  was  lord  Camdeu's  conduct? 
He  lefi  the  whole  to  the  jury  ;  intention  and  all ; 
the  n  hole :  he  cut  you  off  from  nothing  of  yoof 
right.  He  did  not  hold  the  threatening  language 
— '*  you  may,  if  you  will,  take  it  upon  you."-* 
Why    that   tlireatening  ?    You  may    commil 
crimes,  if  you  will:  you  may  beas  iodeceotaa 
I  may  be  supposed    to  be  for  repeating  tbtt; 
bot,  upon  such  an  occasion  as  thia,  I  reckon  ift 
not  indeceot.    But— ^*  you  may  if  you  wiU.*'«^ 


709] 


Jbr  a  LibeL 


A.  D.  17T7. 


[710 


Wby  yoa  not  only  nay,  but  yoa  art  bound  to 
doit;  nor  do  you  discharge  your comciencea 
nor  your  oatbs,  if  you  do  it  not :  but  I  hope  you 
will  lia?e  it  eleany  said,  whether  you  are 
baood  or  not.  Lord  Camden's  remarkable 
words,  when  he  finished  his  charge  against  the 
defendant,  were,  that  he  did  not  wish  the  convic- 
tioo  of  bim,  if  any  man  whatsoever  donbted  of 
his  guilt. 

Gentlemen,  another  thing  was  said,  which  I 
mnst  warn  you  against  j  it  was  said  that  this 
advertisement  (1  belicTe  I  mentioned  it)   ar- 
taigned  all  the  measures  of  government   (at 
least,  I  think,  you  need  not  search  into  the  ad- 
vertisement  itself  to  be  assured  that  it  did  not 
arraign   the  measures  of  government  which 
kave  followed  the  publication.)    The  printers 
who  have  been  brought  to  judgment,  have  been 
tenteneed  a  hundred  pounds ;  and  tliey  suffered 
what  they  were  not  sentenced  to,  a  week's  im- 
prisooment.    Their   fine,  it  was  represented, 
was  mitigated,  for  that  they  might  have  been 
or  were  imposed  n|»on  by  the  author,  the  libel 
esming  in  the  shape  and  form  of  an  advertise- 
ment, which  disarmed  tbeir  caution  ;  and  there- 
fire  the  fine  was  no  more.    Formerly  our  laws 
panisbed  men  for  being  knaves ;  now  I  perceive 
they  shall  be  punished  for  being  fools.    If  a 
printer,  for  the  sake  of  two  shillings  or  balf- 
a  erown,  is  imposed  u|>on  by  a  wicked  incen- 
diary, who,  under  the  shape  of  an  advertise- 
nent,  disarms  their  caution  and  slips  it  into 
tbeir  paper ;  the  jury  have,  vou  know,  nothing 
todo  with  their  intention  ;  therefore  there  must 
ke  a    verdict    against    them   of  course :  the 
jadges  find  the  printers  have  been  imposed  upon, 
ind  therefore  only  imprisKin  them  a  week,  and 
fbM  them  one  hundred  pounds.    It  was  a  dear 
JMlf-crown  they  gained!  If  the  prinlera  were 
iaposed  upon,  tiiey  should  have  been  acquitted. 
Bat  by  the  evidence  given  now,  yon  find  they 
were  not  imposed  upon  by  me :  there  was  no 
iaiposition  by  me.     What  was  my  conduct  to-, 
virds  the  primer?  This  advertisement  I  am 
^  giving  you  will  offend  certain  ministers  in 
tbis  country  :  it  is  perfectly  harmless  and  safe, 
iodfree  from  the  cognizance  of  the  law  :  the 
letter  of  it  is  just ;  it  is  true  ;  but  the  law  af- 
fbrds  no  guard  or  protection   now   from   the 
pawer  of  the  ministry  in  the  HoutieofCom- 
iMos,  who  vole  men  guilty!  and  vote  things 
eriines!  They  have  given  out,  owing  to  my 
Airbearance  (I  did  not  witih  to  expoae  the  na- 
tsreof  that  defence  which  caused  me  to  go 
Ne  from  the  Houst*  of  Conimoos),  being  silent 
tbey  have  propa|/ated  a  report,   as  if  (Tike  an 
Irtful  trirkuig  attorney  or  solicitor  that  is  not 
tned  to    bouuurable  practice)  1  had    made  a 
cbai^e  upon  thero,  and  sneaked  out  for  want  of 
evidence  against  me.     1  was  determined,  for 
tbe  take  of  the  laws  of  this  land,  that  they 
ikoQld,  either  by  forbearing  to  take  notice  of 
tbis  advertinemeiit,  or  by  takiiiflr  notice  of  it, 
kl  it  appear  that  they  nave  no  power  to  pu* 
tiib  a   mao  hut  by  the  laws:   and  thererore 
1  fumiabefl  full  evidence,   in  order  to  shew 
IbUtvea  witb  the  fullest  evidence  the  Hvum 


of  Commons  have  no  power  to  try  or  to 
punbh  the  subject  I  knew  I  was  safe  from* 
the  courts  of  law,  at  least  thai  I  must  there  be 
tried  by  a  jury  ;  and  they  may  do  their  duty, 
if  they  please. — Gentlemen,  for  every  minute 
af  impnsonment  that  those  printers  suffered,  1 
do  freely  and  frankly  confess  that  I  deserve  at 
least  a  year,  comparatively.  If  they  deserved 
a  minute,  for  every  minute  I  certainly  deserve 
a  year;  and  for  every  farthing  of  that  hun* 
dred  pounds  which  they  were  fined,  proportion 
onl)r  our  guilt  (if  there  is  any  guilt  in  the  case,) 
a  million  of  money  will  not  be  sufficient  for  my 
crime.  If  they  can  justify  their  sentence  on' 
the  printers,  I  will  justify  the  court  for  the 
most  ample  punishment  they  can  inflict  on  me. 
If  I  am  guilty,  no  man  upon  earth  an  guilty. 
it  waa  the  most  deliberate  act  of  my  life ;  it 
was  thought  of  long  before  I  did  it.  I  made  \ 
the  motion;  I  called  the  meeting;  i  sub- 
scribed a  great  part  of  the  money  ;  1  procured 
the  rest  from  my  particular  intimate  frienda : 
but  I  shall  come  to  that  by-and-by. 

Gentlemen,  J  have  ahewn  you  the  method 
of  proceeding  by  information  ex  officio :  1  must 
now  desire  you  to  observe  the  method  of  punish- 
ment, when  it  comes  to  the  court.  Observe 
how  that  passes.  The  man  is  convicted  this 
sittings :  he  is  called  up  for  judgment  next 
term :  Go  to  prison,  says  the  judge,  and  then 
we  will  think  of  your  sentence.  They  sentence 
him  a  hundred  pounds ;  but  for  what  was  the 
week's  imprisonment?  It  is  put  into  the  sen- 
tence indeed  **  and  imprisoned  until  he  pays 
his  fine.'  Well,  but  could  the  man  pay  bis 
fine  till  he  knew  what  it  was  P  Observe  the 
distinctiona  which  are  made !  A  general  offi- 
cer who  is  now  in  America,  generki  Bnrgoyne, 
was  prosecuted.  He  comes  into  court  to  re- 
ceive sentence  for  hiring  ruffians  to  destroy  the 
electors  coming  to  poll ;  what  ia  his  punish- 
ment? He  is  fined  1,000/.;  but  he  is  not  sent 
to  prison  whilst  his  sentence  is  deliberated 
upon ;  he  is  released  instantly.  Now  what  says 
our  law  ?  Our  law  says,  that  **  a  corporal  punish- 
ment, however  small,  is  greater  than  a  pecu- 
niary puuisbment,  however  great."  *  (^unlibet 
'  poena  corporalis,  quamvk  minima,  major  est 
*  qu&libet  posnk  pecuniarift,quamirls  maximft'  or/ 
something  of  that  kind.  [See  vol.  3,  p.  129]. 
Well  then,  the  greatest  ofi'endcrs,  you  see,  have 
not  the  greatest  pnnishnient.  The  miserable 
printer  who  is  imposed  upon  by  an  incendiary— < 
to  prison  with  him ;  we  have  not  time  to  tell  you. 
now  what  we  will  do  with  him:  and  yet  iidoea* 
not  seem  to  be  a  very  difficult  case:-  but  in  % 
very  uncommon  case,  that  of  an  officer  of  thn 
king's  troo|>s  hiring  ruffians  to  destroy  the 
electors  cowing  to  poll,  and  thereby  gaining  « 
seat  in  parUament ;  in  this  cave  no  deliberation 
ia  necessary  :  or  it  is  taken  properly,  before  he 
is  brought  into  court,  that  he  might  not  auffer 
a  moment'a  impriNonmeut.  You  see  the  dif- 
ference. The  delinquent  was  wisheil  good 
morning;  the  judge  from  the  bench,  when  thn- 
general  paid  down  his  fine  in  court,  wished 
bim  goon  morrow.    APPtber  man  waa  latelj 


71!] 


17  GEORGE  ill. 


Proceedings  ag&itui  John  Homct 


[TI» 


]pro8«ciited,  who  wwiM  bare  fakes  away  the 
fatate  of  hia  ueigbbour,  that  jieiffbbour  DOt  oou- 
aeodng  illegally  to  loie  it  He  aeoda  bim  a 
cballeiifl^e.  He  ia  proaecuted  and  cai^icted. 
>fo  dehberalioD  for  aenteoce;  not  a  naomeDt'a 
impriaoDineot.  He  it  fined  a  hundred  jponnds ; 
and  applicatiao  b  even  made  by  the  Court  to 
know  if  any  body  ever  knew  a  precedent  for  a 
amaller  punishment.  Nobody  indeed  ever  did : 
and  yet  this  challenger  waa  an  elderly  member 
tf  parliament,  and  a  juatice  of  |ieaoe  for  the 
•ounty  where  he  lif ed.*  He  waa  still  better 
<^tban  with  a  good  morrow:  he  was  tnid— 
•  Idem  alii  fec^re,  et  mulli,  et  boni  !* — *<  Other 
m^  have  done  the  tame  thing.  Sir,  as  yon ; 
and  many  other  men  and  good  men  !** — If  be 
waa  a  good  man,  why  was  he  punished  f  He 
■tood  not,  at  that  time,  a  good  man  in  the  court; 
he  did  not  appear  there  ror  hia  goodness. 

Gentlemen,  J  some  time  ago  hinted  aame- 
thing  to  you  of  the  motif ea  for  this  proaecu- 
lion.  I  will  now  go  no  farther  titan  only  to 
ahew  you  clearly  what  could  not  be  the  mo- 
tivea;  and  I  will  leave  your  minds  to  determine 
what  is  the  motive :  only  so  far  I  will  say, 
that  if  the  change  in  my  situatiouf  if  I  was  al- 
lured to  it  by  the  lucrative  emoluments  of  the 
profession,  and  wisihed  to  share  in  the  legal 
plunder  of  the  people,  this  prosecution  might 
then  be  very  8t*rious ;  but  1  laugh  at  it.  I  am 
•ut  of  the  reach  of  the  intended  oonsequencea 
ef  this  prosecution;  1  say,  intended  conse- 
quences: for  rely  upon  it,  I  am  better  known 
to  thpae  who  have  caused  this  prosecution, 
than  for  them  to  have  only  in  view  the  coo- 
•equeocea  of  imprisonment  and  fine.  No,  they 
know  better:  they  know  that  no  men  act  aa 
I  have  alwaya  done  who  mean  to  be  stop- 
ped hy  imprisonment  and  fine.  But,  gentle- 
men,  I  will  shew  you  what  is  not  the  mo- 
tive of  this  prosecution.  The  motive  of  this 
proaecution  is  not  to  prevent  the  evil  tendency 
of  this  wicked  libel ;  of  this  horrid  charge 
against  the  king's  troops  of  murder ;  against 
aoldiera'  who  never  commit  it,  who  are  not 
likely  to  commit  it.  1  am  sorry  to  read  to  you 
anyiwper:  (I  did  indeed  intend  to  have  read 
many,  but  the  time  1  see  will  be  too  lonsr)  1 
will  only  read  one  or  two  to  you,  just  to  satisfy 
you  of  nome  things  which  you  perhaps  are  not 
aware  of.  Here  is  the  Public  Advertiser  of 
May  SOth,  1775.  You  will  find  in  it  a  very 
aerioua,  very  particular,  very  sharp  accusation 
ajfainst  the  king's  troops  of  murder;  the  whole 
circumstances  at  length  ;  and  murder,  murder, 
murder  in  every  line ;  but  it  is  so  long  that  I 
will  not  read  it  to  you  now,  because  yon  can 
all  remember  to  look  at  it  hereafter.  The 
papers  are  May  SO  and  May  31.  The  govern- 
ment then,  1  mean  the  minister  (I  nuike  an 
improper  use  of  the  word  government)  the 
minister  desires  the  public,  upon  this  charge 
of  murder  against  the  troops,  to  suspend  their 
beKef.    What  follows  P    Tliis  paper  which  I 

*  Mr.  De  Grey,  I  bdieva,  eMer  brother  to 
tlMOIuirji«liotafC,B» 


have  prated^**  Aa  a  danbt  of  the  mrtkaatl. 
city  of  the  aeeount  from  Salem,  toueMng  ■■ 
engagement  between  the  king's  troapa  um  tka 
praviaciala  in  Nasaacbuaet's  Ua^,  dkc.  1  de* 
aire  (o  inform  ail  -tkoae  who  wiab  ta  aee  tka 
original  affidavita  which  coofiirm  that  tea— t, 
that  they  are  deposited  at  the  Manaioo-flaiiia 
with  the  right  hao.  the  lord^mayor  for  Iheir 
inspection.  Arthur 


II 


Then  come  the  copies  of  the  affidarila ;  all 
the  particulars  at  len«rth :  murder  ia  not  syaiei 
at  all.  Then,  amongst  the  rest,  eomea  aa  aft- 
davit,  which  I  ahall  prove  to  you  preanMly 
more  authentically  than  iAms;  though  it  ■ 
enough  for  me  that  it  was  published.  Bnt  y«i 
know,  gentlemen,  1  am  not  the  original  author 
of  the  charge.  The  geoilenMu  hM  been  talk* 
ing  of  the  original  author  of  tlie  charge :  ha 
thinka  he  may  tell  you  so  now,  two  yeara  aftsr* 
wards ;  hut  if  he  had  told  you  ao  at  the  time  af 
this  advertisement,  every  man  in  the  cowt 
would  have  huiifbed  at  it.  Here  is  the  ori^iaal 
charge,  aigned  by  the  agent  of  the  provuMa 
where  the  murders  were  committed,  and  tha 
original  affidavits confirmiuff  it  are- here  saidia 
be  lodged  with  the  lord-mayor  for  taspectioa. 
It  is  very  lucky  for  Mr.  Lee  that  hiH  receif^ 
iog  them,  and  causinip  them  to  be  advertiscdi 
has  caused  no  proaecution  against  him.  We 
shall  know  presently  whether  this  affidaiut  ba. 
a  forgery  or  not :  the  gentleman  for  nboae  it  is 
given  attends  here  by  my  subpoina  to  prove  tr 
to  disprove  it. 

**  I  Edward  Thoroton  Gould,  of  his  majesty^ 
own  regiment  of  foot,  l»etug  fkf  lawful  age,  ia 
testify  and  declare,  tliat  on  the  evening  of  tha 
18ih  inatant,  under  the  orders  of  general  Gsgs^ 
I  embarked  witli  the  light  infantry  and  g<'^<uk 
diers  of  the  line,  commanded  by  colonel  Smith, 
and  landed  on  tlie  marches  of  Cambridge,  frosi 
whence  we  proceednl  to  Lexington.    On  oar 
arrival  at  the  place  we  saw  a  body  of  prof  iootsl 
troops  armed,  to  the  number  of  about  sixty  sr 
seventy  men.  On  our  approach  they  dispert>ad, 
and  soon  afler  firing  bi'gan  ;  but  which  party 
6red  firatl  cannot  exactly  say,  as  onr  troops 
rushed  on  shouting  and  huzzaing  previous  10 
the  firing,  which  was  continued  by  ourtroopS' 
so  long  as  any  of  the  provincials  were  to  m 
seen.     From  thence  we  marched  to  Cooeori. 
On  a  hill  near  the  entrance  of  the  town  we  saw 
another  body  of  the  provincials  Bbsembled.  Tba 
lifrht  infantry  companies  were  ordere<l  up  tba 
bill  to  disperse  them.    On  our  approach  they 
retreated  towards  Concord.    The  greoadierf 
continue  the  road  under  tlie  hill  towards  tba 
town.    Six  com|)aoies  of  light  infantry  weft 
ordered  down  to  take  possession  of  the  bridgai 
which  the  provincials  retreated  over :  theeaaH* 
pany  I  commanded  was  one.  Three  coaapanita 
of  the  above  detachment  went  forward  abaat- 
two  miles.    In  tlie  noean  time  the  proviaeill 
troopa  retamed,  to  the  number  of  ab^Mit  threa 
or  four  hundred.   We  drew  up  on  the  Coacavi- 
aide  of  the  bridge.    The  prorincials  oaaae  daw  a 
upon  «si  upoa  whkh  we  engaged  mad  fif^ 


IS] 


JbraLUik 


A«  D«  1777« 


wfat  fire.  This  wm  i\m  first  cn^afeiMiit 
fWr  Hm  tioe  at  JjEoamgUM.  A  continiied  Araif 
ro«i  hiUi  p«nie8  laatel  tbrouffh  ibe  winile  ilay. 
Mjidf  was  woooded  at  tbe  attack  of  tha 
rMife«  aad  am  now  treated  with  tbe  mat<«t 
noMnity,  and  taken  all  poeiible  care  m  by  tbe 
niviaeiala  at  Mcdfonl. 

Sigmed,    **  EamAMJ}  Thoboton  Godld.'' 

Wben  fifit  I  beard  of  tbit  prosecation,  and 
ol  before,  I  befrao  to  consider  whb  myself 
^heiber  I  bad  indeeil  made  use  of  any  such 
ifHrestioD  or  word  as  distioi^uisbed  what  I  bad 
ltd  from  tbe  case  of  many  other  persons.  Not 

day  passed  but  1  found  sohm  news-paper 
lilli  the  same  charge,  cunlainini(  the  same 
mrd  *  mvrder.'  I  need  not  read  any  of  them  to 
>oa ;  you  can  all  recollect.  Go  to  tbe  papers 
bat  are  publisbed  to  day,  to  those  published 
tlhre  this  cbanre  was  brought  against  roe  and 
ioce,  mid  see  if  you  don't  constantly  find  in 
kem  Ibis  cbarf^  dt  murder  a§;ainst  tlie  king^v 
raapf.  I  took  extracts  from  tbem  till  I  was 
rad;  and  not  ouly  from  the  newa-papers,  bat 
everal  other  publications;  from  that  honour- 
Ue  Kenileman's  pubtication  and  others,  which 
fee  of  more  consequence  than  futf^itive  pieces 
I  a  news- paper.  These  all  pro?e  tbe  Attorney 
Scaeral's  nice  sense  of  honour  and  integrity, 
lad  rcffard  to  tbe  public  ((ood,  who  prosecutes 
hm  advertisement.  Now,  that  men  may  not 
k  misled  by  it,  after  suffcrin(|r  tliero  to  mn 
iiM  for  two  years,  ami  be  rnisM  without  any 
BMtroul !  But,  ipntlemeo,  so  far  from  that  be- 
ii|f  the  motive  of  this  prosecution,  tbe  iiapers 
Ne  all  full  af  tbe  same  charge,  and  will  eon- 
tiane  full,  I  have  no  doubt.  I  protest  upon 
■y  honour,  they  are  none  of  them  made  by 
■c:  I  have  been  dumb  ever  since.  I  meant 
It  do  good  by  it  when  I  made  the  charffe,  and 
I  have  been  dumb  ever  fiince,  because  I  conid 
Mtsee  that  any  goo«l  wa&  to  be  produced.  If 
Ibea  you  see  what  is  not  the  tnotive  tor  this 
pustcution  of  me,  at  this  distant  time,  that  will 
M  your  minds  to  conclude  what  is  tbe  mo- 

Gentlemen,  tbe  language  of  the  Attomey- 
Qeacral  forces  me  to  say  a  few  words  upon  a 
■ebjeet  which  is  the  roost  disagreeable  for  a 
iMo  to  speak  of;  unless  indeed  it  is  when  be 
tHcars  as  I  do,  a  defendant.  I  thought  when 
m  Attorney -Cieneral  opeunl  his  charge  upon 
iMs  prosecution,  that  he  would  have  taken  a 
Mmnt  line  from  that  which  he  repeatedly 
Pmoed  in  tbe  trials  of  the  printers.  He  knew 
Ikit  1  bad  heard  him  talk  against  **  indecency, 
t  iood  of  obscenity,  and  scan«tfllou8  publico- 
liiiis."  1  had  already  beard  him  charge  that 
Mvcitiaement  to  be  full  of '« ribaldry,  Billings- 
Me,  aenrrility,  balderdash,  and  impudence." 
1  hate  not  used  a  word  that  be  did  not  nse. 
M  these  I  knew  be  had  charged  upon  that 
hor  advertisement.  I  thooght  that  upon  this 
piescention  be  wonid  not  give  me  such  an  ad> 
flMiga  as  to  say  tbe  same  things,  or  take  the 
Mo  Kilo  that  be  took  before.  It  is  true,  he 
phM4-a#trdiet  by  tbat  line  before,  and  there* 


[71* 

tiase.    I 


ftra  perliapB  thooght  be  migbt  Ibis 
own  I  did  think  tiMt  be  wooM  have 
the  compliment  of  something  a  little  new  ;  hot 
be  says  be  sever  knew  so  lauch  of  my  talcoto 
and  learning  as  at  this  time.  Tbe  geotlemaa'o 
memory  is  short:  1  would  have  forgot  it,  if ,ho 
badoot.  He  represeots  me  to  you  in  tbe  ligbt 
d' a  scurrilous,  nbald,. balderdash,  fiillingsgaie, 
impudent  fellow.  That  boldness  witb'wbick 
I  defend  tbe  right  of  tbe  subject,  will  not,  with 
any  roan  who  has  a  regard  for  the  nglit  of  tbo 
subject,  pass  for  impudence :  those  who  know 
any  thing  of  me  must  judge  whether  I  am  im« 
poident  upon  other  occasions. 

Gentlemen,  be  has  fo:luwed  in  this  desorip* 
tionof  roe  which  be  has  given,  and  in  tbat 
character  with  which  be  has  been  fileaaed  to 
dotbe  me— be  has  folfowed  tbe  old  practice  of 
soHfie  ingenious  tyrants,  %^bo  used  to  dress  up 
men  in  tbe  skins  of  beasts  in  order  to  eucourago 
tbe  dogs  to  worry  them.  Just  so  tlii*  gtrutle- 
man  dresses  np  bis  victims  in  the  chanM*tera  of 
beasts,  in  order  to  expose  them  to  your  indig- 
nation. He  bad  no  pretence  w  hatever  for  re- 
pruKenting  me  in  tbat  liKbt.  I  do  the  more 
wonder  at  this  language  lirom  him,  because  bo 
knew  better.  He  has  said  indeed,  that  be  did- 
not  know  the  gentleman.  The  word  *  know' 
has  many  different  meanings.  H  e  did  not  knoir 
me  as  a  friend,  or  as  an  acquaintance ;  I  never 
had  that  honour:  but  tbat  be  did  know  me  ao 
far  as  to  know  much  more  of  tbe  talents  and 
teaming  (if  there  were  any  in  the  case)  than 
what  he  can  possibly  have  picked  out  fiom  tbia 
day's  bearing,  is  a  notorious  fact.  However, 
gentlemen,  if  I  am  that  BiHingsgate  fellow, 
unfortunate  is  it  for  the  Altorney-Grneral  tbat 
a  fit  of  Billingsgate  then  once  took  him :  and 
whilst  the  fit  was  on  him,  be  applied  to  a  gen« 
tleman  to  introduce  biro  to  roy  company,  ab- 
solute stranger  to  him  as  f  was.  I  did  not  re- 
quest it;  the  Attorney- General  requested  it. 
Perhaps  the  gentleman  w  ho  introduced  him  ia 
in  court.  The  fit  was  not  a  short  one :  mj 
conduct  and  my  character  was  not,  in  hia 
declared  opinion,  such  as  he  now  represents  it. 
I  believe  we  sat  in  a  public  coffee-house  to- 
gether, thoui;li  in  a  {mvate  party,  1  suppose 
from  eight  or  half  after  eight  in  the  evening  till 
past  midnight  consideraMy.  I  don't  nientioa 
it  to  plume  myself  upon  his  distinction  ;  I  claim 
no  honour  from  it :  tbe  gentleman  miglif  bo 
desirous  of  seeing  roe  as  you  go  to  see  a  raree- 
sbew,  or  SA  you  winibl  any  strange  creature; 
it  niitfht  be  from  some  curiosity.  I  never  waa 
vain  enough,  gentlemen,  to  impute  it  to  myaelf 
as  a  merit ;  I  did  not  see  any  rt-ason  to  grow 
proud  upon  it ;  but  I  mention  it  |»articularly 
for  this  reason,  that  not  only  it  ought  to  havo 
saved  me  from  such  a  representation  of^  cha- 
racter, but  it  ought  to  have  saved  the  Attorney- 
General  from  pinning  sucb  motives  upon  me  as 
be  mentiof^ed  in  another  trial;  such  as  tbe 

Sining  of  hall^-crown.  or  the  flying  in  tho 
se  1^  gofeminent.  When  he  was  in*  noa« 
session  of  my  naotive,  he  knew  it  perhaps  bet- 
ter tktB  iboet  flMn  in  EogUndj  and  though  I 


V15] 


17  GEORGE  IIL 


Proceedings  against  Jehu  Home, 


[716 


donU  think  I  have  a  right  to  repeat  what  passed  [ 
from  that  geotleroaD  (though  there  was  do- 
thiog  in  it  dishonourable  to  him),  yet  I  may  be 
permitted  to  say  what  came  from  myself  to 
Bim.  A  question  was  asked  me  to  account  for 
a  part  which  1  played ;  and  why  I,  who  did 
not  then  seem  to  him  to  be  a  desperate  man 
drifen  by  necessity  to  it,  or  that  ill- behaved 
man,  or  that  fool  (for  great  numbers  of  patriots 
and  ministerial  men  go  from  folly  ou  both  sides), 
be  seemed  to  think  I  might  bate  some  more 
honoarable  motif  es  about  me,  and  wished  to 
know  what  they  were.  I  told  him  my  motires ; 
and  it  is  a  strange  circumstance  that  I  should 
then  tell  him  that  motife  which  is  the  very 
motiTeof  this  action  of  mine  which  he  now 
jprosecntes.  I  told  the  gentleman,  in  the  year 
1768,  that  there  was  a  certain  aect  of  religion 
(which  I  named)  which  of  all  others  was  most 
abhorrent  from  my  principles  and  way  of  think- 
ing ;  but  1  added — "  Persecute  them  to-mnr- 
row,  and  I  will  declare  myself  of  that  sect  the 
next  day."  1  appeal  to  himself;  he  will  re- 
member it ;  it  is  rather  too  remarkable.  I  will 
mention  the  sect,  if  it  is  necessarj^.  Shall  I 
repeat  the  name  of  the  person,  the  introducer, 
and  the  place?  If  there  is  any  doubt,  and  he 
ilesir««  it,  I  will  njiention  the  particulars ;  be- 
tsause  1  should  be  sorry  to  be  laughed  at  as  if 
adfancing  a  falshood  of  this  kind,  and  pluming 
myself  for  passing  a  few  hours  with  the  gentle- 
man who  happens  now  to  be  Attorney-General. 
This  passed  long  before  this  wicked  advertise- 
ment ;  long  before  I  could  foresee  that  the 
Americans  were  to  be  treated  as  they  ha? e 
been.  1  think  it  should  hate  saved  me  from 
■uch  a  representation  of  character,  and  from 
■uch  motives  as  have  been  imputed  to  me; 
from  that  gentleman  at  least,  if  he  acts  (as  he 
pretends)  without  direction  from  others ;  for  he 
Las  seen  me  steadily  pursuing  that  same  mo- 
tive. Every  action  in  which  I  have  been  known 
to  be  concerned,  has  steadily  been  upon  one  and 
the  same  princi|de.  I  have  never  had  occasion 
to  support  a  friend,  or  an  acquaintance,  to  pro- 
mote an  election,  or  to  vote,  or  to  do  any  thing 
for  my  particular  connections ;  they  have  al- 
ways bt>en  absolute  strangers  to  me,  and  men 
taken  up  upon  the  fooling  of  oppression. 
Triends !— — Yes,  if  friendship  received  from 
me  could  make  them  inv  friends.  But  friends ! 
No,  if  any  friendsnip  received  from  thein 
was  necessary  tri  make  them  so.  My  motive 
has  been  constantly  the  same:  I  know  no 
American. 

Gentlemen,  I  have  been  more  concerned  in 
my  room  than  I  have  with  the  commerce  of 
men  in  the  world ;  and  I  read  there,  when  1 
was  very  young,  that  when  Solon  was  asked 
whicli.was  the  best  government,  he  answered — 
^*  where  those  who  are  not  personally  injured, 
resent  and  pursue  the  injury  or  violence  done  to 
another,  as  they  would  do  it  done  to  themselves.'' 
-*That,  he  aaid,  was  the  best  kind  of  govern- 
ment ;  and  be  made  a  law  iinpowering  men  to 
do  80.  Now,  gentlemen,  we  are  happier,  we 
vc  onder  a  b^ter  goremmeat  \  for  our  laws 


enjoin  as  to  do  what  he  only  impowared 
to  do.  By  our  laws  the  whole  neigbbonrbood 
is  answerable  for  the  conduct  of  each :  oar  laws 
make  it  each  man's  duty  and  interest  to  watch 
over  the  conduct  of  all.  This  principle  and 
motive  has  been  represented  in  me  as  malice. 
It  is  the  only  malice  they  will  ever  find  about, 
me.  They  have  in  no  part  of  my  lifefomid 
me  in  any  court  of  justice,  upon  any  persootl 
contest  or  motive  whatever,  either  for  interest, 
or  profit,  or  injury. 

I  have  kept  you  too  long  to  say  a  tenth  part 
of  what  I  intended  to  say,  and  I  believe  it  is 
not  necessary :  I  shall  therefore  pass  over  maey 
things  that  would  give  to  some  pleasure,  aad 
to  some  pain.    But  as  they  are  of  that  nature 
that  1  shall  give  myself  (he  liberty  of  osiog, 
upon  other  occasions,  as  1  please  (doing  nt 
wrong),  I  can  the  more  reaciily  forbear  mem 
here.  But,  gentlemen,  in  this  matter  of  cbaig^ 
ing  the  king's  troops  with  murder,  there  is  a 
very  striking  circumstance ;  and  that  too,  I 
suppose,  the  Attorney-General  will  bavef<N> 
gotten.    It  is  well  known  that,  amongst  oliicr 
oppressions  and  enormities  which  gave  me  paii,i 
murders  (without  any  contest  and  dispute)  con- 
mitted  and  pardoneclgave  me  much.    I  caused 
the  soldiers  in  St.  George's- fields  to  be  proie- 
cuted — the  king's  troops — for  murder.    I  took 
them  up.     It  was  called  no  libel  by  the  tbct 
Attorney -General ;  no  libel  against  thegovera* 
ment.    They  were  tried  for  murder.     I  dkl  iv- 
tend  to  have  told  you  how  they  escaped ;  iNit 
it  matters  not.    They  were  tried  ;  they  wers 
charged  with  murder ;  and  that  not  only  io  a 
court  of  justice ;  I  advertised  it,  I  signed  it 
with  my  name :  tlie  same  printer  (I  forgot  to 
ask  him  as  an  evidence :  indeed  1  had  wforo 
asked  him  for  a  news- paper  that  contained  the 
advertisement,  but  he  could  not  send  me  one) 
he  could  have  proved  it ;  hut  it  is  notoriously 
knoun,  i  charged  that  murder  upon  the  kiotif'i 
troops  with  my  name.     It  was  not  thoui;ht  s 
libel  then.    It  was  thought  a  very  great affroDi: 
for  those  troops  had  been  thanked,  in  the  king's 
name,  for  their  alacrity   upon   the  oecasioo. 
What  then,  if  the  king's  name  had  been  abused 
to  thank  men  for  their  alucriiy,  what  tbeo? 
(I  did  not  mention  that,  but  1  mentioned  the 
murder  committed.)    There  was  murder  con- 
mitted.     I  saw  it  with  my  eyes ;  I  saw  maoy 
barbarities  committed.      I   might   have  been 
amongst  the  slain.     And  shall  not  I  mention 
wiiat  I  saw  with  my  own  eyes?  Shall  1  have 
no  tongue  nor  understanding,  but  in  a  court  of 
justice  P  I  certainly  will.  What  followed  ?  iSooa 
after  that  [in  1768],  Mr.  Stanley,  a  consider- 
able officer  in  the  state,  moved  in  the  House  of 
Commons  for  an  act  of  parliament  to  take  away 
from  the  subject  the  right  of  appeal  in  the  caio 
of  murder;  because  1  had  caused  appeals  to  be 
brought ;   that  is,  I  assisted  the  parties  who 
brought  them.    This  motion  was  supported  by 
Mr.  Selwyn.     Mr.  Dyson,  a  lord  of  the  Trea- 
sury, declared  himself  to  be  entirely  of  thsir 
opinion  ; — "  because  the  right  of  appeal  wr 
murder  was,   he  said,   a  tbackU  np»  "•., 


17] 


JaraLiUt. 


ing'f  mercy  t  but  he  begged  a  delay  till  the 
est  winter,  wben  he  promised  it  should  have 
is  assiftaiice ;  that  so  the  motion  might  not 
ppear  in  the  Journals  of  the  House  all  the 
uminer,  to  alarm  and  terrify  the  minds  of  the 
leople  before  thst  bill  could  be  passed  into  a 
i«r,  for  which  at  present,  he  said,  there  was 
lOt  time." — To  avoid  its  alarming  the  people 
etiire  it  could  be  passed  into  a  law ! — Well,  it 
id  not  stop  there :  some  notice  was  taken  of 
bis,  but  not  much,  as  it  was  for  that  time 
ropped.  But  this  motion  was  revived  some 
iroe  after  [in  1774].  Mr.  Rose  Fuller  (a  bet- 
er  man  to  come  forwards  upon  such  an  occa- 
ion)  gave  notice  of  a  renewal  of  that  motion  in 
he  House  of  Commons:  he  was  supported  by 
tfr.  i^ttorney-General.  I  was  alarmed  at  that 
and  I  will  pn>ve  it;  I  am  not  now  asserting 
that  I  will  not  prove).  I  instantly  publishdl 
rbat  they  mitrht  have  called  a  libel,  if  it  had 
MH  been  upon  such  tender  ground.     I  sent  it 

0  the  public  pa|)er8,  with  the  initials  of  my 
lame :  I  inserted  in  it  -such  matter  as  couki 
30t  fiid  to  make  it  be  known  to  come  from  me. 
Iliat  «Kd  not  content  me.  I  rei^uested  an  ho- 
Boorable  member  of  that  House,  who  is  now 
ioeourt,  Mr.  Alderman  Oliver,  to  present  my 
esmpUments  to  Mr.  Rose  Fuller  and  the  At* 
torney' General,  and  to  inform  them  that,  upon 
that  ground,  I  was  ready  to  go  even  to  death ; 
that  I  would  stick  at  nothing ;  that,  on  such 
as  occasion,  I  feared  no  prosecution  for  libel. 

1  iatreated  them  to  tell  me  when  they  would 
briag  the  motion  on,  that  1  might  be  present  to 
bear  what  pasned,  which  1  would  faithfully 
itpart  and  freely  comment  upon.  The  Attor- 
•ey-General,  in  \m  sup|iort  of  that  motion,  had 
ieviled  the  ri^fht  uf  ap|ieal  in  the  subject  for 
norder,  as  a  Gothic  custom.  Gothic  was  the 
iovidious  charge  he  brought  against  it :  it  was 
t Gothic  custom !  Why,  gentlemen,  so  are  all 
tile  rights,  and  liberties,  and  valuable  laws 
vliich  we  have;  they  are  all  Gothic.  But 
this  was  to  be  plucked  out  from  amongst  the 
mt;  and  because  it  is  Gothic  that  men  should 
W  punishetl  for  murder,  because  it  is  a  shackle 
vpoD  the  king's  mercy,  murderers  are  not  to 
be  punished.  Gentlemetf,  this  attempt  has  a 
(jSir  affinity  with  tjiis  prosecution  of  me,  for  a 
libel  against  the  (government,  for  charging  the 
Usif'stroops  with  murder.  Gentlemen,!  beg 
yonr  attention  to  this  matter:  for,  you  see, 
tbey  have  got  fartlier  now  in  their  system 
^d  their  doctrines ;  and  the  mere  cliargiog  of 
^  king's  troo|>s  with  murder  is  to  he  consi- 
der«d  as  a  seditious  libel  at^ainst  the  king  and 
the  flfovernment !  But  what  thought  the  House 
^  Lords  at  the  time  of  the  Revolution  upon 
this  G(»thic  custom  ? — King  James  the  second 
bad  cut  off  and  murdered  many  of  the  |>eers, 
Vttder  a  sham  trial  of  a  commission  of  peers 
^bom  he  picked  out.  At  the  Revolution  they 
^sk  care  to  secure  themselves  from  such  trials 
■■  future;  ami  therefore,  on  the  14th  of  Janu- 
^  1680,  they  entered  this  amoug  their  stand- 
■•J*''l5'»!  '*  Whereas  this  day  was  appointed 
^  ^lullg  into  considei^tiou  the  report  wade 


A.  D.  1777.  (718 

the  Sth  day  of  this  instant  January,  from'tht 
lords'  committees  of  privileges  concerning  the 
trials  of  peers:  afler  due  consideration  had 
thereof,  it  is  resolved  by  the  Lords  spiritual 
and  temporal  in  parliament  assembled,  that  it 
is  the  ancient  right  of  the  peers  of  England  to 
be  tried  lonly  in  full  parliament  for  any  capital 
offences.  And  it  is  ordered  that  this  nssolutida 
be  added  to  the  roll  of  standing  orders  of  thia 
House." — ^This  was  to  secure  themselves.  But 
when  they  had  done  this,  some  noble  spirits 
amongst  them  being  alarmed  and  apprehen- 
sive, lest,  under  this  pretence,  in  future  timet 
the  subject  might  be  deprived  of  his  right  to 
prosecute  those  who  had  committed  murder, 
they  (three  days  afterwards)  on  the  17th  of 
January,  entered  the  folk>wiog  declaration: 
**  It  is  declared  by  the  Lords  spiritual  and 
temporal  in  parliament  assembled,  that  the 
order  made  the  14th  day  of  this  instant  Janu- 
ary, concerning  the  trials  of  peers  in  pariia- 
ment,  shall  not  be  understood  or  ceastroed  to 
extend  to  any  appeal  of  murder  or  other  felony 
to  be  brought  against  any  peer  or  peen :'  an«l 
it  is  ordered  that  this  declaration  be  entered  on 
the  roll  of  standing  orders  of  this  House."— i 
The  peers  at  the  Revolution  (all  Gothic  as  it 
was)  took  this  right  of  the  subject,  and  hugged 
it  to  their  bosoms ;  and  this  too  in  their  own 
case  against  themselves.  They  would  not 
themselves  be  exempted  from  a  possibility  of 
being  prosecuted  to  judgment,  that  justice 
might  ne  done  for  the  lives  of  the  king's  tob* 
jects,  even  if  slain  by  themselves.  However, 
gentlemen,  this  Gothic  right  of  appeal  is  not 
as  yet  taken  from  tis :  and  I  do  firmly  believe, 
that  by  the  resolution  which  I  shewed,  and  by 
the  message  which  1  sent,  and  by  the  libel 
which  1  published  (if  such  things  lie  libels^,  I 
do  believe  1  have  the  merit  of  putting  off  (at 
least  for  that  time)  so  infamous  an  attempt. 
Infamous  four -fold,  if  you  consider  the  doctnne 
now  brought  forwards. — The  king's  troopa 
shall  not  even  be  charged  with  murder !  Ob* 
serve  then  what  follows :  the  king  perhaps  will 
not  pursue ;  the  subject  shall  lose  his  right  of 
appeal ;  and  you  shall  not  even  dare  to  say 
that  the  king's  troops  have  committed  murder. 

I  have  already  taken  up  much  of  your  time; 
but  I  hope  that  the  importance  of  the  doctrine 
brought  forward  in  this  case,  as  it  is  the  first 
(there  is  no  precedent  of  such  a  one)— 1  hope 
that  will  be  my  justification. 

Gentlemen,  1  will  now  come  to  the  ad- 
vertisement itself.  The  Attorney- General  say  t 
it  is  a  scandalous  publicatiou ;  and  he  has  re- 
peated all  those  terms  which  I  have  before 
mentioned  to  you. 

Now,  gentlemen,  pray  consider  with  your- 
selves,  to  what  purpose  has  he  dune  thisf 
Look  at  the  informatiou  (you  have  a  right  to 
carry  it  out  of  court  with  you) ;  see  if  you  can 
find  any  such  charge  in  the  mtbrmation ;  tee 
if  you  can  find  any  thing  tantamount  to  ribal* 
dry,  or  acurrility,  or  Billinsgate,  or  balderdash. 
These  make  no  part  of  the  information  ei  aU« 
He  has  done  it  merely  to  mislead  and  inflame^ 


719] 


17  GEORGE  III.  Proceedings  agfAui  John  Home, 


[710 


Bal  he  compUins  of  icandaloat  pnbiiottioM ! 
l¥ho  hu  most  oaiue  to  compfoia  of  teiiMhikNii 
publieationt  (taking  the  nation  as  divided  in 
•pinion  between  the  Tory  and  the  Whiff  doc- 
trinee)  ?  who  haa  most  reason  to  cfmi|Naia  of 
scandalous  pablieations  ?  Read  Dr.  Shebbeare 
and  the  arehbishop  of  York  !*  a  pensioner  of 
the  crown,  and  an, archbishop  just  cieated  so 
by  the  crown !  See  how  they  have  treated  the 
Presbyterians!  And  yet,  I  presonae,  they  are 
as  respectable  a  part  of  the  king's  subjects  as 
the  kin^s  soldiers!  I  think  that  to  alienate 
the  minds  of  the  Presbyterians,  or  of  others 
from  them,  is  doing  no  great  service  to  this 
country!  Why  not  prosecute  for  that?   No; 
pensious  and  mitres  shall  reward  them !  But, 
Bot  to  talk  of  these  general  matters,  the  At* 
lorney-General,  in  a  prosecution  of  roe  for  a 
particular  advertisement,  thinks  it  his  place  to 
talk  of  s(*andak»tts  publications.    Pray,  take 
the  two  individuals,  the  Attorney- General  and 
myself;  which  of  us  two  has  most  cause  to 
oomplain  of  scandalous  publications  ?   Judge 
ftirly  between  us.     He  is  a  gentleman  in  great 
•fliee ;  a  gentleman  necessarily  exposed  to  the 
difference  of  opinions  sbout  his  conduct :  my- 
■elf  an  obscure  man,  who  never  did  enjoy  any 
office  of  trofft  or  of  consequence ;  who  never 
was  a  candidate  either  for  honour  or  for  profit ; 
who  have  no  claim  to  the  notice  of  the  public. 
Compare  this  with  the  situstion  of  that  gentle- 
nan  ;  then  compnre  the  ribaldry  and  the  scan- 
dal that  has  been  published  about  us  both  ;  snd 
judge  %ihich  ought  most  to  have  talked  of 
scandal  in  this  prosecution !  Gentlemen,  I  have 
had  the  honour  to  lie  burnt  in  effigy,  ami  1  saw 
myself  committed  to  the  flames.     1  have  been 
•ung  about  the  streets  in  ballads,  and  I  aaw  a 
Jittle  pert  parson  cocked  up  upon  a  slick  in  the 
singer's  hands.     The  news- papers  for  some 
years  were  even  sick  of  my  name.     Even  my 
clothes  afforded  an  entertainment  for  the  wit  of 
the  theatre.    As  for  caricatures,  I  have  myself 
bought  enough  of  them  to  furnish  a  room  :— 
my  rooms  are  but  small,  as  you  rosy  easily 
suppose.     My  life  has  been  written,  with  my 
Daroe  at  length,  and  the  atheist  and  roacaroni 
parson  printed  at  the  bottom  of  a  print  in  the 
nrontispiece.    Atheist!  and  with  my  name  at 
length !  Scandalous  publications,  to  be  sure, 
should  be  urged  by  that  (>[entleman  against 
me!  Gentlemen,  I  have  never  complaineil  of 
those  imputations.    I  protest  (except  with  very 
ignorant,  very  poor  creatures,  and  it  does  not 
wgnify  what  they  think)  I  don't  think  those 
imputstious  ever  hurt  my  character;  and  if 
they  have,  I  will  take  the  chance  of  time  to 
refute  them.    There  was  indeed  one  imputa- 
tion that  I  believe  did  get  some  ground ;  and 
I  thank  the  Attorney-General  for  now  refieving 
me  from  it:  it  was  the  worst  of  all  the  other— 
a  eorrupt  pensiooer  of  the  crown.    That  was 
n  imputation  which  1  believe  did  stidl  by  me ; 
bot  there  ii  DO  wander  al  that  at  all.    1  di«l  sol 
flf«iifhrili^«>^>wBh  ■■  aflBM«  tht  poMma- 

■  I 


tioos  and  the  writers :  it  is  th^  pracdca  of  tbi 
tioMs,  aad  the  cormptioD  of  the  minislcr.  that 
liiielled  me!  Every  man  may,  witlMatha^ 
absurd,  suspect  his  neighbour  of  oormplisBy 
wittiout  any  specific  charge  broughl  agaiaM 
him.    Good  God  1  iu  a  natioo  of  lapars  libs 
this,  wlio  cao  expect  to  lia  thought  cleaa! 
However,  I  afp-ee  with  the  AttorDey-Gcosnl 
in  all  that  lie  has  said  generally  agaiBSt  aeaa- 
dalous  publications :  they  ought  to  he,  aad  tbs 
laws  (without  straining  them)  are  now  aafi- 
cient  to  cause  them  to  be  suppressed.    Bat,' 
gentlemen,  I  shall  never  he  found  In  .the  list  sf 
those  dealers  in  scandal.    Well,  but  in  tha  ad- 
vertisement he  tells  you,  there  is  acurribi^ 
Billingsgate,  ribaldry,  and  baMerdMb.    ite 
gentlemen  of  the  law  love  to  go  by  precedealL 
The  Attorney -General  found  a  preoadant  far 
it ;  and  therefore  (without  conaideriDg'  wbidbc 
it  would  apply  or  not  in  this  case)  he  made  mt 
of  it  to  eke  out  the  time.    Mr.  Noy,  the  Attsr- 
ney- General  in  the  Star-Chamber,  prosecntd 
a  man  for  speaking  disrespectfully  of  sUfs 
plays ;  and  he  said,  that  **  it  may  be  fit  eaoifk 
and  lawful  to  write  against  plays,  by  men  ihit 
have  a  mission :  and  they  must  do  their  srraad 
in  mannerly  terms,  and  in  the  same  terms  M 
other  men  expect  to  bear  with  them.     Mr. 
Prynne  had  no  mission  to  meddle  with  ths« 
things,  to  see  whether  men  should  not  letan 
to  gentilism.    The  terms  which  he  useth  sia 
such  as  he  finds  among  the  oyster- woflBsn  St 
Billingsgste,  or  at  the  common  conduit.V*  •Mr, 
Prynne  had  no  mission,  it  seems,  to  prsveat 
men  from  turning  heathens;  and  therefoiehi 
ought  not  to  endeavaur  to  prevent  them  fhm 
turning  heathens !  But  however,  gentlerosa,  if 
I  have  used  Billingsgate,  and  thoNC  bad  terav 
M  itb  which  he  charges  me,  1  shall  not  be  angrr 
with  the  Attomey-Generul,    but   very  mom 
oblivfed  to  him,  if  he  will  help  me  lo  correct 
my  languaure.     I  am  sorry,  however,  to  fisi 
that  he  does  not  intend  I  shall  have  much  b^ 
nefit  by  the  example  of  his  own.     He  baf 
charged   the   advertisement   with    im|Mi(lescs 
too :  and  it  seems,  gentlemen,  by  what  I  heaid 
from  him  in  the  other  trials,  and  in  this,  lo  bt 
a  very  lucky  impudence  for  me :  for  he  6ii 
say,  that  *'  wicked  is  a  term  too  high  fortbil 
advertisement."     These  are  the  very  wordi; 
I  took  them  down :  <'  wicked  is  a  term  tts 
high  for  this  advertisement."      Upon   wlist^ 
tJien,  does  he  expeci  to  gain  a  ver«iict  ?    Uf 
ssid,  too,  that   **  its  impudence  disarmed  in 
wickedness."     I  believe  that  h  a  new  tiguif^ 
not  to  be  found  in  poetrv  or  inrnting!  Imps* 
dence  disarming  wickedness !    Why,  geoils* 
men,  that  was  in  plain  words  telUng  the  jury 
(if  they  had  at  all  adverted  to  what  he  uiJ} 
that  they  had  nothing  to  do  with  that  advsTi 
tisement:  for  if  it  is  not  high  enough  to  bt 
wicked,  it  is  too  low  for  the  verdict  of  a  Jarfii 
You  have  nothing  to  do  but  with  kgal  wicbsi* 
aem :  a  man  cannot  be  prosecuted  for  scumblf 
aad  impudence.    Bui  where,  iu  whidi  wiadf 


*  8oe  fol  3,  p.  608, 


A.  D.  1777. 


if  4M  mtmOnimHH,  'n  Ibia  »earriK(<r  "<><l 
Billn^iiplef  In  nliich  Mnience  it  llie  nn- 
tn««nMf  rilMldry  tnilbalilFrilasb?  BnliJrnluh,' 
I  bclirre,  it  K  lerm  itken  from  the  drunkurd's 
UU«.  BaMerduli  (il'  il  meuns  nny  iliinir) 
me*M  t  ruile  rn'mure,  a  conruseit  ili«cour«e.* 
DoM  he  priMecule  b  rude  mixture  ind  n  con- 
ruaod  diicniirsef  IF  ill  nitu  «ad  ils  ubjeel  Are 
diffiL-nll  10  Iw  luund  oul,  is  lbs!  au  or^'oct  iif 
mntwulioDf  In  lh>t  case,  it  might  ■«  well 
D«Te  bnn  vriueD  in  nrhr^w.  Bui,  gealle- 
men,  ail  thi«  wat  merely  to  inflame  and  mislead 
wo;  and  tliererorc  I  ilidl  uol  dwell  upon  iL 
BOI,  {cdUenieii,  wIijIeI  lie  hu  been  miMpend- 
ktg  ^e  lime  oflbe  Cunrt  in  ibat  wliicli  maket 
DO  pait  nf  llie  ioforiDalion,  lie  bus  not  laid  one 
timgit  word  ibout  Ibal  which  diicB  make  a  part 
oflb«  informalion  ;  I  mean  ils  ralshood.  tals- 
kooj  H  0  pari  nf  the  cliar^,  uid  It  is  a  criminal 
Md  an  odious  pari  uf  Ibe  cbarge ;  and  if  you 
4>Brt  And  il  in  ihe  advertitemeia,  ^nu  cannot 
mplele  Terdict.  FaUbood  la  a  part  of 
'  r  which  he  liaa  exhibited:  aad  if 
il  it  wanliD^,  you  cannot  iciie  bim 
Genllemeo,  I  shall  (iroie  ihe  atser' 
1  oT  the  adtertiiement  to  be  true  by  aiy 
'^rnce ;  and  1  will  not  now  delay  you  wilh 
M  And,  |[enllemfn,  I  shall  prorti  to  you 
iiriiig  which  may  DOW  perhajis  be  s  lillle  use- 
■  m1  10  m^  duracler  (if  il  EutTeri  under  that 
mtitcmt  ol  nillin^gate  and  balderdtsb,  and  in- 
Cdrtiary  Inli-Dllona,  with  which  I  am  chnrged) ; 
fn  I  *hall  nul  unly  prnte  tliai  ihe  motion  was 
tatit,  the  mnoey  collected,  and  paid,  but  I 
»  yun,  that  ihe  adrettisemenl  nf 
n  did  pruiluce  Ihe  Gecood,  The 
rary-faenersl  aays,  Il  was  only  a  relch  to 
■j  In  the  face  nf  the  luw.  Il  wai  a  f^tch.  It 
MCbed  Ml.  more :  and  I  will  prove  to  you 
dM  it  did  ID,  I  will  lell  you  ihe  pcnon  who 
mu  it,  and  Ihe  pereon  who  conteyed  it  ici  me ; 
^Ha•e  ihe  purpme  for  »  hicb  ihe  mnney  was 
■itMi,  the  ijenllefflan  who  aubscribed  it,  and 
Su  cenilemin  who  coiiteyed  il,  are  all  wnrlhy 
•f  ach  oiliFr.  Tlie  muoev  came  from  drSte- 
phMiTht^odnre  Jaiinsen,  wlio  ia  ncrw  oul  of  Ihe 
KMh  of  Einv ;  it  wai  coiiieyeil  to  mu  by  Mr. 
who,  Ibnngh  \it\ag,  'a  equally 

III)  ihv  rather  inclined  to  prove 
men  to  y«u,  beeauiie  hit  loril- 
:;v  to  the  jury  on  one  of  the 
itig  ihat  nil  «ldeoceli»d  been 


[72fi 


rfnnpro 
Km  firat 


bflbep 


iherelbre  lieli«i 


w«rc  nn  penon«  eapable  of  such  an  act;  he 
•"■fled,  »nd  therefore  he  believed !"  Itiantolcr* 
abreiQiiioualiua  toajury  !  He  hopes  I  lie  re  ar^ 
nomciicaualileorsuchanaot!  ft'bal  Jismalact 
miisi  ihia  be  ?  Il  must  surely  he  snme  aet  that 
'xeludesn  man  everaller,  from  being admittnl 
to  sit  cheek  \iy  cheek,  and  lani^h  and  iuke  to- 
gether with  his  lni<Ulii|>.  It  must  surely  be  an 
act  ortliai  kind  Ibat  a  man  muit  he  held  in  ab- 
horrence liar  il.  No  houeit  man  could  keep  ona 
company  after  il.  ■>  Ue  hoped  there  were  no 
men  capable  of  such  au  act,  and  iberefore  he 
heliered  ii."  Afler  Ibis  the  Allorney- General, 
from  his  lordship,  look  Ihe  same  cue :  anil 
therefore,  in  a  8uci:eediDg  trial,  be  ton  insi- 
nual«d,  Ihal  the  aubscription  was  a  mere  pre- 
tence (n  Tctch  lie  calW  it)  to  colour  Ibe  adfer. 
iteinent.  I  own  when  his  lordship  hoped,  and 
,  'I  was  in  some  pain  for  m^ 
lid  lliouKh  I  sliHtd  close  ai  bin 
elbow,  1  did  not  know  but  he  uii)[ht  beliere 
next,  that  there  was  no  tuch  persnn  at  myself 
existing  in  Ihe  world.  And  yet  I  have  heard  hi*  ■ 
lordship  say,  on  other  trials  (and  iflroisrepre- 
sent  him.  lie  will  do  iu«lice  in  himself).  I  hare 
beard  him  say--"  Wliai !  shall  not  a  judge 
and  a  jury  knoirnnd  lipliere  what  ciery  ona 
else  knows  and  beheves:-"' — (and  il  was  upoo  a 
trial  foro  libel)—"  tjhnll  thry  alone  be  sup- 
posed ignorant  of  those  knoun  and  notorious 
(nets  which  nu  one  else  in  Ihe  court  doubtsP" 
As  I  do  nol  iberelore  know  which  of  those  two 
dociriiies  Ills  lordship  may  adopt  on  this  occa- 
sion, and  cannot  lell  uhat  he  may  helivre  (1«- 
CBuse  I  ilo  nol  know  upon  all  subjects  what  he 
may  hopp),  T  shall  Uicrelbre  prove  the  Irulh  of 
my  advertisement.  And  when  I  have  done 
that,  (KM  haps,  icentleman,  you  will  be  told  (as  [ 
have  beiril  il  said)  that  '  talse'  in  the  informa- 
tion Btaqd»  for  nolliing',  and  ia  nol  a  part  of  tba 
charge !  Ihouu-h  obserte,  if  I  -omit  proving  tba 
truth,  Ihey  will  nol  fail  loa^^^ravalelhecbarga, 
by  iniinuBling  the  fatthood. 

Nn*  Ihen,  irenllemen,  I  come  to  the  very 
f^teai  oHViice  of  all;  to  that  which  does  indeed 
inkke  a  jiart  of  the  iufnruMlioo.   but  has  nude' 
nu  pan  [e):cepl  in  assertion)  of  the  Attorncy- 
Genvral's  harangue:   I   mean,  cbarihng  l|i« 
king's  troops  wil%  murder.     I  aiu  tola,  ibat  it 
is  not  for  any  of  llioae  ■saertinn*  aboirt  nhscrip' 
lion,  and  payment,   and  cullectfoti,  (hat  I  aiu 
prosecuted;  built  it  for  charginff  the  kiw'i 
Ironps  with  murder.     There  llie  Ailorney-O^ 
neral  i>Hid,  be  "  put  bis  finger."— i  have  HOC 
chargnl  the  king's  troops  with  murder:  ihctA 
is  uoi  uny  lucb  assrrtioii  in  Ibe  ailTcrliaenaent- 
There  vin  be  no  charge,  no  irulh  or  Rilshood, 
an  assertion.     Gentlemen,  I  bavc   no 
■■erird,  that  there  were  any   |>«r«oi» 
lerted  llial  tbey  ha*« 
tel'l   behind   Ihrm   widows,  orphans,   or  a^^ 
parrnii.     Pcrha|>a  no  persons  were  inunleml, 
perhaps  no  ppr«'>tis  w*ti-  eti^n  killcil  ai  I>s. 
lutjlKo  and  CnneurtI  nu  the  ISlh  ofAiiril  )7i5. 
PcrbKps,  if  thera  were  any  killed,   they   w«rA 
■lU'li  m  have  lelibeliind  tham  neiihet  widow*. 
I,  nor  agc'd  parcDU.  Tbe  adieit^^^^j^^ 


723] 


17  GEOBGE  III. 


Proceedings  ogaintl  Jnhn  Home, 


doet  nn(  assert  nny  of  thote  things.  Tlicre  i« 
imlreil  ■  dvscrijition  in  llie  ailTrMiKmaiit  «l' 
certain  pemnn^  tor  wbiMe  use  the  cMleiMion  wu 
made  t  if  ilierctre  na  sncb  persnng,  tlifc  in- 
tpndeil  chniily  will  not  take  [ilAce.  I  inileed 
f  iippou  (he  charge  lo  be  Irn^ :  ollit^rs  bad 
charged  ibe  king's  trnnps  wilb  ibis  murder 
nine  days  and  more  berore  my  a>lverli9em«ul. 
I  have  nhewa  you  where  ;  in  llie  snnie  neni- 

Caper  nrMay  Ibe  30ih  and  SIM.  1775.  sittoed 
V  the  ageni  nl'ibe  pnitince.  I  sup)iuKd  that 
ciiarcetrue;  bin  I  did  iiul  make  it.  1  took  it 
as  I  TuuDd  il.  Thecbarge  was  in  all  llie  news- 
papers (if  May  SOlb  ind  Slit,  177 j.  Why 
not  prowcote  lliusc  ihal  brongiit  Iha  charge? 
The  charge  was  aulbenlicaled  in  Ibe  most 
format  mnnuer:  origiual  affidavits,  taken  nn 
(bespat,  were  Indged  with  the  lord-mayor  ot 
LotiddD.  Therharge  wan  nnt  aonnymous;  U 
»B«  signed  by  the  Bg«iit  of  (he  province  where 
Ihe  murders  nere  ciimmitled;  it  was  signed 
by  |VIr-  Arthur  Lee.  He  [luliticly  avoitnl  it 
every  wheie.  He  sal  daily  In  (his  court,  with 
ihe  fhieC  justice  and  ibe  A  Hartley -General, 
publicly  as  in  aitvocale ;  be  was  retained  i>n 
Anc  of  the  trials :  he  stood  Up(uSTun'i(;  his 
lurdsbip  knew  wha(  he  was  goinir  to  say,  sod 
wonld  not  permil  him  to  speak :  it  nas  in  ibe 
<irs(  trial  at  IVeslminster,  Yon  see  ihen  (nay. 
you  know  It  IVom  a  tboo&and  publjcalionsj  thai 
lliis  was  not  a  wauion  suggestion  uf  my  own ; 
nor  ye(  titfhlly  taken  up  upon  a  alight  rumour ; 
but  i(  was  so  given  to  the  public,  that  no  man 
could  reasonably  doubt  of  il.  Tbe  Gazeite, 
published  by  anthorily,  ilesiied  every  mnn  lo 
•tispend  bis  belief;  in  declared  answer  to  which 
these  alRdaviis  came.  1(  has  never  since  been 
contradicled,  even  by  thai  very  authoiity  (bat 
desired  us  lo  suspend  our  belief.  But,  i;eiiile- 
men,  (bough  I  did  not  make  (be  charge  in  (liis 
adverliseroenl,  In  save  trouble  1  am  willioelo 
have  it  understood,  thai  I  did  make  (he  charge  in 
the  adverliseiiiHJl :  I  do  again  make  it  noiv.  1 
did  not  word  (ha(  part  of  my  adverlisemeut  in 
the  deacripdve  manner  in  which  it  stands, 
thriiugh  caution,  and  as  a  subterfuge  to  insi- 
■iimte  a  charge  which  I  was  afraid  lo  make: 
■0  fur  from  i(,  that  I  do  tell  yon  again  I  ulloiv 
the  charge.  I  believe,  getitlemeD,  these  mur- 
ders will  never  be  (urgntleti  us  long  as  the  his- 
tory of  ibis  eouulry  shrill  remain:  fur  the  mur- 
ders of  Ihat  day,  ihe  igih  of  April,  have  been 
productive  of  all  ih at  slaughter  which  lias  bap- 
pened  sluee,  and  of  nil  that  n-blch  Is  still  to 
come.  Suppose  then,  aeotlemen,  if  you  please, 
Ihat  [  had  charged  the  kiuc's  Iruops  with 
murder.  Well!  what  then?  How  follows  the 
libel  against  the  king  and  the  government  P 
for  you  must  lake  noliee  that  the  accuaatisn  in 
the  iDforuiatinn  Is  not  (ha(  I  have  chained  i\\e 
king's  troops  iritb  murder.  Tba(  would  not 
have  supported  an  iufurniaUon  ;  an  informadon 


king  and  the  gnvemment  with  murder, 
to-day  ihe  genllemau  has  spoken  a  little  mort 
plainly  ih&n  be  did  belitre,    Xo-dny  be  says, 


(bat  "  I  have  charged  (he  pfrsoni  cmployad ' 
by  gavernmen(  ujlb  being  gudly  of  murd«r ; 
■niTcaDaequenily  (hose  wlm  empUiyed  tbem  are 
involved  in  ibe  same  cuilt."  This  is  Ibe  charga 
agaiiiii  me.     llnl  huw  doei  he  draw  the  cou- 
sequence?  Is  that  to  be  found  in  (be  advertise- 
men(  ?  Does  every  man  (hat  says  a  soldier  has 
coininilted  muiuler,  involve  Ihe  king  and  the 
government  in  the  cumniisslon  of  that  murder  f 
Gentlemen,  I  have  nut.  in  my  adveilisemeot. 
even  charged  the  mimstrrs.     But  if  1   had,  I 
ho|)e  the  ministers  or  the  troops  are  no  pari  of 
ibal  governuienl  which  ynu  acknowledge:  U 
leas(  ]  am  sure  (he  tronpi,  do  nut  make  •  g 
uf  that  government  under  which   T  was  bl 
(bev  do  nut  make  a  part  of  that  gaveronieii 
which   I  have  repeatedly  sworn,  and  :  ' 
belA  (be  most  railbful  and  firm  allegianc 
1  will  say  muie,  (hey  do  nut  make 
(bat  governnieiil   under    which    I 
silently  lire.     Indeed,  genllemen,   lU 
ney-General  teems  (o  (bink  (be  trtiO|iaM 
thing  more  satu^eil  even  (hun  the  goternn^, 
for  he  said,  in  ag^avaiion  of  the  chii'ge,  1 
it  was  "  not  only  a  libel  agoiosl  gD*emn» 
but  even  ar:aiust  the  soldiers  in  our  servk 
If  he  abould  happen  to  foi get  this  a\»o,  t 
counsel  who  aiinwered  him   at  the  time,  and 
took  notice  of  it,  1  hope  will  retneraberil— 
"  Not  only  a  libel  agniiuit  the  government,  (nil 
even  agaiosl  (he soldiers  in  our  service:"  N 
that  (be  troops  are  something  more  ihaa  ifaa 
goierumenl !  t  believe  lliey  are  intended  lo  b« 
made  so ;  for  ours  is  a  government  of  iatvi,  not 
a  goveromenl  at  will,  either  by  troops,  con-    ; 
manders  in  chii-f,  ministers,  or  king.   Cootider, 
gentlemen,  that  (he  king's  troops  are  ouly  lo* 
lemted  in  this  country  for  (he  purpose  oi  h-    u 
reign  defence.     They  have  been   bill  of  lata    I 
years  loleraird  in  time  of  peace.     They  bats    I 
only  an  annual  ex itleuce ;  which  existence  «(►    \ 
]iires  yearly,   unless  regenerated  by  a  yearly    I 
tote.     Now,   i:eol1nnrn,   consider!   Hanovt-    ( 
rlans,    Heosiaus,   Urunswickers,   WatdeckerSt   a 
ihe  very  Indian  savages   (lurof  Iheae  are  tb«   I 
king's  troops  now  romposed)  all  ibese,  by  Mr.   , 
Al[urney'sdoc(rine,  make  a  pari  of  the  blessed 
gOTernment  of  (his  country  !   and  lo  cbai^ 
any  of  those  king's  (lOops  with  murder  is  (a 
be  guilty  of  n  seditious  libel  against  the  king 
autt  agsinsl  (be  government !  (ienltemeo,  n-    , 
fleet.     Have  not  (be  king's  troops  often  b 
charged  with  murder?  Uoes  there  pais  ay 
when   some   uf  them   ai'e   not  couvicted  \ 
murder  ?  and,  in  the  last  gnod  old  king's  r 
were  ihey  not  executed  too  for  murder,  i 
ibey  were  convicted?  It  i«  loo  nolorioa*^ 
libel  to  charge  Ibe  king's  troops  wilb  miirdi 
1  believe  nobody  ever  dreamt  that  ilsraaati 
against  the  government,  or  even  againtt  | 
ministry,  to  say  that  some  of  the  king's  irr 
hare  committed  murder.     If  such  a  cbarg 
false  and  malicious  (and  a  false  and  noalid 
charge  may  be  made  agamsl  Ihe  troops,! 
well  as  against  any  other  person)  it  may  b 
libel  against  them,  just  as  it  would  be  aga' 
any  other  of  the  king's  subjecta  j  ud  t 


•i  Altorney- 


Jbr  a  Libel. 

AwViMt'llMi  mmc  remedy.  They  nre  nol 
tttutr,  DOT,  I  hupp,  ileirer  than  we  are ;  ihan 
mny  other  or  the  king's  iulyveli.  How  long 
bare  the  tn)a|is  been  Ihese  iirivileged  cliarac- 
Wn  T  What  U  there  peculiar  Id  tlieir  cliaracler, 
flitt  to  cliarge  th«in  wilh  a  murder  shall  lie  a 
libel  agatnM  (be  Uajg  and  (lie  gorerninf^ol  f 
SuppoM  I  li«il  Mill  (>i  I  believe  1  Tnit^hl  truly}, 
and  ai  I  know  it  has  often  been  said,  that  many 
Biiinl«r«  liara  bean  omroiited  by  ihe  king'' 

pat«Dli,  do»  any  maD  iliink  that  Iht'  * 

General  woiili!  ha»e  proseculeJ  ihi 
lnii<  libel  ai^ninM  tlie  kiog^  anil  the  g^< 
mml  ?  And  yet  the  king'i  pstenta  are  Just  such 
a*  tie  plcvves  to  make  them  :  Ihey  are  of  hii 
Bwn  br|re(li[ig,  and  much  more  ai  be  please! 
la  make  them  than  eren  his  diildrrn.  Bui 
Ihe  Iroopt?  what  are  Ihey  7  what  are  Ihey, 
whOM  origin  we  know  F  what  are  Ihoac  ivhu 
araofourown  counlry? — Many  nfthem,  fe- 
laoa  taken  frnm  Raola,  aod  rescued  from  the 
gillowa.  Of  ihete  are  Ihe  king'*  Ironpi  i-oin- 
piNed.  And  is  it  wonderful  lo  charge  the  king't 
tKapa  Willi  murder?  Bui  it  is  too  ridiculous. 
I  am  sure  the  A I  turn  ey -Genera)  does  not,  be 
»ill  not,  prtlend  lu  say,  that  every  parliculir 
charge  against  some  soldier  «r  loliliers  lor 
nur&r  li  a  ledilions  lihel  against  Ihe  king  and 
■ha  gorernnient !  ile  will  not  say  so!  Suppose, 

Eenllemeii,  some  nf  the  kind's  peace-officers 
ad  been  charged  wiih  murder.  Il  lias  often 
hipjiencd.  ConsUMei  and  peace-officers  may 
eti-rcise  Ibeir  authority  in  an  illeeat  manner : 
ihey  may  kill  men  instead  of  arre&ling  them. 
They  hare  done  it ;  Ihey  have  been  soniellmea 
trtM  for  il.  Are  not  ihey  as  much  ihe  king's 
«Sc«r«*«the  Iroops?  Something  more  so,  1 

E< ;  Tor  they  are  Ihe  officers  of  ihe  real 
■WDI  of  the  coaulry  ;  ibe  officers  nf  the 
And  yet  tra^erer  any  man  prnseculed, 
d  any  man  now  be  pruieculed,  if  be 
I  a  pack  of  conitublea  with  having  com- 
nurderi'  Would  Ihat  be  a  libel  againsi 
Qtking  and  the  govern meni  f  It  could  not  be. 
Qflilletnen,  supiiuse  Kime  of  ihe  soldien  aa 
bnfial  aa  Kirk's  lambs  (autiliers,  for  tbeir  cruel- 
ty, known  by  that  name)  should  renew  again 
In  horrid  barbarilies  which  Ihey  cnmmitira  in 
Ot  YIttt;  would  It  then  be  a  leditium  lihel 
l«aj  thai  liicy  had  committed  murder  I'  I  dn 
M  ny,  nor  know,  that  ihe  hmg  has  al  present 
MBoay  liis  troops  any  lumln  of  Kirk's  breed ; 
hal  I  am  sure  he  had  in  1768 ;  liecaiise  I  then 
Wlhein  mil  only  commii  murders,  but  other 
brbarlliet  which  not  •  savage  hanily  would 
nnimit.  1  nw  one  of  the  kind's  Iroopa  run 
tis  6iir<i  bByiiDct  under  the  shoulder- Hade  ofa 
>a>r  man.  <iecause  he  cnuld  not  get  under  a 
'■il  limr  rniiiiiih  oul  of  his  way  :  1  saw  a  wo- 
■h  Willi  child  wounded :  a  ginger-bread  wo- 
■H  (Bunkreil  u  she  sat  at  near  a  ifuarter  of  a 
M»  dMance.  Were  oot  ihe)>  murdered? 
~  I  ii«t  IhosH  murders  cnminiltrd  by  ihe 
klroopaf  hv  »  numerona  a  body  of  the 
T^— pa  as  those  who  cimmllted  ihi:  mnr- 
f  LnlnglnnF  tientlemeu,  there  was  a 
'   '    'tknow  Ittat  1  hui 


A.  U.  1777. 
right  to  meolion  his  name ;  but  he  mid  he  had 
servnl  as  a  surgeon  under  Braildock  in  Ame- 
rica, and  he  liild  Ihe  justices  of  ihe  peace,  iJial, 
even  in  tlint  cuunlry,  he  had  never  seen  murder 
GO  wickedly,  so  wantonly  commitled.  But 
perhaps  Ihe  iuorney -General  dues  mean  atill 
to  prosecute  me  for  callini;  tliem  murderen. 
Why  should  be  not  r  1 1  is  bill  nine  years  ago ! 
I  don't  know  but  thai,  as  soon  as  this  prose- 
cution is  over  (if  you  should  esliblish  this  doc- 
trine), he  may  follow  it  with  another  prosecu- 
tion for  Ihal  libel  too.  The  same  printer  can 
prove  it ;  and  I  shall  not  deny  il.  But  the 
Attorney -General  will,  I  know,  from  necessity, 
be  obliged  to  say,  Ihat  lliis  is  a  very  different 
Ciise  from  chariring  some  iniliiidual  soldiera 
wilh  murder.  The  king's  troapn  here,  he  will 
aay,  acted  in  thai  rupacity,  as  the  king's  Iroops, 
in  •  body,  under  their  officers,  und  in  a  military 
manner,  ai  part  of  the  king's  araiy.  Well,  it 
may  be  so ;  but,  however,  that  is  mure  llian  h« 
has  proved  10  you.  tfjou  believe  thai,  yoii 
must  take  his  word  for  it,  or  you  inusi  have  it 
from  ihe  evidence  which  1  shall  produce.  But 
if  Mr.  Ailorney  General  makes  ur  sllemptsio 
make  Ibis  distinction  to  you.  geulleRieo,  be- 
tween individual  soldiers  and  those  acting  as 
part  of  an  army,  1  must  then  inlreat  hira  lo 
draw  Ihe  line.  None  has  yet  been  drawn ;  but 
at  do  it  before  you  can  give  him  a  ver- 
ir  he  will  give  up,  as  I  am  sure  be  will, 
ihat  to  charge  any  individual  soldier  with  a 
urder  is  nol  a  sediiious  libel  agsinst  Ihe  king 
id  bis  government ;  but  shall  insist,  that  to 
charge  a  body  of  Ihe  king's  loldicrs,  acting 
inder  their  ntficen,  is  a  libel  againM  Ihe  king 
ml  ihe  governmeni;  be  musl  Ihen  draw  sums 
;ne.  fie  will  Itll  you,  I  suppose,  whether  it 
I  a  regimeat,  ora  company,  or  a  serjeaul's 
guard,  or  a  corporal's  guard  ;  what  numlwr, 
and  how  commanded  is  il ;  thai  draws  The  line ; 
thai  makes  it  an  offence  against  ibe  king  and 
the  government,  and  makes  it  a  scdiliuua  libel 
0  cbarife  them  wiih  murder.  Look  alter  him 
—see  if  he  draws  you  thai  line.  He  imist 
ikewwe,  gentlemen,  when  he  has  drawn  it, 
ihew  you  his  lam  fur  it  -,  and  iheu  he  must 
irure  ihal  the  Iroops  I  have  charged  fall  oiihin 
hst  line :  and  if  he  does  all  this,  if  he  draws 
that  hnc.  and  eslnblishi-^it  by  Isw,  and  proves 
that  the  Iron|is  I  have  charged  ere  within  that 
line  which  he  eiiablishea  by  law,  itien  you  are 
bound  lo  give  a  verdict  a  gain  1 1  me.  And  if 
he  would  do  that,  1  would  at  once  save  bim  the 
Imuble  of  a  trial.  If  he  can  druw  that  line,  I 
vill  nol  keep  the  court  a  moment. 

Gentlemen,  1  will  be  bold  to  aay,  ihal  lli« 
thole  army  loicetber,  Ibreigners  and  native*, 
vith  all  their  officers,  and  ilie  cimmauder  in 
hief, — aye,  and  the  king  himtelf  si  their 
lead, — is  no  part  uf  ihe  governmenl  of  Ihia 
counlry ;  nor  can  they  lawfully  put  any  man 
lodealh.  I  said,  geotlcmeu,  some  time  si^, 
Ihat  there  never  had  Iwlbre  been  bruujfhl  a 
proaecotion  upon  siicb  a  charge  as  this.  Now, 
It  i*  true,  Ibal  a  pari  iudeed  of  the  charge 
•gajiwt  bouesl  John  lilbutne,  upon  out  of  b^ 


727] 


17  GEOHGE  III. 


trUls,  lui,  (faat  he  had  accuHid  the  widierj  of 
biTiog  comrqilted  murder ;  and  hii  vordi  were 
(tesidei  the  word  '  murder.' which  beespreued 
U  leneth)  ihM  they  hid  cDmmitled  murder 
iy  "  iDedding  the  blood  nf  wkr,  in  Ihc  lime  of 
peace:"  and  be  hid  likewiie  called  their  Ke- 
Seral,  by  name,  a  ■  murderer.'*  But.  f^eatle- 
nen,  it  must  be  Tememl>ercd,  that  litis  pmae- 
cnliOD  waa  brongfat  trben  Uie  army  were  in- 
deed, lU  facto,  the  ttovprnineal ;  wbrn  there 
vae  neilher  king  nor  pftrliameut,  but  the  army 


Proeeediagi  agaitttl  John  Hone, 


.P» 


memwy  in  what  light  milita^  excBali«| 
IB!  alwaya  hitherto  bem  contider«l  in  1U« 


oT  the  milittij 
execution  at  Glenco.*  I  puhliihed  the  paiiipb- 
let,  Ihat  all  the  world  nii|:hl  aee  it.  1  mai- 
linn  it,  because  it  ba|i{iened  abonl  ibc  tine  of 
the  firit  eitablithmeat  "f  a  alanding'  armj  (ia 
ill  preient  form)  in  this  l^mi.  ll  i«  but  ahoal 
t!i|[Ltj  yeant  since.  It  happened  imniedialcly 
after  the  Rerolulion.     Now,  ueDlleiiieD,  «bo 


*  See  the  Proceedingi  rvapecliof:  the  Km- 
were  at  Gleoco,.fal.  13,  p,  879,  of  thi*C4 
lectioD- 


govenied  alone.    Then  indeed  it  wai  natural  ;  were  the  Glenco  men  ?  "  ll  in  certain  and  >e- 

enouffh  to  call  the  iroupa  (ho  KDvernment,  and     ' '-" — '  '—  -"    "-"  "■—   '— '  ' ■-  "- 

to  re^on  it  a  aetlilioni  libel  agajnat  the  govern- 
Ipent  to  charge  them  with  murder.  Siuce  ihat 
time,  tbe  Atlomey-Oeneral  nill  find  no  inch 
(rOKcnlion.  Honerer,  gentlemen,  even  tbea 
t  London  Jury,  raiibful  to  their  duly,  in  ipiie 
ofthe  JD<^(eaaiid  tbe  Atloroey-General  (who 
then  held  the  very  aamc  language  which  ihe 
Attorney- General  linM*  now),  in  ipile  of  all 
ibeir  art*,  at  that  perilous  lime,  a  London  Jury 
in  Ibii  very  court,  uttinjif  in  ihoce  very  placea 
vhere  you  now  lit,  did  juslice  to  Ibeir  own 
eODiciencei,  and  ihey  acquitted  bim,  as  you 
ninat  me,  unleaa  you  ctiute  to  exchange  the 
laws  of  tbe  laud,  and  have  military  esecutioo 
lake  place  in  Ihii  country.  A  (tandint;  army, 
in  tbe  time  of  peace,  ii  a  monaler  to  tbe  free 
Donalitutioii  of  this  country:  it  haa  hut  very 
lately  been  auffered ;  and  one  of  Ihe  great  ar- 
guments that  haa  been  urged  by  tbitse  who 
nare  from  age  to  age  oppoaed  a  standing  army, 
vai,  that  Ihey  would  t>e  tli en cefor wards  used 
ta  they  now  are.  The  peniioneri  of  the  crown 
and  the  frienda  of  arbitrary .  gvv eminent  ridi- 
culed luch  a  sDpposltioD.  They  aaid,  it  was 
impoaaible  that  such  a  lime  could  e'er  arrite. 
I  hare  read  their  arguments ;  I  am  sure  Ihe 
nnlJeman  who  now  proaecutea  me  hns  reod 
Uieir  argumenta.  Tliey  were  then  afraiil  of 
tbil  lue  of  troops;  and  therefore  those  who 
opposed  tbe  establish  meat  of  the  army  gare 
it  aa  their  reason.  Gentlemen,  tbe  courtieri 
ridiculed  Ihe  thought  Ihat  such  a  lime  cuuM 
ever  arrive,  or  Ihat  the  soldieri  in  lliis  coun- 
try could  ever  be  eo  employed.  Now,  what 
would    our  fathers    have  said,    if    aoy   chief 

{'ustice  or  allomey- general  hail  at  that  lime 
dated  that  the  aoldien  should  not  only  be  so 
employed,  instead  of  tbe  civil  officers  of  justice, 
to  inforce  the  law  upon  Ihe  subject ;  but  that 
tbey  should  also  have  a  privilege,  when 
tbe^  were  employed,  which  the  officers  nf 
justice  never  pretended  to?  Any  mao  who 
liad  broached  such  a  doctrine  (before  Ihe  crown 
had  got  a  firm  possession  of  a  perpetual  stand- 


ing army)  such  a  man  would  have  been  booted 
at  oy  both  parties:  hy  tbe  court  (not  iliat  tbey 
would  have  disliked  Ihe  doctrine,  bui)  becaiifw 
Ibe  aecret  would  have  been  let  out  loo  soon. 
Bnt  now  thia  same  doctrine  haa  made  the  chief 
jtittice  an  earl,  and  will  make  tbe  attorney- 
getKral  a  chief  justice. 
GeoUemcn,  1  niut  entreat  yon  to  recal  to 


•  VoL  <t  P-  WW-  »»?• 


Hr.  Laing,  in  relating  the  '  last  splendid  ti- 
jdoits'  of  Dundee,  has  eloquently  celebrated  tks 
illustrious  parts  of  his  character :  Imt^limiirf 
commcndalioo  of  the  hero  would  not  satiif^ 
the  zealous  prrjodices  of  the  writer  of  fail 
<  Uemoirs.'  By  the  blind  or  dishonest  narlit- 
lily  of  this  biugraiiher,  high  praise  is  claimed 
for  the  'mercy  ana lenderneaii''  IheuneipectJ 
and  Dudeaerred  clemency'  ol  Claverbouie,  u 
minister  of'  all  tbe  paternal  care'  of  Charles  ut 
James  for  the  presbyteriaos  of  Scotland.  Of 
Jamea's  paternal  core,  which  pemitud  iht 
execution  of  wretuhed  ignorant  eulbuxisitti 
whose  blood  he  said  would  he  upun  the  naliM, 
the  atilbor  has  given  an  instance  in  the  folla*- 
ing  curious  alory : 

■'  His  grace  the  duke  of  York,  who  ms 
concerned  to  hear  of  ihe  commoliuns  and  trsu- 
blea  in  ihe  weal,  ordrrcd  llial  anme  priuMn 
should   be  brouelit  to   Kdinbori;!)   iii  bs  ei- 
amined.     Accordingly  there  were  three  msIi     • 
who   were  found  so  ignnraot  and  simple  M    i 
their  exaroioationa,  tiiai  iiis  grace  gave  onbf*    \ 
to  set  them  at  liberty,  upon  ciiodiliun  lliallbtj 
sbould  aay  '  God  savu  tbe  Kini;;'  which  ihcf 
positively  denied;  then  his  hi^hoess  askrlif     i 
there  was  a  Bedlam  in  the  country  to  puttlicn    1 
in,  and  declared,  that  if  ilif>y  wtre  hanged,  it    ■ 
was  his  opinion,  their  blond  was  on  Ihe  ustioo : 
notwithstanding,  accordinj;  to  ilieir  sentcDLVsf 
condamnatjon,  they  were  brought  to  Ihe  plies 
of  execution,  and  his  grace  beuig  uneasy,  senl 
the  lord  Roscommon,  with  a  paidon  In  llieMt    J 
who  came  close  to  the  Ncafluld,  and  (one  «>'    1 
them  being  banged)  made  a  handsonie  specck     I 
to  the  other  two,  offering  them  their  psrduB,i( 
tbey  would  say  '  God  save  the  tving.'  The  next 
to  Ik  banged  was  John  Potter,  who  seeioed  » 
be  i[i  a  doubt,  and  it  was  lielieved  would  bais 
accepted  of  the  pardon,  but  his  wife  took  hi» 
by  Ibe  arm,  and  almost  pushed  him  over  Iks     . 
ladder,  and  aaid,  '  Go,  die  for  the  good  oM     | 
'  cause,  mj  dear ;  see  such  a  man'  (roaaaisg     - 
the  banged  man)  '  will  su|>  thin  night  wilk 
Cbriat  Jaaua  {'  so  in  fine,  Ihe  other  two  wb« 
bangnl:  bnt  nbu  was  tii«  wuomb'i  im^ 


»1 


JoraLiitL 


A.  D.  1777. 


[7SQ 


be  daairbter  took  place  in  very  troabletooie 
Miaicl  UoMS,  el  tbe  mnmeot  of  ike  Revo- 
m:  it  wu  sfter  repeated  proclainetions  of 
idemnity  and  perdoo.  Tke  laat  proclaint- 
Ni  elk>wcd  them  fife  rooniha  (from  August  to 
iDoery)  to  come  io  end  take  the  benefit  of 
lal  procleoiatioo.  About  aix  weeka  after  tbe 
Kpiration  of  that  term,  tbe  alaughter  bap* 
Mied;  end  abonl  95  or  30  of  ibem  were 
illed.  Now,  gfcnUemen,  Jet  ua  look  for  tbe 
reaona  which  were  given  for  that  alaughter. 
beaecretary  ofatate,  Stair,  givea  theaeree- 
Hia  for  that  alaughter :  iheae  are  hia  worda : 
Since  tbe  go? eroment  cannot  oblige  them,  it 

obliged  to  ruin  some  of  them,  to  weakeu  and 
ighten  the  real.''     Hegofa  much  farther: — 

li  ia  a  great  work  of  charity  to  be  exact  in 
xKing  out  that  damoable  aect."  They  w^ 
oi  uoly  obliged  to  do  it,  but  it  waa  charitable, 
le  Koea  farther : — '*  for  a  juat  example  of  veo* 
eeoce,  I  entreat  the  thieving  tribe  of  GlecH» 
my  be  rooted  out  to  pur|M>8e."— -He  aeya  it 
raa  '*  a  great  advantaife  to  the  nation,  that 
net  thieving  tribe  were  rooted  out  and  cut  off.** 
-■*  When  you  do  your  duty  in  a  thing  ao  ne- 
eaaar^,"  (there  waa  a  necesaity,  you  aee)-* 
'  to  rid  the  coimtry  of  thieving,  you  need  not 
rouble  yourself  to  take  the  patna  to  vindicate 
loaraelf  b^  shewing  all  your  ordera.''— '*  When 
tiu  do  right,  you  need  not  1'ear  any  body." 
le  adda  farther,  gentlemen, — *'  Here  ia  a  fair 
ccaaion  for  you  to  shew  that  your  garriaoo 
ervea  for  aome  use." — Theaie  are  hia  inatruc- 
iona ;  tlie  aecretary  of  state's  inatructiona  to 
be  troopa :  it  was  a  fair  occasion  to  shew  that 
beir  garrison  aerved  for  aoroe  use.—**  The 
ting's  justice  in  this,  will  he  aa  conapicuous  and 
iseful  aa  hia  clemency  to  other8."~-Can  any 
Burder  be  dressed  up  in  fairer  terras?  I  defy 
be  Attorney-General,  with  all  his  abilitiea  and 
brce  of  language,  to  say  any  thiug  in  behalf 
if  this  murder  at  Lexington,  in  more  apecioua 
frma  than  secretary  Stair  haa  done.  *'  It  waa 
sbarity  to  be  exact — for  a  just  example  of  ven- 
j^raoee— I  entreat  the  thieving  tribe  of  Gleuco 
■ay  be  rooted  out  to  pur|)ose.  It  ia  a  great 
idvaotage  to  the  nation  that  tbe  thieving  tribe 
acre  rooted  out,  and  cut  off.     When  you  do 

n   having   her   husband    hanged,    aurprised 
naay." 

Mr.  Walter  Scott,  in  his  «  Lady  of  the 
LAke,'  and  *  Vision  of  Don  Roderick,'  has 
idded  illustrious  renown  to  *'  the  various 
ichievemeots  of  the  warlike  family  of  Gra*me 
If  Grabame." 

*  Dignum  laude  virum  musa  vetat  mori.* 

Tbe  following  is  the  passage  in  Dalrymple, 
a  which  Mr.  Laing,  as  cited  in  vol.  13,  p.  817» 
lUodfli:  '*  Dundee  had  inflamed  his  mind  from 
lie  eerlieat  growth  by  the  perusal  of  ancient 
■gdiy  liiatoriaoa,  and  oratora,  with  the  love  of 
Ih  great  actiona  they  praise  and  deacribe.  He 
r.  reported  to  have  inflamed  it  atill  more  by 
mmiyt  t»  th«  ulitDt  Mog.  of  tbe  bigUaod 


yoor  doty*  io  a  thing  to  necesaar^,  yoli  need 
pot  trouMe  yoarself  to  take  the  paiot  to  viodU 
ceto  yourself  by  shewing  all  your  ordera.  Whea 
you  do  right,  you  need  not  fear  any  body.--* 
Here  ia  a  fair  opportunity  for  you  to  shew  that 
your  garrison  aerves  for  some  uae."  And  a(\er 
It  waa  done,  be  says,  **  All  that  I  regret  if, 
that  any  of  tbe  aort  got  away,  and  there  ie  a 
necessity  to  proaecute  them  to  the  utnMial."-»i^ 
Theae  are  the  specious  reasons  given  for  tbie 
alaughter  at  Glenco  by  tbe  then  aecretary  of 
state.  But,  notwithstanding  all  Iheie  fiae 
reaaons  of  the  aecretary  (who  wouUl  have  beea 
▼ery  glad  to  bare  bad  it  conaidered  aa  a  Bedi<4 
tious  libel  against  government,  for  any  man  to 
say  that  that  morder  which  ho  had  anthoriscd 
was  a  murder :  he  would  have  been  very  glad 
of  this  doctrine ;  it  would  have  saved  himT  be 
bimaelf  acknowledges  in  a  letter,  thai  there 
waa  *'  moch  talk  at  Loudon,  that  the  Glenca 
men  were  mordere^l."  There  waa  mudi» 
oboerva;  not  a  little;  tbeie  waa  much  talkal 
LondoD  thai  tbe  Glanoo  men  were  mor<« 
dered.  And  tbe  parliament  of  Scotland,  whe 
took  up  the  matter,  aaid,  it  had  made  **.mneb 
noise  both  in  Scotland  and  the  real  of  tbe 
kmg'a  domieiotts."  And,  gentlemen,  it  waa  » 
Tery  nsefiil  talk  and  noise.  You  will  find  what 
it  produced.  Now,  wliat  did  the  king?  re* 
luctantly  indeed ;  but  it  produced  good.  What? 
did  tbe  secretory  of  state.^  What  did  the  At-' 
tomey-General?  File  an  information  forcbafg*. 
ing  the  kiog'a  troopa  with  murder?  (words  andr 
writing  have  the  aame  effect ;  rash  words,  in-» 
deed,  shall  have  an  exouae  where  a  deliberate 
writing  ahall  not.)  No !  there  waa  no  infor« 
matron  for  a  Ubel ;  hut  the  king  granted  a  oem- 
miaaioe  for  an  enqiury  by  what  pretended  au-  < 
thority  that  shmghter  waa  committed.  The 
oflicera  of  atate  at  that  time  knew  what  they  • 
were  about,  as  well  as  they  do  at  thia  time. 
There  waa  a  defect  in  the  commiasion.  Gen*  ■ 
tleroen,  in  thia  first  commission  which  was 
granted,  the  officers  who  had  the  drawing  il 
up,  no  doubt,  took  care  that  there  ahould  be  a 
ilefect.  A  defect  there  was,  and  the  enquiry 
did  not  take  pUce.  But  the  much  noise  and 
the  much  talk  cootinueil ;  and  two  years  after^ 
wania  the  king  waa  forced  to  grant  another 
commiaaion  of  enquiry ;  and  then  care  was 
taken  that  there  should  be  no  delect.  And  that 
commisaiou  of  enquiry  waa  put  in  force.  1 1 
waa  a  commission  of  enquiry  to  some  of  the 
noblest  and  the  greatest  in  that  country,  Scot- 
land, where  the  mnnlera  were  committed. 
Gentlemen,  what  did  tlioaelordacnmmiaatonera? 
They  reported,  that  the  slaughter  of  the  men 
at  Glenco  was — **  a  barbarous  murder ;'?  tbe 
very  Billiogigate  laoguagfe  complained  of  in 
me.  Theae  noble  Scotebmen  voted  and  need 
that  very  expreaaion,  Uial  very  ribaldry.  The 
Attorney-General  baa  takeu  hold  of  a  whole 
nation  by  calling  it  Billingsgate  and  ribaldry. 
Here  ia  that  very  word,  **  murder,  barbarooa 
murder,"  applieil  to  the  king's  troops,  which  - 
offends  that  gentleman  ao  mneh  in  my  adver». 
tiscment,    lie  may  aow  ice,  that  1  too  hul  %. 


T3I] 


17  GEORGE  III. 


Proceedings  againa  John  Hame^ 


|739 


{ireeedeDt  for  it    After  the  oomniiMionen  bid 
diechtrged  their  duty,  aod  made  their  re|iort, 
that  it  was  a  barbaroua  murder ;  the  parimiiieiit 
of  Scotland  took  it  up»  and  they  voted  the  eanie 
Billingigate— they  TOted  that  it  wai  a  **  bar- 
baroot  murder."     And   they  addrewed  the 
king;  and  in  that  addrete  they  called  it  a 
*<  baibaroui  murder."     But  that  ie  not  all. 
Thejrjnttify  the  king.    They  find  upon  their 
enquiry,  that  the  king's  instructiont  had  been 
oontradicted :  for  hie  initnictions  were,  that 
the  Glenco  men  should  be  prosecuted  "  in  the 
way  of  public  justice,  and  no  other  way:" 
that  is  what  they  6od  for  the  king.    And  yet 
they  were  no  friends  of  those  men  who  were 
murdered.    They  did  not  justif)f  them,  nor  ar- 
raign all  the  measures  which  bad  been  taken 
against  them,  by  finding  it  a  barbarous  morder. 
But  they  justify  the  king ;  and  they  acknow- 
ledge tbemself  es  so  well  persuaded  of  their 
guilt,  that  they  say,  if  the  king  had  prooeedcMl 
against  them  according  to  law,  and  had  taken 
their  lires,  "  they  would  hare  met  with  no 
more  than  they  deserved."    However,  gentle- 
men, I  suppose  that  in  that  declaration  they 
were  rather  nasty  :  for  there  were  women  and 
ehiMren,  and  old  men  of  80,  killed  :  and  1  do 
suppose,  that  if  they  bad  boen  proceeded  against 
according  to  law,  the  infants  at  least  would 
liave  been  spared,  if  the  old  men  and  the  wo- 
men had  not  escaped.  They  go  farther.  They 
•ocuse  the  secretary  of  state,  Suir,  as  «*  the  only 
warrant  and  cause''  of  the  slaughter  by  his  or- 
ders.  They  find  that  he  <*  did,  in  place  of  pre- 
acribing  a  vindication  of  public  justice,  order 
them  to  be  cut  off  and  rooted  out  in  earnest,  and 
to  purpose ;   and  that  suddenly,  and  secretly, 
sind  quietly,  and  all  on  a  sudden."  It  keeps  pace 
^ery  much  with  the  murders  at  Lexington  aod 
Concord.    That  expedition  was  secrotly,  quiet- 
ly, and  all  on  a  sudden ;  an  expedition  at  the 
dead  of  night.    They  find  that  he  directed  the 
aoldiers,  that  they  **  should  not  trouble  the  go- 
▼emment  with  prisoners."    Now  the  govern' 
ment  cannot  be  troubled  with  prisoners;  the 
ministers  might:  government  is  not  troubled 
with  uffeiiders.   He  promises  them,  that  "  their 
power  should  be  full  enough :"  and  he  orders 
them,  that  they  should  **  begin  with  Glenco :" 
and  liis  words  are,  that  they  should  <*  spare  no- 
thing which  belonged  to  liim."     Military  exe- 
cution differs  a  little  from  the  laws  of  the  land ! 
They  accused  the  lying's  troops  with  murder,  for 
executing  the  orders  which  they  had  received  : 
they  addressed  the  king  "  to  order  his  advocate 
to  prosecute  them  :"  and  they  desire  him,  that 
he  would  send  the  troops  home  to  be  prose- 
cuted: **  there  remaining—"  (these  are  their 
yery  words)  "  send  them  home  to  be  prose- 
cuted :  there  remaining  nothing  else  to  be  done 
ftirthe  full  vindication  of  his  majesty's  govern- 
ment from  so  foul  and  scandalous  an  asper- 
sion."   There  remaining  nothing  else  to  be 
done!   Not  an  information  for  a  libel,  but  an 
eaquiry  into  the  matter,  and  a  prosecution  of 
the  oClenders !  Now,  gentlemen,  then  I  must 
iatrtat  you  to  obicrvf  what  the  troops  art  ca- 


pable of  doing;  and  I  did  intend  ta' have  read 
to  yoa  the  cruel  particulars  of  that  narrative ; 
but  it  is  well  enough,  yon  will  read  it  another 
time  at  your  leisure;  and  it  is  yoor  convic- 
tion, more  than  your  verdict,  i  seek. "-  Yoa 
will  know  where  to  find  it    Yon  will  aee  in 
how  barbarons,  bow  wanton,  how  treacharons, 
and  bow  cruel  a  manner  they  slaughtered  men, 
women,  and  children.    And  this  they  were  told 
was  their  duty ;  and  this  they  thought  a  proper 
way  (as  Stair,  the  secretary  of  state,  who  wis 
a  military  man ;  they  thought  it,  aa  he  told 
them)  a  proper  way  to  shew  that  tbey  aerved 
for  some  use.    Gentlemen,  you  find  then,  by 
this  report  and  vote,   that  murder  may  k« 
committed  by  the  king's  troops  without  and 
even  against  the  king's  orders  and  instruc- 
tions ;  therefore  1  comdude,  that  it  is  not  ne- 
cesssrily   a   libel  against  the  king   and  the 
government  to  accuse  his  troops  with  nar^ 
der.     Indeed  I  go  farther,  1  say,  the  kmf 
cannot  give  orders  for  such  a  murder.    It  ■ 
an  impossibility  :    nor,   if  it   were  possible, 
would  such  ortfers  justify  the  act.    Jt  exceeds 
the  king's  power ;  and  would  still,  by  whom- 
soever authorized  and  committed,  continue  to 
be  a  murder.    Gentlemen,  you  find  too,  that  a 
secretary  of  state  may  be  guilty  of  exceeding 
the  king's  instructions  (as  in  this  case  of  Gleneo 
he  was  upon  enquiry  found  to  have  ilone). 
And  as  a  secretary  of  state  may  exceed  the 
king's  instructions,  so  may  all  those  other  per* 
sons  through  whose  hands  the  orders  pass  nom 
the  secreury  of  state  to    the  soldiers  who 
execute  them ;  consequently,  it  is  no  charge 
against  the  king  or  the  government  to  chaige 
the  troops  with  murder.     But,  whether  the 
troops  have  orders  or  not,  you  see,  that  the 
king's  troops  who  commit  the  fact  are  never- 
theless e:uiity  of  murder,  as  it  has  been  here 
voted,  though  acting  under  orders.   Now  then, 
gentlemen,  I  must  l>e<r  you  to  compare  that 
doctrine  concerninsT  Glenco  (which  has  never 
been  arraigned)  compare  it  with  this  doctrine 
of  the  Attorney-General  concerning  the  soldiem 
at  Lexington.    In  the  trialo  of  the  printera  be 
said,  and  he  saj's  now,  that  the  advertisement 
is  a  seditious  libel  against  the  government,  be- 
cause it  arraigned  the  employment  of  the  king's 
trao|)s,  and  called  the  victory  they  had  obtained 
a  munler.    There,  he  said,  he  put  his  finger; 
**  for  this,"  says  lie,  **  arraigns  all  the  mea- 
sures of  government ;  quelling  rebels  armed, 
to  call  that  murder."    Now  I  beg  of  you  to 
consider  what  a  number  of  things  are  lef\  out 
in  this  manner  of  reasoning,  and  what  a  num- 
ber of  things  are  taken  for  granted.    In  tbe 
first  place,  it  does  not  appear,  nor  has  he  off*ercd 
to  prove  any  such  thing,  that  the  slaughter  at 
I^xington  and  Concord  was  a  measure  of  go- 
vernment.    Arraigning  all  the  measures  ofgo- 
vernmentt   and  yet  it  does  not  appear  thai 
this  was  a  measure  of  government ;  I  mean, 
even  according  to  the  abused  use  of  the  woid 
government ;  I  moan,  not  a  measure  even  if 
the  secretary  of  state.    But  if  it  had  been,  be* 
doM  it  follow  that,  by  abusing  the  meaiucitrf 


>r  a  Libel. 


of  M 


all  ilie  mea- 
nn  it  I'ullow 


MietoT^ovAronieiili'  Sup|i(u« 
iDeuure  of  government,  liow 
thai  1  cooUeaio  all .'  May  nol  n  man  coDileinn 
tb«l  measure,  and  yet  approve  all  Ihe  lore- 
guinK  ?  1  ilo  not  mean  to  be  uuJerslanil  thai  I 
■liptovellie  loreRiiiiiH  inesBiires;  I  alilmr  them. 
But  there  la  nothing  in  the  ailverlisemenl  tie- 
tore  yau  which  cuinJemns  ihe  nieasures  ol'  gn- 
ferntumt  directly  or  iodirectly  :  it  relatei  lo 
DO  oilier  meoiure  htit  merely  lo  that  one  ;  and 
yau  are  nol  Id  uouble  yourielvea  with  whul  I 
may  like,  or  what  1  may  nol  tike,  hiit  what  I 
ha*o  eK)ire*sed  in  llial  aitveriisemeot  which  i* 
Krore  yon.  For  In  ihla  caie  of  Glenco,  it  ii 
IVil*M  ibal  llie  nohle  com  mission  era  whnrol«d 
it  A  ImiWoui  murder,  did  nol  ciinitenin  all  ihe 
nMSures  ol' goternoienl:  for  ih  try  naid,  "If 
the  king  bad  prosecuted  Ihem  hy  law,  and 
lakM  ttieir  lives,  he  lisd  dune  no  more  ihaii 
jwttce :"  il  is  plain  llierefnre  Ihey  did  not  coo- 
4Hin  all  the  other  measures  of  governtnent, 
tvl  only  (he  slaughter  liy  ihe  trnopa  ;  for  lliey 
lOBporled  ihe  other  mraaures  of  ^verDmem, 
loalbat  at  llie  rhtk  of  Ihrirlivea  and  fortuiita, 
to'l,  ({entlemetl,  1  know  of  my  own  know- 
ttilge,  and  I  dure  say  you  do,  many  persons 
who  have  nul  disapproved  of  all  those  preceding' 
ineasures  relative  to  America,  who  y  vl  did  dis- 
UjOiQfe  nl'  ihal  rslh  and  »aoton  transactinn. 
tSn,  gentlemen,  as  for  the  '  victory, '  ]  ihiuk 
it  irill  not  appear  In  tie  quite  so  complete  a  vie- 
Imj  ■■  tliat  al  Glencu!  and  theretbre  you  slill 
aw,  that  such  a  victory  ai  Ihat  may  he  called  a 
ninrder.  Gen(lemen,,rurmyowii  part,  I  do  nol 
ItesiUte  lo  declare,  llial  I  atilmr  such  vidoricB ; 
vicioriea  by  suhji>cl  upon  subject!  And  as  for 
■ucU  a  viclory  ■■  this,  I  do  declare  1  think  that 
Uie  brows  ofsueh  conquerors  imiead  of  laurel 
«huDtd  be  crowned  with  wreatlii  of  hemlock. 
A  tid  at  for  his  "  quellinz  of  armed  rebels !" 
^ver7  word  is  falshood.  They  were  not  rebels, 
bor  armed,  nor  quelled.  They  had  committed 
no  act  of  hotliliiy ;  ihey  hml  made  no  attack  ; 
*liey  were  sleeping  quiiilly  in  their  beds,  una p- 
t>rcbensive  of  any  attack  upon  themselves,  al 
tbe  time  that  this  expedilion  took  place:  and 
^Ift  1  shall  prove,  genllemcD.  Wtial  reason 
him  jou  t«  believe  ihal  lliev  were  in  rehellinn, 
^WCMtlie  Attorney -General's  saying  so  proves 
tbMD  to  ti«  in  rebellion  ?  for  he  Iinn  oRere<l  no 
proof  to  yoii  of  it.  Ilia  now — (and  pray  con- 
^iijer  ihw  mailer  ahoiil  rebeli ;  Ihougb  I  think 
>t  doea  nut  matter ;  for  a  rebel  may  he  mnr- 
*^9tvd)  but  consider,  it  is  now  Iwo  years  and  a 
Vuner  since  lliis  slaughter  was  commilled  ; 
*ad  yet,  lo  ihia  day,  no  person  whatever  has 
haui  pmaecuted  aa  a  rebel.  No  legal  proceed- 
<«gf  of  any  kind  have  taken  place.  11  is  Iwo 
)un  and  a  quarter  since  lliai  execution  upon 
the  reh^a,  as  they  are  calleil,  and  lel  no  proof 
tfrcbelliou:  and  yel  you  are  In  believe,  that 
ib^  arc  rebels!  The  Attorney-General,  iflhey 
Venbela,  abould  do  his  duty:  be  should  pro- 
Hnte. 

.21ow,  genllf  men,  observe  only  another  coo- 
1  Uie  doclriuea  wbich  are  brought 


A.  D.  1777.  [734 

hetbre  ynn.  You  will  be  told,  thai  if  Ihey  were 
mui  tiered,  ilia  murderers  should  be  prosecuted. 
Yuu  have  been  lold  so.  Men  are  not  lo  b« 
charged  nilh  crime* ;  Ihey  are  to  he  prose- 
culedbylaw.  So  Itienweare  not  lo  know, 
we  are  ool  to  Judge  of  murder  when  il  is  cum- 
milled,  lilt  Ihe  law  helps  our  judftmenl.  And 
yet.  observe,  we  are  to  jiiilge  of  rebellion  ; 
which  IB  a  crime  surely  more  difGculi  lo  b« 
BRceflaiiied,  and  about  which  there  have  lieeo 
more  doubts  and  diapulea  than  about  niunhT. 
Ifa  man,  out  of  Ihe  court,  exercises  hisjiidg- 
meDI  about  a  murder,  he  shall  be  puuialied  ; 
but  he  is  at  the  same  time  bound  at  his  peril  lo 
exercise  his  judgment  about  rebellion  ;  lokiuiiv 
what  is  rtlellion,  and  who  bare  commilled  it. 
And  yet,  gentlemen,  I  must  heg  you  lo  observe, 
ihat  if  these  very  men,  execuled  by  mitilarj 
force  at  Lexington,  liad  been  reliels;  had  been 
taken  iu  rebellion ;  had  been  prosecuted,  con- 
victed, sentenced,  and  had  beeu  letdiog  lo  ths 
gallows  by  Ihe  therilfi  if  these  same  king'a 
troops  had  come  and  shot  them,  or  run  their 
bsyonelE  into  thero,  they  would  have  comiDitled 
murder.  It  I*  not  llieir  being  rebels ;  il  is  not 
Ibeir  being  sentenced — when  they  are  even 
leading  to  execution,  a  man  may  commit  n 
murder  upon  the  convicts:  and  llteee  troop* 
would  have  committed  murder,  hail  Ihey  ex»> 
culed  the  i^en  even  in  I  hat  condition. 

Geiillemen,  Ihe  same  way  of  ibtnkilig  of 
military  execution  has  prevailed  ever  since  ihat 
liroe.  I  shall  not  Irouhle  you  to  repeat  the  par- 
ticulars of  ihe  afTsir  of  caplaio  I'orteous,*  at 
Edinburgh.  These  gentlemeu  are, so  little 
pleated  wilh  military  execution  upon  them- 
selvea,  that  torieous  was  charged  by  ihera  wilh 
murder.  Me  was  prosecuted,  convioied,  and 
when  be  was  reprieved  afterBentence,tlie  peopla 
of  the  town  execnied  thai  man  themsdves,  »o 
little  did  they  approve  of  mililarv  execution. 
Now,  genile'men,  there  are  at  this  moment 
lieoplc  lit  repulalinn,  living  in  credit,  making 
IbrtuDes  under  the  crown,  who  were  concerned 
in  that  very  fact,  who  were  concerned  in  the 
execiiiion  of  I'orteous.  1  do  not  speak  it  to 
censure  them  ;  for,  boivever  irregular  the  act, 
my  mind  approves  it.  I  beg  you  likewisea 
gentlemen,  lo  recollect  that  moat  wanton  and  ■ 
niusi  wicked  rebellion  of  the  year  174S.  In 
what  a  manner  was  the  (iciory  over  Ihem 
spoken  of  in  Smollet's  "  Mourn,  hapless  Cale- 
donia!"— It  is  known,  1  suppose,  lo  every  bodj 
who  ever  ruads  (Hietry,  He  calls  il  murilei: : 
•'  The  naked  ami  tbrlorn  taunt  feel 
"  Devouring  flames  and  murdering  steel,"  See. 
1  condemn  his  acl;  I  do  not  Justify  It;  but  Ijft 
was  not  prosecuted  Ibr  ii  in  that  mild  reign. 

Gentlemen,  it  baa  always  been  judged  a  me-, 
rilorlous  Jealousy  in  our  civil  offitcers;  it  wsa 
in  Janssen  ;  il  was  in  some  other  slieriHii,  wbo 
are  still  fitiog,  when  Ihey  rel'uiedlheaasisiaDc* 
of  Ihe  mihlary  U>  execute  criioioals.  So  little 
proper  are  Ihe  military,  with  or  wiibout  orders. 


1 


*  See  his  Gue,  toI.  17,  p.  933. 


TSl]  17  CEORGB  IIU  Proctedingi  agahu  John  //rtfl 

\'%\At  nf  doin^:  Mid  I  did  ioini 
In  ynu  the  trurl  tnrtieulan  af  lb'      ,0^,  lu 
but  it  i*  ird(  caoiiifh,  yon  will  '  Su  ibn, 

time  il  yvur  Ifiitnr*  ;  atid  ii  pnitfcuiina 
ttnn,  innr«  lUftu  ynur  fcrri'  „;  ino  mm, 
will  lioow  where  to  find  '  ,  y  ,Ma  tlir  fstt, 
|>uw  turbamui,  liow  "■»'■  ,,)  mo  l»i(,  fur  lh« 
BDilbDwcruelanunu'  ,n.  And  I  Ii«t««o 
womeii,  aod  chddrw  „|  jou  your»*l»r*  i"'" 
wwi  their  duly ;  •(•■'  ,,  m  Im  Itkm  in  r«mo»« 
n>y(a«Suir,  th  ,nonoo  Linwiimpnl.  itlo 
a  miliUr;  ntut  ,„y  j,„„  |l,p  murder';  awl 
tlietn)  »  prtu'  ,^  fo,;,,^  ,  grouDdlmt  ch*^, 
(•n  tome  u>  ,„nB,li  tboM!  who  HiargwIthMi. 
tliii  tppp  ,, fill  not  prowcntviheffl?  Brtt 
C(inimr>'  .  .iii.uitl  liavf  |>rn»e<nited  the  tnui- 
nt»ti  ''„„(c!inrg«l  them  with  the  iinin]*r, 

*•**•'     yjita"!',  I  h«»e»lway»*l<»iiu  ■owbo" 
»    v/^„il  IwooMdosoonwiricwild.    I 
■  ^TiUircotf  thiMW   troops  giiilly  of  tbdn 
-^,    Bill  bu»i>  that  to  be  done  f  An  art 
--f  '^irtirnl  »«•  luadP  just  hdVire  the  eomniii- 
'  ^   'j  ipJ  il'"e  murdPTS.to  eiremiil  tlip  mordrrM 
1.  ■  "iiiiii'ial  li)A(ntric«;   and  you  will  ploaaen 
"'^  ^,rinbrr,  tlial  it  i*aol  tntiKBinre  anartol'paT- 
Vliin'cn'  «■■  made  in   Eni[l»iid  for  the  t»or« 
■V^'-imly  pxecmion  of  mi.rilerers  here.     An  trt 
■"'        ,i.a.lea  fe*  yeam  otjofor  the  morf8|«*)y 
iiiioti  of  mu'dei'era  in  England  ;  and  Ihil 
breams  il  was  thought  a  meana  of  il*Wrrinj 
■  #ffeciualTy  from  imirder.    Nowtbm 
yon  lo  tonclude?     What  are  you» 
concrnde  eten  from  the  cirpiimBlance  of  delay 
al'ini-?— *i>l  either  ll>»t  what  deters  men  fnW 
i-ummitlin^  inn rdcf  here,  will   not  deter  ikw 
frniii  comioiltini  munler  tliere  ;  or  else,  iW 
il  WM  nil  intrnded  to  deltr  mi^n  from  ci 


precedent  for  it.  After  the  MmiBtMinnert  bad 
discharged  their  duly,  aud  mad«  Iheir  repon, 
that  it  wax  a  barbaruiia  murder ;  the  naHiam^nt 
of  Scottu[)il  luok  it  up,  and  they  nited  ihe  ««int 
Biltlnt^bgaie — the;  voted  UiU  ii  wa«  a  "  har- 
barouB  mnnler."  Aod  they  addre»ed  the 
kin|r;  and  in  Ihat  address  they  called  tl  a 
*'  Uarharons  murder."  But  that  i«  not  all. 
They  jualify  Ihe  kin^.  They  tind  ntiiin  their 
eni|uiry,  thai  the  king'a  inslruclioD*  had  been 
CDDtradiclBd :  for  hia  Jnalrnctiona  wore,  that 
Ihe  Glencu  men  ahould  be  proaeciiled  "  in  the 
way  of  nubltc  Ju!iti<:c,  and  no  nther  May:" 
Ihat  is  what  they  fiod  for  Ihe  king.  Anil  yet 
(hey  were  no  friends  uf  Ihoae  men  who  wrre 
tnurdered.  They  did  uol  juatify  thum,  aor  at* 
raiffii  all  ibe  nteaaure*  which  had  baeD  lakoi 
B^inil  ihem,  by  finding  it  a  barbarous  murder. 
But  they  jiulify  the  fcinEl  *Dd  tbey  aoknBw- 
ledge  theinneUea  ao  wHI  pemiaded  of  tbfir 
1,'nilt,  Ihallbeysay,  if  ths  king  hnd  proooled 
■giinal  ihcm  according  to  law,  and  bail  tab* 
Iheir  liica,  "  tbcy  wonid  ha*e  met  will' 
more  Ibun  they  deaened."  Huw«**f,  i;- 
men,  I  8U|>|iih«  tliat  in  that  drclaratii  '-> 

*»ere  rather  baity  :  for  there  were  wf-- 
children,  and  uld  men  of  GO,   killed 
auppnse,  Ihat  if  they  had  bevn  procr 
BCDOrding  to  law,  Ihn  infanls  ^ 
Iiare  been  spared,  if  ihe  old  tr 
men  bad  not  eacaped.   Tbejr 
Mcuae  ibesecreinrv  oruu* 
'Warrant  and  ciUM-    of  tfai- 
den.    They  And  Ihsl  be 

acribin^  a  »iudicalioo  '    '•^  jL*'  'll/'i 

Ihem  lobecul  olfand  >  '^''^C'-^w 

(o  uiirmiae:  end  ibf  .  -O'"^^'  ■  '  .m' 

,i,:„i,...d.ii.    ;>;;sr.*zff" 

ry  much  with  lb     .    .  .^ut  "'^KTr" 


.'■^'^. 


*ery  mucfi  wiib  lb'  .  '•  '^^  "^^W''  -.  ,inii 
Concord,  That.  \,  '^J^^S^'^^JZ 
ly,  and  all  on  . .      ^^^^  ,  t^^.^,  ,„..y 


<lead  nl 


aoldi 


No. 


what  wMiW 


toy  diipawionate  American  think  <^cn  of  tbii 
sinW  tUfferrnce  between  tiHf     Thb  *Lt «» 


rily  were  nio 

upon'lhem.     Obwrre,  when  Enpliiliinen  iw 
murdered,  as  small  delay  as  possible  sballW 
suffered  belween  the  fact  aud  the  punishment :     ( 
iu  America,  crery  delay  and  erery  powibleilif*     I 
ficulty!    Wbal  was  this  likely  to  produce  bet 
lautoal  slaiighler  on  both  side*  ?    ThesoWwj    j 
were  «iCDiinigcO  lo  murder  hy  b  pros|iert  "    , 
imiiunily;    and  tlie  Amerieaos,  by  thstiffliw-    | 
nily  of  their  murderers,  were  laught  to  delm    j 
and  nrteoge  thpm»cl»es.     I  beg  youtoreM*    i 
leet  what  happened   in  Londoo  onlv  three*' 
four  yearii  sgn.     A  foreigner  slahbeo  a  co»™- 
man  in  Palace- yard,  Weslroiuster.     TbeiiW    ! 
man  in  ihe  agonies  of  ilealh   called  out  lir  • 
knife,  Ihai  he  mi«iit  do  himself  joalice  (theft* 
is  iiolorious  ■,    I   belieie  tl  came  out  opOD  IM 
I  irial)  that  he  might  do  himself  jiutice;    uM 
f'^Jj1''*^TZ^  y'""'  «''  BoWrt    said,  be  knew  that  his  murderer  would  K-pjT- 
''•41*^1  »»" ''ml.  HOnrceof  law    aldoned!    Genrlemen.    he  w«i  uibtakcn;  hi« 
i#^ir«<i!,^fr.mhlm,thal"Mme    murderer  WM  banged:  bol  ilwMa  Tcry  niW- 
Ca^ tfe''''^lM  helor"-  .  trial,  or    ral  ibotlgbt  lor  b>m,  after  the  pantum  for  mUT; 
*^rr-iV""r,«J  •modol^gilimo.'nD    der  which   had  1  hen  been   recMllj;  gratitt* 
'^'^JL"  "^  "  sianXTwiinie i  1   DOl    For  take  aw.y  from  men  a  rebance  .njhf  P^ 


>• 


v\ 


aU 


-property,  A)  jostice  for  1liemsc9Y«i. 

'  this  principle  it  acknowMged 

U  countries.    There  it  a  aigf- 

*'*eii  a  French  despot  found 

^t'  France  pardooed  one 

Mirder  which  he  had 

him  obserre,  tfiat 

ne  that  should 

picture  to 

^on  and 

their 

>U8- 

I  that 
troops 
(1  by  fear 
(is  them  by 
— these  troops 
J  justice  by  ibem 
iL'y  mifi^bt  cominit! 
all  tuey  attempt  to  fly, 
part  of  their  family  be- 
ley  stay « and  mibmitthem- 
^^^  tmilies  to  the  licentiousness  of 

''.  I  suppose   there  might  be 

jm  (as  amongst  us)  some  of  both 
» :  Irat  however,  for  the  honour  ofhn- 
jture,  there  were  also  some  of  another 
iicr.  They  hastily  armed  themselves  as 
dl  as  they  could  ;  they  collected  togeflier  as 
Itty  might,  and  they  staid  wailing  tfacerent, 
ttermiDed  not  to  attack,  but  to  defend  them- 
elfes  from  lawless  insult,  or  to  sell  their  lires 
I  dearly  aa  they  could.  There  is  nothing 
■ily  in  this  that  will  justify  the  slaucbter  of 
bcM  which  ensued.  And  you  will  please  to 
ksarre  the  time  when  this  hap|)ened ;  for  it  is 
very  striking  fact.  As  soon  as  the  act  of  par- 
umat  exempting  them  from  trial  for  murder 
■  America — as  bOon  as  that  act  ^  to  Ame- 
ia,  and  the  weather  would  permit  them,  the 
raopsdid  instantly  and  without  delay  commit 
we  murders  with  which  1  now  charee  them. 
'W  act  of  parliament  was  proposed  by  the 
•■flkiential  friend  of  my  judge ;  it  was  pro- 
iKd  by  lord  Gei»rge  Germaiae ;  and  though 
bs  Attorney  and  Solicitor  General,  according 
B  custom,  were  instructed  to  bring  in  the  Bilf, 

*  proposed  it  in  the  committee.  He  mentioned 
be  word  soldiers — troops: — hot  the  Attorney 
N  Solicitor  General,  or  the  other  gentlemen 
^  are  in  office  (for  I  beKef  e  their  names  are 
Nationed  for  form,  I  do  not  mean  to  accuse 
ben)  tltose  who  drew  up  the  Bill,  knew  what 
^  the  secret  ibtention  of  the  propoaer,  (not 
beiniention  of  the  sfovemment),  and  therefore 

•  toMier  is  to  be  IbuntI  in  the  BHI ;  but  it  it 
tft  at  large-^those  assisting  in  the  execution 
Cflhe  orders  of  the  officers  of  juntice ;  and  the 
fcaeral  of  the  army  was  at  that  time  the  civil 
p9trmir  of  the  town.  Lord  George  Germatne, 
'lom  I  have  sobporaaeil  to  appear,  and  who  I 
liderstand  docH  not  mean  to  attend,  was  noC 
lien,  it  rs  true,  in  office ;  Init  he  was  very 
botfly  mfler  made  secretary  of  state  for  the 
laencan  department.  You  see  then  that  se- 
ntary  Germaine  was  more  subtle  and  cantious 
M  tccretnry  Stair.    Now,  if  wt  would  proie- 

VOL.  XX. 


A.  D.  1111. 


[7S8 


cute  HKMtt  imirderers,  how  is  It  to- be  donef 
How  shall  we  find  the  imrviving  witnesses  f 
Having  found  them,  how  ahall  we  get  them  to 
England  ?  How  altall  we  find  tlie  individual 
murderers  f  and  if  found,  tiow  shall  we  briu|^ 
them  hither  f 

G^tlemen,  do  yon  not  plainly  see  ?  The 
act  passes  that  they  sinll  not  be  tried  fur  mur« 
der  in  America. — ^The  murders  immediately 
foHow.— They  cannot  be  tried  by  the  Amen- 
cans ; — and  ^if  the  doctrine  now  attempted  b^ 
this  proaecation  is  established  by  you)  our  mi- 
serable fellow-siibjects  In  America  shall  nut 
have  even  the  poor  consolation  of  being  eveti 
pitied  here.  The  murderers  shall  not  he  tried 
there :  they  shall  not  be  charged  here.  But, 
gentlemen,  1  shall  be  told  (as  1  liave  been)  that 
Uie  Americans  were  rebels.  I  answer,  that  it 
has  not  been  proved.  Times  of  discontent  and 
suspicion  are  not  times  of  rebellion :  snspidon 
may  be  groundless,  as  well  as  discontent. 

But,  gentlemen,  you  will  be  told  that  it  waa 
no  nrarder,  because  there  was  a  necessity  for 
it. — Lord  Stair  said  the  same  for  Glenco.*-* 
Well,  gentlemen,  if  upon  the  trial  of  the  mur* 
derers  it  should  so  appear,  that  would  save 
them  from  a  verdict  ot  murder.  But  till  that 
necessity  appears,  and  is  proved,  every  man  w 
jnstified  in  calling  it  a  murder.  If  ecessity  shall 
save  the  accused  from  a  sentence  of  death  ;  but 
it  shsll  not  turn  the  accusation  into  a  libel,  be- 
cause ft  had  a  reasonable  foundation.  Men 
were  killed  without  the  sanctiou  of  the  law. 
However,  1  have  never  yet  heard  any  ne- 
cessity, any  real  necessity  shewn  for  tbia 
slaughter;  and  1  take  it  that  my  evidence 
will  be  sufficient  to  make  it  appear  that  it 
was  a  voluntary  act,  not  imexpected  or 
walled  for,  but  sought  for  by  the  troops. 
Indeed,  the  Attorney-General  has  excluded 
any  such  notion  ;  for  he  has  called  K  a  victory ! 
— Necessary  self-defence  (and  no  further  than 
that  reaches  is  any  man  justified  in  pnttinff 
men  to  death)  necessary  self-defence  has,  I 
believe,  never  yet  been  called  a  victory.  The 
utmost  which  that  could  ever  be  called,  vrould 
be  a  lucky  or  a  haupy  escape.  But  necessity  did 
never  yet  excuse  fcim  who  attacks ;  it  will  only 
excuse  in  self-defence.  The  law  tells  you,  yoa 
must  go  back  to  the  wall.  If  jroo  go  and  at- 
tack, and  so  invKe  what  follows,  necessity  wffi 
not  afterwards  acquit  you.  But,  gentlemen, 
let  it  be  necessity.  If  it  is  necessity,  lam  sure, 
I  am  still  jiistifted  in  calling  it  murder  by  the 
greatest  and  (upon  this  occasion)  the  best  au- 
thority for  me  in  this  country.  For  if,  when 
at  a  critical  moment,  to  save  this  nation  from  an 
universal  famine,  it  was  necessary  for  the  mi- 
nisters of  state  to  act  eoiitrary  to  law — if  all 
men  with  one  consenting  voice  approved  this 
salutary  measure  to  snre  the  lives  uf  men, 
and  both  houitea  of  pariiam«*nt  returned  his 
majesty  their  thanks  for  concurring  wttli  it — I 
say,  if;  net  withstanding  this,  it  was  necestMiry, 
in  order  to  heal  the  wound  which  the  constilu- 


SB 


*  See  vol.  13,  pp.  883,  et  seq. 


7S9} 


17  OEOBOE  IIL  Procetdk^  qgaimt  John  Hame^ 


[740 


tioQ  WM  tappMed  to  bmre  rec«f  eil  (by  tlie  sub- 
jects lifes  beingr  thtu  ssred  contrsry  to  law) 
if  it  was  uecesssry  to  bsve  an  act  of  parliament 
to  indemnify  those  innocently  -iTDilty  ministers 
of  stato,  those  meritorious  offenders;  what, 
shall  it  not  be  equally  necessary  to  have  an  act 
of  parliament  to  indemnify  those  who  have  pot 
our  fellow  -subjects  to  death  contrary  to  law !  I 
know  indeed  there  was  a  rery  severe  judire 
once,  who  did  go  so  far  in  the  insolence  of  his 
delegated  aoiboniy,  as  to  affirm  that,  | 

—————  ••  Twerft  all  atf  good. 

To  pardon  him  tliat  bath  from  oature  stol'n 

A  man  already  made,  as  to  remit 

Their  taucjr  lewdness  that  do  coin  heaven*i  imaf  e 

Id  sumps  that  are  forbid.^Tis  all  as  just 

Falsely  to  tike  away  a  life  tme  made. 

As  to  put  mettle  to  restrained  means 

To  make  a  &l«e  one." 

But  the  doctrine  now  held  out  to  us  goes  as 
much  farther;  as  rerenge  and  tyranny  are 
more  odious,  more  pernicious,  and  more  de- 
testable than  lust.  Lust,  for  its  purpose,  ar- 
gued only  that  it  was  an  equal  crime  to  give  life 
contrary  to  law,  as  to  take  away  life  contrary 
to  Uw.  But  revenge  and  despotism  only  make 
it  a  crime  to  preserve  lives  (which  is  a  better 
kind  of  giving  life  than  generation)  contrary  fo 
law  ;->-and  deny  it  to  be  any  crime  to  take 
away  lives  contrary  to  law,  unless  it  be  also 
at  the  same  time  contrary  to  the  inclination 
9f  the  tyrant.— Admit  then,  gentlemen,  if  you 
please,  admit  the  motive  for  killing  those  our 
'  fellow-sub|eGts  at  Lexington  and  Concord  to  be 
as  necessary  as  you  please :  go  farther,  admit 
it  to  be  useful,  admit  it  to  be  highly  meritori- 
oua  :---yst  I  hope  the  warmest  aomirer  of  such 
kind  of  executions,  the  most  thirsty  alter  Ame- 
rican blood  and  conBscation,  I  hope  he  will  not 
insult  our  understandings  by  contending  that  it 
could  be  more  meritorious,  that  it  could  be 
more  useful,  that  it  could  be  more  necessary  to 
kill  men  in  support  of  the  measures  of  some 
particular  luiuislers,  than  to  save  this  whole 
cotmtry  from  famine.  Our  law,  gentlemen, 
has  not  called  such  an  action  as  that  illegal 
embargo  on  com  by  any  specific  name,  as  it 
has  called  the  illegal  putting  of  men  to  death 
by  the  name  of  murder.  Suppose  then  (what 
indeed  was  freely  done)  that  any  one^  for  want 
•faspeci6c  name,  bad  called  that  necessary 
embargo  on  corn,  an  illegal  action  :  as  when 
we  say  murder,  we  mean  illegal  slaying.  Now 
then,  I  ask  (and  I  hope  the  Attorney  General 
will  tell  us,)  would  it  have  been  a  seditious 
libel  sgainst  the  king  and  the  government  to 
have  called  that  measure  illeufsl  (for  want  of  a 
specific  name)  which  the  real  government  it- 
self, the  legislature,  by  the  indemnifying  act 
declared  to  he  illegal  ?  Whetlier  the  Attornev 
General  may  pretend  this  or  not,  I  cannot  tell: 
but  I  am  sure  my  judge  must  direct  you  other- 
wise.— He  cannot  for  shsme  pretend,  because 
be  forced  an  act  of  indemnity  upon  these  men, 
who  themselves  thought  the  act  a  sufficient  jus- 
tificatioD  of  itself;  he  forced  them  to  be  par- 
doned, to  be  iodfoiDified  by  aa  act  of  parlia- 


ment ;  and  therefore  1  am  sore  that  he  eannot 
pretend  that  utilitv  and  necessity  shall  jus- 
tify the  deaths  of^  men,  when  be  would  not 
permit  utility  and  necessity  to  be  sufficient, 
without  an  act  of  indemnity,  to  justify  those 
who  had  illegally  aaved  this  whole  cooutry 
from  famine. 

But,  gentlemen,  T  am  ashamed  to  haTe  sakl 
80  much  upon  a  point  so  clear.  It  is  not  be- 
cause I  am  tired  ;  or  because  I  am  failiug  ii 
many  more  arguments  equally  strong,  l^t  I 
disdain  to  take  up  more  of  your  time,  or  to  ssy 
a  word  more  upon  this  subject.  J  will  leave  it 
just  where  it  is.  1  leave  it  to  the  reply  of  tbs 
Attorney  Geqeraly  and  the  difectioo  of  the 
judge. 

Mr.  Home  having  concloded,  the  Attorney 
General  began  to  address  the  jury  by  way  of 
reply ;  n|ion  which  Mr.  Home  roscyand  spoki 
to  lord  Mansfield  as  follows : 

Mr.  Home:  My  lord,  1  don't  mean  to  ielni* 
rupt  the  Attorney  General:  but,  my  lord,  b? 
haste,  and  the  shame  I  feel  for  having  msM 
any  defence  to  such  a  kind  of  charge,  msdt 
me  forget  to  examine  my  witoesses.  The  At* 
tomey  General  has  not  proceeded  far  in  hii 
reply,  and  I  hope  I  shall  be  at  liberty  to  csU 
them  now. 

Att.  Gen,  You  will  not  examine  witoiflflS 
to  justify  a  libel  f— My  lord,  I  object  te  bii 
calling  witnesses,  except  be  had  opened  Is 
what  points  he  meant  to  call  them. 

Lord  Mawfitld,  You  had  better  not  okieel, 
Mr.  Attorney  General ;  you  bad  better  bsif 
his  witoesses. 

Mr.  Home.  My  lord,  if  Mr.  Attorney  Ge- 
neral make  an  objection,  I  will  eodeavoinr  It 
obviate  his  objection. 

Lord  Mansfield,    Call  your  witoesses. 

Mr.  Home,  1  call  the  Attorney  General. 

Lord  Mansfield.  Oh  !  you  can't  examiot 
the  Attorney  General. 

Mr.  Home,  Does  your  lordship  deliver  that 
as  the  law  ? — My  lord,  f  call  the  Attorney  Ge- 
neral, and  desire  that  the  book  may  be  gifco 
to  him. 

Lord  Mansfield,'  You  must  state  then  what 
questions  you  mean  to  ask  him  ;  for  he  bsss 
right  to  demur  to  the  questions,  and  take  tlic 
opinion  of  the  Court. 

Mr.  Home,  If  1  do  that,  it  will  be  more  tbu 
be  was  directed  by  your  lordship  to  do  with 
any  of  the  witnesses  he  examined. 

Lord  Mansfield.  They  were  called  of  con* 
mon  course ;  the  Attorney  General  may  ^ 
mur  to  it. 

Mr.  Home.  If  I  ask  him  an  improper  qoel* 
tion,  he  may  then  object  to  it,  if  he  can. 

Lord  Mansfield.  If  you  call  the  Attorney 
General  in  any  cause,  it*  you  don't  state  tbt 
question,  he  may  ilemur. 

Mr.  Home.   Can  he  before  he  is  swon.' 

Lonl  Mansfield,  He  msy  demur  to  bciQl 
examined  st  all. 

Mr.  Home,  Yes,  and  I  dare  say  he  wilL 

Lord  Manffield.    You  migbl  aa  waU  ciB^ 


./ 


far  a  LibeL 

•ttoniey  or  an  adfocate  employed 

00  Id  a  cause.  ' 
lorne.      But  this,  my  loi;d,    differs 

lo  what  I  shall  call  Mr.  Altoroey 
to,  be  acts  neither  as  attoroey  nor  as 

iansfUli,  State  the  question. 
Trne,  My  lord^  I  have  many  qnes- 
ik  him.  He  has  paraded  upon  his 
lis  conscience,  and  his  duty.  He  is 
r  as  an  attorney  or  an  advocate  in  the 
¥hen  he  files  an  information,  he  is 
1^  as  a  julf^e  or  a  jury ;  and  if  he  has 
in  it  with  that,  integrity  with  which 

1  ha? e  done  upon  oath,  so  much  the 
bim.    One  chief  reason  why  I  desire 

lo  bim  is,  to  obtain  this :  that  1  may 
a  means  by  which  an  accusation  io 
ill  not  be  brou((ht  a^inst  a  man  with- 
b,  at  least  from  somebody.  My  lord, 
tion  I  mean  to  ask  him  is  concerning 
nation  which  he  has  now  brou|^ht: 
me  to  be  brought  ?  bow  it  came  to  be 
and  some  other  circumstances  at- 
He  has  talked  so  much  of  the  fair-. 
I  the  conscience,  and  the  inten^rity  of 
es  in  doings  it,  that  I  am  sure  it  will 
f  comical  if  he  refuses  to  swear. to 
flarations.  If  he  will  not  swear  to 
dves,  without  his  oath  I  cannot  be- 
ind  if,  contrary  to  mv  expectations, 
ivear  to  it,  after  his  oath  1  shall  be  left 
le  my  own  juilgment. 
en.  To  any  matter  so  impertinent  at 
that  i^nileman  had  had  any  question 
have  asked  me  relative  to  his  defence, 
not  have  objpcteil  to  have  sw4>rn  to 
ig^h  I  stand  in  the  place  of  prosecutor 
use,  where  in  point  of  form  1  migbt : 
t  mys^f  upon  this,  that  I  will  not  be 
to  questions  so  impertinent  as  those 
been  now  proposed. 
ornt.  My  lord,  the  g^entlemen  of  the 
please  to  observe  then,  that  here  is  an 
1  without  an  accuser.  Your  lordship 
Upon  my  word,  my  lord,  I  do  not 
thing  to  be  lau<^hed  at.  If  I  had 
ur  to  be  talking  with  your  lordship 
le,  I  should  speak  of  it  with  the  same 
IS,  and  not  as  a  quibhle.  1  hope  the 
n  will  upon  oath  justify  that  informa- 
tbe  integrity  of  which  he  has  been 

1^. He  will  not!— Well,  then,  I 

vithout  the  evidence  of  the  Attorney 

fantfield,    1  cannot  force  him  to  bo 

• 

'ome.    No,  my  lord,  nor  do  I  believe 

f  else  conld. Please  to  call  lord 

lermaine. 

Beorge  Germaine  was  called  by  the 

tdid  not  appear  ] 

orne.    He  is  gone  to  Germany  too,* 

f,  with  general  Gage. 


A.  D.  1777. 

Mr.  Alderman  Oliv&  fwom* 
Examined  by  Mr.  Home* 


£74f 


11  trial  bei'oro  a  Coart  Martial^  a.  d. 


Mr.  Home.   My  lord,  I  call  this  witness  to . 
prove  the  truth  of  the  assertiona  contained  in 
the  advertisement. 

Sir,  I  must  desire  yon  first  to  speak  to  the 
particulars  of  a  meetm||r  called,  during  an  ad* 
journment  of  the  Constitutional  Society,  in  the; 
year  1775.  Was  there  a  meeting  called  by 
you  in  June  1775  ? — I  believe  Ibere  was  ; 
upon  your  application. 

Are  you  sure  of  it  ? — I  am. 

Did  you  know  the  purpose  for  which  it  wot 
called  before  it  met  f — Yes ;  1  did. 

Did  you  approve  of  that  porpose?— I  did. 

Was  a  proposal  made  to  aubacribe  any 
money,  and  for  the  purpoeet  meotiooedP— 
Y.es,  It  was ;  and  by  you. 

A  sum  of  money  was  subscribed  ?—Thero 
was. 

Did  you  contribute  part  of  it?»I  did. 

Was  such  a  direction,  as  in  the  advertise- 
ment, given  to  me?— There  was. 

There  is  another  advertisement  of  50/.  I 
believe  I  need  not  read  it ;  it  is  well  understood. 
Did  I  receive  that  50/.  from  you  in  the  name  of 
an  unknown  contributor  P — ^Through  me. 

Was  that  50/.  given  for  the  purposes  men- 
tioned ?— It  was. 

By  whom  ?~4$r  Stephen  Theodore  Janssen. 
I  was  also  a  subscrilier  to  the  same  purjiose. 
.  I  mentioned  in  the  course  of  my  defeneo 
what  may  otherwise  perhsps  be  represented  as 
not  true.  Did  I  send  by  you,  upon  a  reUtioa 
from  you  of  a  motion  made  tor  an  act  of  pariia- 
ment  to  take  away  the  right  oi  appeal  from  tbo 
sul|gects  in  cases  of  murder,  did  I,  or  not,  send 
that  message  which  you  heard  ine  represent  io 
my  defence? — Yon  sent  a  roeKsage  by  me; 
and  I  daresay,  from  your  accuracy  of  memory 
and  your  truth,  you  did  deliver  a  message  for 
the  Attorney-Gcueral.  Whether  1  thought 
that  it  would  be  of  the  same  effect, — I  did  men^ 
tion  to  Mr.  Rose  Fuller  the  determination  of 
Mr.  Horne  to  go  all  lengths  in  opposition  to 
that  act  which  was  to  destroy  the  right  of  ap- 
peal in  cases  of  murder;  and  I  do  believe  m 
my  conscience  his  application  prevented  any 
further  steps  being  taken  upon  it. 

The  fact,  as  1  represented  it,  the  witness 
says  is'  trae. — Certainly  so. 

William  Lacey  sworn. 

Exsmined  by  Mr.  Home. 

[A  receipt  for  100/.  shewn  to  the  witness.] 

Is  that  your  band-writing  ?« It  is. 

Do  you  recollect  that  100/.  for  which  that  is 
your  receipt,  being  paid  in  at  your  boose?— 
I  do. 

In  the  name  of  Dr.  Franklin  ? — On  bis  ac- 
count. 

Do  yon  know  by  whom  that  was  paid? — I 
have  it  in  my  book  in  the  name  of  Mr.  Horne. 

Do  you  recollect  me  to  bato  paid  it  mystlf f 
— IdoROt:  bat  it  wu  paid. 


743} 


17  GEORGE  III. 


Proceedings  agairut  John  Home^ 


iTU 


Do  yon  know  of  anjr  olher  sum  paid  ? — No : 
I  ha?  e  got  a  copy  as  h  atandt  n  my  book 
here.  ,  * 

la  tbere  any  thing  besidea  the  100/.  pat  in  ? 
-i-No. 

No  50/.  P— No. 

Where  is  Mr.  Cheiham  ? — He  » in  Ireland. 
'  He  is  a  clerk  inyoor  bouse  P — Re  was. 

And  uie<t  to  recei? e  money  occaaionaHy  ? — 
Tea. 

Do  von  know  hia  hand-writing? — I  befiefe  1 
aboald. 

Look  at  that  receipt. 

[A  receipt  for  50L  waa  abewn  to  the  witoesi.] 

Lacy.  .1  beKeve  that  to  be  his  writing. 
.  Mr.  Uan^  Call  Mr.  Gould. 

Mr.  Edward  Thoroton.  Gould  aworiw 

Examined  by  Mr.  Iforne. 

Did  you  in  the  year  1775  serve  in  a  regiment 
of  foot  belonging  to  his  majesty  f — 1  did. 

Were  you  present  at  Lexington  and  Concord 
cp  the  19th  of  April  1775  ?— I  was. 

How  came  you  to  be  there? — As  a  auballern 
fVfiicer,  ordered  there. 

Ordered  by  whom?— General  Gage. 

At  w  hat  time  did  you  receive  those  orders  ?— 
I  don*t  recollect  immediately  the  time. 

Was  it  on  the  IQih,  18th,  or  17th  of  April  ?— 
1  believe  it  waa  on  the  18th  in  the  e? ening. 

Did  you  receive  them  personally  from  gene- 
ral Gage  ?— No  such  thing. 

Whom  then  ? — From  the  adjutant  of  the  re- 
giment. 

When  did  you  set  out  from  Boston  for  Lex- 
ington?— I  cannot  exactly  say  the  time  in  the 
morning,  but  it  waa  ? ery  early,  two  or  three 
o'clock. 

That  is  in  the  night  in  April,  was  it  dark  ? — 
It  was. 

Did  you  march  with  drums  beating  ? — No, 
we  did  not. 

Did  you  march  as  silently  as  you  could  ? — 
There  were  not  any  particular  orders  given  for 
silence. 

Was  it  observed  ? — Nor  it  was  not  observed, 
not  particularly  by  me. 

Were  you  taken  prisoner  at  Lexington  or 
Concord,  or  either  of  them  ? — At  the  place 
called  Monottama,  in  my  return  from  Lex- 
ington. 

I  shall  ask  you  noqueationa  that  you  dislike ; 
give  me  a  hint  if  there  is  any  one  you  wish  to 
decline — Did  you  make  any  affidavit  .* — Yes,  1 
did. 

Will  you  please  to  read  that  ?  [Giving  the 
witness  the  Public  Advertiser,  May  31,  1775.] 
1  lielieve  that  to  be  the  exact  substance  of 
the  affidavit  that  I  made. 

Lord  Mamjteld,  It  cannot  be  read  without 
the  Attorney- General  consents  to  it. 

Attorney  General,  T  don't  consent. 

Lord  Mamfitld.  If  he  coDScnti  to  it,  I  liaTe 
no  objection. 


Mr.  Home,  May  I  give  it  to  thejurj  f 
Lord  Mansfield,    No ;   I  anppoM  they  bav« 

all  read  it  years  ago. 
Mr.  Home,  My  lord,  that  ia  my  miafortiiM 

that  it  is  so  long  ago. 

[Mr.  Home  begina  to  read  it] 

Lovd  Mansfield,  You  must  aot  veai  it 

Mr.  Some.  I  have  proved  the  pabliaHJMiby 
the  printer. 

hfMMmm^ld.  It  will  have  ftdiAmt( 
aeqiience,  if  you  only  mean  to  pnore  Ibat 
waa  avch  aa  affidavit  pnUiahed.  If  jmm  i 
to  make  that  nac  eC  it,  then  yoa-  naay  prMliica 
the  affidavit,  or  have  it  iea4.— If  y«u  m^ua  l> 
prove  the  coaleBta  of  it^  they  muat  ant  fnm 
the  witoese,  said  theft  you  will  have  •  nghl  la 
have  k  read. 

Mr.  Harne,  1  naean  b«tl»la  peavia  Aeesa 
tenia  Uue,  ami  the  puUiealioB  of  llivaftdMl: 
that  ifideed^  I  have  already  peeved. 

Lord  Mamfidd,  Then  you  HMyr  raad  Iba 
affidavit,  if  you  make  uaa  of  the  poMiaatiMi 
of  it. 

Mr.  Home.  1  make  «se  ef  both ;  that  il 
wa»  ao  puhliahed,  and  charged,  aad  that  k  ii 
Irue. 

« The  Public  Advertiser,  Wednesday,  lay 
31st,  1775.' 

[The  affidavit  read.] 

Are  the  contents  of  that  affidavit  trua?— 
They  are;  it  was  made  at  the  time  1  wn 
wounded  and  taken  prisoner. 
.  Pray,  do  you  know  that  the  Americans  upoa 
that  occasion  scalped  any  of  our  troafa?— I 
heard  they  did ;  but  I  did  not  see  them. 

You  saw  none  ?— I  did  not. 

From  whom  did  you  hear  it?-*From  a  cap- 
tain that  advanced  up  the  country. 

Were  you,  at  the  time  when  the  orders  wera 
given  to  you  to  go  tu  Lexinsston  and  Coiicsnl, 
apprehensive  of  any  attack  by  those  Americaaa 
against  whom  you  went  ? — We  were  as  sooaaa 
we  saw  tliem  ;   we  found  them  armed. 

Before  you  went  from  Boston  ? — That  daj 
we  did. 

How  many  miles  is  Lexington  or  Cooceid 
from  Boston  ? — The  farther  is  about  25  mika» 
the  nearer  is  about  12. 

Did  you  know,  had  you  any  intelligenee  thii 
the  Americans  of  Lexington  and  Concord  w«% 
at  that  time,  marching,  or  intending  to  manh 
to  attack  you  at  Boston  ? — We  supposed  thiA 
tliey  were  marching  to  attack  us,  fram  a  caa- 
tinued  firing  of  alarm  guna,  cannon,  or  th^ 
appeared  to  be  such  from  the  report. 

Lord  Mansfield,  Did  you  aay  canooa?'^ 
Cannon. 

Lord  Mansfield,  When  was  that  ?— Ai  aaaa 
as  we  began  the  march,  very  early  in  tbe 
morning. 

Mr.  Home,  But  did  yon  hear  those  afafli 
guna  before  your  orders  for  the  march  Vflf9 
given,  or  before  your  march  bcgau.?— New 

Bat  after  you  had  bq^iio  youir  oMudki^ 


foraUbeL 

ir  ve  began  our  mircbibeiUrin  gun) 

I  auppote  tiioie  alarm  guns  lt>  be  in 
le  oi'  ytnu  having  tieguo  llie  oiatcli  ? 

not  iletire  ynii  to  suppose  (lliou^li  ihe 
n  Iiaa  auiipoieil  llial  llieji  were  coming  i 
lum)  but  Jo  you  Iidbw  of  aay  intdli-  i 
Ktlier  llieparMDstvlia  AreJ  (nealwiit  ] 
\u\\tet  llioiie  were  llie  prrsaDs  wlio  ' 
LextDgloD  uiiU  CaucoriJ  ? — No ; 

>  came  ynti 


'Jury.  Pray  wbn  diil  tlie  alarm  p;uns 
;    t'l  llie  Ainericaoc  or  uur  cbrpa?— 

tmc.  Wliat'ilo  }-<u  meiia  hv  an  alarm 

knn  may  tte  iniMiiMicrttoiHi. —  Could. 
^ballhcy  term  in  (be  country  an  ilarm 

.aaMicegifeaU>a«a«aiblelberoiHMry. 

mi  htd  ke^D  your  march,  jiiu  heard 

U  ^uD*  ? — Vea. 

wnc  My  lord  Percy,  I  ihank  your 
for    your   altcodanre.      I    will   not 

lour  lordthip  with  any  iiuetlioos,  I 
■ik  yiMir  lorJship  those  quesliuns  I 
•inoc  general  Oigc  has  uol  tbnught 
stleod:  be  Is  gone  U  Gerraany  1  uo- 
rill  nul  Le  back,   1  suppose — 


tantfitU.    Tiien  yoi; 


Gtncral.  May  il  please  youi  latd- 
ntlcinen  ol'  Ihe  jury ; 
:len)an  has  chosen  tu  loke  the  «on- 
dcfmM  biirikell';  aod  iu  ibe  coun« 
of  jl,  he  has  iiraceeded  in  an 
»ay  at  1  beliere  eier  any  cause  naa 
thai  nas  ever  tried  in  any  court  of 
Bo  CtrHlnly  has  done  more  Ihan  the 


;  ami  if  I  eanfvcture  bia 
I,  tron)  the  iiianaer  ia  which  he  haa 
I  Ibe  del'ener,  he  haamureuBidkbaMl 
agreat  variety  of  pari*,  for  Ihe 
■akioc  it  a  topic  ol  complaint,  than 
Mated  tbem,  a*  b»piBi{  they  could  be 
f  any  b;>iUn<ier  (uud  more  puli(tu> 
e  la  jud^  of  thttnil  at  all 
ive.  I  ilid  ant  recullert  on 
I  Ibal  I  had  so  lulally  pgused  otcr  llie 
Ihia  eharge,  iitucli  1km  lliat  1  bad  so 
'Mlargod  a|Hin  Mibjeula  tbreigiiand 
'  'It  Uiat  cb>inr«,  a«  (o  lay  uae  open 
i(inaa(inii  that  account.  It  li  nut 
•vpoM.  asd  ihanH'urc  1  will  IrouU* 
»  aiHiti  thoae  varioiu 
«s  adteDlurus  in  many 
otbl)itiih  which  be  haa  ihotiffhi 
iattrlard  ibe  «|Mech  hehni  wade  lo 
~' '  lubfect;  which  iMforc  t  ait 
I  ahall  be  yartMtlf  juahfiad 


A.D.  1777. 
having  tlaled  to  you  ax  one  of  llie  pb 
clearftl,  aud  shorleil  prnpuailiona 
laid  before  a  jury.  Gentlemen,  it  ii( 
the  charge  in  InainlisTmatiaii  cunaii 
be  did  write  and  puldiah,  and  cauac  and  procai 
to  be  written  and  puhlliheil,  ■  cert"  ''  *~ 
wickeil,  raaliciviH,  KcaDdatotis,  and 
libel.  1  was  afraid,  when  my  speech 
loaded  wiih  the  jinpuiaiiMi  of  bating  tbi 
•ul  inreciiTes  ui  the  letnif  of  the  iafomul 
that  ibe  inforaiation  bad  not  been  euffici 
explicit  upon  the  (rue  nature  and  quality 
the  liliel  wbicb  it  oftered  to  bring  bsfore  yoa; 
admit  tbal  ibe  inrarmalion  i*  eiplicit,  tbet  i' 
direct,  and  that  il  perlisclly  and  jually  qoali 
ibe  nature  of  ihe  chati;e  that  la  brought ' 
yoo  of  BCjndalauBand  aeditioiu.  It  is  lil 
inferred  that  this  ia  concern  lag  bis  inejesty'a 
Itovernment,  and  Ihe  emplnyment  of  his  troops  ; 
the  iaformalion  has  therefore  undertaken  to 
*ay,  that  tlie  ocurrilous  mailer  which  followa 
w  as  delifered  in  writing,  concerning  the  fcin^a 
gorernment,  and  canceming  ibe  employraeni 
uflhe  troopi.  If  it  was  delirered  concerniog 
cither,  il  i«  wifficient :  that  H  was  delivered 
concerning  both,  I  tabr  now  (by  ibia  lime  at 
least)  to  he  perfectly  clear. 

Then  Ihe  matter  uf  the  libel  is  this  :  that  at 
the  Constitutional  Society  it  was  prnpoaed  a 
subaeriplian  slioald  be  inincitiatety  eatered 
inla  for  raising  ibe  soin  of  a  liuudred  pounds. 
In  be  Bpphcd  in  ihe  mauner  in  which  it  pro- 
ceeds lo  specify  altcrwanls.  And  the  genlle- 
otan  has  been  at  the  troahle  to  prove,  that  thai 
waa  not  merely  a  conceit  and  device  of  bis,  in 
unlcr  tn  introduce  the  charge  lliat  fidhiws  ;  but 
that  the  charge  which  foHowa  Wat  (in  ]ininl  of 
tact]  introduced  upon  the  previous  act ;  which, 
according  to  my  poor  cnncrptiou  of  the  thing, 
does  not  liesrrTe  sofler  epitliets  ihan  that  which 
followed.  It  ia  no  allerialion  at  Iraat  of  the 
libel  that  he  has  pobliaheil  upon  Ihe  govem- 
meal,  that  it  limlc  such  a  commeaceiuent  as  it 
did,  and  prnceciled  in  nick  coaductas  haa  been 
imputed.  I  thought  it  a  candour,  no  oriicle  of 
fairness  lo  namea  menliaaed  nr  even  ulliided  tu 
in  the  moHt  disunt  way,  u>  si]p[Mse  that  it  bad 
not  been  exactly  in  ihe  way  he  Iboagbt  Ht  to 
stale  it.  Hut  whether  it  were  or  were  nut,  in 
what  ¥iew  has  he  even  suid  Iu  ymi,  tbal  that 
circitaiatance,  true  or  false,  g"f»  an  inch  to- 
waida  qualifying  the  viriilelwe  and  iudeceaey 
<if  the  libel  liial  inimediutely  foUaws  it?  Th* 
next  wards  that  he  puts  In  are — ■'  la  he  anptiod 
lo  tbe  relief  of  the  widows,  orphans,  and  aged 
MTcnta  of  our  bel'>reil  American  (elloH-safa- 
jecta,  who,  fmlhful  to  the  eharacler  of  English- 
men, preferring  death  to  slavery,  were,  lor  (hat 
tMUnn  only,  inhumanly  murdered  by  lb> 
king'a  ttonps  at  or  near  Lexinglen  and  Cnn- 
cord,  in  Ihs  province  of  the  Maasachusets," 
Let  ua  a  little  see,  wbal  is  the  nniurc  of  tb* 
obMrvalinria  Ite  mabea  upon  it.  In  Ibe  first 
place,  that  !  left  It  exrveriuigly  short.  And  th* 
ohUeiion  lo  my  buriug  lell  il  ahoi  t  was  simply 
Ihia :  titat  I  bad  stated  no  luore  is  you  but  thia, 
thait  u(  inpnluig  to  tbe  geoduct  of  the  kio^ 


TiT] 


17  GEORGE  III.  Proceedings  agaiiut  John  Horne, 


iia 


traops  the  crime  of  monler.  Now  I  tilted  it, 
••.imputing  it  to  th<»  troops  ordered,  as  thtty 
were,  upon  the  public  serrice.  And  imputing 
to  that  serf  ice  the  crime  and  the  quali6cation 
•f  murder,  was  an  expression  scandalous  and 
tediiious  in  itself;  reflectin|p  hig'hiy  upon  thivse 
troops ;  reflecting  hij^hly  upon  the  conduct  of 
them ;  and  reflecting'  upon  ihem  to  all  the 
purposes  and  conclusions  which  thin  infwrroa- 
tion  slates.  But,  it  seems,  1  did  not  argue  it 
tuffieienlly  !    1  confess  very  fairly,  tliat  to  ar- 

£ie  such  propositions  as  tho^e  (according  to 
at  gentleman's  notion  of  argoinir  them  snfli- 
cienti\)  is  far  beyond  all  tbe  compass  of  all  the 
talents  and  abilities  thai  1  have  in  the  world.  1 
CBDnot  speak  four  hours  in  ordt-r  to  demon- 
■trate  to  you,  that  taxing  people  Hith  tbe 
crime  of  murder,  and  taxing  the  conduct  of 
people  with  that  impuUliun,  is  a  scandal  upon 
the  parties  so  reflt^ed  on.  If  there  be  a  man 
of  more  diffusire  talents,  of  btrlier  talents  at 
tpraking,  who  can  ex|iend  four  or  live  hours 
hj  eolari^ng  U|>on  that  pniptisili(»n  in  that 
manner,  I  do  not  envy  him  liiii  laieois ;  for  my 
lunsss  would  not  be  sufficient,  if  my  talents 
were.  I  misled  that  I  had  sufficiently  demon- 
•trated  thai  position. 

Now,  <io  ibe  other  side,  whst  is  the  kind  of 
mnswer  that  is  made  to  this  ?  In  the  first  place, 
be  is  to  prove  that  it  wss  murder  !  Asserting 
that  it  was  murder  over  and  over  again  in  tlie 
speech,  is  the  palliation,  ami  is  the  delence  of 
this !  But  be  is  to  prove  that  it  was  murder !  1 
confess  very  fairly,  that  this  is  the  first  hour  in 
which  it  ever  entered  into  my  imai;inslion,  that 
that  species  of  proof  cuuld  be  allowed  to  a  de- 
fendant !  I  am  not  at  all  sorry  that  it  has  been 
allowed  :  fur  the  consequence  has  been  to  re- 
fute more  than  linlf  the  speech,  and  more  than 
half  Uie  application  of  it  ;  therefore  I  am  not 
sorry  that  it  bas  been  allowed.  But  1  will 
never,  so  lone  »  I  live,  iccede  to  this  as  a  pro- 
position of  law,  that  a  man  shall  be  at  liberty 
m  a  libel  to  charge  you  with  tlie  crime  of  mur- 
der, and  when  he  is  indicted  for  that  libel  (or 
othrrwise  broii;:ht  into  juJifinent  for  ii  by  in- 
formation.) that  it  sliuu'd  be  competent  for  him 
to  put  you  to  try,  whether  you  have  been  guilty 
of  murtler  or  no.  I  Hiil  say,  what  common 
sense  ilirtites.  what  the  law  of  eiery  civilized 
state  under  hea%en  pres4*rilies  (and  there  is  not 
a  maxim  of  law  lobe  fetched  Tom  any  country 
•r  ace  that  contrailicts  that.)  that  the  man  that 
calumniates,  and  does  not  srruse,  deferves  to 
be  punifclied  with  exemplary  severity.  He  told 
jou  a  long  story  of  munlers  sup|iosed  to  have 
Keen  committed  in  St.  Georir^.'^  Fields,  where 
be  took  to  himself  the  merit  of  bavin:;  pro«e- 
cuted  that  murder.  As  far  as  that  part  of  the 
story  goes,  1  don't  quarrel  with  him.  If  he, 
9ceiDtf  a  transaction  which  he  took  to  be  mur- 
der, thought  himself  biiund  to  prosecute  ihst 
tranaaeiion,  honestly,  candidly,  and  with  hii- 
Mftoiiy  and  faimew  to  the  prisoner,  as  well  as 
ftnthtfncodsortbedeeeaaed;  if  be  did  that,  I 
4m  BOl  fwrd  with  him  :  but  whoever,  in  the 


in  the  newspaper  (either  by  advertiseneiit  or 
otherwise)  matter  thai  was  likely  to  caoae  m 
impression  upon  the  minds  of  ibe  people  at 
large,  or  upon  the  minds  of  tbe  jarT,  Wlbra 


they  hesrd  that  pnisecuiion  tried, 
abandoned  and  a  most  wicked  tUng.     Is  that 
the  way  that  people  are  to  be  triH  for  their 
lives  P    Are  they  to  be  bnMght  befbre  a  jury  ii 
a  regular  course  of  trial,  to  be  beard  for  then- 
selves  upon  tbe  evidence  then  Isid  before  themf 
and  is  the  integrity  of  a  libeller  to  ioterpoK,  bj 
writing  down  their  reputation ;  and  by  endw 
vouring  to  instil  into  people,  where  they  caBBOl 
be  heard,  where   they   have  no  opportonily 
to  contradict,  and  where  witneaset  cannot  bt 
examined  either  on  one  tide  or  the  other,  u 
impression  that  they  ire  guilty,  witboat  tbt 
form,  withnut  the  essence  of  trial  P     If  there- 
fore there  was  such  an  advert isemeot  as  ihM 
piibli«be4l,  that  advertisement  I  bold  to  be  a 
most  wicked  one.     Proiecuiing  men  that  tit 
thought  lo  be  guilty,  b  a  fair  aod  an  bowtl 
action.     In  this  case,  what  i<  the  eicow  hcreP 
That  they  canwtt  be  prosecnied.    Suppmiag 
the  accMwot  of  the  di<tance  from  that  side  sf 
the  water  and  other  accidents  should  so  far  ia- 
lervene  as  to  prevent  the  |inssibility  of  tryiif 
those  men,  even  if  they  had  been  gnilty  if 
miinier,  wouhl  it  follow  as  a  conclimoo  npn 
that,  that  Ihey  shsll  be  libelled  ?   and  that  k 
shall  lie  in  the  power  of  any  man  alive  to  raiff 
impressions  beliind  their  backs,  by  publiikiig 
in  tbe  newspaper  imputations  to  their  disa^ 
vantage,  which  ihey  caiinol  contradict  orit* 
fute?    calumniating  them,  accusing  them  if 
murder.'  The  time  would  ondoobtedly  comeii 
which  they  wouhl   be  to  be  tried  for  it,  if 
guilty  :    and  to  be  trietl  for  it  under  that  sort  rf 
impression!    I  am  amazed  that  any  man  of 
comtnon  sense  could    even  in  his  own  case) 
imairine,  thst  it  uonld  he  tolerable  doctrine  il 
the  ears  of  peojde  that  ha^e  lived  for  years  is  t 
civilized  country,  that  that  was  the  true  wsy 
of  prosecutini;  upon  the  subject  of  murder !  Be 
told  you  a  story  of  Glenco,  which,  if  I  under- 
Manii   him    ri^bt,  went   directly  the  reverse. 
They  were  to  be  tried.     Unless  be  means  te 
compare  the  authority  of  the  Morning  or  l^a- 
iloii  Eteuini;  Pt«st  to 'the  councils  of  the  wlwlt 
nation  !   if  he  mean<  to  make  that  compariaia 
(which  he  ilid  not  make,  and  which  is  too  ab- 
surd for  me  to  do  tor  him;)    making  that,  t 
degree  of  idle  analoiry  would  seem  to  arife; 
but  without  thst.  absolutely  none. 

\owr  with  respect  to  the  rest,  he  hasofleicd 
by  evidence  ahio  lo  establish,  that  this  ami 
necessarily  be  a  munler ;  and  the  fate  of  thsff 
people,  it  seems,  is  to  be  tried  by  the  eflect  if 
that  evidence !  And  whit  does  that  evidcaee 
amount  to?  Why,  ihat  the  kmg*s  troops,  nadtf 
the  command  of  general  Gage,  were  iiraa 
hostile  country  ;  ami  that  it  was  impovible  fie 
Ihein  to  go  upon  any  service  («Hrdered  bv  thil 
ipeneral  and  conducted  by  his  offieen)  witbert 
an  attack :  that  the  mnoient  they  went  wtlijd 
Boston  alarm  guns  were  dioeharged,  in 
lo  niK  tbt  powir  Ihil 


: 
I 


f 


i 


for  a  Libel. 

a  upon  ihcm,  anil  to  iniike  die  >t- 
Kk  opon  lliem,  Ami  ili'm  is  ilie  meJiiim  by 
rliichiii!>li>he|irnve4,iballlieiolilierBwlia«ere 
nlvral  hy  ilirir  eonimaiiilFr  lu  •civiiice  from 
bdr  pud  al  Bottuo  iiilD  llt*t  cu'inlry,  were 
luiliy  i.f  iiiiitiler  ;  becanae  llify  wori-  sur- 
DunHril  ufiOD  llie  18th  anil  igih  uf  April,  ia 
"Dsi^quFnce  of  IhiHe  ahrio  gaai,  willt  an 
'  '     «  on  ll>e  oiber  shIv,  in  oriler  lo  wiili- 


...T  rt 


"PP"*' 


It  timp  ill  an  Imatile  couniry  !  Wliy, 
'  :  'iiaanl,  U'l  linil  ibougbl  il  cuD«ial«iit  with 
,->  ur  niib  reaiun,  !•>  enter  iiiinaitiacuiKlniinr 
tiat  queatidn  will)  bim,  wheihrr  be  Ik  a  libeller 
ir  nul.  tur  having  char^ceil  thfm  wilb  tnurilfr 
ly  a  ptinteil  papier,  iiiiteail  ofcbargintf  ibtni  in 
I  note  dirri't  way  ;  it  I  bad  iliuugbt  il  necea- 
lary  lo  ealaUiali  the  ciae  against  him  in  the 
lUoDK'M  ao'l  most  fircriM  manner,  it  would 
n  by  eillinjtjuiil  iucb  a  wilness  as  that. 


nHfis  » 


»  nriler  |n  |ii'o«e  ibal  ibi 
I' Led  ;    Bud  ll»l,  iipno  til 
-  -■■  -'  ;   plicp,  lliey 


Lislile 


lack. 


eibemseli 


;a;i,-r; 


\  h  wir  defence  proscribes,  that  n  man 

'"  lUe  wall  whu  ia  iitavkeil.      He  must  fly 

I  i  anil  iftio  can  ei:<'H|>e  bv  Aiitlit,  llien  be 
'1  nnl  juslity  liiiuBcit  by  turning  and  i-epell- 

;ilie  atUck!    What  tort  of  ua(lerstandiui.'9 

Om-9  he  iinagiue  itie  audience  lo  be  composed 

tf,  wbei)  be  n^prexenlH  an  expeililion  and  attack 

«f  Ibiiaortin  that  manner?    That  the  kintf's 

Imoiii,  when  tbry  beard  the  alarm  gnna  and 

arrfiiucked,  Here  to  fly,tO|cetlo  ibe  wall, 

Hil  dtap  Ibeir  aniit '.  tliia  is  ibe  untion  of  mili- 

Dry  diaiKHiiiion  in  an  hoaiil^  cnnntry  !   and  lliis 

•I  lbs  law   that  the   tcarne'l    Ki^nlUman    has 

Iward  trom  the  ^ale  Triaio,  ibe  aoiirce  of  bis 

mding!  and  which  be  bus  set   lijrlb  wiili  a 

dttlrrity,  and  a  upecics  of  unilerila oiling,  atnl 

a  Mri  i>r  tliMjueiiOc,  which  is  peruiinr  to  bim. 

inil  I  miiBl  nay  now,  it  is  nmre  than  1  enr 

"  iiJ  biifate.     If  1  had  ibe  llunaur  iif  ■  ciiii' 

-^jiLoo  iviib  bim  nine  years  aeo,  I  bad  fnr|{iit 

1    ibd   not    Uke    uuliee  uf    llir    convrr- 

'    <  III   )i«rba)is  enuu|{b   lu   retain  it,      I    b»d 

li-ta  an  iiira  Ibal  his  abdiiies  w.Te  nil  cin- 

■■  II  >u).     But  Ibis  apecieaofelmiiieiice  I  take 

'    ifpciibac  111  bimarlf;    is  it  could  not  hare 

II  itpb>rri-d  by  a  counsel ;  il  would  bate 
N  nbanlultly  impniiible  by  a  counael  used 
,  'Hit tea  I    It  uuiild  have  been  iiupuaiiiblf  lo 

iiiiiHtl,  uwd  lu  feel  Ibe  wei[>bt  of  hii  arnu- 
-'.'iiit,  usfd  to  feel  the  ridicule  uf  anplying 
>>'-L.li  kind  of  arifumenta  as  ibrse,  and  deterred 
bj  ibat  means  from  doiuK  it.  No  counsel 
taa'd  h*(e  ihoui(bl  himself  warranted  to  do 
tkii.  Hf  wiiubl  nul  biive  bad  vanceil  enougb 
lalbink  bi*  uwn  uudeisiaudlot;  to  superior  to 
all   that  heard    him,   a»  tu  suppose  be  coutd 

Cisgcb  a  pnipDaiiuin  upon  bis  auditory,  that 
eanduci  of  sn  army,  in  an  hostile  cnunlry, 
•■•  to  b«  like  tlie  ca>e  of  a  man  imbcied  t<>r 
lUnlnr  lu  Uf  to  Ibe  wall,  fur  fear  tbey  slioubl 
ilttHinic  miM;liitl!  Tbm  ia  Ibe  sort  <il  deleucc 
ha  baa  ltiou|[ht  Gt  lo  m>b«  upon  Uiia  subject ; 


A. D.  1777.  [750 

and  itfcireimea  ^ound  for  saying,  tbal,  iff 
waa  Kburlin  apply  inic  ibecbiricrsnf  ibe  jnfor. 
malion  as  I  ahou'ld  have  dune,  it  is  now  com- 
pteleiy  applied. 

All  that  part  of  the  defence  which  went 
perlerily  wideand  loreign  to  all  practical  appli- 
cation  to  ibe  case,  I  will  now  emirety  drop. 
At  iheaametime  I  cannot  do  iiwiiboul  makiufr 
ibia  observation;  that,  ubalever  be  Ibe  degree 
of  veracity  rlaiineil  by  and  due  to  tbal  i^n- 
lleiiian,  in  Ibe  pariicnlar  words  tbal  be  Ibiiika 
proper  lo  impute  lu  ibe  Tarinua  Jieuple  whuse 
worda  be  baa  thought  Gl  to  quote ;  as  fur  sa 
my  memory  goes  uf  the  transactions  which  I 
do  remember  J  ax  fjir  at  coiijeclnret[iieB  mIUi 
regard  la  those  I  have  no)  a  perlnil  memory 
of;  I  believe,  that  ibis  failing  al  leuat  belong* 
represenlaiinn  nf  them :  that  taking,  as 


he  liaa  done 


passagea. 


>r  the  ai 


of  remcmbei  iiig  Ibem  lo  the  disad vantage  of 
the  speaker,  lie  hat  stripped  ihem  of  their  con* 
text,  fje  baa  tberufure  made  it  im|)oaaible  lo 
recollect  the  whole,  in  order  to  see  whether 
ibev  would,  nr  nul,  turn  out  such  nonaense  *■ 
be  nss  imputed  tu  those  several  a|ieakers,  ]| 
may  be  true,  fur  Bugbt  I  can  lell  ;  ibiiU(;b  if 
any  l:iuly  bad  asked  me,  whether  I  ever  Hpuke 
upon  thai  subject  he  uientiuna  in  Ibe  House  ef 
Commons,  I  ■hould  have  said  no,  directly  : 
fur  I  lielieve  I  did  ool.  I  believe  Mr.  Oliver 
will  not  say,  that  be  brouiibl  any  such  idle 
message  aa  thai  to  me,  1  should  have  treated 
it  niih  ridicule.  1  have  no  ohjeclion  lo  con- 
leme  with  ftlr,  Obver  upon  any  subject  be 
ibiiikn  proper.  He  dues  me  hunour  by  it- 
llul  if  he  had  hrougbt  meaucb  a  iiiesmge  Vrnm 
a  person  in  Mr.  Home's  sitnalion,  rrspectiag 
my  conduct  io  psrliameut,  a  bitle  Uugbing  at 
the  messatie  he  muil  have  excuied.  Uut  be 
does  not  *»y  be  brought  me  such  a  mesisge, 
I  iluii't  know  tbal  I  bnre  aoy  pari  in  that  de- 
bale.  But  be  savs,  be  luuk  down  some  worda ; 
and  tbal  I  said,  it  was  a  Gothic  custom.     If  I 


II  upoi 


variety  of  reading  that  that  proposition  wag 
upen  to,  and  contented  myself  with  sitting  down, 
and  eayiiig,  ii  was  a  Gothic  custom;  1  sbonlil 
nnl  hate  bad  any  preleosione  to  the  ear  of  that 
House.  If  I  made  any  discourse  almut  il ; 
which  I  suppose  I  did,  us  he  tays  I  did  ;  I 
suppose  it  is  «s  idle,  as  foolish  a  kind  ofspeach 
aa  il  is  possible  for  any  inao  to  make.  J  should 
nul  wonder  if  I  waa  refused  all  audience  thera 
in  al]  limes  lo  come,  provided  my  siiercbea 
were  jual  those  which  1  have  had  the — (not 
misfailuue,  for  I  think  itvery  natural)  as  ]  have 
beard  la-day.  Other  people  have  shared  ex- 
actly the  same  fate.  )«  it  aliiir  thing,  with 
respect  to  any  .judge,  with  respeol  lo  any  conrt 
of  justice  f  Is  It  a  fair  thing  lo  slate  one  6(- 
tietb  part  of  a  cause  deiiundiug  before  iheoi 
with  an  observation  which  ibe  other  lurty-dina 
parts  would  never  have  juslified  upon  il  ?  U  it 
the  pari  of  a  good  cilizcn,  of  a  man  that  reve- 
rences the  laws  of  hii  country,  of  a  man  thai 
wishw  any  thing  but  anarcby  M  riac  in  a  «aun- 


761] 


17.0E0B6E  III. 


Proceedings  agaifuH  John  Horne^ 


[T5Z 


trj?  Ii  it  Ibe  part  of  a  good  dlizea  to  trirat 
courtf  of  joatiee  io  ihat  maniier,  with  reapoct 
to  cataa  cited  froni  their  decttion  io  the  way  in 
which  those  were  cited  ?  I  mentioD  them  only 
ID  the  way  of  obaert iog  that :  for,  to  be  sure, 
it  waa  perfectly  inpertinent  to  aoy  ^neitioii  de- 
ptnding  hefore  you ;  and  unleM  it  had  been 
equally  ao  with  respect  to  the  caaes  themselves, 
1  should  not  have  ffiven  you  the  trouble  of  a 
aio^le  word  upoo  that.  There  was  one  thing 
which  fell,  which  gave  me  aome  little  astonish- 
ment to  bear,  and  which  1  remember  well.  I 
doo*t  take  notes,  but  I  have  a  pretty  general 
remembrance  of  things  delivered  by  me.  I 
take  myself  to  have  stated  to  you  in  the  outset 
the  very  same  doctrine  of  intention.  TV  by, 
who  doubts  but  that  the  intention  constitutes 
the  criminality  of  every  charge  of  every  denn- 
winatioo  and  kind  ?  But  the  extreme  ridicule 
of  the  thing  ia,  the  talking  of  that  doctrine  upon 
an  ocossion  like  this!  See  what  it  is.  The 
words  are,  that  the  American  subjects  for  meri- 
torious consideratiooa  upou  their  part,  and  for 
Ihoae  conaiderationa  only,  were  inhumanly  mur- 
dered at  Lexington  and  Concord,  in  the  province 
of  Maasachuaets  Bay.  Nobody  can  doubt  in 
the  work),  but  that  imputing  inhuman  murder 
to  the  conduct  of  those  troops,  is  abuse !  1  sup- 
pose be  did  not  mean  it  as  flattery,  to  extol 
them,  to  deliver  them  down  to  posterity  (if 
such  paragraphs  as  these  had  any  chance  of 
reaching  down  to  posterity)  to  deliver  them 
down  to  posterity  in  terms  of  heroism !  He 
meant  to  abuse  them  :  the  words  themselves 
are  abuse.  Then,  1  say,  where  words  of  direct, 
unqualified,  indubitable  abuse  are  printed  con- 
oeming  aoy  man  alive ;  that  the  very  circum* 
atance  of  printing  calumny  concerning  a  man, 
carriea  along  with  it  an  intention  to  abuse  him. 
Why  it  is  nonsense  to  doubt  it.  One  may 
apip  words  till  one  loses  the  meaning  of  a  sen- 
tence, and  the  first  words  that  are  used  in  thst 
aentence ;  but  it  is  nonsense  to  deny  when  you 
use  direct  abuse ;  when  you  revile  tliem  in 
the  very  attempt  to  justify  the  charge  ;  nnd 
again  use  terras  of  abuse;  that  those  terras  of 
aouse  dun't  prove  intention  of  abuse :  prima 
faeie^  at  least,  they  will.  If  a  man  is  called  a 
rascal,  has  he  any  doubt  whether  the  man  that 
called  him  so  means  to  abuse  hiro  or  not  P  Why 
that  is  playinti:  with  words  in  a  roost  ridiculous 
manner.  And  these  are  the  kind  of  words  that 
are  now  called  in  question  ;  and  a  jury  are  told, 
that  where  a  libeller  calumniates  auother  with 
the  imputation  of  a  capital  crime,  that  calumny 
carries  along  with  it  a  proof  of  his  intention  to 
calumniate.  That  is  the  dreadful  proposition 
which  is  to  prove  an  intention  to  overturn  all 
the  liberties  of  (his  country !  1  wish  those  who 
talk  about  (heir  liberties,  would  be  pleased  a 
little  to  have  a  small  regard  for  the  liberties 
ol'  others.  The  man  that  robs  upon  the 
highway,  while  he  is  unapprehended,  is  the 
freest  of  all  human  creatures:  but  the  men 
whom  he  attacks,  whom  he  plunders, 
whom  he  terrifies,  these  are  nut  free  as  long 
aa  they  are  uwler  bii  dominon  and  powar. 


The  man  that  daahea  libela  abooi  him  npoa 
every  one  he  is  pleased  to  call  bia  caemy,  is 
tlie  freest  of  all  at^ents ;  but  thosfl  that  he  m- 
flicts  deep  injury  upon,  are  Uiey  free?  And  is 
it  talking  with  common  sense  to  say  it  meaaa 
the  liberty  of  doing  wrong  ?  of  attacking  per* 
sonal  property,  reputation,  or  what  1  pknae, 
witliout  being  controuled  ?  Is  that  what  yaa 
call  freedom  ?  It  m  a  definition  of  freedom  thai 
I  never  expected  to  hear ;  and  which  can,  I  am 
sure,  do  no  good  to  any  caiiae  upon  the  side  sf 
which  it  is  advanced,  before  any  one  gentlcnaa 
of  common  sense !  That  1  call  no  freedom. 

With  regard  to  the  rest,  what  can  one  aigw 
it  more?  Why,  yes,  it  seems  one  WMy  \  \^ 
cause  if  you  will  scan  the  construction  of  then 
words  well,  they  will  not  amount  to  a  libeL 
Not  amount  to  a  libel !  it  aeemed  to  me  a  verv 
hardy  proposition  when  it  was  first  of  all  stalM, 
that  callinir  a  pumber  of  men  mnrdercrs  was 
not  a  libel.    No,  says  he,  It  is  not  a  liM. 
Observe,  1  called  it  under-writ,  it  is  writ  b^ 
yond  common  sense,  instead  of  below  it,  whiek 
was  I  he  first  apprehension  I  had  of  the  tbiog. 
For,  besays,n(mroiif<af  that  there  were  any  per- 
sons of  that  description !  non  conitmt  that  then 
were  any  widows,  orphans,  or  parenta  I—am 
anuiat  that  tliere  were  any  beloved  Aroeriem 
fellow-aobjects— and  I  lielieve  more  about  thit 
last  than  any  thing  else ;   for  1  do  not  beKevt 
that  our  love  to  our  American  fellow -sebjedi 
was  that  ruling  iwinciple  that  governed  thii 
publication.—**  Who,  faithful  to  the  charscier 
of  Englishmen,"— (that  may  be  true,  for  au^ 
I  know}  «  preferring  death  to  slavery,  were,i«r 
that  reason  only,  inhumanly  murdered  by  tbi 
king's  troops."     Non  conttst  whether  thai 
were  or  were  not  sny  king's  troops  I   It  hap- 
pens unluckily  in  the  last  part  of  the  sentcoee, 
it  is  asserted  that  there  were  :  for  the  senteaef 
runs — "  who,   faithful    to    the    character  tf 
Englishmen,  preferring  death  to  slavery,  were, 
for  that  reason  only,  inhumanly  murdered  by 
the  king's  troo|»s  :*'  so  that  if  assertion  was  se- 
cessary,  there  is  an  assertion  for  you.    B|it« 
however,  how  can  any  body  trifle  so  much  wiib 
his  own  understanding,  or  with  the  undentao^ 
ings  of  others,  as  to  suppose  that,  if  it  had  bcoi 
without  an  assertion,  suppose  it  had  bees  s 
question, — why  did  the  king's  troops  mur^ 
our  American  fellow- subjects  i* — why  wosM 
not  that  convey  a  libel  just  as  much  ?  Aretbcfv 
any  necessary  forms  of  words  that  compote! 
libel  ?  I  think  it  fair  to  say,  that  that  was  gircf 
up.     It  was  used  more  to  shew  the  skill  of  Ihf 
adversary  than  to  the  merits  of  the  qneslioo. 

But,  It  seems,  that  a  soldier  may  comdii 
murder :  aye,  to  be  sure,  so  may  any  •tbcf 
man  alive.  There  is  no  question  at  all  absrt 
that ;  but  if  any  man  is  supposed  to  havecMi' 
mited  murder,  he  ooght  to  be  tried.  If  sif 
man  is  charged  with  having  committed  maidff 
(otherwise  than  in  a  legal  cmirse)  he  is  cala** 
niated  ;  he  is  lihelleil :  and  that  is  all  tfcil  I 
have  to  contemi  before  you.  But  it  is  a  fiMM 
doubted,  whether  ibia  relates  le  the 
meot  ef  the  king'a  tivops  I  1 


753] 


Jbr  a  LiM. 


A.  D.  1777. 


[764 


tbat  Ambl  wiM  sttrted  •  little  before  the  ex- 
plaiMlioo  of  one  of  the  witnestes  came :  and  I 
soppoM,  if  that  had  been  in  the  conleinplalion 
of  the  learned  gentleman  when  he  spoke,  he 
woald  not  hare  raised  that  as  a  matter  of  doubt ; 
bceause,  aa  it  stands  now,  it  seems  a  very  plain 
propoaitioo  (both  upon  the  evidence  and  the 
reason  of  the  thioff)  that  it  was  so  applied,  and 
Meant  to  be  so  applied.  Then  he  informs  you, 
that  1  ba?e  used  a  number  of  words,  and  be 

Sve  you  a  list  of  them.— I  wondered  to  find 
p  words  that  1  had  used  in  a  written  speech, 
brooght  in  so  many  volumes  into  the  court  to 
be  oied  again  here.     But,  it  seems,  this  is 
a  collection  of  all  the  words  I  ever  used  in  my 
life;   and  he  sits  down  in  his  chamber  (the 
place  he  is  most  used  to  sit  in)  collecting  all 
llieae  words,  and  then  comes  here  with  a  cri- 
liciam  upon  tliftm.     Now  1  have  not  the  least 
inclination  to  derogate  from  that  learned  gen- 
tleman's  talents  as  a  critic :   and  if  the  food  of 
such  poor  language  as  mine  will  serve  the 
gentleman   to  employ   himself  upon,  he  is 
quite  at    liberty  to  do  it  upon  this  or  any 
other  occasion,  whenever  he  thinks  proper  to 
tmploy  himself  qtiite   so   innocently.     The 
wards,  in  substance,  1  will  maintain.    1  really 
iSd  not  believe  that  the  gentleman  who  had 
written  that  paragraph,  would  have  undertaken 
ta  defend  it  just  in  the  way  in  which  he  has 
4sne  to-day.     I  thought  that,  instead  of  quib- 
Ubg  upon  the  force  of  it,  that  he  would  nave 
idvaoced  a  great  deal  more  boldly  to  it  than  he 
Cd ;  at  least  in  the  outset  of  the  speech  to-day  : 
lad,  in  the  latter  part  of  his  speech,  he  so  far 
jaitified  what  1  foretold  in  my  own  mind  upon 
Ibe  subject,  that,  I  think,  he  has  proved  to  a 
taonstration  (if  that  were  an  essential  part  of 
Aecase)  that  bis  true  reason  for  writinjr  that, 
us  to  oefy  the  laws  of  the  country ;  for  so  I 
ilatsd  it.     1  stated  it  that  there  waa  no  affec- 
tttbn  of  discussing  any  subject ;    that  there 
Vtt  no  pretence  or  colour  even  of  reasoning 
Ipsa  any  subject ;    under  the  mask  of  which 
■soy  others  have   thought  proper  to  cloak 
themselves,  when  they  wish  to  write  malig- 
iMitly.      But  there  was  not  even  an  affecta- 
tiw  of  that ;   but  a  blunt  way  of  bolting  out 
■s  much  calumny,  without  qualifying  it  in  any 
iMiy  in  the  world,  or  making  it  appear  any 
tbiag  more  than  that  which  1  stated  it  to  be ; 
"HMi  attempt  to  defy  justice. — Either  prosecute 
this,  4>r  never  proseoute  again  as  long  as  you 
fire,  is  the  true  language  of  this  advertjse- 
iKot 

.  What  is  the  rest  of  his  defence?  It  consists 
ia  abusing  me;-  the  judge;  the  jury;  the 
Crown-office  ;  the  law  as  it  now  stands ;  the 
that  appeared  for  the  printers  who 
eonricted  of  the  same  crime  before,  be- 
they  did  not  do  enoui^h  and  act  to  hia 
;  and  the  solicitor  of  the  Treasury  1  That 
iilba  nature  of  the  defence  made  in  this  cause ! 
1  km  eboaen  to  separate  it  from  the  case,  and 
te  I  biHave  I  shall  be  forgiven  it'  I  say  a  few 
b  npoB  tho  rest  of  the  subject.  The 
■i  fwllMMn  thinks  proper  to  atatt  to 


von  that  this  is  a  prosecution  of  two  years  old  ; 
because  the  offence  was  committed  on  tb^ 
9th  of  June  1775,  and  because  you  are  novr 
trying  it  in  July  1777.    Now  if  he  could  have 
made  any  thing  of  the  observation,  it  would 
have  been  just  as  handsome  to  himself  (it  is 
nothing  to  me,  for  1  despise  all  those  things) 
it  would  have  been  as  handsome  to  himself,  if 
he  had  thought  proper  to  state  the  facts  pre- 
cisely as  they  were.     This  information  waa 
filed  in  Michaelmas  term  1776;    and  it  waa 
not  my  fault,  but  his  fault,  that  it  waa  not 
brought  on  to  trial  in  the  Hilary  term  follow- 
ing.   But  still  there  is  between  the  9th  of  June 
1775  and  Michaelmas  1776,  sometime,  though 
not  two  years ;    a  year  and  something  more. 
Then  he  complains  that  I  thought  pro[ier  to 
file  my  information  against  the  printera  first, 
although  1  might  have  applied  to  those  printers 
in  order  to  have  obtained  evidence  against  him. 
In  the  first  place,  I  have  made  it  a  rule  to  my- 
aelf  not  to  apply  to  any  printers,  in  any  other 
way  than  by  charging  tltem  for  their  delin- 
quency, and  bringing  them  before  a  jury  to  be 
tried.      That  is  the  application  that  I  make, 
and  alwaya  will  make  to  the  printer  of  a  libel. 
In  the  aecond  place,  if  1  had  thought  proper  to 
apply,  aa  he  calls  it,  to  the  printer,  I  might 
have  had  a  fictitious  conversation  put  upon 
me,  in  order  to  prove  that  I  had  practised  with 
them  to  get  Mr.  Home  delivered  up.    Now  in 
the  third  place,  it  is  a  matter  of  perfect  indif- 
ference to  me  whether  1  prosecute  the  printer 
or  the  author.     And  I  will  tell  yon  why.     My 
notion  with  regard  to  autliors  are,  that  moat 
of  them  are  generated  by  printers;    at  least 
more  authors  are  produced  by  printers  than 
printers  by  authors;    and  if  the  preaa  was 
never  to  go  till  the  good  sense  of  some  author 
set  it  to  work,  it  would  prevent  a  great  deal  of 
the  groaning  of  the  press  upon  publications 
and  subjects  much  too  frivolous  to  be  regretted 
if  they  were  lost ;   and  1  believe  authors  have 
grown  more  from  the  press,  than  the  press  has 
growu  from  authorship.     Iff  stop  the  publi- 
cation of  libels,  I  think  I  do  an  easential  |^ood 
to  the  country.      I  know  if  thej  are  pnnted 
and  published  ostensibly,  where  to  apply  to 
stop  them :  but  1  never  did,  nor  ever  will  stop 
tbem  by  applying  to  the  printera.    He  has  ex- 
plaineil,  by  examming  the  printers  themselves, 
that  no  such  application  was  made  to  them* 
I  cannot  state  exactly  upon  memory  tlie  timn 
when  I  commenced  this  prosecution.    I  sap- 
pose  it  must  have  been  about  the  time  whta 
the  others  were  tried.     If  so,  the  consequencn 
is,  that  the  Michaelmas  term  following,  in  eon- 
sequecce  of  that  application,  was  the  very  first 
time  that  I  could  file  an  information  at  all.     I 
was  told  when  the  printers  were  tried  here. 
Why  do  not  you  resort  to  Mr.  Home? — Yoa 
are  afraid  of  Mr.  Home.     To  be  sure,  thera 
waa  some  reason.      If  I  had  known  that  1 
should  have  been  obliged  to  hear  so  much  elo- 
quence 1    especially  to  have  the  trouble  of  re- 
ply! nsr  to  it ;    it  would  have  been  a  prospect  I 
should  not  have  liked.    Bnt  i  believe,  1  sboold 


,-7553 


17  GEORGE  III. 


Proeeedingi  agaiml  John  Horne, 


Te  Hided  ihrougli  all  Llial  proipsnt,  ir  I  bad 
^wen  ei'er  so  ugch  afijirizeiJ  nf  ii  before.  Aod 
4>h(>n  nil'.  Uonit!  wu  di.'closril  lo  be  ilie  ali- 
tor, I  c«tuiiily  should  tiare  prosecuted  birn. 
bnl  lielnrs  he  mads  thai  disolwure,  hIwi  I 
ijiid  ia  Iruei  llial  lie  ilrfied  ibe  l»wt  of  bis 
suiinU'ji  under  llieuirreii  ol  ihe  priiiler*.  And 
■e  tiu*  nrovvd  bimielf'  (bat  be  w»«  not  to  be 
ilisdafeil  withiiul  •  t'^fcouliun.  lie  give  no 
lUitliMrity  III  the  (irioteri  to  k"  ti  'he  Holiciior 

.pTtlM  Treasury, Slid  iitali* a  ilisdi»ure  gf  him: 
pr,  ir  be  did,  ibey  iiuid«  no  tush  disclosure, 
^d  yet  this  manner  of  delnyini;  Ibe  cauie  it 
SDeorihet^roiinds  upon  nliioh  be  lias  tboughl 
proper  lo  Heal  me  j«n  in  Uie  muiini-r  in  which 
pa  dill-  Nuw  I  H'ould  Wg  you  a  iiule  lo  re- 
fiollput  how  ihal  pan  of  die  conrFrBalioa  aroie, 
wban  lUe  leariieil  eenlleiiian  s|Nike  witlinul 
poob ;  wbei)  he  ([iDkc  al  first,  and  had  not  hia 
worda  so  well  nieaaured  an  the  weli-timeil  It- 
Vour  of  bin  closet  enables  him  to  niaaBiire  liia 

.  'words  niton  |ia|ier :  he  certainty  loiib  the  IVee- 
iOTB  or  cbai^ini;  me  of  uiing  all  mediki,  ri^hi 
^  wrong,  loul  or  fair,  iu  utder  to  get  a  convic- 

(tUB. 

Well,  wbat  la  tbe  next  article  of  hla  ha- 
lanKUei*  I  am  rrjitoBchi'd  lur  bavin^  hoasted 
«('  tlia  iulegrliy  of  my  character,  hrcause  Ide- 
^d  tlielrulh  of  a  false  and  im|ierlinentcLaf]{>; 
bevluK  it  ia  neither  true  mir  perliDenl,  tbal 
•Ti'r  I  had  rtnpluyed  myaett'  La  Ihe  way  in 
which  1  am  «o  re|ire«eule(I  lo  bave  employed 
■lyielf.  And  wbat  is  the  boast  ii|ion  thai?  It 
it  a  Tery  high  one ;  for  1  called  upi'o  him  to 
Mmc  bia  inslaticeH,  That  was  mv  houl  1  and 
ipaocence,  when  it  is  able  lo  call  upim  its  re- 
liler  to  name  his  iostanceti,  doe*  make  a  prnod 
^ai  magniheent  boail.  Kn  tar  I  hoasletl.  Well, 
wbeQ  called  upna,  what  nre  Ihe  invianccsf 
Tbe  firit  is,  tlial  I  proiiprute  before  a  apecial 
jury.  That  in  a  proaeculion  wbicb  1  (tbe  ser- 
*aol  of  lb*  public)  tliink  pi  ojier  (for  reasons  of 
ptiUic  treiitbt  aud  importance)  lu  produce,  I 
liish  to  ba«e  men  of  ihe  lirM  cbaracler,  ol'  (be 
oral  iittiution,  men  of  the  bit;hest  and  moat  ap- 
|*roii«d  liMiour,  my  jud^K  I  that  ia  the  first  ar- 
ticle  ill  uhicb  the  n|iprfhritiin  is  lo  he  jusiitied 
ol'  nty  uiitig  all  meaug,  I'oiil  or  fair,  in  order  lo 
obtain  a  caavicliao  !  In  this  he  has  all  thead- 
vautue  IbiU  ao  awuscc  can  pMsibly  have ;  I 
CMifriis  the  ttbote  charge,  ll  i*  tuy  desire  lo 
hkve  nil  my  aclioita  u  Iried ;  it  is  my  daaire, 

S4  i  will,  «i»eii«*er  I  can,  idilain  a  tribunal  of 
at   Eprl;    which  (from   the  ipeat  dexlerily 
kpd  winlam  of  elmjuencti)  is  looked  upon  to  be 
tbe  beat  topic  (hrfore  them)  lo  condemn  me  for 
fesci'luig  to !    This  is  anuther  mailer  he  would 
We  bveu  totally  de|itii>rd  of,  if  he  had  aubrail- 
'    nil,  aa  tUe9«  poor  prinLera  diti,  to  be  delendeil 
fcv  twuatel.    They  Houhl  never  ba«e  thon^bi 
•1'  abu^inif  llie  AlUrney  General  (before  a  ape- 
tial  jury)  only  beronie   he  ibnuiilu  proper  to 
1^  lua  cause  bclore  thai  Jury  \     It  is  a  singu- 
*  lac  way  lo  Uke  ihove  topics  which  s"  beyond 
tb«  ahlily  or  practice  ol  nny  counsel  whatever ! 
Then  Ibe  next  slliick  is  u|ian  (he  poor  raas- 
l«r  ol  111*  Cnvia^i&tx,  Mr  Jajues  tturrow.    i 


do  not  bdiete  that  there  cjriils  b  ibia  world  a  J 
roan  of  more  inflexible  intef^ity  than  air  JainMw 
Burrow.    I  never  beanlbiiu  chained  in  my  likfl 
wilhatiy  thinglikenpprobriuTD.  I  bnowperfee^l 
ly  well  ihntif  I  weretoap^dy  to  BirJame*Biir>| 
row,  in   order  to  gH  any  particular 
of  Miikinc  a  jury,  eitiwr  in  London  or  Mi4>.9 
dltrsaz,  tliat  he  would  ift  himarlf,  for  Iha  wba' 
evening  afier,  lo  contriie  bow  lie  could  h 
CT'OS  the  purpme  ol'  that  application.     I  IcbMtJ 
be  would,  I  know  him  very  well,  1  ai 
it  a  very  bonecl  man  ;  and  I  am  aur« 
fara  exuecilinuly   ill,   if  I  itaa  to  atlempt  tt  -^ 
inike  any  auch  application.  None  such  is  tu^> 
(ffsteil.   'Bill  it  is  aaid,  that  the  aolioilnr  of  Ibw 
Treasury  desired  sir  James  lo  Inkelliispart  j  l» 
tike  two  special  jurymen  out  of  erery   kaf; 
Sivinj;  ihit  reason  for  it,  because  the  boofct  iwi^llfc 
he  made  up  i  and  thai  if  it  was  once  knowit  Ifr- 
be  ihe  practice  of  sir  Jamea  to  beniii  in  th*  mid- 
dle, ur  the  end,  or  any  part,  they  mif^lbe  niadm 
up   by  the  address  of  Ibe  officer,  so  a«  loci 
a  panifnlar  setof  men  liir  a  jury.     I  wiH  U 
it  as  taid  by  the  i^entleman :   Ibe  aolicitDr  u 
(wsHil   that  tbere  mi^ht  be  laheii  two  out 
every  Ivaf,  nhicb  would  produce  tbe   bin 
collection  of  the  jury  in  the  broadest  n 
and  out  of  tbe  ^realeat  number  and  variety' «| 
names  and  people.    Ha   liir  I  think    iMnhiaf 
unfair  io  tbe  solicitor's  appUcalion: 
not  know,   1   pniteai  to  G'>H,  at  ihia  i 
nienl,  what  earthly  reason  sir  Jauiea 
could  have  Id  refu<9e  that,  except  Ihe  oi 
I  BtruUfjIy  suspect  him  of,  uamely,  ll 
that  it   uas  detirod  hy   the  solicitiiT  for    tlw« 
crowo : — lijr  if  he  apprehcniled  that  it  would 
tpve  Ihe  ali|{lilesl  ground  li)r  autpicion  by  talc- 
io^  any  one  article  of  conduct  whatever,  be  is 
very  nioe,   I  know,  anil  very  obtlinale ;  and   I 
aiu  sure,  nothiofc  would  biiul  bim  more  surely 
ID  refuse  to  take  a  jury  in  that,  which  appear* 
to  ne  to  lie  the  must  impanial  way  i    Blrony«« 
and  iguicker  (hao  an  applicatiiin  on  tbe  pari  ^ 
the  Nolicilor  of  the  IVeasiiry.     That  U  nu  MM 
bni  ihetheriffsof  Lsndun  are  abused :  lb(J4^ 
rors  are  named   merchants,  who  are  notav' 
Why.  do  I  make  up  that  huoki'    Is  IhalOM^ 
my  oriniesi"    Tbe  sheriflsof  London  make  i 
Up.     V,  ben  it  is  returoed  In  ihe  Cmwn-o 
Ibe  names  are  taken  oul  of  it,  in  iliemnBi 
parlial  maimer ;    and  Ihe  whole  alate  »f  lh**< 
lOBlead  of  loading  me  or  any  one  caocei-BW<I 
with  tbe  sligiilest  cahimny,  la  lite  fntlem  as? ' 
quillal  that   onublhebaill    lldoes  uoi  iher^' 
lore  relate  lo  any  one  concerned  In  this  pios^* 
culiun.     Then  I  am  (vmnar  <*■  another  thinf     ' 
lor  under  all  bed  adinini«lrBliont,  lliere  is  <"^^ 
Ibin^sorilcaiproaeouiionsfur  tilielsl  1  shonl-^^ 
be  Kind  In  know  in  the  almtracl  (witbout  reter^'' 
riat!  IO  tlinse  decuinenli,  bo  many  of  «bich  ih-^^ 
leurikeil   Kcnllenian  pruiUiced  hinseify  in  th^^ 
ei|;bt  years  I  have  bad  Ihe  honour  ofbetni;  At"*'^ 
toroey-Geneiml,  liow  many   proaecutious  t»^^ 
libclE  have  been  brought  i'  I  wish  that  was  sUt^^ 
ed,  ill  order  to  alien  Ihe  monktrous  Bumber  «^^ 
proaeculions  i'er  litiela  1   They  are  not  to  tnaa^^ 
as  1  could  wiab ;    fov  if  you  compue  ibe  p 


Jot  a  LibeL 

with  tbe  daiW  pQUicatioM,  that  msn 
:  at  those  pablteations,  and  sees  how 
ink  the  acandal  is  upon  all  orders  and 
tioiis  of  men,  apon  all  branches  of  the 
mt  and  the  state,  as  well  as  prWate 
boever  sees  that  must  look  at  them 
rj  peculiar  eye,  if  be  does  not  see 
ocrease  of  the  scandal  is  a  ^reat  deal 
n  the  increase  of  the  prosecution  for 
lal !  and  yet  this  is  one  of  the  topics 
hicb  I  haf e  been  abused  !  It  is  said 
I  am  corrupt  in  another  respect,  be- 
ondescend  to  consider  myself  as  the 
the  whole  public,  and  so  liable  to  re- 
in  from  every  branch  of  the  legisla- 
e  arg^oments  that  one  hears  used  npon 
uions,  they  are  made  only  for  the 

I  should  not  be  astonished  if  from 
quarter  I  had  heard  it  was  one  of  the 
archical  sentiments  in  the  world,  toin- 
lere  is  any  public  officer  who  was  not' 

orders  of  eiiher  House  of  Parlia- 
always  took  it  to  be  the  assumin|f  of 

call  themselves  Whigi  (for  want  of 
ickname)  what  I  hold — that  in  a  free 
represeotatives  of  the  people  assem- 
rliamont  are  a  sovereign  member  of 
;  and  that  every  public  officer,  g^reat 

is   amenable  to  them.     But  how 

to  them  ?  I  wish  that  had  been  a 
e  stated.  Amenable  to  them  to  do 
Vo  roan  ought  to  l»e  amenable  to  tbe 
nd  the  proudest  body  of  men  what- 

wronj;.  1  have  not  been  so  amen* 
in  those  instances  in  which  I  have 
:  would  be  u  ron^  to  prosecute,  I  have 
I  (he  House,  and  the  House  has  for- 

Crosecutioii  upon  my  representation, 
een  the  conduct  which  I  have  held 
iccasion ;  unci  a  conduct  which,  if  1 
ioned  fur  it  (in  any  place  whore  it 
pertinent),  I  should  be  very  ^lad  to 
account  of  that  conduct.  But,  »ya 
man  (with  a  strain  peculiar  to  him- 
I  you  submit  to  be  sworn  in  order  to 
eJ  by  me  f — To  what  ?  Yes,  Sir  ;  to 
let  which  can  l)e  alleged  in  your  de- 
'ill  submit  to  b<»  sworn  to  the  truth  of 
vill  you  submit  to  be  sworn  in  or- 
lergn  iinpiTtiiient  questions  about  the 
lid  steps  of  your  cuntluct  from  time 
uch  as  I  shall  think  proper  to  put  to 

nen,  I  put  my«;eif  ufion  your  f^ood 
put  myself  (tor  the  question  was  not 
you)  I  put  myself  upon  the  candour  > 
Dod  sense  of  tiie  audience,  that  1  was  j 
ntly  treated  in  the  proposal ;  and  that 
lavebeen  ridiculous  to  have  submitted 
ipOAsI !  1  spoke  to  some  jiersons  about 
authority  1  am  not  permuted  to  ciie  to 
concurred  in  opinion  with  me :  but  I 
and  I  put  it  to  the  mind  of  every  ^en- 
vhether  I  did  not  act  riifht  in  that 
I^  kave  refuted  him  justice  would 
'  '  ud  iOBToper  measare;  1 
^  Wan  to  AOfirer  ia- 


A.D.  17T7. 


[768 


pertinent  qaestioos,  I  did  refote  it }  and  I  ap- 
peal to  the  candour  and  good  sense  Of  this  an- 
dience  that  1  did  fifrUx  to  refuse  it ;  and  it  wouhl 
have  been  ridicnioua  to  have  done  otherwise. 

These  are  the  topics  which,  as  far  as  1  can 
recollect,  have  b^n  produced  against  me. 
With  regard  to  tbe  rest,  the  gentleman  infbnns 
yon,  that  tbe  lew  aa  it  stands  is  full  of  a  great 
variety  of  hardships.  I  don't  know  that  system 
of  law  unde^  heaven  which  may  not  be  per- 
verted to  purposes  of  hardship.  I  don't  know 
any  thing  so  perfectly  ridiculona  as  to  argue 
from  the  possiDility  or  the  corruption  of  a  good 
thing  to  its  worthfessness.  In  order  to  make 
any  thing  of  that,  he  should  have  gone  the 
length  not  only  of  stating  what  might  have 
been  done,  but  what  was  dune ;  otherwise  yoa 
roajr  sit  and  hear  that  glorioua  constitution 
(which  f  have  known  so  many  able  and  elo- 
quent writera  and  speakers  extol  in  the  hi^beat 
terms  to  the  skies)  you  may  sit  and  bear  it  re- 
viled from  one  end  to  the  other:  not  for  the 
mischief  that  it  actually  doea ;  not  for  the  me^ 
quality  in  point  of  justice  that  it  actually  ad- 
ministers ;  but  which  it  might !  But  let  him 
prove  that  there  is  any  thing  in  my  eonduct  of 
this  prosecution  that  deserves  those  epithets 
with  which  he  charged  it,  and  I  must  submit 
to  be  covered  with  ihem.  But  that  will  not 
make  an  iota  of  difference  in  your  verdict. 
What  does  it  signify  to  you  (who  sit  to  con- 
sider whether  this  be  a  true  or  a  false  charge) 
that  it  cornea  at  this  time  or  at  any  other  ?  The 
^otleman  taxes  me  with  foll^  in  saying,  that 
if  it  were  a  crime  in  1775,  it  must  he  so  ia 
J777  !  I  should  hold  it  to  be  the  utmost  folly 
to  say  otherwise.  If  there  were  any  improper 
practices  with  regard  to  the  prosecution,  K 
might  lie  a  reason  of  objection  to  those  who 
prosecute ;  but  with  regard  to  the  mere  ques- 
tion to  be  put  to  the  jury — is  he  guilty  in  man- 
ner and  form? — it  is  absolutely  nothing;  it 
would  be  fully  to  assert  it. 

I  have  now  stated  to  you  the  progress  of 
this  business,  referring  to  his  own  witnesses 
for  the  truth  of  that  pnigress ;  and  I  trusty 
that  upon  that  representation,  1  shall  not  be 
found  to  have  misconducted  myself  even  in  the 
course  of  this  prosecution.  1  have  gone  very 
much  out  of  my  way,  and  very  contrary  to  the 
turn  of  my  tem|>er,  when  I  have  embarked  m 
far  in  a  defence  of  myself  at  all ;  hut  when 
facts  are  stated,  I  thought  it  necessary  to  re- 
state and  explain  these  facts.  Beyood  that,  let 
general  and  loose  reHections  take  «vhBt  place 
they  pleaFC.  1  put  my  self  upon  mv  public 
conduct  for  my  j-.wtiiication,  without  boasting 
of  that  conduct  either  one  way  or  the  other. 
If  I  am  wrong  in  that  conduct,  let  it  condemn 
me:  if  I  am  right  in  that  conduct,  let  it  up- 
prove  me.  It  is  upon  that  only  that  I  desire 
to  rest  it;  without  boastmg  or  withtiui  dis- 
claiming, either  on  one  side  or  the  other.  I 
will  say  no  more  unon  that  auhject,  but  refer 
it  to  vou  to  determine  what  ought  to  be  dune 
upon  a  charge  thus  aUted,  ami  thus  industri- 
ow^  pro?ad  upon  Ibe  part  of  tbe  defeodmot,  if 


«69] 


17  GEORGE  III. 


Frociedingt  againtt  Juhn  Harttt, 


pso 


ipon  .  aemtinns  might  hsTe  bero 

his  oideuce,  yuii  sec  liow  it  sianila'.  Tbe  ub? 
I  happ^  resistance  to  tlie  Irgifllilire  4Uthority  of 
XititA  Muntfidd.  OontleroCD  of  Ibcjury,  if,  tliiskingilom  bjr  mmy  ornurfifllon'-siityects  io 
CTfr  Lliere  was  n  ijueBlioii.  the  (rue  iceriis  of  America,  U  loo  ctlnmitous  an  ctrrtt  uul  In  bt 
wbich  lay  ia  a  very  narrow  cam[iau,  it  is  ihe  impres»ei]  upon  all  yonr  luiuilt;  alJ  the  atejN 
present.  This  a  bd  inlormaliua  Bqainst  Ihe  leading  lo  it  areoftliemoslDuiTersalnotaricty. 
JaefeDdBnl  for  wriliog^anil  compasiiig,  idiI  prinl-  The  lej^islature  of  this  klDgdoin  ha*e  a*n*eit 
iHK  anil  publishiag,  or  cauiing  to  be  printed  that  the  AmericaiH  rebelled,  becaiiw  ihey 
•Dil  piililislieil,  that  is,  for  being  tbe  antlieraud  '  wanted  to  shake  off  the  sovereignty  of  thic 
publisher  of  a  poprr,  which  the  infurniation  ,  kiagdom;  they  prnfcat  only  to  bnug  their 
'Charges  an  a leditiuus libel.  Hit  beaneditioua  back  to  be  subjecis,  and  tu  quell  rebellion 
libel  in  its  own  nature,  there  is  no  juitilicatiou  Iroopa  are  emplnyed,  money  is  expended  upon 
•tlemptett:  why  llien  there  are  but  t»n  points  tliia  ground;  that  the  cue  is  here,  between  a 
'  '    aalisly  yourselres  in,  in  order  to  the    just  gorernnient  and  rebellious  suhjecis ;  lor  - 


I 


/orcningnfyaur  verdict. 
I  Did  be  compose  and  piiblinh  ;  that  is,  was 
li«lhe  author  and  publiiher  uf  it?  Upon  ibis 
4ccB8ioD,  that  is  entirely  out  of  the  caaei  for  it 
is  adiiiilteil.  As  to  the  excuse  of  ignurance,  or 
Iwing  imposed  upon  (wbich  is  a  topic  in  tbe 
ease  of  printers  and  otbets)  it  is  out  nf  this 
ease,  because  it  is  avowed  lo  be  done  delibe- 
rately ;  and  it  is  nuw  avowed,  and  the  contents 
et'tt.  IVhy  then  there  remains  noihing  more 
litit  that  which  reading  tbe  paper  must  enable 
.jou  lo  form  a  judfimtnl  upon,  superiur  lo  all 
the  arguraenls  in  the  world ;  sod  that  is. 

Is  the  tense  of  this  paper  that  arroignment 
ef  Ihe  government,  and  the  employment  of  the 
troops,  upon  tbe  occasion  of  Lexington  men- 
tioned in  thai  paper?  Read!  Yon  will  Ibrm 
tbe  conclusiou  yourselTes.  What  is  it?  M'hy 
it  is  this;  that  our  beloved  American  felluw- 
>MbjeclB — (therefore  innocent  men)— in  rebel- 
lion  agsioKt  the  slate.  They  are  our  fellow- 
•ubjeclB ;  hut  not  so  ahaoluiirly  heh>ved  wilb- 
out  eiceiitiou  !  Btlciveil  to  mnny  purposes :  be- 
loved (o  be  reclaimed :  belovrJ  to  be  forgiven : 
beloved  to  have  good  done  to  them :  but  not 
beloved  so  as  lo  be  abetted  in  their  rebellion ! — 
«nd  therefore  that  certainly  conrrya  an  idea 
Ibal  they  are  innocent.  Bill  farther  it  >ays, 
that  they  were  iniinmanly  innrdereil  at  [4>i- 
ingtoo  by  the  king'*  troop*,  merrly  on  accunnt 
ffflheij'  acting  like  Engtikhiaen,  and  preferring 
liberty  to  alarery  1  The  inlbrniilion  charges 
the  libel  lo  relate  to  tbe  king's  government  and 
the  employment  of  his  troops.  lUad  ii,  and 
•re  whether  it  dues  relate  lo  them.  Ifil  does, 
what  is  the  empluyineni  tliey  are  nrderrd  upon  ? 
what  is  tbe  employment  that  they  execute? 
To  murder,  tbe  paper  says,  iuiiocent  snbjf  els ; 
bfcause  Ihey  act  like  Englisbinfii,  and  prelcr 
liberty  la  slavery  !  Why  iben,  whatarethey 
who  gave  tbe  orders?  what  are  they  who  exe- 
cute theoiP  Draw  the  conclusion.  It  don't 
■land  upon  argument.     If  any  man  dares  lo 

S've  orders  to  murder  a  subjent,  or  lo  execute 
ose  nrders,  or  lu  make  any  sulgect  a  slave, 
lie  is  aa  hit;b  a  criminal  as  can  exist  In  this 
stale.  Evidence  has  bern  examined, and  (thouub 
unusual)  I  was  very  detirous  every  thing  of- 
fered should  be  heard  ;  and  you  have  had  Mr, 
Could  examined:  and  whalerer  doubt  there 
might  be  nilh  renntd  to  tbe  occasion  of  bosti- 
litiei  at  Lexiugluu ;  whatever  weight  tl(e  ub- 


just  and  a  good  purpose,  fur  the  beuelit  of  ihs 
whole.     If  I  don't  misiahe,  the  first  hoMililiei 
that  are  committed— (though  many  steps  M 
both  sides  leadins  to  ibem  existed   before)-^ 
but,  if  1  do  not  mi^ilske,  the  first  hiolililiea  atfl 
those  committed  upon  tbe  lOlh  of  April,  I7l&i 
If  some  soldiers,  iviihuut  aulborilv,  had  nt )« 
a  drunken  fray,  and  murder  had  ensued  bbI 
that  this  paper  could  relate  to  that,  it  would  he 
quite  a  diffeient  thing  from  the  charge  tn  tbe 
informalioo ;  brcau'^  it  is  charged  as  a  aeili^ 
tiuus  libel,  lending  to  disquiet  the  minds  nf  ibi 
people.     Now  what  evidence  has  Air.  GunU 
given?  Why,  he  says,  that  he  was  sent  witti 
a  part  of  the  king's  troops,  hy  the  order*  «| 
general  Gage,  the  governor  of  iheprofiitCH 
Ihe  commander  of  the  king's  Iroopa ;  that  wbM 
they  began  iheir  mnroh  (which  was  abotal  lira 
or  Ibree  in  the  inuruing)  he  heard  (I  Ihiab  b4 
says  he  heard)  a  cunlinual  firing  of  alarm  can 
non,  which  is  a  signal,  at  certain  dint.ioce^, 
used  in  America  to  raise  tbe  country  ;  and  ih»S 
they  heard  as  soon  aa  Ibey  Iteuan  their  march    ; 
and  from  thence  thpy  concluded   iliat  Ihe  pr»' 
vinciaU  were  marching  loollnck  them.    Whei^ 
Ibey  came  within  sight  nf  Ibem,  they  fouiaal 
them  armed,  in  hodiea  of  troops  armed.     Tha» 
was  not  a  slated  lime  of  peace  when  ibe  king'* 
troops,  under  tbe  authority  of  tbe  governnr,  e-u 
from  one  part  to  another ;  to  have  butlirt  <>■ 
men,  in   military    arr^iy,  armed,  and   signal* 
fired !  but  this  llie>;  found.     And  he  say*,  l»« 
cannot  tell  himself;  but  to  a  queation  aske*" 
him,  he  says,  he  heard  the  provincials  ehurce** 
our  Iron pt.     He  savs  in  bis  atlidatii,  nhick'" 
he  has  hkewise  sworn  to,  and  wliirh  yoii  ma  ^ 
compare,  ihal  he  saw,  on  their  arrival,  he  xa*^ 
a  body  nf  provincial  troops  atmni,  to  tbe  nuna  -" 
her  of  about  60  or  70  mcu:  "on  our  arrive  ^ 
Ibey  dispersed,  and  foon  alter  firing  lie^au      ^ 
but  which   party  fire<l  first  I   canunt  cxaclI^V'^ 
say."     And  then,  towards  tbe  latter  part  of  tb^^ 
nSidavit,  be  says.  "  the  provincial  Iroopa  i*— "'' 
turned,  u  tlie  number  of  about  ibree  or  lb«^^ 
bnndreil.     We  drew  up  on  tbu  Concord  sida 
the  bridge.     The  prouncials  came  dowu  up 
us;  u|ioQ  wbisli  we  engaged,  and  gave  IhenP 
the  first  fire."     And  says  he,  "  thia  vtaa  ilM 
first  enga,(emenl  after  ibe  one  at  LexingtiuLa 
A  conlinued  firini;  from  bolh  parlirs  lastnl  thai 
whole  day.      I  myself  was  uouuded  at  the  at- 
tack of  Ine  budge,  and  am  now  treated  with 


A.  D.  1777. 


[76S 


1115  U  a  pri«mer 


Now  from  thii 


tMr  lUllilarda  ;  eacli 
ttny;  the;  wrre  re«<1y  to  iighl.  VVbo  (li 
thii  eiidcDCe)  lireil  Hral,  lie  cannot  letl ;  tliat 
i*,  oHipDallj'  the  first.  He  beanl  tliBt  the  pro* 
nnttiala  char^il ;  but  whether  the  one  or  the 
Ufa«r  fired  finii,  he  cunnot  Itrll ;  when  the  two 
badiM  were  in  the  lield,  each  expeciiiii;  Ibe 
Milcr  to  atUok.  This  is  Ih«  account  giren  hy 
the  detendanl'a  witneas ;  thai  il  was  the  king's 
troop*,  by  otilrr  of  the  conrnianiler  and  the  ^- 
rsrnrneiit,  ihnt  were  en|;aeecl  in  this  fray,  in 
wbkb  thou  IJTei  were  Josil  Then  if  there  is 
Dtttbiug  panicular,  but  it  is  a  consequence  of 
Iha  general  ilispnie.  of  the  cauae  of  this  most 
luDentabte  and  unhappy  war,  no  good  man 
kal  miut  lament  it,  and  wiih  tbem  rcctaimed. 
If  ill*  barely  the  consequence  of  that  which 
b«a  M  M  further  hoitililies  since,  you  will  read 
ibis  t 
•iUj' 

i)M«nt  prajiosilion  >iir  ibe  (food  and  welfare  of 
ibn  kioitdum,  the  support  «f  the  lei[islBlive 
^merainenl,  and  tbe  kini^'s  autboritv  according 
W  law ;  or  whether  it  is  uiit  ilenyinit  tlie  |;o- 
rcrameiit  and  lexialilite  ButUority  of  Eiitcland, 
U4  jostifying  the  Americana;  aierrin^  tbnt 
tbtjr  »re  totally  innocent ;  thai  they  only  de- 
HTB  Itot  to  be  slaves  ;  not  diipulintr  to  be'aub- 
ImU.  but  they  desire  only  ii«t  to  be  slatei ;  and 
that  the  lue  that  is  made  of  the  lfin)('n  troops 
upon  ihia  occasion  (for  you  will  carry  your 
nJnil  back  to  the  time  when  this  psjier  was 
wrote)  was  to  reduce  them  to  slavery.  And  if 
it  wu  intended  to  cootey  that  meauini;,  there 
««n  belittle  doabi  wlieiher  that  is  an  arrai^- 
IMot  o<'  the  ((itverunient  und  of  the  troops  em- 
^yrd  by  them  or  not.  But  thai  is  a  matter 
foe  yaiiT  judgment.  Von  will  judkte  of  the 
vmaiDgof  il;  you  will  judg^  of  the  subject 
to  itbicb  it  iH  applieil,  and  connrct  them  tosc- 
tktr ;  and  if  it  is  a  criminal  arraignment  uf 
thoe  troops,  actiuiC  under  tbe  order*  of  the 
oScera  employed  by  the  gUTcrnment  of  this 
CMBtry,  to  cbar)[t-  theni  with  murdering  in- 
BBCsDt  subjects,  because  they  would  nut  be 
^t«,  you  will  lind  your  verdict  one  way :  but 
'fygu  are  uf  opiniun  that  the  cuntf at  it  to  re> 
dnee  ianocenl  «uhjects  to  at*v*ry,  and  thsl  they 
Wen  all  murdered  (like  (he  cases  of  undoubted 
'~  '  ra,  of  Gienco,  and  twenty  other  mas- 
'  t  might  tie  named)  why  then  you 
a  diflerent  conclusion,  with  reifard  tu 
laing  and  application  of  this  paper. 


you  will 
ileal  that 


why  I  pniis  over  ■  great 

aaid,  (hat  ought  not  to   ba>e  been 

it' there  is  cue  thing  lbs!  is  relative 

It,  and  therefore  ilou^fhttu  be  said  ; 

a  doubt  (upon  one  of  the  former  trial* 

iB  printcra]  that  occurieil  to  the  jury,  in 

k  they  kail  a  difierennt  of  opinion  ;    and 

l«*d  to  come  in  anil  leave  it  to  my  ile- 

1  bad  lohl  them  (as  I  told  you)  (hat 

UiB  points  to  guide  your  verdict  was, 

njoa  undecfWod  ibe  umtiuij;  of  ibe 


writing  to  be  u  charged  by  the  informaiinn. 
One  of  them  understood,  or  doubled,  whe- 
ther (this  wan  in  the  enie,  you  see,  of  a 
printer,  of  a  third  person)  whether  actual  proof 
of  a  seditious  inteDlion  (ilixtincl  from  iIm  ia> 
ference  from  the  act  itself)  was  iiecvasary  10 
be  proved.  The  other  tbuui^bi  that  a  seditioua 
intent  was  by  law  tu  be  Interred  from  tlie  sali- 
lious  act ;  and  ihey  came  in  and  proimsed  their 
donbts.  And  I  Inld  llieni  what  I  tell  you  (and 
what  I  brheve  never  was  duubteil,  and  whil 
was  not  questioned  upon  llial  occaai  on,  1  hough  1 
desired  Ihey  would  move  the  conrl  upon  it, 
if  they  hail  any  dcuibt)  that  it  is  not  nec««sary 
to  prove  an  actual  intent,  which  is  the  |trivaia 
operation  of  a  man's  mind  ;  but  a  jury  were 
to  exertiae  their  judgment  from  the  naiiire  of 
the  act,  as  to  the  intent  with  wbicli  it  is  dune.* 
As,  if  a  man  writes  and  publishes  a  seilitiuui 
libel,  a  libel  that  has  a  aeditiona  tendeDcy,  that 
is  a  ground  to  a  jury  from  whence  to  infer— 
(when  it  ia  without  any  jiistilteation,  wilbaot 
any  excuse) — that  is  a  ground  Iroio  whence  10 
inter  a  sediiioua  intent,  Jual  as  if  a  man 
murders  another  without  any  jiiBiiticBlinn  of 
that  act,  it  isB  sufficient  ground  liir  the  jury  to 
infrr  that  be  did  it  maliciously.  That  answer 
WBk  given  to  tbejnry, 

Gentlemen,  here  I  conclude  every  thing  I 
shall  trouble  |ou  with,  by  way  of  charge,  b»> 
cause  ynu  will  exercise  your  judgiiii^nl.  ■•  I 
have  said  before,  upon  the  paper  anit  the  iofor- 


by  reading  them,  which  you  may  hav* 
rry  out  with  you,      ilut  merely  (or  tha 
aake  of  the  audience,  as  suroelhing  ban  been 


so  BDuch  mentioneil  in  tbe  cause  (for  I  d 
give  you  any  reason  for  taking  no  notice  of 
any  thing  out  of  it)  I  think  projier  to  stale  ii 
in  so  particular  a  manner,  thai  when  yon  come 
to  aee  it  misrepresented,  you  may  all  of  you 
remember  what  it  is,  and  what  il  was,  and 
upon  what  ground  it  passed  ;  and  ihai  is,  with 
regard  to  the  Attorney  Geiieral's  Kfply.  Vou 
•ee,  as  the  case  is,  It  is  entirely  out  of  Ibia 
CBUve :  lor  the  defendant  baa  culled  witnessea; 
and  I  Ibmigbt  it  right  that  he  shimld  know  it 
early,  that  he  might  not  abstain  from  calling 
witnesses  to  avoid  lh«  leply,  and  in  that  manner 
be  aurprited.  Now  I  wdl  tell  you  what  I  lake 
to  be  the  practice  witb  regard  to  thsi  matter. 
The  nature  of  a  reply  is  the  plaintiU's  answer 
to  new  mailpr  advanced  by  Ibedefendant.  The 
plainiiff  knows  his  own  case  ;  be  kntiws  hia 
own  witnesses ;  he  openi  il  ;  he  uliservea  u  pon 
his  wilneaaes  ;  and  he  drawa  such  conchiaions 
from  them  ss  he  thinka  pmper,  in  persuade  a 
jury  to  encreatie  thedamuges.  The  difendool, 
if  he  nnly  makes  ubsertaliona  upon  tbe  aame 
evidence,  and  only  draw*  oonelustuiia  from  the 
aame  evid^in'e  to  the  jury,  tu  leiaen  the  da- 
mages; why  there,  there  ia  nothing  new,  iher* 
is  uo  new  matter  at  all :    and  by  the  practice, 

*  Thia  neviiu  to  be  aomewbat  inconsistent 
with  what  lord  Manafiald  laid  down  to  lie  tbe 
law  when  ileliveringthe judgtoentof  tbe  Cuuit 
la  WwOTaira  Cue. 


763] 


17  GEORGE  III. 


Proeteih^t  againtf  JoJin  ftomr. 


[764 


for  the  espedilioo  of  binin««a  in  cLtiI  cause*, 
and  in  pro*««ationB  in  ihe  n»ine  of  lli*  king, 
Willi  crtinmon  mformtr*,  ibe  prtctice  U,  that 
tbey  ilon't  rejily  uliire  thai  ii  Ihe  caw.  But, 
noiniiliitamliu^  thai,  it  lb«  detendanl  »a»  lo 
atari  a  point  of  law,  the  othrr  miMt  be  hranl. 
If  ht:  waa  W  throw  odI  In  the  jnry,  lo  catcli 
•ad  to  Nnrprl*(>  lh«n,  alirgalinni  of  fact  nhicb 
be  called  no  witnesics  to  prore-'you  reculleci 
bow  manr  million!  of  fecW  yoo  bare  hart  iirxed 
loMlay,  for  which  no  wiinewes  were  csIImJ— 
(how  many  entrinsic  to  ibe  came)— there  Ibe 
counielforlhepiaiMii'majsrtiliejury  right, and 
lay  them  mil  of  the  causr,  and  abeiv  that  Ihrj 
are  abac Inlely  irreleianl  and  immaterial.  Bni, 
in  MJenMi  irialt,  in  fittile  proaecDiinn*,  where 
the  Attorney  Oeneral  atienri*,  I  never  knew  it 
^nied  but  Ibat  he  bad  a  right  to  replv.*  I "»« 
Biany  years  aoticitor.H^eneral ;    I  waa  aBoincj 

Eeral :  I  lia»e  known  it  nf\en,  where  natbinif 
bepit  lairt  for  Ihe  defendant  that  they 
th«a)ibl  called  for  a  reply,  1  neler  li new  it 
denied  lo  the  attorney  general,  where  he  m- 
■iateil  npoo  brinfr  heafd  in  reply :  and  I  he- 
fieve  Ihe  prrieut  Alinrney  General  has  replii-d 
RCTeral  time*.  This  is  w  mnch  tin  l«w  of  ilip 
lanti,  that  (if  my  memory  dnea  mil  fail  me)  in 
tbe  nroil  iDlcmn  casea  (and  as  1  speak  Irom 
memory  only,  if  iliere  almuld  be  any  slip  in  it, 
1  hope  1  ahaH  be  encased)  and,  lo  llie  belt  of 
B)y  memory  in  Ibe  trial  of  oiy  ivril  Uyrnn  (if 
any  (tenHemMi  can  correct  me,  I  shall  be  very 
chd  to  be  correcleJ—  I  dare  say  there  are  Bome 
Sere  that  were  <if  caiinsel  in  that  I'Buie)  in  lite 
trial  of  lord  Ityran,t  who  called  no  witnexns, 
no  eriJence,  the  Allomey  General  rcpheil. 
The  Hon^e  »r  Canmiani,  aa  Ihe  public  prme- 
cutor  tbr  ihe  naiinn,  insist  itpnn  it  as  an  alKo- 
hiterigbt,lh«tll>evni'e  toreply.  It  ia  a  j^teai 
while  ago;  but,  if  my  tnemory  duen  nnt  fnil 
Bie,  1  Ibtnk  1  rcplifl  >br  the  Hiiune  of  Com. 
noni  upon  the  trial  of  lord  I^val,;  tbongh 
b«  called  no  e* itience.  I  speak  fmrn  memory, 
il  ia  many  ypor^  bark  ;  and  therefore  if  I  am 
Biitlaken,  Tdoil  wiih  that  rewire  andqnaliA- 
ettioti  to  be  aM  riirbl. — ThI*  ha^  nolhioir  at  all 
to  do  with  the  cause ;  but  il  al  leaal  ei|j!Kint, 
to  Ibote  who  vianl  lo  underdaiid  it,  the  light 
ia  which  I  ffi!  ili-ii  matter,  and  Ihe  gronnd 
U|MD  which  I  ileteniiineil  it. 


*  No  in  Dr.  HenEey's  Vmn;  altb>Hii.'h  tire 
priioner  bad  ^>rn  no  evidence  at  til,  yet  Yotke 
■nlicilor  general,  on  the  part  of  ilie  crown,  was 
heard  in  rcjity  tn  tile  mailers  wbicb  had  been 
allegnl  in  deteneeoT  Ihe  priaoiier.  Sec  vol, 
19,  p.  Mtn. 

8o  in  lord  Winlnnn'a  cafe ;  tlion^ih  Ihe  pri 
•OMr  calletl  00  wiloenses,  the  managers  fnr  the 
Comntoni  replied.  M«e  *ul.  15,  pp.  864,  el 
wj. 

t  See  ihe  repnrt  of  il  in  this  Collection, 
**>l.  19,  p.  11T8  i  by  which  it  apiients  that  lord 
Byron  called  do  wilnrsses  nor  etidcnne,  but 
MNeoter  Ibat  lta«  Attorney  General, did  not 
wply. 

1  See  it  in  lliii  Cutleclidli,  ro).  IB,  p.  630. 


{The  Jury  withdrew  about  Kte  o'cUck,  mat 
relumed  into  court  abont  half  atk  hour  atler 
■iv  i  and  i[i<>e  ia  llieir  terdid,  Ibal  Ibe  defaa- 

danl  waa  Guilty.] 


Further  Procbedikos  o;*  t»8  TkiAK 
OF  Jons  EloRNE,  Esa.  uPOM  ah 
I.VFORMATION  riLED  Ex  OrFicto 
BY  HIS  Majesty's  Attormev  Gt- 
NBRAL,  FOR  A  Libel,  is  tmk. 
Court  of  KtnoVBEUcH,  a»^ 
Wbdxesday  the  19tm  Atta  Mox — 

DAY     THE     2iTII      OF      NoVEMBEa.^ 
1777.      [P08LI81IBD     »T    THK    I 
PESDAKT,      FROM     Mb.     GfaSl' 

SiioRT-HAND  Notes.] 
Weditrtday,  NastmUr  19,  17TT- 
Attorney  General  mored  for  ju 


Bgai 


Mr.  Hor 

Lonl  Marafitld.  I»  the  defeodant  here  ? 
Mr.  Daniel,  the  defendaurs  attorney. 


ewered,  that  bt  was. 


I  read  by  order  «f  ll 


Mr.  Horne.  Wy  lords,  wilh  grt»%  Enbmi«n 
and  retpect  to  your  lonlahips,  and  in  full  Off 
dence  I'ld  feeiirily  of  pruieclion  by  the  lt*1 
my  cniintry,  I  preanme  to  oflvr  to  your  la  . 
ship!  that  I  am  nul,  uiion  thit  inf(irinttiiin,'i 
pmper  ohji-cl  for  the  judtfmeni  Ol  ltii»  etW* 
And,  my  I'Tda,  I  rannot  mention  Mbal  I  hlH 
to  my  m  arreit  nf  ibi'Judumenl  which  ttr.  U 
tnmey-Qrneral  ha!i  praveit  a^iotl  mf,  wHMI 
finct  acknowledging  the  oblig^'ntiaili  wllMl'  ! 
Iiaie,  and  Ihe  tliankii  which  1  owe,  lo  my  pit 
aecutrrr,  and  to  my  judge;  for,  my  lonli,  i""^ 
to  tliem,  and  in  ihe  arguments  which  tbej  s 
in  nrdi^rto  ohtaia  a  verdict  frnm  thejory,  ilbl 
them  thai  I  am  indehled  for  that  argutn'^ 
which  muM  prereni  tile  judgment.  A(  '  ^^ 
tome  lime,  my  lord*,  it  ia  bat  jittiicf  hi  mi  I 
declare,  that  wbitevrril].  founded  doubu  nrift 
at  the  be:;lnning  of  ihe  trial,  lllve  hartmureit  1 
my  mind  concerning  any  peraunal  eninM 
himliliiY.  or  prejudice  towards  me,  WA>r«  fl 
dnse  of  Ibe  trial  tbey  were  all  entirety  effiuH 
till'  enmity,  my  lordf,  it  not  a  anpine  and  mi4 
leaf,  but  an  aclire  and  curinul  arinoipli 
pr<iiAp<in|:  men  A  neglect  noihinf;  wfiltdi  im 
tend  10  pnxluce  the  desired  miaehief.  ■-^" 
yourlord*blni,  I  am  persnadrd,  wills* 
to  believe  wllli  me,  that,  m  "  '  " 
common  diligence  bavinf;  b 
ine,  neither  my  [irosecutnr,  nor  myjudgf,  M 
my  jury  had  ever  ao  much  asimce  oaal  antrrf 
over  Ibe  inlbrmaiion  Umuehi  aeainn  me;  N 
your  Inrdihigia  will  inslanlly  perceive,  by 
in^  al  the  record,  that  I  ini  not  Ibereia  uhl 
wilh  any  crime. 


r  from  My  Ml 


B§1 


Jl00LiitL 


A.  D.  ITTT. 


[788 


My  ferdb,  when  finl  I  itfr  IIm  ebaige  io 
w  inlmMitioa,  I  tliougbtofittlieMnewhiGb 
DOW  •ffnr  10  your  loraibipo ;  ood  tberoforio, 
•ring  nothiof  but  tko  iDAttention  of  tbo  jury, 
le  gmaler  (Mut  of  my  defeaoe  oonsitttd  of  ao- 
rM  pcvMcd  opoB  the  jury  for  tbeir  i^tenlioa : 
■d  wboB  I  hoped  I  bad  secured  that  poiot  (tbe 
aly  fa? our,  at  I  tbea  declared  to  tbem,  «Hiicb 
had  to  request)  1  then  proceeded  to  shew  that 
lar*  was  oot  any  crime  in  that  which  was  al- 
f^  afaiost  ne;  keeping  my  eyes  always 
■ed  upon  that  with  which  alone  I  had  to  oi; 
UBely,  the  charge  in  the  inlbrmation ;  and  I 
Baired  the  jury  to  take  the  ioforBMtion  oot  of 
Nwt  with  them. 

But,  ray  lords,  when  I  heard  the  reply  of  Mr. 
ttomey- General,  and  the  address  of  the  j«dge 
I  the  jury,  1  was  no  longer  it  a  loss  to  under- 
and  how  it  hajppened  tliat  1  could  not  see  in 
IO  charge  agamst  me  that  crimiaal  matter 
hich  they  imagined  it  to  contain:  ft>r,  my 
rds,  1  then  heani,  for  the  first  time,  that  there 
as  an  insurrection  or  rebellion  in  the  colooy 
'  Massachusei's-Bay ;  that  certain  persons*- 
id  those  persons  denominated  kinff*s  troops-— 
ere  employed  by  bis  majesty  and  by  the  go- 
tmroeot  for  the  purpose  of  quelling  that  in- 
srrection  or  rebellion  ;  that  in  this  their  em- 
loyment  and  service  an  engagement  ensued 
ttwoen  the  said  rebels  or  insurgents  and  the 
lid  king's  troops  so  employed ;  that  in  this 
■gagemeut  certain  of  the  said  insurgents  or 
ribels  were  slain  by  tbe  said  king's  troops ;  and 
bat  my  adrertisereenl  and  the  charge  of  OMir- 
lor,  aaid  to  be  contained  in  it,  related  to  the  said 
MOfgents  or  rebels  so  slain  by  the  said  king^ 
roeps  so  employed. 

And,  my  lords,  tbe  judge  did  very  fairly,  and 
lary  pbinly  and  precisely,  and  in  express  worda 
k^m  to  the  jury,  that  on  these  circumstances 
Kd  depend  the  whole  criminality  of  the  charge 
ifiifistme. 

Now,  my  lords,  though  the  jury  did,  through 
vast  of  attention,  forgft  to  consider  that 
Ibne  circumstances  were  neither  proved  nor 
ebarged;  your  lordships,  I  am  sure,  who  are 
I*  look  to  nothing  but  to  the  record  itself;  your 
iMsbipa,  I  am  sure,  will  not  fail  to  eonsider, 
that  BO  indictment  or  information  can  be  cored 
*  Made  good  by  any  implication,  argument, 
Vippased  notoriety,  or  intendment  whate?er. 
Nstliittg  can  be  assumed  or  intended  ai^inst 
>^,  but  what  is  rxpressed  in  the  record  itself, 
^therefore  in  the  whole  range  of  possible  oc- 
carrrnces  there  csn  any  one  be  imagined  in 
^bich  it  would  not  be  criminal  to  say  that  the 
Inil^'B  troops  (no  technical  term,  my  lords, 
^ffmpeaux. —  flocks — companies — even  deser- 
f«i«  may  be  comprehended  under  that  term)-— 
*f  tberetbre  any  one  possible  occurrence  can 
^  imagined  (aod  1  suppose  there  are  a  great 
i*any,  the  judge  who  tried  me  helped  me  to 
*NBf,  above  twenty) — if  any  one  can  be  ima- 
IBiacd,  in  vhich  it  would  not  be  criminal  to  say 
^  the  king's  troops  liave  committed  murder, 
^W  your  lordships  cannot,  upon  this  Worma- 
^  pcocncd  to  judgment ;  bacaate  the  iafbr- 

8 


Mitioi  wanftf  those  nteeasary  Mrermcals,  which 
MDDOl  by  any  HMaaa  he  intended.  For  yoor 
lordahipo  will  find,  by  hiokiog  at  the  record, 
that  in  oaeh  of  tbe  vanoaa  oounls  which  lAiis  in* 
fermatioii  eontiins,  it  ia  simply  itverrsd,  that  I 
did  write  and  print  and  pubiisii,  and  cause  an4 
proeure  In  be  written  and  priated  and  piiblishod, 
to  the  tenor  and  eflect  fill  lowing. 

Yoor  lordohips  will  therelare  he  pleased  t* 
examine  the  record;  and  I  have  not  tlm 
amallcst  doubt  that  your  hMrdahaps  will  do  bm 
that  justice  which  my  jury,  thffMigh  want  of 
attenbon,  did  not. 

Attmmty  G4n§raL  My  lord,  if  I  under* 
stand  the  effect  of  this  motion,  k  is,  thai  Om 
Btuitter  of  the  information,  as  obarffed,  does  not 
state  a  crime.  That  indeed  ia  the  nccaainry 
form  of  the  obfection  to  he  made  in  this  ataga  tf 
the  business ;  for,  in  this  atage  of  tho  businosn, 
every  thing  is  to  be  taken  to  ha  solemnly  tm* 
wliich  that  infiirmation  has  atated  as  caaentiat 
to  the  constitution  of  tbe  ctIbm,  and  which  tho 
jury  consequently  have  fbond.  Now,  my  lerd, 
it  IS  said,  that  oothmg  is  to  be  asaaoMd  but 
what  appears  upon  the  record ;  and  that  the  !■• 
formation  wants  aome  avennents.  1  waa  very 
attentive  to  oolleot,  if  i  possibly  eoold,  whni 
species  of  averment  it  was  that  the  informaluNi 
waa  aupposed  to  want.  Bot  f  missed  it,  if  it 
has  been  stated  on  the  pari  of  the  deftndant. 
What  kind  of  averment  inserted  in  thhi  infbr* 
mation  would  have  aopplied  it,  and  have  tmd% 
it  a  perfect  description  of  the  crime  f  I  shall 
take  op  the  inforonation  itadf  to  ahew,  in  th« 
ooorae  of  the  argoroent,  that  Umpb  b  enoagti 
stated  in  it  to  nmke  the  crime.  The  infirma- 
tion-doea  not  end,  as  ia  aoppoeed  on  the  paK  nf 
the  defendant,  merely  in  tnese  words, — that  he 
had  **  written  and  published,  and  caused  and 
procured  to  be  written  and  published,  aooord- 
ing  to  the  tenor  and  effect  foMowing.'*  The  in* 
formation  steteo  exprenly  tliat  he  had— ^  writ* 
ten  and  pnUiabed  a  certain  false,  wicked,  mali* 
cioos,  scaodahMM,  and  aeditious  libel  of  and 
concerning  hia  mi^eaty'a  gnvcrmnent  and  the 
employment  of  hm  troopa,  aoooning  to  the 
tenor  and  effect  feUowhig.'*  So  that  tbo  nut« 
ter  fbond  by  tho  jury,  and  upon  which  your 
lordship  is  either  to  pronounce  judgment,  or  t» 
ssy  that,  atated  ao  open  the  reeard,  it  amonnte 
to  no  crime  in  estimation  of  law,  is,  that  he  did 
write  that  false,  wicked,  malicious,  soandalona, 
and  scditiooa  libel  of  fnd  eoBcerninff  tbe  kingHi 
government  and  the  employment  oThia  troopa. 

f  own  1  expected  that  be  wouM  haye  gone 
fsrthev,  snd  that  he  would  have  endeavoured  t» 
prove  that  such  words  as  are  included  nnder 
the  tenor  and  effect  fbltowmg,  deKvevad  in  writ* 
iag  to  be  printed  and  puMiMed  ooocerning  thn 
king's  government  and  concerning  the  employ- 
ment of  his  troops,  were,  in  themselves,  so  nrani- 
fcatly  innocent,  tliat  it  was  necessary  fbr  a  court 
of  justice,  upno  this  record,  to  say  that,  aoc* 
withstanding  the  jury  haa  found  a  libel  pub- 
lished according  to  tbe  tenor  and  effect  fidltir- 
ing,  yat  there  i0|  m  tmthi  no  libel. 


f67] 


17  GEORGE  m. 


Pneeedif^t  agakM  John  Hone, 


P« 


Your  lordthipf  will  obterf  e  what  it  if  that 
he  bad  aaid  concerniog  the  kio^'a  ffOTerament, 
and  concerning  the  employment  of  hia  troopa ; 
that  **  our  belofed  Amencan  fellow-auljecta, 
ftitbful  to  the  character  of  Enffliahmeo,  pre- 
foring  death  to  alaTery,  were,  ror  (hat  reaaon 
only,  inhumanly  munlered  by  the  king'a  troopa, 
at  or  near  Lexington  and  Concord  in  the  pro- 
vince of  Maasachuset'f -Bay,  in  New  England, 
on  the  19th  of  laat  April.*'  Thia  therefore  ia 
what  he  haa  aaid  concerning  ihe  goYemment 
and  concerning  the  employment  of  the  troopa ; 
that  they  were  to  commit  murder  upon  the 
king's  subjects,  only  because  Ihey  were,  some- 
thing better  than  innocent,— meritoriooa,  in 
bein|:  faithful  to  the  character  of  Engiisbmen, 
and  in  preferring  death  to  alavery.  If  it  be 
possible  to  state  that  these  words  (uttered  and 
applied  in  the  manner  in  which  thia  record  an- 
pliea  them,  to  the  public  gofemment  of  the 
country,  and  the  employment  of  the  troops^  are 
innocent  worda,  then  the  argument  might  nave 
taken  aome  foundation.  But  to  say  that  there 
is  any  want  of  averment  in  this— till  I  hear 
what  averment  could  have  made  this  char^fe 
more  plain,  more  distinct,  aa  a  charge  of  murder 
upon  the  king's  subjects,  against  Uie  employ- 
ment of  the  troops,  against  a  national  exertion 
of  public  force ;  it  cannot,  in  my  mind,  by 
Fords  be  made  more  strict  and  plain  than  it 
Qow  stands  upon  the  record. 

The  effect  of  these  words  1  industriously 
avoid  to  speak  of  now  :  the  degree  of  favour 
that  belongs  to  them  will  be  the  subject  of  far- 
ther discuation :  the  only  question  that  is  at 
present  before  the  court,  is  simply  this  ;  whe- 
ther the  libel,  as  stated  in  the  record,  does  or 
4oef  not  contain  aufficient  matter  of  slandor. 

Reply. 

Mr.  Rome,  I  should  be  very  happy,  my 
lords,  at  all  times  to  pay  to  Mr.  Attorney-Ge- 
neral all  those  compliments  which  are  person- 
ally and  officially  due  to  him  ;  and  1  would  ra- 
ther have  risf|ued  the  chance  of  exposing  my- 
self, than  not  pay  to  him  the  compliment  of  a 
reply  ;  if  iodcned  I  could  have  found  in  his  an- 
swer any  thing  to  which  even  the  appearance 
of  a  reply  could  be  given.  However,  1  will  do 
for  him  what  1  can. 

Mr.  Attorney -General  has  said,  that  he  could 
not  discover  from  any  thing  which  1  had  ad- 
vanced, what  omitted  avermenta  were  sug- 
gested by  me  to  be  necessary  to  tlie  informa- 
tion. My  lords,  though  Mr.  Attorney- General 
Biay  have  missed  them,  your  lordships,  I  am 
aiire,  did  hear  me  very  plainly  and  distinctly  : 
and  tliough  I  did  not  formally  say,  such  and 
auch  averments  are  necessary  to  the  informa- 
tion ;  yet  when  I  told  your  lordships,  that  in 
the  reply  of  the  Attorney-General,  and  in  the 
address  of  the  judge  to  the  jury,  1  then  beard, 
for  the  first  time,  that  there  was  a  rebellion  in 
Massachuset's-Bay,  and  that  certain  peraona 
were  employed  to  quell  that  rebellion  ;  your 
lordahipa,  1  am  aure,  and  the  whole  court  very 
wall  uaderstogd  that  those  were  the  avermenta 


which   were   necessary  to  the   i 
And,  my  lords,  it  wan  not  out  of  any  aatiriesi 
inclination  that  I  imputed  the  omiaaioo  of  those 
avermenta  to  careleaaneaa ;  I  bad  other  les- 
sons.    For,  indeed,  I  know  very  well  (and 
upon  reflection  I  dare  aay  your  lordahipa  will 
know  very  well)  why  thoae  avermenta  ware 
omitted.    My  lorda,  the  truth  ia,  that  Mr.  At- 
torney-General found  himaelf  between  ScyDi 
and  Charybdis.  If  he  inserted  these  avemenli, 
he  split  on  one  side,  on  the  proof.    My  kNrdi, 
the  advaotagea  are  very  numerous  and  giaik 
which  I  should  have  derived  from  those  avRi- 
menta.    The  information  would  have  been  ds- 
stroyed,  for  want  of  proving  what  waa  avcirnl ; 
therefore  he  did  not  chuae  to  aver  them.    By 
the  nature  of  his  answer  to  me,  1  am  perraadrd 
be  waa  aware  of  it :  and,  from  certain  bleK- 
gence,  1  know  that  there  waa  a  conaoltation  m 
the  drawing  up  of  the  information  against  as. 
It  was  proposed  to  alter  the  information  p  ksl 
having  obtained  verdicts  upon  the  other  ulft^ 
mations,  it  waa,  upon  consultation,  agreed  ky 
the  learned  gentlemen,  the  king'a  counael,  thit 
the  information  against  me  should  be  jitenlf 
the  same.    I  know  it  from  certain  informatili^ 
which  I  obtained  without  the  least  treachery-is 
my  informanta ;  for  the  gentlemen  who  cami 
me  to  know  it,  had  not,  in  what  they  said,  Ai 
least  notion  that  they  were  telling  me  any  tbiif. 
My  lords,  before  I  heard  Mr.  Attomey-G^ 
nerars  answer,  1  waa  a  little  apprehenaive  thit 
1  might  meet  with  some  difficulties.    I  wm 
sure  I  ran  no  hazard  in  the  principle  of  ay 
objection.    I  thought,  indeed,  that  1  night 
perhaps  be  puzzled  in  the  application  of  it,  if 
cases  of  law,  or  bv  precedents  that  1  had  isvif 
before  heard  of.    Now,  my  lords,  though  Mr. 
Attorney  General  has  not  favoured  me  witli 
any,  and  though  1  caDnot  myself  give  yoa  aa 
adjudi;ed  case  ;  yet  your  lordships  will  forgivs 
me,  uliused  to  these  matters,  if  1  read  to  yoa 
the  opinion  of  a  learned  judge  in  a  matter 
exactly  similar  to  this.    It  is  in  the  case  of  loid 
Uussell.    The  opinion  1  mean  is  that  of  Sir 
Robert  Atkins.     His  words  are  remarkably 
fortunate  for  me ;  and  it  l>eing  that  kind  of  lav 
obvious  to  persons  who  pretend  to  underataad 
no  more  than  what  common  sense  will  direct 
them  to,  I  did  happen  to  have  read  that  bosk 
long  ago.     1  beg  leave  to  read  some  little  of  it, 
because  it  literally  applies.     He  takea  notice  of 
that  part  of  the  indictment  where  it  is  averred 
against  lord  Russell,  that  he  was  at  a  consul*' 
tation  for  the  purpose  of  seizing  the  kiof['i 
guards.    He  says,  *  guards'  [there  is  no  £^ 
ference  between  guards  and  troops,— exeejift 
indeed  that  troops  is  a  much  wider  word  thas 
guards.    Troops !  we  say  a  troop  of  atroUiog 
players.]. 

"The  guards—What  guards?  What,  «' 
whom  does  the  law  understand  or  allow  to  ki 
the  king's  f^uards,  for  the  preaervation  of  hit 
person  ?  VVhom  shall  the  court  that  tried  thii 
noble  lord,  whom  shall  the  judges  of  the  lav 
that  were  then  present,  and  upon  their  ottk^p 
whom  shall  they  judge  or  legally  undcnliiA 


Jbr  a  Lihdn 

i  gvtrdt  P  Tbev  never  read  of  them  in 
r  law-books.  There  it  not  any  vtatute 
il  makes   the   least  mentioo   of  any 

The  law  of  £iifl:laiid  takes  no  notice 
inch  ^ards;  and  therefore  the  indict* 
unceruin  and  void.*'  He  savs,  **  the 
lis  subjects  is,  next  under  God,  the  best 
}f  kings."  He  says, — "  The  very 
hat  tried  tliis  noble  lord  were  the  king^s 

and  the  kingdom's  guards,  and  this 
issell's  guard  against  all  erroneous  and 
ct  iodictments  from  all  false  evidence 
K)f"^(VVhat  immediately  follows  does 
leed,  apply  in  my  case)-»*<  from  all 
»f  wit  au(l  oratory'*— (there  has  been 
re,  my  lords) — **  misapplied  and  abused 
sel.  It  had  been  fit  for  the  court  that 
is  noble  lord  on  this  indictment,  to  have 
I  themselves  From  the  king's  counsel, 
IS  mpsnt  by  these  guards.  But  admit  the 
and  destroying  of  those  whs  are  now 
le  king's  life- guard,  had  been  the  guard 
I  within  this  or6r//ai^"  or  open  deed, 
my  lords,  are  the  averments  which  are 
to  those  that  I  propose^-these  are  the 
Its  which  Mr.  Attorney-General  in- 
after)  *<  yet  (he  says)  the  indictment 
have  set  forth,  that  de  facto  the  king 
•en  a  certain  number  of  men  to  attend 
d  guani  bis  person,  and  set  forth  where 
I  attend,  as  at  Whitehall,  or  the  Meuse, 
Savoy,  &c.  and  that  these  were  th« 
intended  by  the  indictment  to  be  seized 
itruyed  ;  that  by  this  setting  forth,  the 
ight  have  taken  notice  judicially,  what 
3  were;<neant :  but  to  seize  and  destroy 
f%  giv^riiH,  and  not  shew  who  and  what 
It,  makes  the  indictment  very  insufii- 
'  My  lords,  Mr.  Attoniey-Genernl  (I 
moon's  pardon,  1  shall  Uke  up  very  little 
time)  the  Attorney  General  says,  be  ex* 

should  have  said  that  the  matter  con- 
1  the  information  is  no  lit>el.  1  should 
have  said  so,  if  libel  had  been  such  a 
il  term  that  1  could  have  known  what 
I:  and  if  it  was  such  a  definite  and 
d  term,  then  perhaps  my  objection 
ot  have  all  that  weight  with  you  which 
elieve  it  will.  The  sending  oVa  wooden 
as  adjudged  by  this  court  to  be  a  libel, 
ire  noany  other  things  that  might  be 
m1  libels.  It  is  impossible  lor  me  to 
it  libel  means.  It  is  not  a  technical 
md  perhaps  if  it  had  been,  the  Attorney- 
would  not  have  had  quite  so  much 
y  to  make  this  information  goo<l :  but 
g  a  technical  term,  it  makes  those  other 
its  the  more  necessary. 
Utomey  General  has  then  tried  to  help 
nency  of  the  averments  in  the  informa- 
of  and  concerning — "  of  and  concern- 
majesty's  government  and  the  employ- 
r  his  troops." — 1  l»elieve  there  is  no 
oroprehended  in  *  of  and  concerning ;' 

I  *ol.  9.  p.  730. 

k  by  ThicknwM  to  lord  Orwall. 


A,  D.  irn. 


[770 


for  it  may  be  of  and  concerning  good,  as  welh 
as  bad.  The  word  *  concerning'  means,  kMk- 
iug  at  together ;  and  that  is  the  only,  and  the 
single  meaning  of  the  word  *  concerning.'* 

Now,  my  lords,  if  Mr.  Attorney  General 
should  succeed  in  this  his  prayer,  he  will  be  a 
very  fortunate,  though  not  a  very  reasonable 
gentleman. 

Mv  lords,  a  proof  of  all  those  matters  which 
should  have  been  averred  (which  I  am  founded 
in  saying  by  the  opinion  of  the  judge,  who 
pressed  them  upon  tne  jury  as  motives  for  their 
verdict,  and  which  I  firmly  believe  he  would 
not  have  done,  if  he  had  not  believed  that  they 
were  contained  in  the  information)  a  proof,  my 
lords,  of  all  those  circumstances  was  supplied 
for  the  Attorney  General  by  the  judge  on  the 
trial ;  for  he  produced  no  evidence  of  thhn 
himself:  and  he  will  be  very  fortunate,  indeed^ 
if  he  cau  now  prevail  upon  the  Court  to. supply 
likewise  the  deficiencies  in  the  information. 

Lord  Manifield,  Whatever  the  degree  ef 
guilt  may  be,  how  strongly  soever  it  may  have 
been  proved,  or  whatever  observationa  may 
have  arisen  in  this  case ;  yet  if  the  defendant 
has  a  legal  advantage  from  a  literal  flaw,  God 
forbid  that  he  should  not  have  the  benefit  of  it. 
It  is  most  certain,  that  at  the  trial  the  infornu- 
tion  was  considered  to  be  words  spoke  of  and 
concerning  the  king's  government  and  his  em* 
ployment  of  his  troops ;  that  is,  the  employ- 
ment of  the  troops  by  government.  Upon  that 
g-ound  the  defendant  called  a  witness,  Mr. 
ould.  The  Attorney  General  rose  to  object 
to  him  ;  but  it  was  very  clear  that  he  was  a 

{iroper  witness ;  and  he  acouiesced  immediate* 
y,  because  it  was  extremely  material  to  sheir 
what  the  subject-matter  was  to  which  the  libel 
related— if  it  was  the  employment  of  the  troope 
under  proper  authority  that  came  within  the 
charge  in  the  information.— Had  it  been  a  law- 
less fray  (which  1  believe  1  said  at  the  trial,) 
had  it  beeu  a  lawless  fray  il  would  not. 
Though  the  saying  so  might  have  been  a  libel 
of  the  individual's,  yet  it  would  not  have  beeD 
this  libel :  it  would  not  have  been  this  libel  of 
the  king's  troops  employed  by  him.  Now  at 
first,  and  at  present,  it  seems  to  me,  that  **  of 
and  concerning  the  king's  government  and  the 
employment  of  his  troops,"  pins  it  down.  But 
1  doubt  a  little  upon  it.  There  is  sooie  weight 
in  the  otfjeclion,  whether  in  the  form  of  draw- 
ing there  should  not  have  been  innuendoes.  la 
common  reason  and  understanding,  it  is  charg- 
ed ;  but  whether  technically  charged  or  not,  1 
do  not  know ;  and  therefore  as  to  this  point, 
without  prejudice  we  will  take  some  time  to 
consider  of  it ;  to  see  whether  precedents  can 
be  found  which  require  this  technical  scrupu- 

*  In  maintenance  of  this  argnment,  Mr. 
Home  published  his  *  Letter  to  Mr.  Dunning 
on  the  English  particle,'  (as  to  which,  see  llos- 
well's  Life  of  Dr.  Johnson,  vol.  3,  p.  37B,  8vo 
edition)  the  cootents  of  which  he  afierwarde 
incorporated  into  cbapten  0,  7,  aud  tf|  of  Ike 


9D 


'  »71I 


17  GEORGE  III. 


Procftdings  egaiiiit  John  Home, 


[T7« 


loaity  wet  ■nd  ttwte  ihat  ceruiolj  wbieh  it 
puffioienl  lo  CTvry  reailcr:  and  we  will  go  on 
KJlti  ihe  r«tl,  dt  A(t«  eue,  >«  we  could  nol  pro- 
nojiice judgement  u|Hiii  it  now,  and  will  eoa- 
pr  ot  it  till  be  comes  u|>  igiin,  if  we  find 
■ulficiml   to  ntitfy   ua  Id  over-rule  ilie  ob- 


Lord  Manifield.  This  ii  an  inrnrmalioa  filed 
iy  tlie  Allomey  Gt^neral  a^iiiH  Jolni  Hnrue ; 

'  nd  il  WM  (or  puLliifaing  ihe  adterlisemcDli 
Ihtt  have  hem  resit  from  ttie  infomiBliDn. 

Tliomai  Wilson  proTed  the  adverliBeinvnti 
in  queiitioD,  the  maniucripU,  to  he  llie  hand  nf 
Horn* ;    and   Henry  Simpson    Wnoilfill,  he 

ypnbltahed  the  adverliielneDla.  He  sweara 
that  the  derendaoi  gafe  him  a  paper  the  Tth  nf 
jniie,  to  publish  in  his  own  and  send  to  Ihe 
Other  pa]ieri ;  and  thai  the  del'endanl  paid  the 
A«s.  Tuea  he  produced  Iwo  advertieemrnls 
10  publisli.  The  detendint  crOM- examined 
Mm,  and  he  assented  to  the  queatinn  of  the 
frost-exam inalioo,  bj  aayini;,  ''  By  your  de- 
lire  1  inserted  these  adiertiienieiils,  iiiiil  pub- 
fiahed  Ihetn  as  your  act  and  deed.     Vou  neter 

•  dcaired.  to  be  tcreened  ;  but  you  desirrd  to  be 
given  tip.  You  said,  they  Bbuuld  nol  want  fiiM 
•fidenoe."  William  Wuodfull  prari'd  likewise 
>  paper  given  him  by  the  delendant  lo  be  in- 
«rted  in  The  Loodon   Paciiet  ami   hlomitit; 

■  Chronicle ;  which  were  the  advert  is  emen  Is  in 
Ihe  record.  ThenH'on:,  upon  Ihe  fact  of  priut- 
Ug  aoil  publiihing  ihere  is  no  doubt  at  all. 

The  defendant  called  a  witness  in  prove,  that 

■  Kally  and  in  trnlh  there  was  a  subseriplian, 
and  that  ihe  money  was  artually  rained;  and 
be  likewise  called  William  Lacey.  whii  proved 
Ibat  1001.  was  paid  to  him,  and  by  him  remit- 
ted to  Dr.  Franklin  :  that  was  100/.  and  no 
IDare.  And  then  ihedefcndaot  called  Thorolon 
Gould.  And  he  «aid,  that  at  Lexin^oo,  on  llie 
19lh  of  April  1775,  he  was  a  aubaliern  officer. 
He  was  ordered  there  by  the  adjutant  of  ge- 
Deral  Gage,  the  commander  in  chief  of  hia 
majesty's  troops,  and  governor  of  the  pro?  ince : 
Mid  liP,  to^elhiY  wilh  the  olher  iruops,  act  out ; 
«nd  briwFvn  two  and  Ihrce  in  Ihe  miiming  he 


ttas  ti 


1  pri 


:  Ihul  hehrnrillhe 


fllals  charg^  our  lri)ii|iH.— "  We  fuunit  them 
srmed.  We  siippoaed  they  were  marchiui;  to 
■Hack  us,  from  a  cMnlinual  ttrmg  of  alarm  can- 
■en,  €arly  In  ihe  morning,  ai  aoun  as  we  began 
U  inarofi.  NotiBe  or  alarm  gun*  are  lo  raiae 
the  woiilty."  Upon  this  evidence  (he  jury 
'  Ibnnd  him  ^Jlly. 

■  liord    WoajifeM.    Mr,    Atiomey    General, 
have  you  any  thing  to  «ay  ? 

All.   Gen.     Mr.  Home,  1  suppose,  will  sav 
»balhecanine»eniutioii.        '  ' 

Ixirri  iitaniJitliS.  Mr.  Attorney  General, have 
y»u  any  thing  lo  aay  f 

All.  Om.     It  balonga  to  the  defendant,  I 
•pnreheiid,  M  sMte  what  be  can  lo  ihe  Court 


•.Uonc.  lahallaUUiiothtastBefieDua- 


lioo  till  your  lordship's  decision  h 
ihal  there  was  a  crimr.      I  do  not  know  when 
the  crime  lies  at  preaenl.     My  ohjeMion  %ot», 
that  there  la  no  tnime  in  Ihe  inl'ormatioa.     1%. 
a  ini|io>«ihte  for  me  to  extetiuale  Uial  wfaich  |    I 
■  ■  not  BCknowtege.  i 

Lord  Maaifieid.     Have  you  aoaflidafiu  at  ] 
circumaiBDces,  or  any  Ihiag? 

Hr.  Home,  None  in  Ihe  world. 

Lord  Manijidd.  Let  him  be  eonimtlled. 

Mr.   Home.    Will  your  lordabip  comtnil  nitt; 
before  it  appears  ithether  I  a 
-■'any  crime? 

Lord  ilanrfield.    No,  then  vou  may  c 
I  on  Monday. — You  came  volUDiarily  nr 

Mr.  Horni,   I  did. 

Lord  MantJitU.    Then  come  op  vo1aDlaril]| 
again. —  If  yon  ahuuld  And   any  precedenls  o^:^ 
either  aide,  I  wish  you  would  ^ve  Ihem  to  r^  _ 

[Thia  recommendalioii  In  bring  prrrnliiir  ^ 

u  repeated  lu  the  Attorney  Geiiet*!  awl  i^ 
Ihe  ileleiidanl.  two  or  three  umea. 

To  whii:h  Mr.   Korne  replied,  ihat  be  frim 
tl  himself  very  likely  to  produce  precedent*. ' 

Kino's  Bench;  Mondai/,  Hon.  34,  ITfT. 

Lord  Maaifield.  In  reading  my  iiotai  tl 
other  day  in  the  case  of  The  King  and  Hona^ 
1  overlooked  Ibe  reference  lo  a  writleo  plc«e  K 
etidence  Ihat  was  giveD  by  him  at  llie  trial,  ac*^ 
I  am  told  I  did  nul  ilitte  It;  and  iheretbre  .1 
will  slate  il  now. 

He  produced  lo  captain  Gnuld  thePobiM 
Adverljaer  of  the  31st  of  May   1T75,   whicli 
purported  to  be  ihe  copy  of  au  atfidnvil   mada 
by  caplaiD  Gould,  while  he  naa  a  prisoner  id 
Ibe  custody  nf  ihe  rebels  al  Medlbrd.  and  prio*- 
ed  in  that  paper:    and  he  asked  him  whetb^ 
the  contents  were  truly  printed.     I  told  hiKK>> 
that  if  he  meant  lo  provig  llm  facts  to  be  true  ^u 
above,  it  could  not  be  pruved  by  affidavit,  tf* 
man  being  present ;  end  even  il  he  was  absen  ^ 
lliey  could  not  lie  proved  by  ofiidivil :  but  il*^ 
if  he  meant  to  shew  thai,  ai  thai  lime,  ib^a^* 
existed  a  public  nccnunl  of  it  in  ihe  paper  ;  t1>  "' 
might  be  of  use  lorcslraiD  or  qualify  ihe  mca.  ^^ 
ing  of  the  paper  that  was  in  question  by  the  »dH 
formalion.    Be  said,  he  desireil  it  to  b«  read  _^H 
thai  light ;  Bod  iu  that  U|;lil  it  was  read,  and   ^H 
aslollowg:  ^| 

"  I  Edward  ThototOn  Gould,  of  hla  majt?"  ■^' 
ty's  own  regiment  of  fool,  beioc  of  lawful  aj^^'- 
do  testily  and  declare,  that  on  the  evening  of  i^V* 
18th  inslnut,  under  Ihe  orders  of  general  Gae — "^' 
I  emburkfd  with  Ihe  light  infantry  and  gren^^^* 
diers  of  tlie  line  commanded  by  roloDel  Smitl 
and  landed  on  i be  marshes  of  Cambridge,  fr 
whence  we  proceeded  lo  Lexiogloii.  On  oi 
arrival  at  thai  place  we  saw  a  bmly  of  provlia 
ciil  troops  armed,  lo  ihe  number  of  about  GO  D 
TO  men.  Onourapprnach  Ihey  dispersed,  an- 
soon  after  firing  began ;  but  which  party  ftret 
fif^t,  I  cannot  exaclly  say,  as  iiur  Iroujis  rush- 
ed on  shouting  and  huzzaing  previous  to  tfai 
Griug,  wbicJi  waa  caniinued  by  oui  tcMpa 


Jcra  IdbeL 

•oy  of  ibt  proTiDciftls  were  to  be  seen, 
beoce  we  marched  to  Concord.  Oo  a 
rthe  entnnceof  the  towo  we  saw  ano- 
Jj  of  the  provincials  assembled.  The 
faotry  companies  were  ordered  up  the 
isperse  them.  On  our  approach  they 
d  towards  Concord.  The  grenadiers 
mI  the  road  under  the  hill  towards  the 
Six  Gom|Minies  of  light  infantry  were 
down  to  take  possession  of  tbe  bridge, 
he  provincials  retreated  over.  The  oom- 
commanded  was  one.  Three  companies 
above  detachment  went  forward  about 
les.  In  the  mean  time  the  provincial 
*eturned,  to  the  number  of  about  3  or 
Ve  drew  up  on  the  Concord  side  of  the 
The  proviucisls  came  down  unon  us ; 
hich  we  engaged  and  gave  the  orst  fire. 
IS  the  first  engasremeut  a^Ur  the  one  at 
ton.  A  continued  firing  from  botli  par- 
ted through  the  whole  day.  I  myself 
unded  at  the  attack  of  the  bridge,  and 

V  treated  with  the  greatest  humanity , 
in  all  possible  care  of  by  the  provincials 
ford. 

"  Edward  Tuoroton  Gould." 

e  was  a  motion  made  the  other  day  in 
»f  judgment,  and  many  objections,  I 
(kmI,  that  were  taken  to  shew  that  the 
as  it  stands  upon  this  record,  is  Insuf- 
n  law  to  support  any  judgment :  that 
as  no  avermeut  as  to  the  state  of  the 
hoset's  colony  at  that  time ;  either  that 
^ere  riots,  insurrections,  or  rebellions : 
re  were  no  averments  that  the  king  had 

Y  troops ;  that  there  was  no  averment 
fre  was  any  skirmish  or  eni^agement ; 

it  began ;  or  the  nature  of  it:  how  it 
or  how  it  went  on,  or  ended  :  and  that 
)ot  averred  that  the  employment  of  the 
^as  by  the  kint^'s  authority.  The  only 
n  that  had  colour  in  it  was,  what  1 
led  last — that  the  employment  of  the 
was  not  averred  to  be  oy  the  king's  au- 
I  thought  then,  aud  said,  that  the 
ot  of  the  words  being  written  **  of  and 
linff  the  king's  government,'*was  anan- 
t>ut  no  precedent  was  cited  or  alluded  to 
n  side.  I  fancy  the  Attorney -General 
rpriseil  with  ihe  objection.     But  there 

precedent ;  and  I  could  not  say  U|>on 
mory  whether  prece<lents  iiiit>:ht  not  re- 
iome  technical  form  of  expression  as  to 
*dium  through  which  words  are  averred 
-ritten  of  the  kind's  government  And 
law  had  happened  tunnally,  techuically, 
ally,  that  were  noi  at  all  founded  in  the 
)r  reason  of  the  thing,  I  sh(»uld  in  this 
of  the  same  opinion  that  I  was  in  the 
an  outlawry — that  the  defendant  fiii|(ht 
!  the  benefit  of  it :  and  theretore  1  detiir- 
we  might  tliink  of  it  tor  some  time,  that 
puts  might  be  searched,  and  the  inioks 
into.  We  have  fully  couNidered  of  it, 
I  precedents  have  bc^n  looked  into,  and 
rt  fully  considered  the  informatioOi  and 


A.  D.  1777. 


[774 


all  the  objections  that  were  mentioned,  and  all 
the  objections  that  we  could  think  of;  and  we 
are  all  clearly  of  opinion,  without  any  doubt^ 
that  the  information  insufficient.  An  imlict^ 
mentor  bforroation  must  charge  what  in  law 
constitutes  the  crime,  with  such  certainty  ae 
must  be  proved  ;  but  that  certainty  may  arise 
from  necessary  infereuce ;  in  the  manner  set- 
tled in  the  case  of  The  King  and  Lawley  in 
Strange.  Plain  words,  in  a  libel,  speak  for 
themselves.  If  they  are  doubtful,  their  mean- 
ing must  be  ascertained  by  an  inuendo.  Here 
the  words  are  plain  ;  they  want  no  inuendo. 
They  are  averred  to  be  written  **  of  and  con- 
cerning the  king's  government  and  the  employ- 
ment of  his  troops."  Tlie  obvious  meaningis, 
that  theemphiyment  of  the  king's  troops  must 
be  under  his  authority  ;  and  it  necessarily  isso, 
if  the  words  also  relate  to  and  are  written  of  an^ 
concerning  the  king's  government.  This  musi 
now  be  taken  to  be  true ;  because  the  verdict 
finds  it.  Had  the  question  arose  upon  a  de- 
murrer, it  must  equally  have  be^n  taken  to  be 
true.  The  gist  of  every  charge  of  every  libel 
consists  in  the  person  or  matter  of  ana  con- 
cerning whom  or  which  the'  words  are  averred 
to  he  said  or  written.  In  the  King  against  Al- 
derton  the  information  was  held  bad,  because 
it  was  not  laid  in  the  information,  it  was  not 
laid  that  the  liliel  was  .of  or  concerning  the 
justices  of  Sufiolk.  Where  the  words  are 
averred  to  be  written  of  the  king's  government 
where— (there  are  several  presents)— or  of 
the  government  of  the  kingdom,  or  of  the  go* 
vernment,  suppose,  of  the  navy ;  as  to  any 
thing  further  as  to  which  thev  are  also  written, 
through  the  medium  of  which  they  calumniate 
the  king's  government,  there  is  no  form  of  ez* 

Kression  technically  necessary.  And  it  cannot 
e ;  because  there  ma^  be  cases  where  the 
king's  government  might  be  calumuiated 
through  an  imputation  up«)n  the  gros^  licen- 
tiousness of  his  troops.  The  question  to  b# 
tried  is,  whether  the  wonhi  laid  are  written  of 
the  king's  government.  It  may  vary  the  de- 
gree of  mischief,  guilt,  or  niahce ;  but  it  is  to* 
tally  immaterial  as  to  the  constitution  of  the 
crime  upon  the  reconi,  whether  the  words  re- 
fer to  something  that  has  existed,  or  are  an  en- 
tire fiction.  Had  Leiiugton  been  left  out ;  or 
had  any  other  place  been  mentione«i,  where 
there  had  been  no  skirmishes,  or  engagement, 
instead  of  Lexington;  it  would  witlkout  any 
inuendo  have  lieen  equally  a  hliel.  It  is  the 
duty  of  the  jury,  to  construe  plain  words  and 
clear  allusions  to  matters  of  universal  notoriety, 
according  to  their  obvious  meaning,  and  as 
every  body  else  who  reads  must  understand 
them,  fiut  the  defendant  may  give  evidence 
to  shew  that,  in  the  cai»e  in  question,  they  were 
used  in  a  different,  or  in  s  qualified  sense.  If 
no  such  evidence  is  ifiven,  the  ohvious  nieaniiig 
to  every  man's  uuder«taudiog  iuufctl>e  decisive. 
Before  this  trial,  five  Meveral  juries  hail  found 
thoMe  words,  from  their  uecesHsry  ineaninir,  to 
be  of  and  concerning  the  kiiiir**  government. 
Uerci  in  this  case,  the  detendant  ga%  e  e videuce : 


775] 


17  GEORGE  III.  Proeeedingt  ttgain$t  John  Home, 


[77« 


and  the  evidence  he  gafe  demonstrated  that 
the  words  related  to  troops  actiDff  under  the 
king's  authority ;  and  consequently  related  to 
the  khig's  gOTemment.  And  1  am  the  more 
confirmed  that  upon  this  occasion  there  ia  little 
colour  uf  doubt  of  any  flaw  in  the  information, 
that  in  those  fife  triais  that  I  allude  to,  in  one 
or  other  of  them,  a  great  Tariety  of  counsel  of 
learning,  eminence,  and  ability,  were  employed. 
They  were  called  upon  to  pry  with  alt  the 
aharpness  that  they  iiad  into  the  information, 
to  pick  a  hole  in  it :  there  were  three  judg- 
ments gifen  upon  coRTiction  upon  them  ;  and 
no  counsel  saw  or  imagined  there  was  any  flaw 
in  it.  Therefore  we  are  all  satisfied  that  the  in- 
formation is  sufficient. 

Ait,  Gen,  The  defendant  has  been  conricted 
on  the  oaths  of  tweWe  of  his  countrymen  with 
baring  written,  printed,  and  published,  and 
caused  to  lie  written,  printed,  and  published,  a 
certain  false,  wicked,  malicious,  scandalous, 
and  seditious  lihel  of  and  concerning  the  king's 
gofernment  and  the  employment  of  his  troops ; 
asserting,  that  the  national  force  of  this  coun- 
try has  been  employed  in  the  murder  of  the 
king's  subjects,  for  as  meritorious  an  attribute 
as  can  be  imputed  to  man :  and  he  has  specified 
the  time  and  place  at  which  that  was  done. 

The  chsrge,  as  contained  in  the  informa- 
tion, rests  within  a  narrow  compals.  I 
might  hare  stated,  perhaps,  and  proved  a  dif- 
ferent crime  to  have  arisen  upon  it ;  but  I  did 
state  that  which,  according  to  my  judgment, 
was  a  crime  of  such  quality,  was  a  crime  of  such 
beinousness,  and  of  such  a  size,  as  fairly 
called  for  the  hii^hest  resentment  which  any 
court  of  justice  has  thought  proper  to  use  with 
respect  to  crimes  of  this  denomination.  My 
lord,  although  the  crime,  upon  the  state  of  it  in 
the  information,  rests  within  the  compass  u  hich 
I  have  now  mentioned  ;  yet,  as  it  now  comes 
before  the  Court,  the  matter  that  now  requires 
the  consideration  of  justice  does  not  lie  within 
that  narrow  compass.  The  iJefen'lant  himself 
has  thought  it  inip*irtaiit  to  the  situation  uhich 
he  wishes  to  hold  with  a  certain  body  of  men  in 
this  country,  not  to  leave  it  just  in  the  place  in 
which  the  information  does:  he  has  thoujj^ht  it 
essential  to  his  views  (which  1  don't  enter  into 
particularly  what  they  are),  but  he  has  thought 
It  essential  to  his  views,  to  prove  how  much  he 
meant  hy  writing  in  that  manner  to  the  puhh'c  ; 
and  also  to  prove  huw  much  he  meant',  and 
how  cfirectly,  how  |>ointedly,  and  how  confi- 
dently, to  insult  the  public  justice  of  the  coun- 
try, by  not  only  committintx  as  hi«jti  a  crime  as 
couhl  be  committeil  within  the  description  of 
misdemeanor  aj^ainst  the  public  authority 
and  welfare,  hut  hy  stating  himself  to  have 
committed  that  crime  with  u  view  of  insult io(r 
the  public  jufitice  of  the  country.  My  lord,  if 
it  hud  been  essential  to  uh  to  prove  that  tliat 
crime,  and  that  that  case  which  is  specified  in 
the  indictment,  was  the  suhject  of  a  murder 
committed  under  public  authority  by  the  na- 
tional forces  of  the  couutry,  be  has  himself 


thought  proper  to  state  and  to  prore  by     . 
witnesses,  that  he  meant  the  attack  DMde  by 
the  king's  troops. upon  a  body  of  rebels.   Yonr 
lordship  has  taken  notice  of  the  addittoa  sf 
this  affidatitthat  was  introduced  into  the  cause. 
The  effect  of  that  evidence  was  to  prove  that 
which  was  but  too  well  known  before,  namely, 
that  in  \\ik  time  there  specified,  the  19th  of 
April,  1775.  the  rebels  had  arrayed  themselves 
in  arms  ;   had  formed  majj^azines ;   bad  takes 
stations  in  the  country  in   which  they  had 
placed  tbeonselves ;  were  ready  tosurroand  Ibe 
forces  of  the  king,  as  far  as  their  abilities  conid 
do  it,  upon  any  motion  to  be  made  by  these 
forces ;  that  upon  the  instant,  very  early  in  tbe 
morning,  (and  whether  accidentally  or  other- 
wise let  that  be  decided  by  the  witnesses)  the 
king's  troops,  marching  in  perfect  sileuoe— 
that,  upon  the  instant  of  that  happening,  tbe 
first  demonstrations  that  were  made  upon  the 
part  of  the  rebela  was  tbe  firing  alarm-gusi: 
understood  exceedingly  well  by  the  witness,  isd 
exceedingly  well  explained  by  him :   it  proved 
that  he  understood  them  perfectly,  namely,  br 
the  rebel  troops  instantly  surrounding  them.  1 
state  that  to  have  been  industriously  proved  oa 
the  part  of  the  defendant,  in  order  to  miA 
that  he  meant  to  fly  at  the  very  highest  ss^ 
ject,  and  to  offend  in  the  most  heinous  manner 
in  which  it  was  possible  for  him  to  contrive  to 
ofiend. 

My  lord,  he  did  not  think  it  enough  to  bifi 
proved  that  such  was  the  intention  of  the  papff 
with  which  he  was  at  that  time  charged ;  Nt 
he  also  thought  it  incumbent  upon  him  to  pts- 
duce  witnesses  to  prove  another  part  of  tke 
contents  of  that  paper ;  namely,  that  be  had 
attended  a  solemn  meeting  ;  at  which  meedog 
he,  with  certain  other  persons  there  si- 
sembled,  had  contributed  money  to  the  amount 
of  aliout  100/.  and  that  tbe  purpose  for 
which  they  contributed  it,  was  the  comfort 
and  relief  of  those  whose  merits  with  tbeis 
was  stated  to  consist  in  no  other  particular 
than  the  circumstance  of  their  relation  to 
those  rebels  that  stood  in  arms  against  the 
king's  forces:  he  brou((ht  witufsses  to  prove 
the  fact.  That  the  money  was  actually  paid, 
is  not  the  thin^;  that  I  pin  upon :  let  it  be 
doubted  whether  the  50/.  came  actually  to  the 
hands  of  the  banker  ;  or  that  tbe  money  iras 
afterwards  applied  to  any  of  the  purposes  that 
are  there  state<l.  To  be  sure,  there  was  sot 
proof  alleged  upon  that  subject.  Whether  it  ia 
to  go  to  those  people,  or  whether  it  is  to  go  to 
any  other  purposes  similar  to  those,  in  the  in- 
tention of  those  who  subscribed  the  money 
(that  is,  the  insulting  and  aflTronting  governmeot 
and  the  king,)  it  is  a  matter  of  very  little  con- 
sequence to  the  point  1  am  now  speaking  to. 
lie  was  at  the  pains  to  prove  that  they  went 
through  that  business  that  I  am  stating  to  yoar 
lordships  in  order  to  afford  comfort  and  relin 
to  those  who  stood  in  that  species  of  relation  fo 
rebels;  which,  as  far  as  it  goes,  is  to  excite 
that  rebellion,  by  offering  that  degree  of  enooS" 
ragement  to  those  who  bhall  happen  to  perish 


77] 


fir  a  Libd. 


A.  D.  1117. 


[778 


a  tiicb  a  flagitioiis  ofience :  as  far  as  it  goes, 
I  amoants  to  that.  The  libel  tberefore  that 
low  stands  before  your  lordshiii,  which  the  oc- 
asioiis  of  the  defendant  of  a  different  sort  (which 
shall  hafe  occasion  to  speak  more  particu- 
irly  to  presently)  obliged  him  to  aggra?ate, 
Uiged  him  to  g^o  to  the  extent  that  1  have  now 
tated,  is  such  a  one  that  I  beliefe  it  will  be 
otally  impossible  for  the  imagination  of  any 
oan,  however  shrewd,  to  state  a  libel  more 
candalous  and  base  in  the  fact  imputed,  more 
aalifraant  and  hostile  to  the  country  in  which 
be  libeller  was  born,  more  dangerous  in  the 
sample,  if  it  were  suffered  to  pass  unpunished, 
ban  this  which  I  hare  now  stated  to  your 
irdship. 

Your  lordships  have  seen  that  the  libel  is 
nch,  that  Jt  is  impossible  by  any  epithets  to 
ggravate  it.  1  depend  entirely  upon  the 
late  which  I  refer  to— which  your  lordship 
laa  delivered  to  the  Court. — I  depend  upon 
bat  for  the  roost  emphstical  description  of  every 
ireumstance  that  tends  to  ereate  criminality, 
•hich  IS  possible  to  be  alleged  not  only  against 
his,  but  against  any  other  libeller  whatsoever.* 

My  lord,  such  was  the  nature  of  the  libel, 
rbe  next  Question  that  I  meant  to  trouble  your 
ordship  upon,  is  the  conduct  of  the  present 
Sefendant  in  the  article  of  publishing  the  libel ; 
lad,  subsequently  to  that  publication,  in  the 
article  of  avowing  it,  holding  it  up,  maintaining 
it  to  the  world,  thrusting  it  in  the  face  of  justice, 

and  proclaiming *  Sic  honor  et  nomen  di- 

viais  vatibus.'  It  is  a  language  addresseil  to 
the  lowest  and  most  miserable  mortals.  There 
■  BO  roan  of  any  value  in  point  of  understand- 
lag  in  this  country,  that  does  not  know  that 
tbe  information  contained  in  it  is  false,  absurd, 
impossible,  even  below  the  worth  of  refutation ; 
^t  it  is  addressed  to  the  lowest  of  the  mob  and 
to  the  bulk  of  the  people,  who  it  is  fit  should  be 
othcrivise  tauj^ht,  who  it  is  fit  should  be  other- 
wiw  governed  in  this  country.  My  lord,  the 
•ocasions  oi'  this  reverend  gentleman  to  keep 
vp  the  opinion  of  a  particular  part  of  the  fac- 
tions in  this  country,  his  private  occasions 
obliged  him  to  be  very  distinct,  and  rery 
taxioas  to  e.i'plain  it.  On  the  part  of  the  pro- 
tecotor,  it  was  enou(;h  to  prove  that  he  had 
^oUished  the  libel.  The  evidence  for  the  pro- 
Mcutor  went  plainly  and  distinctly  to  that  fact, 
^e  protloced  the  original  paper  under  his 
iMad.    We  produced  the  man  to  whom  it  was 

*  In  the  *  Memoirs  of  John  Home  Tooke, 
iotereiiersed  with  original  documents,  by  Alex- 
tader  Isilephens,  esq.  of  the  honourable  society 
•f  the  Middle  Temple,'  (vol.  2,  pp.  461,  462. 
8vo  ed.  181.i)  it  is  said  that  "  Thurlow,  after  he 
kftd  nin  theraoe  of  ambition,  courted  his  [Hnrne 
Tooke't]  acquaintance  in  the  peaceful  shades 
•f  retirement."  S^-e,  also,  pp.  250, 260.326,  of 
^sime  volume,  and  in  the  New  Pari.  Hist., 
^debatea  in  the  House  of  Lords  on  the  Bill 
'  to  remove  doubts  respecting  the  eligibility  of 
{•vions  in  holy  orders  to  sit  in  the  Ilouse  of 
MfluooDSy'  Stat.  41  Geo.  3,  c.  63. 

2 


deKfered,  Woodfall,  in  order  to  pnUish  it  in 
a  paper  which  he  printed  himself,  called  The 
Public  Advertiser.  We  proceeded  to  provo 
that  the  occasion  of  delivering  it  to  bim,  aDd 
the  office  in  which  he  was  employed,  was  nol 
merely  to  publish  it  in  that  paper,  but  to  carry 
it  round  to  all  the  other  public  papers,  and  to 
make  the  dispersion  of  it  as  universal  as  ho 
possibly  could.  Here  therefore  we  did  esta- 
blish upim  him,  by  these  plain  facts,  a  publica- 
tion of  as  universal  a  sort  as  it  was  possible  for 
him  to  obtain. 

One  would  hare  thought  that  these  facts  so 
stated  had  constituted  crime  enong^h.  But  it 
is  not  enough  to  be  criminal,  with  this  man ;  he 
must  be  criminal  in  a  way  that  may  shew 
himself  able  to  defy  justice ;  in  a  way  lo  con- 
vey to  the  people,  who  believe  in  those  foolish 
representations,  that  they  actually  do  trample 
upon  justice.  I  believe  a  great  multitude  of 
those  gentlemen  called  authors,  Mr.  Woodfall'a 
contractors,  are  men,  in  fact,  who  are  just  ca- 
pable of  writing  in  an  impudent  style.  The 
single,  simple  merits  of  an  impudent  style  is,  I 
suppose,  qualification  enough  to  prevent  any 
material  distinction  between  his  whole  rabbfe 
of  authors.  If  there  is  any  distinrtion  at  all, 
it  must  arise  from  the  superior  confidence  of 
those  who  can  not  only  write  in  that  style,  but 
stand  forth  in  the  face  of  the  justice  of  the 
country,  and  say — '  punish  me  if  you  dare.* 
— These  men  lose  their  credit,  these  men  lose 
their  opportunities  with  their  own  faction,  if, 
when  called  upon  for  their  crimes,  they  donH 
preserve  the  same  impudence.  That  made  it 
necessary  for  the  present  defendant  not  to  be 
salisfied  with  what  the  prosecutor  bad  proved 
upon  him,  but  to  undertake  a  proof  of  his  own ; 
to  put  him  upon  atill  higher  ground  with  his 
connections.  By  the  examination  of  Woodfall; 
he  has  undertaken  to  prove  that  the  method  of 
his  transactions  with  him  had  been  at  all  times, 
that  he  should  at  all  times,  for  his^  own  sake, 
if  called  upon,  give  him  up  to  justice.  A 
good  decent  sort  of  contract,  that  long  way 
back,  between  a  divine  of  the  church  of  Eng- 
land and  his  printer !  that  he  should  print  for 
him  upon  the  terms  of  the  said  divine  being 
ready  to  be  giren  up  to  justice,  at  all  times 
when  he  should  be  called  upon !  My  lord,  the 
first  instance  of  the  execution  of  that  contract 
was  upon  a  polemical  subject  of  divinity,  be- 
tween this  gentleman  and  one  of  his  parishioners, 
sir  John  Gibbon!*.  Mr.  Woodfall  did  not  state 
to  the  Court  which  part  was  taken  by  which  : 
I  cannot  possibly  tell  how  the  controversy  end- 
ed :  but  in  an  extract  upon  the  subject  of  reli- 
gion, tor  the  edification  of  the  parish,  it  was 
necessary  that  there  should  this  contract  inter- 
vene, that  the  reverend  author  should  be  ready 
to  stand  forth,  in  case  the  printer  was  called 
upon.  But  with  regard  to  the  present  publi- 
cation, this  was  to  be  much  more  emphstical. 
He  had  been  called  upon  in  another  place.  He 
was  afraid  that  he  had  not  been  thoii|Kht  by 
his  friends  to  be  confident  enou((h  in  maintain- 
ing what  he  wai  charged  with ;   and  tbati  If 


T79] 


17  GEORGE  III. 


he  eBcaped,  it  was  upon  boom  doubt,  whelher 
the  frailt  was  proved  upon  hira  er  not :  upoo 
whicb  he  called  upon  tnis  Woodfall  to  depose, 
that  in  the  manner  of  deliverini;^  him  that 
■aper,  it  was.  done  with  an  industrious  sod  af- 
fected solemnity.  The  words  of  it  were,  **  — 
did  I,  or  did  I  not,  formally  heibre  the  witness, 
when  called  in,  dcliTer  that  paper  as  my  act 
and  deed  ;  as  if  it  had  been  a  bond  ?" — And  in 
the  latter  eud  of  the  evidence,—*'  if  they  now 
chuse  to  take  notice  of  this  advertisement' ' — 
it  was  to  that  purpose ;  for  this  reason,  tbst 
*'  in  the  Isst  transaction  before  the  House  of 
Commons  it  was  pretended  they  let  me  off  be- 
cause they  could  not  get  full  evidence.  Do  you 
remember  1  said,  that  if  the}*  now  chose  to 
take  notice  of  tiiis  advertisement,  they  should 
not  want  full  evidence  ?"— Now,  my  lord,  to 
be  sure  what  had  passed  between  this  author 
and  this  prinU^r,  (whether  it  was  more  or  less  in 
confidence)  would  have  made  it  of  no  conse- 
quence whatever  to  the  public.  It  would  have 
been  impOKsilile  for  us  to  have  known  it ;  or,  if 
it  had,  to  have  adduced  itiu  evidence.  That 
would  have  been  of  no  conKequeuqe  whatever 
lo  the  public.  It  never  could  have  attained  to 
the  public  knowledge,  ezceptin||f  that  interest 
1  have  so  often  alluded  to,  that  interest  of 
recommendint;  himself  to  his  patrons,  and 
defyinj;  public  justice. 

1  don't  state  ilie  offence  to  have  consisted  in 
4he  conversation  that  was  held  between  him 
atid  the  printer ;  but  I  state  the  offence  to  arise 
in  his  anxiety  to  proclaim  to  the  public,  that 
•uch  is  the  manner  in  which  he  dares  to  insult 
the  justice  of  the  country.  There  arises  the 
A(jrgravation  of  the  crime,  in  tlie  manner  in 
which  t  have  stated. 

With  regard  to  the  rest,  the  strsne^e  conduct 
of  the  defendant — I  don*t  know  whether  that 
is  prn^ierly  before  the  Court,  any  more  than  his 
misre|)resentalion  of  tlie  proceedings  of  the 
Court ;  which  1  shall  urg;e  for  no  earthly  pur- 
pose but  this:  in  order  to  demonstrate  that 
the  aim  and  ol>ject  of  publishiniir  so  very  in- 
famous a  libel  as  this,  went  even  beyond  the 
libel  itself;  to  endeavour,  if  he  could,  to  make 
a  paradeful  triumph  over  justice.  That,  I  take 
it,  is  the  aim  aud  object  of  the  vhole. 

I  hare  done  my  duty  with  regard  to  the 
char«re  thai  is  now  before  the  Court.  With  re- 
gard to  the  puiii^inwnt  aUo,  it  is  my  province 
and  my  dut^*  to  sptrak. 

All  other  crimes  of  sperific  denomination 
Are  followed  by  tbe  letter  of  the  law  with  |ie- 
culiar  punishments  :  and  they  are  held  forili, 
by  that  punishment  and  by  that  denuminiUion, 
to  the  |ieo|jle  in  the  true  (Miut  uf  view  in  which 
it  is  the  interest  uf  the  public  that  they  hhould 
be  Keen.  The  law,  by  enaciinjif  particular 
punishment  U|ion  R|kecitic  crimes,  has  u^led  to 
the  public  that  degrtfe  of  ternir  to  arise  from 
the  example  of  puoisluneat,  wliich  in  uiKduui, 
it  is  hoptMl,  will  be  suifictent  to  restrain  of. 
fenders  fromcommiuiag  the  same  ciiiues.  My 
lord,  that  is  nut  so  in  the  case  of  a  mimlemea- 
MOTS    wUch  hi  Us  variety. and  cousequeacai 


Proeeeditigi  against  John  Home^  [780 

may  involve  crim^  of  a  different  nature  and 
complexion,  and  of  very  different  degrees  of 
guilt.      Concerning  those  crinses  the  publie 
neither  has  a  right  nor  can  poasibly  be  inform- 
ed in  any  other  manner  than  by  the  jadgmcnl 
of  this  court.     My  lord,  this  Court,  in  pro« 
nouncing  judgment  upon  this  ofiencep  is  to  do 
by  this  species  of  offence,  with  regard  to  the 
rest  of  the  public,  and  to  the  purpose  of  deterr- 
ing crimes,  whst  the  law  doea  when  it  apedfies 
particular  punishments.     Your  lordships  ars 
m  these  cases  to  supply  the  deficiencies  of  the 
law,  and  to  shew  to  those  who  have  beeo  de« 
sirous  to  offend  the  laws  of  their  country*  bjr 
the  example  of  its  punuikment,  in  whst  sort  of 
estimation  this  degree  of  guilt  is  held  by  ths 
Isw :  snd  I,  whatever  I  have  thought  upoo  the 
subject,  shall  be  obliged  to  confess,  that  if  lbs 
punishment  is  less  than  the  old  deliberate  judg- 
ment  has  gone  to  and  rested  upoo,  that  I  bare 
been  mistaken  in  the  nature  of  the  crime.    All 
my  apology  for  the  mistake  roust  consist  mb- 
ply  in  this  single  circumstance :  that,  lying  M 
near  to  high  treason,  it  was  very  difficult  for 
my  imagination  and  judgment  to  draw  tbe  liw 
between  them.    That  must  be  my  apology,  if 
1  have  mistaken  the  nature  and  quality  M  thii 
crime. 

My  lonl,  the  punishments  to  be  inflicted  npos 
misdemeaiMrs  of  this  sort,  have  usually  mcs 
of  three  different  kinds ;  fine,  corporal  pnoiih- 
ment  by  imprisonment,  and  infamy  by  tbe 
jnilgment  of  the  pillory.  With  regard  to  the 
fine,  it  is  impossible  (or  justice  to  make  tkii 
sort  of  punishment,  however  the  infamy  villi 
always  fall  upon  the  offender ;  because  it  li  wdl 
known,  that  men  who  have  more  wealth,  «li* 
have  better  and  more  respectful  situatious  ui 
reputations  to  be  watchful  over,  employ  men  in 
desperate  situations  both  of  circumstances  ind 
characters,  in  order  to  do  that  which  serttf 
their  party  purposes :  aud  when  the  puuisb- 
meut  comes  to  be  iuflivted,  this  court  mast 
have  regard  to  the  appareut  situation  aud  cir- 
cumstances of  the  man  employed,  that  is,  of 
the  man  convicted,  with  regard  to  the  puniib* 
ment. 

With  regard  to  imprisonment,  tliat  is  a  spf- 
cies  of  punishment  nut  to  be  considered  alike  in 
all  cases,  but  varies  with  the  person  who  is  to 
be  the  object  of  it :  and  so  varies  with  the  pe^ 
son,  that  it  would  be  proper  fur  the  judgmeotof 
tiie  court  to  state  circumstances  which  will 
make  the  imprisonment  fall  lighter  or  hesfieri 
as  the  truth  is,  upon  the  |>erson  presented  to  tko 
court.  1  say,  my  lord,  that  would  be  propcft 
if  1  had  not  been  spared  all  trouble  upon  tbit 
account  b)'  hearing  it  solemnly  avowed  is 
your  lordship*s  presence,  by  the  defettdiot 
himself,  that  imprisonment  \^us  no  kinil  of  is- 
conveim'uce  to  him  :  for  that  certain  employ- 
ments, which  he  did  not  stale,  would  occasioo 
his  confinement  in  so  close  a  way,  that  it  «ti 
mere  matter  of  circumstance  vi  heiher  it  hs^ 
riened  in  one  place  ur  another ;  and  that  tkl 
longest  imprisonment  which  tliis  court  coalA 
iullict  for  punishment,  was  m>t  beyond  ik* 


: 


s 


3»] 


for  a  LiM. 


*€cb  of  arcimirooflarmii  which  those  occasions 
mleKd  iwoetsary  td  him.  Id  this  respect, 
lerelbre,  imprtsonment  is  not  only  as  vrkb  re- 
lect  to  the  person  not  an  adequate  pani^hiiieat 
» tli€  offence,  bat  the  public  are  told,  and  told 
f  a  pamphlet  which  bears  the  re?erend  gentle- 
MID*!  name  (may  be  his  name  may  ha?ebeen 
■r^gfod  to  it  y  but  bv  a  pamphlet  that  bears  that 
ame)  that  it  will  be  no  punishment.  And 
oar  lordships  (according  to  the  usual  stjie 
ith  which  he  has  affected  to  treat  justice, 
otn  the  beginning  to  the  end)  are  told  that 
•a  ciiBDot  punisn  him  in  that  way  :  and 
lerefbre,  if  that  is  a  species  of  punishment 
liich  cannot  affect  him,  as  your  lordship  has 
ran  before  told  in  a  manner  to  be  relied  upon, 
e  baa  made  it  manifest  that  your  lordships' 
idgment  in  that  part  of  the  punishment, 


Derates  nothing  with  respect  to  him  person- 
lly;  and  consequently  that  it  will  lose  its 
rbole  force  and  eflScacy  as  with  respect  to  that 
sample  which  the  public  justice  ought  to  hold 
lit  to  the  world. 

I  stated  in  the  third  place  to  your  lordships, 
ibe  pillory  to  hare  been  the  usual  punishment 
br  this  species  of  offence.  I  apprehend  it  to 
bife  been  so  in  this  case  for  abore  two  hun- 
dred years  before  the  time  when  prosecutions 
fSnw  rank  in  the  Star-chamber,  and  to  those 
dt^rees  which  made  that  court  pro|ierly  to  be 
Aolisbed.  The  punishment  of  ttie  pillory  was 
isflieted,  not  only  during  the  time  that  such 

Cmitions  were  rank  in  the  Star-chamber, 
it  also  continued  to  be  ioOicted  upon  this 
•art  of  crime,  and  that  by  the  best  aothority, 
after  the  time  of  theaboliKhiog  the  Star-cham- 
Wr,  after  the  time  of  the  Rerolution,  and  while 
nj  lord  chief  justice  Holt  sat  in  this  court.  In 
Ming  ofer  precedents  for  the  sake  of  the 
oilier  question,  I  observed  that  Air.  Tutcbin* 
(la  amhor  of  some  eminence  in  his  day)  was 
oagry  with  Holt,  the  lord  chief  justice,  for 
tnasterring,  as  he  called  it,  the  punishment  of 
Ukers  to  authors.  That  was  upon  a  personal 
oooeeit  which  such  an  author  as  Tutchin 
Uoaght  himself  entitled  to  entertain  of  the  su- 
perior disrniiy  of  that  character  all  along.  He 
ftooght  that  the  falsifying  of  weights  and  mea- 
Mres  was  a  more  mechanical  employment  than 
^forging  of  lies  ;  and  that  it  was  less  gentle- 
■■SD-Iike  to  rob  men  of  their  money  than  of 
^r  good  name.  But  that  is  a  peculiarity 
■Irich  belont^s  to  the  little  vanity  that  inspires 
Ml  aothor.  I  trust  tlien^fore,  when  1  speak  of 
lord  chief  jufttice  Holt,  and  of  the  time  in  which 
be  lived,  1  sjieak  (for  all,  hut  particularly  for 
^ift)  of  as  ^reat  an  authority  as  ever  sat  in 
adipnent  upon  any  case  whatever.  His  name 
I^Bs  held  high  during  his  life,  and  has  been 
add  io  revereoce  in  all  subsequent  times.  He 
Jtterreil  popularity,  by  doing  that  which  was 

•  SeeTotchin's  Case,  vol.  14,p.  1099,  where 
4te  pillory  is  stiled  the  punishment  of  bakers ; 
lod  for  more  concerning  the  pillory,  see  vol.  3, 
^  401;  vol.  r,  p.  1209;  vol.  14,  p.  446; 
N.  19,  p.  809. . 


A.  D.  1777.  [78f 

right  upon  great,  trying,.,  and  imporiant  ooca« 
sions.  He  obtained  popularity,  becaose  b# 
despised  all  other  means  of  aiming  at  it,  but 
that  of  doing  right  upon  all  occasions.  From 
the  temper  of  tlraoe  times,  from  tbeTehemenet 
and  deaigns  of  that  faction  that  opposed  him, 
sir  John  Holt  would  have  been  reviled ;  if  th« 
rerilers  of  that  day  bad  not  observed  in  'tb« 
greatness  of  bis  spirit  and  character,  that  it 
waa  impossible  to  t^each  him :  and  be  naa  pre- 
served a  name  which  was  highly  honoured 
doring  his  life,  and  which  will  live  as  long  aa 
the  £nglish  eqpstitution  lives.  Citing  biro, 
therefore,  in  support  of  this  as  a  proper  punish- 
ment  to  be  inflicted  upon  this  sort  of  offence,  it 
giving,  in  my  appreheDsion,  the  greatest  aa« 
tbority  for  it.* 

My  lord,  in  prononncing  an  opinion  DpOB 
the  objectiona  started  by  the  defendant,  I 
would  desire  no  better,  no  more  pointed,  nor  any 
more  applicable  argument  than  what  that  great 
chief  justice  used,  when  it  waa  contended  before 
him  that  an  abuse  upon  government,  open  the 
administration  of  several  parta  of  government, 
amounted  to  nothing,  becaase  there  waa  no 
abuse  upon  any  particular  man.  That  great 
chief  justice  said,  they  amounted  to  much 
more:  they  are  an  abuse  upon  all  men.  Go- 
vernment cannot  exist,  if  the  law  cannot  re- 
strain that  sort  of  abuse.  Government  cannot 
exist,  unless  when  offences  of  this  magnitude, 
and  of  this  complexion,  are  presented  to  a  court 
of  Juatice,  the  full  punishment  is  inflicted 
which  the  most  approved  times  have  given  to 
offences  of  much  (ess  denomination  than  theses 
of  much  less.  I  am  sore  it  cannot  be  shewn, 
that  in  any  one  of  the  cases  that  were  pnniahed 
in  that  manner,  the  aggravation  of  any  one  of 
those  offences  were  any  degree  adequate  to 
those  which  are  presented  to  your  lordship 
now.  If  offences  were  so  punished  then,  whica 
are  not  so  punished  now,  they  lose  that  expla- 
nation which  the  wisdom  of  Uiose  ages  thought 
proper  to  hold  out  to  the  public,  aa  a  restraint 
from  such  offences  being  committed  again.  It 
was  my  duty  also  to  consider  this  as  with  a 
view  to  the  public  conviction. 

I  am  to  judge  of  crimes  in  order  to  the  pro- 
secution :  your  lordship  is  to  iudffe  of  them 
ultimately  for  punishment.  I  should  have 
been  extremely  sorry,  if  I  had  lieen  induced  by 
an^  consideration  whatever  to  have  brought  a 
crime  of  the  magnitude  which  this  waa  (of  the 
magnitude  which  this  was  when  I  first  stated 
it)  into  a  court  of  juaticc,  if  I  had  not  had  it  in 
my  contemplation  also  that  it  would  meet  with 
an  adequate  restraint ;  which  I  never  thooght 
would  be  done  without  atiixiog  to  it  the  jndg* 
ment  of  the  pillory.  I  should  have  been  very 
sorry  to  have  brought  this  man  here,  after  all 

*  Dr.  Johnson  appears  not  to  have  concur- 
red in  this  opinion  of  Mr.  Attorney  General. 
"  I  hope,'*  aaid  he,  **  they  did  not  put  the  dog 
in  the  pillory  for  hia  libel,  he  has  too  much 
literature  for  that."  Boswell's  life  of  John- 
son, vol.  d,  p.  378,  8vo  edition. 


783] 


17  GEORGE  III. 


Proeeedingt  agmnst  J<An  Home, 


[784 


the  agip^vations  that  lie  has  aoper-induoed 
upon  the  otfence  itself,  if  I  had  QOl  been  per- 
suaded that  those  a^gravatious  woald  have  in- 
duced thejudtj^ment  of  the  pillory.*  The  pu- 
nishment, liowe?er,  to  be  inflicted  for  this  crime 
Ksts  finally  with  voor  lonlship.  If  the  Court 
is  of  opiniou  that  that  judq^ent  ia  not  to  be  pro- 
nounced, it  will  be  my  bumble  duty  to  submit 
with  the  most  perfect  acquiescence.  I  have  no 
interest  in  the  nusiness  but  as  the  officer  of  the 
public.  I  am  nothing  near  so  good  a  judq^e  of 
the  interest  which  the  public  have  in  the  busi- 
ness as  your  lordships  sitting  in  this  court ;  but 
ivhen  1^  am  stating  a  matter  to  the  Court  for 
judgment,  I  must  state  it  as  I  feel  it ;  and  1 
tee!  it  so.  And  if  it  were  my  province  to  do 
more  than  to  state  it  so,  1  should  still  continue 
to  think  of  it  as  I  do  at  present. 

Mr.  Home*  My  lords,  though  yonr  lord- 
•hipe'  judgment  is  to  he  pronounced  upon  my  • 
•elf,  1  shall  attend  to  hear  it  with  the  indiflfer- 
ence  and  curiosity  of  a  traveller;  which  I  was 
early  instructed  to  do  in  such  circumstances  as 
these,  long  before  I  could  imagine  I  should 
ever  be  in  them.     My  lords,  I  am  a  little  tlie 
more  at  a  loss  to  address  your  lordships,  be- 
cause (and  I  am  not  ashamed  to  be  laughed  at 
for  my  disappointment)  I  acknowledge  that  I 
came  this  morning  into  the  court  in  the  full  as- 
aurance,  that  I  should  And  less  difficulty  to  go 
out  of  it  than  I  did  to  come  in.    M  v  lords,  I  had 
no  notion  at  all  that  evidence  coufd  supply  the 
defects  of  the  information  ;   or  that  it  would  be 
attempted  to  be  so  supplied  by  evidence.     I 
did  not,  it  is  true,  at  the  time  1  objected  to  the 
deficiencies    of  the    information,    I    did    not 
amongst  other  things  add  evidence.     1  believe 
1  am  time  enough  now  to  move  any  thing  in 
arrest  of  judgment ;  and  ill  am,  I  desire  that 
your  lonisliips  would  understand  me  now  to 
object  to  the  supplying  of  the  defects  of  an  in- 
formution   by  any  evidence   whatever.      My 
lord,  I  apprtfhend  that  your  lordship  had  di- 
rected mv.  Attorney    General  and  mys«lf  (I 
ought,  if  what  he  has  said  of  me  be  any  thing 
like  truth,  to  beg  his  pardon   for  coupling  my 
unworthy    name    with    his)  but,  my   lord,    I 
thought  that  lie  and  1  were  directed,  if  we 
could,  to  produce  precedents.     I  own  to  your 
lordship,  I  did  not  well  understand  the  direc- 
tion when  I  receiveil  it;    because  I  had  laid 
before  you  a  sacred  principle,  with  which   I 
was  much  better  acquainted  than  with  prece- 
dents;   and  one  for  which  I  would  willingly 
give  up  all  the  precedents  that  ever  exibted. 

My  lords,  I  shall  no  doubt  be  very  irregular 
in  the  order  of  what  I  shall  say  to  your  lord-  ' 
ships  ;  and  I  should  not  have*  said  a  word,  if ' 
there  were  not  in  Mr.  Attorney  Generars  ha-  ; 
rangue  some  things  that  might  easily  stir  a  ' 
roan  to  anger,  if  he  was  not  as  little  susceptible  | 
of  it  as  I  am.     My  lords,  1  feel  not  the  least ' 

*  See  in  the  case  of  Patrick  Hurlv,  vol.  U,  [ 
p.  446,  a  counsel  insisting  that  the  pillory  is  the  ' 
poiuihownl  for  a  cheat. 


auger  at  any  thing  that  has  paased.    The  gen- 
tleman ou  the  trial  has  stripped  me  of  common 
sense ;  but  be  allowed  me  a  sort  of  understand- 
ing.   Mv  lords,  be  shifted  his  ground  in  bis 
reply.     He  first,  out  of  kindness  and  compli- 
ment to  me,  supposed  what  I  had  written  to  be 
beneath  common  sense:    my  lonit,  lie  after- 
wards found  it  proper  to  make  it  hcyond  con- 
mon  sense.    At  first  I  was  a  fool :  at  last  I  was 
a  madman.    My  lonls,  at  first  he  thought  it~ 
(I  forget  his  expression)  but  he  thought  it  can- 
dour (I  think  he  said)  to  the  names  of  persons 
alluded  to,  though  distantly,  to  suppose  that 
what  I  had  written  was  falae.    To  save  otbeis 
from  some  scandal  of  imprudence  or  impro- 
priety, he  thought  it  candour  to  impute  false- 
hood to  me.    My  lords,  when  that  was  proved 
to  be  true,  he  only  8ai«l,  that  he  did  not  mend 
the  matter :  indeed,  whichever  side  of  the  case 
I  took,  nothing  could  mend  the  matter. 

It  is  not  my  business^  my  lord,  to  take  the 
smallest  notice  of  what  fell  from  your  locd- 
ship ;  nor  shall  I  mention  a  number  of  things, 
which  1  might  justly  be  permitted  to  mentioo, 
of  wilful  and  gross  misrepresentations  of  tfas 
evidence  upon  the  trial:  I  should  not  have 
mentioned  it  at  all ;  but  Mr.  Attorney  Geoenl 
has  hinted,  though  not  specified,  misrepreses- 
tations  by  me  of  the  proceedings  of  the  trial. 

My  lords,  he  has  endeavoured  to  alarm  sie 
with  monstrous  fines,  with  long  imprisonroesi, 
with  infamous  punishment.  My  lords,  infanv 
is  as  little  acquainted  with  my  name  as  with 
that  gentleman's  or  with  your  lordships.  I 
feel  no  apprehensions  from  the  pillory.  I  do 
feel  some  little  pain  that  a  gentleman,  taking 
advantage  of  my  situation,  should  say  and  offer 
those  things,  unfounded  in  appearances  erca 
of  truth,  airainst  me,  which  neither  he  oor 
any  man  like  him  dare  to  insinuate  in  id/ 
other  station  but  this. 

lie  has  attempted  likewise  to  insinuate,  my 
lords,  a  si)ecies  of  robbery.  When  hedidio 
he  was  guilty  of  falsehood.  EI e  said,  that  my 
\fitncss  did  not  prove  that  the  60/.  was  paid 
into  the  bankers.  My  lords,  he  literally 
proved  it. 

My  lords,  he  represents  me  as  speaking  tbe 
lant;uage  of — **  if  you  dure  to  punish  me;"-" 
and  he  says,  '*  it  is  a  lant;iiage  aildressed  to  the 
lowest  of  the  mob."  Indeed  I  think  so  too: 
but  it  is  his  o««n  language,  not  mine. 

My  lords,  he  has  dwelt  upon  my  occasiosfi 
my  desperate  situation,  my  want  of  character 
and  fortune.     My  lords,  it  is  my  misfortune 
that  from  niy  cradle  I  have  had  as  etfemintti 
an  education  and  cure  and  course  of  life  as  Mr* 
Attorney  General.     It  is  my  misfortune  tlitt 
there  was  not  a  greater  want  of  fortune :  so^ 
as  for  my  occasions,  my  means  liave  aiiraV' 
been  beyond  them.     I  should  rather,  my  lor& 
if  I  was  speaking  in  extenuation  or  to  mitigsto 
your  punishment,  I  should  rather  close  in  vilk 
Mr.  Attorney  General,  and  acknowledge  my- 
self that  desperate,  helpless  w  retch  that  be  M 
represented  me :  perhaps  it  would  be  the  no^ 
effectual  motive  to  your  lonlsbipa*  ooDptMU^ 


,. 


-'• 


•■ 
•J 

«*• 
'  ■J 
1 


•  I 


T83] 


Jul  a  LiheL 


A.D.  1777. 


[786 


My  lords,  I  nercr  in  my  life  solicited  a  favour : 
I  nertr  detiire  to  meet  with  compa8!iiou. 

My  lordjf,  be  has  talked  to  your  lordships  of 
my  patrons.      I  have  had  in  my  life,  aud  very 


wiih  vfhom  f  can  think,  that  I  know  of. 
There  is  no  Kody  of  men  with  whom  I  am  cou- 
nectefl.  Tlitre  is  no  man  or  men  from  whom 
I   expect  help,  or  assistance,  or  friendMliip,  of 


early  in  my  life,  the  {Greatest  of  patrons;  aye!  \  any  kind,  beyond  that  which  my  principles  or 
with  all  their  power,  greater  ttian  any  that  now  j  services  may  deserve  from  them  individually, 
hear  me.     Aly  lords,  I  renounced  my  patrons,     Private  friendships  I  have, like  other  men;  but 


liecause  I  would  not  renounce  my  principles ; 
repeateilly,  over  and  over  a^ain,  of  diflVrent  de* 
icriplJons,  and  in  different  situations.  My 
lords,  I  am  proud,  l>ecause  I  am  insulted ;  or 
else  I  certainly  should  not  have  held  any  of 
this  laniB^uage. 
My  lords,  Mr.  Attorney  General  through  a 


'they  are  very  few:  honevi-r,  that  is  recom* 
pensed  to  me,  for  they  are  very  viorthy. 

My  lords,  JVlr.  Attorney  General  Ikas*  saul, 
that  I  represented  imprisonment  as  no  kind  of 
inconvenience  to  me.  As  no  kind  of  if>con- 
veniencc,  niiy  lords,  will  not  certainly  be  true ; 
because  the  great  luxury  of  my  life  in  a  very 


>lameful  carelessness  has  told  you  a  stor^'  of  small  but  a  very  c'.<an  cottage:  ytt,  though 
I  theological,  polemical  dispute  l>etween  my>  i  imprisonment  will  Im*  so  far  inconvenient  to  me, 
self  and  a  parishioner.     1  can  easily  conceive  '  the  cause  of  it  will  make  it  not  painful. 


that  Ue  let  himself  fall  into  that  mistake  for  the  ; 
take  of  drauing  a  smile  fiom  your  lordships 
ind  the  court  upon  the  reverend  gentleman. 
But  in  this,  like  the  rest,  my  lords,  there  is  not 
I  syllable,  not  the  smallest  foundation  of  truth. 
I  never  had  a  theological,  polemical  dispute. 
My  lords,  I  am  free  to  acknowledge,  that  no 
theological  disptites  that  ever  1  read,  and  1 
bave  endeavoured  to  read  all  that  ever  happen- 
ed, none  of  them  ever  interested  me  in  the 
manner  that  the  present  disputes  do  interest 
me.  My  lords,  1  was  not  made  to  be  a  mar- 
tyr.* 1  have  opinions  of  my  on  n  ;  but  1  never 
iotended  to  sufl'cr  for  them  at  the  stake. 

My  lords,  he  has  endeavoured  to  insinuate 
that  all  that  1  wrote,  and  all  that  1  said,  was 
for  the  sake  of  a  paradeful  triumph  over  jus- 
tice: and  he  has  talked  again  and  again  of  the 
mob.  My  lords,  the  mob  have  conferred  no 
greater  favours  upon  me  than  upon  Mr.  Attor- 
ney General.  I  have  been  repeatedly  followed 
by  very  numerous  mol>s  in  onlnr  to  destroy  me. 
Single  and  alone,  for  a  i^rcat  length  of  way  ; 
not  ouci*,  or  twice,  or  tinee  time«,  but  four  and 
f^'99  times ;  two  or  three  thousand  at  my  heels. 
I  am  seiiiiib!e  of  the  ridicule  of  the  situation, 
even  whilst  1  mention  it.  These  are  the  only 
frvoure  that  1  have  ever  received  from  the 
niob;  these  arc  the  only  favours  that  1  have 
tver  soliciteil ;  and  I  protest  to  your  lordships  1 
bad  much  rather  hear  the  mob  hiss  tiian  hal- 
k)s :  for  the  latter  would  give  me  the  head-ach, 
tbe  first  gives  me  no  pain.  My  lord,  I  have 
beard  of  those  who  have  expressed  more  wishes 
ftr  popularity  than  ever  I  felt.  I  have  heard 
it  iiid,  and  I  think  it  was  in  this  court,  that 
tbey  **  would  have  popularity  :  but  it  should 
k  that  popularity  which  follows,  not  that 
whkh  is  sought  after. "f     My   lords,  I   am 

Cud  enough  to  despise  them  both.     If  popu- 
ty  khould  offer  itself  to  me,  1  would  speedily 
tike  care  to  kick  it  away. 

Ily  lords,  as  for  ambition,  and  bodies  of 
men.  and  parties,  aU'I  societies,  there  is  nothing 
*r  It  in  tlie  case.    There  is  no  body  of  men, 

*  But  tee  his  Letter  to  Junius,  July  13, 
ITTl. 

t  See  lord  Mansfie1d*8  judgment  io  Wilket^f 
«»».vo!.  10,  p.  1113. 

VOL.  XX. 


My  lords,  1  find  that  not  only  I  have  a  sort 
of  understanding  very  differait  from  that  of  ' 
Mr.  Attorney  General,  but  my  notions  of  law, 
and  my  notions  of  humanity,  are  equally  dif- 
ferent from  his.  Mv  lords,  between  the  time 
that  1  had  last  the  honour  of  apf>earing  before 
you  and  the  present  time,  it  happens  very  unfor- 
tunately for  Mr.  Attorney  General  that  he  has 
proved^  that  not  only  my  notions  of  law  and 
iJeceucy,  but  my  notions  of  propriety  and  hu- 
manity, are  widely  different  from  his :  and  I 
mention  it,  my  lords,  because  it  goes  immedi- 
ately to  the  doctrine  now  attempted  to  be  esta* 
blisned.  Mr.  Attorney  General  has  heard  a 
person,  as  great  as  himself,  between  that  time  . 
and  tliis,  justify  the  legality,  the  propriety,  the 
humanity  of  tlie  tomahawk  and  the  scalpinip^ 
knife.  Between  the  last  time  1  appeared  ticre 
and  this  time,  these  have  been  the  sorts  of  kiag*H 
troops  justified,  by  a  high  ofiicer  of  the  law,* 
to  be  employed,  as  legal,  proper,  mild,  and  hu- 
mane. 

My  lords,  Mr.  Attorney  General  has  said,  ^ 
that  I  declared  upon  the  trial  that  1  had  a  cer- 
tain employment  which  made  it  necessary  for 
me  to  be  confined  as  long  as  \onr  lordships 
sluMild  or  would  confine  me.  Tiiat  is  not  (rue. 
My  lurds,  I  did  say  that  I  had  an  emplo3'meot, 
had  something  to  do,  that  would  confine  me 
to  my  room  longer  than  your  lordships  would 
confine  me.  1  believe  I  said  mpre-»l  neither 
intended  when  I  said  it  to  affront  you,  nor 
will  attempt  at  this  time  to  appease  you — I 
said  longer  than  your  lordships  dare  to  coufine 
tne;  those  were  the  words:  and  I  said  it,  be- 
cause I  did  belieie  and  do  still  believe  that 
vonr  lordships  dare  not  wilfully  i\o  injn.stice. 
My  lords,  as  for  that  certain  einpbiy  meat,  1  did 
not  say  it  was  necessary.  It  is  an  employ- 
ment of  amusement  merely  ;  an  employment 
that  1  meant  to  make  public  ;  but  not  for  the 
sake  of  gain  or  praise.  My  lords,  when  first  1 
began  my  life,  I  was  encouraged  to  worthy 
and  to  virtuous  actions  by  the  temptation  of 
praise :  I  have  long  since  learned,  my  lonis, 
to  be  able  to  do  those  actions  which  1  think 
virtuous,  in  despite  of  shame. 

My  lords,  Mr.  Attorney  General  has  done 


*  See  New  Pari.  Ilist.  vol.  li. 


3IZ 


yp 


787] 


17  GEORGE  III. 


Proceedings  against  John  Hume, 


[788 


what  I  hare  before  heard  attempted  to  be  done 
with  very  gfreat  sorrow :  he  has  attempted  to 
^instate  the  Star  Chamber.  The  fault  he  finds 
with  it  is  only  its  rankoess, — '*  before  the  pro- 
■ecutions  i^rew  so  rank  in  the  Star  Chamber, 
and  which  rankness  caused  it  to  be  abohshed." 
— I  don't  recollect  the  words  of  that  act  by 
which  it  wais  abolished  ;  but  I  am  sure  that  its 
rankness  alone  is  not  the  reason  given.  If 
the  i^ntleman  would  lend  me  his  memory,  I 
would  then  repeat  them — none  of  the  powers, 
nor  any  like  them  (your  lordships  know  better 
the  wonis,  I  don't  recollect  the  words)  but  no- 
thing like  them  was  ever  to  be  put  in  use  again 
in  that  or  in  any  other  court,  as  well  as  I  can 
remember. 

Mr.  Attorney  General  has  talked  of  the  per- 
aonal  conceit  of  Tutchin  concerning  authors. 
I  thought  myself,  till  a  strong  zeal  made  roe 
met  otherwise,  as  little  likely  to  become  an 
•utlior  as  any  of  those  gentlemen  who  hear 
me.  I  have  never  been  a  contractor  ifith  any 
news-papers;  he  knows  I  have  not.  If  I  de- 
aired  the  printer  of  the  Public  AdvertiscT  to 
give  me  up  always  to  justice,  my  lords,  I  can- 
not easily  conceive  bow  Mr,  Attorney  General 
could  find  anything  to  justify  his  oratory  upon 
that  subject.  Is  that  a  defiance  of  a  court  of 
justice  ^  Is  that  flying  in  the  face  of  the  justice 
of  the  country  ?  To  be  willing  to  abide  its  sen- 
tence ;  not  to  withdraw  myself  from  its  cen- 
sure :  not  to  wish  even  to  avoid  an  v  enquiry 
into  my  conduct ;  is  that  to  be  that  bold-taced 
audacious  man  that  defies  the  justice  of  his 
country?  My  lords,  if  it  is,  1  can  only  again 
deplore  that  a  gentleman,  who  must  have  great 
understanding,  and  great  talents  and  abilities, 
from  the  office  which  he  holds,  that  the  under- 
standing of  that  gentleman  should  be  so  very 
different  from  mine. 

My  lords,  I  have  already  appeared  in  tliis 
situation  often  enough ;  and  if  I  had,  as  he  ima- 
gines I  have,  any  luxury  or  pleasure  in  holding 
myself  furth  in  public ;  if  I  had,  it  would  long 
before  this  have  been  satisfied. — There  are 
many  other  things  which  I  might  say  to  your 
lordships  ;  but  as  I  trust,  and  fully  trust,  that 
I  shall  still  find  a  remedy,  my  lords,  against 
the  present  decision,  1  sha!l  forbear  saying  one 
syllable  in  extenuation  of  what  the  Attorney 
General  has  lieen  pleased  to  charge  inc  uitli'; 
and  leave  your  lordships  to  pronounce  your 
judgment  without  the  least  consideration  of  me, 
without  the  smallest  desire  that  you  should 
abate  a  hair  from  what  you  think  necessary 
for  the  justice  of  my  country.  I  shall  leave 
it  entirely  to  your  lordships'  discretion. 

Mr.  Justice  Aston,  John  Home,  clerk,  you 
stand  convicted,  upon  au  information  filed 
•jrainstyou  by  his  majesty's  attorney -gem  ral, 
of  writing  and  publishing,  and  causing  to  be 
printed  and  pub]ishe<l,  a  false,  wicked,  and  sedi- 
tious libel,  of  and  concerning  his  mnjpsty's  go- 
vernment and  the  employment  of  bis  troojrs. 
The  libel  has  been  openly  read  io  court  from 
the  record ;  and,  upon  the  report  of  his  lord- 
ship who  tried  this  informttioDi  it  appears  tliat, 


upon  your  own  cross-examination  of  one  of  the 
witnesses,  you  gloried  in  the  publicstioo  of  it ; 
that  you  avowed  you    did  not  desire  to  be 
screened  ;  and  that  you  avowed  yourself  the 
author  of  it.    Since  that  indeed,  in  this  court, 
you  attempted  to  gloss  over  parts  of  this  libel, 
and  to  confine  its  tendency  to  a  possible  private 
charge  upon  the  king's  troops,  and  not  god- 
rerning  his  majesty's  government ;  to  treat  the 
word  *  troops'^as  being  indeterminate  in  its  signi- 
fication, and  not  carrying  with  it  the  construc- 
tion which  the  information  avers,  and  vvbich 
the  jury  have  found,  of  its  *'  concerning  the 
king's  government  and  the   employ  meot   of 
those  troops  by  his  authority."    You  have  said 
'very  truly  that  evidence  is  not  to  supply  any 
defect  in  an  information.     There  is  no  detect 
in  the  information  :  the  information  sets  forth 
the  libel  at  large ;  and  the  information  charges 
that  libd  to  be  '*  of  and  concerning  hi«  ma- 
jesty's  governnaent,"  as  I  before -mentioned. 
Up(«i  that  the  court  has  now  decided  agreeably 
to  the  finding  of  the  jury ;  and  no  man  can 
really  mistake  the  malicious  meaning  and  in- 
sinuation of  it.     ItijiE  libel  which  contains  t 
most  audacious  insult  upon  his  majesty's  ad- 
ministration and  government,  and  the  conduct 
of  his  loyal  troops  employed  in  America.    It 
treats  those  disaffected  and  traitorous  persoM 
who  have  been  in  arms  and  in  open  rebellioD 
against  his  majesty,  as  faithful  subjects— fiith- 
ful  to  the  character  of  Englishmen  :  and  it 
falsely  and  seditiously  asserts,  that  for  that 
reason  only  they  were  inhumanly  murdered 
by  his  majesty's  troops  at  Lexington  and  Con- 
cord.    By  this  same  libel  subscriptions  too  are 
proposed  and  promoted  for  the  families  of  tlunt 
very  rebels  who  fell  in  that  cause,  traitorooslj 
fighting  against  the  troops  of  their  hiwfnl  !iOve- 
reign.    This  is  the  li*;!)!  iu  which  this  i.bel  mw^ 
appear  to  every  man  of  a  sound  and  impartial 
understanding  ;  this  is  the  plain  and  the  unar- 
tificial  sense  of  it.    The  contents  of  tliis  libel 
have  been  too  effectually  scatt^'reil    and  di^ 
persed  by  your  means,  as  charge'l  in  the  several 
counts  of  the  informution,  and  they  have  been 
inserted   in  divers  and  different    neu-9papers> 
The  contents  are  too  vi-ell  known,  and  1  trust 
abhorred,  to  need  any  repetition  fVotn  me,  fu^ 
the  sake  of  observin;<f  farther  upon  their  ma*     j 
hce,  sedition,  and  falsehood.     The  cuurt  ba^^ 
considered  of  the  punishment  fit  to  bo  inflicted 
upon  you  for  this  offence  :  and  the  sentence  of 

the  court  is, ^That  you  do  pay  a  fine  to  thi 

king  of  200/.,  that  you  be  imprisoned  for  tbe 
space  of  twelve  months,  and  until  that  fine  bs 
paid  ;  and  that  upon  the  determination  uf  votff 
imprisonment,  you  do  find  sureties  for  yonr 
good  behaviour  for  three  years,  yourself  •■ 
400/.  and  two  sureties  in  200/.  each. 

!llr.  Home,  My  lord,  I  am  not  at  all  awar* 
of  \i  hat  is  meant  by  finding  sureties  fur  tbf 
good  behaviour  for  three  years.     It  is  that  paf^     ] 
of  the  sentence  that  perhaps  I  shall  find  mu^     j 
difficulty  to  comply  with,  because  I  dou't  uP' 
derstaud  it.     If  I  am  not  irregular  in  entresl'     \ 
ing  vour  lordship  to  explain  it  to  me:— you^ 
,  tordsuii^i,  I  suppose,  would  cbusc  to  hsteyvtf 


a^ 


Jbr  a  LibeL 

*s  plainly  understood,  and  I  know  not 

re  of  this  siirftysbip. 

Mamfield.  It  is  a  common  addition. 

lornc.    And,    it  may  be,  a   common 

». 

ust.  Aston.    Not  to  repeat  ofTeDces  of 

lornc.  or  this  sort? 
Mansfield.  Any  misdemeanour, 
lust.  Axton,    iVbatever  sball  be  con- 
ad  behaviour. 

iarne.  If  your  lordships  would  imprison 
liese  three  years,  I  should  be  safer ;  be- 
can*t  foresee,  but  that  the  mostmeritori- 
on  of  my  life  may  be  construed  to  be  of 
e  nature. 

Mansfield,  You  must  be  tried  by  a 
your  country,  and  be  convicted.  You 
t  is  a  most  constant  addition.  You 
lat  yourself  very  well. — Where  are  the 
I? 


A.  D.  1777. 


f790 


'everse     this  judj^uient,   Mr.    Home 

a  writ  of  error  iu  parliameut,  and  on 
ilf  it  was  ai'^ued  by  Mr.  Lee  and  Mr. 
^,  that  it  is  n  principle  in  the  law  of 
i,  that,  ill  criminal  prosecutions,  the  in- 
in  or  indictuieut  must  contain  in  itself 
n  and  explicit  charge  of  the  offence  in- 
o  be  imputed  to  the  defendant,  and  no 
['  certainty  in  the  char^^e  c«n  be  helfied 
ied  by  any  proof,  and  still  less  by  pre- 
II  or  intendment,  either  in  the  jury 
e  the  vtnlict,  or  in  the  court  which pro- 
i  judtfmeiit  upon  it.     It  is  equally  true, 

l»euul  charges  ou(;ht  to  be  taken  most 
j|y  for  the  subject,  in  every  staffe  of 
lecution  ;  so  that  if  it  appears  doubtful 
*  the  fact  alleged  in  the  information  or 
t>nt  l>e  necessarily   criminal,     or  may 

be  innocent,  the  prosecution  shall  fail ; 
iil^h  ihejui'v  fmd  a  (general  verdict,  such 
iiutflit  not  to  1)0  construed  by  tiie  court 
any  tiiinif  beyond  the  plain  and  certain 
jns  in  tile  indictment  or  information.  In 
e  the  jury  had  found  that  the  king's 
nientitined  in  the  advertisement,  meant 
tjesty's  troops ;'    fur  this,  and  the  pnb- 

by  the  deft  ndunt,  were  fiicts  charged, 
frefore  iiiiuht  bf  properly  said  to  have 
und.  If  it  should  b?  admitted,  which 
t  found,  that  the  troops  meant  bis  ma- 
irmy  in  Amcricii,  there  was  nothing  in 
rmatioo  that  extended  the  imputation 
f  trtMjpsi  to  his  majesty  or  his  mitiiKters, 
t  was  in  the  iiitroductorv  words,  which 
n  resorted  to  as  charging  the  advtTtise- 
»  be  «%  ritten,  *  of  and  concerning  his  ma- 
^^overntnent,  and  ihf  employment  of  his 
If  the  jury  were  to  be  uudersto«id  to 
lund  it  to  be  so  written,  (though  trom 
ipany  that  passage  kept  with  the  w<»rd8 
I'icked,  malicious,  scandalous,  seditious,' 
t  uMire  properly  be  considered  as  a  mat^ 
ilerence  than  of  charge,)  it  would  not  of 
y  ffdlow,  that  the  employment  of  the 
rilb  which  Mr,  Home  expressed  his  di«- 


satisfaction,  was  an  emplo3'ment  by  his  majes- 
ty, or  by  any  person  in  authority  under  him. 
It  was  equally  consistent  with  a  8up|>ositio0| 
that  the  troops  in  the  instance  comptaiued  of 
employed  themselves  in  acting  without,  or  even 
contrary  to  the  orders  of  those  to  whose  orders 
they  ought  to  have  conformed.  Nor  did  it 
follow,  that  because  the  advertisement  was 
found  to  have  been  written  concerning  his  ma- 
jesty's government,  that  it  therefore  necessarily 
import^  an  intention  to  arraign  that  govern- 
ment. Armies  are  properly  considered  as  among 
the  instruments  of  government,  and  are  pro- 
perly employed,  whenever  they  are  so  employ- 
ed in  the  defence  of  a  just  government.  Who* 
ever  writes  therefore  concerning  his  majesty's 
armies,  may  be  said  to  write  concerning  his 
majesty's  government.  But  the  suposed  libel 
carried  no  imputation  against  his  majesty,  or 
bis  government ;  uuless  it  should  be  under- 
stood to  mean,  that  the  oiisbehaviour  which  it 
was  supposed  to  impute  to  the  troops  was  in  an 
instance  wherein  they  were  acting  in  due  obe- 
dience to  legal  orders,  under  an  authority  de- 
rived from  his  majesty;  but  this  was  no 
where  charged,  and  consequently  not  found. 
In  order  to  have  supported  the  information  ia 
the  manner  in  which  probably  the  prosecutor 
wished  to  have  it  understood,  he  ought  to  have 
shewn  by  proper  averments,  that  thel'e  was  at 
the  time  a  rebellion  existing  in  America;  that 
the  troo|»s  were  sent  thither  to  suppress  it ;  that 
they  were  iu  the  act  of  exerting  themselves, 
in  obedience  to  proper  orders,  towards  this  ob- 
ject ;  and  that  though  the  loss  of  lives  was 
among  the  consequences  of  that  exertion,  it  waa 
no  murder,  nor  in  any  sense  a  violation  of  law, 
but,  on  the  contrary,  perfectly  justified  by  the 
occasion.  Why  averments  to  this  effect  were 
not  to  be  found  in  the  record,  it  was  notdifficull 
to  conjecture,  to  those  at  least  who  understand 
that  avermeuts  must  be  proved  ;  and  it  might 
not  be  thought  certain  that  a  jury  would  be 
found  who  would  assent  to  the  trutn  of  these 
pnipositions.  It  would  be  no  answer  to  say 
that  all  this  was  notorious ;  or  that  at  the  trial 
it  was  proved ;  for  if  it  were  so,  ivbich  was 
by  no  means  admitted,  it  was  perfectly  imma- 
terial, if  the  principle  be,  as  it  was  conceived  to 
be,  that  the  judges  are  to  receive  or  use  no 
other  knowletlge  of  the  facfs  essential  to  con- 
stitute a  criminal  charge,  but  what  they  collect 
from  the  record. 

On  the  other  side  it  was  contended  by  the 
Atttirni  y  Cjentral  Thurlow  and  Solicitor  Gene- 
ral Wedderhurn,  that  the  crime  of  a  libel  con* 
sistK  in  opprobrious  words  or  signs,  written, 
made,  exhiuited,  or  published,  concerning  some 
person,  or  other  subject,  which  it  is  criminal 
so  to  revile.  The  accusation  mu>t  therefore 
state  the  opprobrious  words  or  signs,  and 
they  must  lie  applied  to  the  person  or  thing 
8up|»osed  to  be  reviled :  but  no  technical  form 
of  words  is  necessary  for  that  purpose.  If  the 
natural  and  apparent  sense  ol  the  words  them* 
selves  be  onprobrious,  and  reqoire  no  other 
medium  to  nx  suck  meaniDg  apon  iliemi  no 


•V 


791] 


17  GEORGE  HI. 


ProccctliHgs  agaimt  John  Home, 


[Tl'a 


innuendo  or  averment  to  stip[>ort  it  can  be  ne- 
cessary to  raise  an  ajtjiarent  ineaningf.  If  the 
application  of  sucli  o(iproI>nou9  wonts  be  ex- 
pressly niiide  in  tbe  plirase  of  the  libel,  no  in- 
tiui'uUo,  or  averment  to  su|)porl  it,  can  be  want- 
in|^  to  raise  an  expresJi  application.  It  is  a  well 
kooivn  rule,  that  judi^es  are  to  understand  a 
libel  as  others  do,  wiihi^ut  straining;  to  Hud  a 
loop-h-'le  to  palliate  the  offence,  which  in 
some  measure  would  be  to  encourag^e  scandal. 
It  vinnld  he  a  riiliculous  absurdity  to  say,  that 
a  ivritintv*,  understood  by  the  meanest  capacity, 
cannot  p(»ssibly  be  understood  by  a  judg^e  and 
jury  ;  therefore  judges  will  not  resqrt  to  every 
possible  construction,  only  to  avoid  the  natural 
one;  much  less  give  a  ditferent  sense  to  tbe 
words,  by  supposing  circumstances  which,  if 
they  exist,  shouhl  be  proved.  The  words  com- 
plained of  conveyed,  in  their  natural  and  appa- 
rent meaning,  a  s^roas  reflection,  the  imputation 
of  an  heinous  and  hateful  crime,  upon  the  em- 

Idoy  ment  of  the  national  force,  and  consequent- 
y  upon  his  majesty's  government,  of  which 
the  employment  of  that  force  is  an  important 
part.  These  words,  *  the  king's  troops,'  in  a 
common  and  obvious  seose,  mean  that  national 
force  which  the  law  takes  notice  of  and  autho- 
rises. The  literal  meanincr  of  the  words  was 
confirmed  by  the  context,  and  it  Was  impossible 
to  believe  that  any  Enfiflish  reader  had  put  ano- 
ther interpretation  upon  them,  much  less  had 
any  such  reader  mistaken  them  to  meaii  flocks 
or  companies  of  strollers,  &c.  as  the  objection 
.  idly  supported.  The  application  of  these  op- 
probrious words  to  the  king's  government,  and 
file  employment  of  his  troops,  not  only  appear- 
ed in  the  phrase  uf  the  libel  itself,  but  was  ex- 
pressly charged  in  the  information,  and  proved 
even  by  the  defendant's  witnesses,  and  found 
by  the  jury  ;  that  matter  therefore  was  also  con- 
rlutied.  The  averments  6ii!;i;esied  in  the 
defendant's  «r<:umeat  were  bv  no  means  ne- 
ecitsury  to  constitute  a  state  of  this  crime  ;  for 
.supposing  there  had  been  no  rebellion,  or  troops 
€  mployed  to  Kup[ire>s  it.  or  enc^agenient  by  the 
kind's  troops,  or  slaugliur  made  of  the  rebels, 
the  uuJt  of  thi^  cahunnv  would  not  l.uve  been 
dimmislied  by  its  total  viunt  of  fouiiduiion  or 
colour  of  truth. 

After  he.iri:ijf  counsel  on  this  writ  of  ciror, 
the  following  (Question  was  put  to  the  Jikil'cn; 
*^  W  heilier  the  writing  contained  in  the  infor- 
mation i<i,  in  point  of  law,  sufKrienily  chart^ed 
to  be  a  liht  I  u|>on  his  majesty's  L^ovcrnnient:'" — 
(Bruwn\  Cuics  in  Pitrliamenty  vol,  4,  p»  tS7  ).) 

And,  on  Monday,  ^lay  11,  1778, 

Lord  Chief- Justice  DeGrey  delivered  the 
unanimous  opinion  of  all  the  judges  in  the 
afiirmative,  and  gave  the  reasons  as  follow  : 
*  ]\ly  hird**.  I  have  conferred  with  the  Lord 
Chief  Buron.  and  the  rest  of  my  brethren  the 
judges,  upon  tlie  question  Mhich  your  lord- 
ships have  propoundetl  to  us ;  and  1  am  de- 
putfitl  to  Jdirer  their  opinion  to  3 our  lordships 
^  HjK>a  it»  '    ^ 


The  question  is,  '  Whether  the  writ  in?  dt- 
'  scribed   in    the   information    is    sufficiently 

*  chargefl  to  make  it  a  libel  upon  bis  majesty's 

*  government?' 

Jiy  the  words  '  sufficiently  charged'  I  un- 
derstanil  to  l>e  meant,  U'hei her  it  is  charged 
with  suHicient  certainty?*  But,  thou^rh  the 
law  requires  certainly,  we  have  no  precise  idea 
of  the  si<:;nificatinn  of  the  word ;  w  hich  is  u 
indefinite  in  itself,  as  any  wonl  that  can  he 
used.  Lord  Coke,  speaking  of  it,  represents  it 
thus  [Co.  Lilt.  330,  a.  &  5  Co.  121]  :  •  Tliere 

*  are  three  kinds  of  certainties:  certainty  to  a 

*  certain  intent  in  general ;  certainty  to  actim- 

*  mon  intent ;  and  certainty  to  a  certain  intenl 
'  in  every  particular.'  This  last  is  n jecled  in 
ail  cases,  as  partaking  of  too  much  subtlety. 
The  seconri  is  sufficient  iu  defence  :  the  first  if 
reqnired  in  a  charge  or  accusation. 

Pet  haps  this  account  of  it  does  not  convey  a 
much  clearer  idea ;  but  1  appreheud  it  will 
becocne  intelligible,  by  considering  the  grountid 
of  the  distinctions,  taken  in  the  present  case, 
upon  the  certainty  reciuired  in  a  charge. 

The  charge  must  contain  such  a  dcscriptioB 
of  the  crime,  that  the  defendant  may  fcooir 
what  crime  it  is  which  he  is  called  upon  to  ao- 
swer ;  that  the  jury  may  appear  to  be  war- 
ranted in  their  conclusion  of  *  guilty'  or  *  not 

*  guilty'  upon  the  premises  delivered  to  them; 
and  that  the  Court  may  see  such  a  definite 
crime,  that  they  may  apply  the  punishineoc 
which  the  law  prescribes. 

This,  I  take  to  be  what  is  meant  by  tbe  dif- 
ferent degrees  of  certainty  mentioned  in  tbe 
books :  and  it  consists  of  two  parts ;  tbe  matter 
to  be  charged,  and  the  manner  of  charginnf  it. 

As  to  the  matter  to  be  charged,  whatefer 
circumstances  are  necessary  to  constitute  the 
crime  imputed,  must  lie  set  out ;  and  all  be- 
yond are  surplusage.  And  therefore,  in  tbe 
instance  of  the  prosecution  for  peijury  which 
has  been  cited,  it  was  necessary  to  set  out  tbe 
oath,  as  an  oath  taken  in  a  judicial  proceeding, 
and  b<  fore  proper  person**,  in  order  to  see,  whe- 
ther it  was  an  oath  which  the  Court  had  juris- 
diction to  administer.  In  the  prosecution  of  a 
constable  for  not  sening  the  office  [5  Mod.  96], 
it  is  necessary  to  set  out  the  mode  of  his  elec- 
tion ;  because,  if  he  is  not  legally  elected,  he 
cannot  be  guilty  of  a  ciimc  in  not  servinif  the 
oflice.  Where  the  circumstances  go  tocoo- 
siitute  .1  crime  they  must  be  set  out :  where 
the  rriinc  is  a  crime  independently  of  such  cir- 
cumstances, they  may  n^fgravate,  but  do  pot 
contribute  to  make  the  ofTi  nee.  j 

To  apply  these  prim  iples  to  the  case  of  a  | 
libel :  it  may  happen,  that  a  uritintr  may  bes^ 
expressed,  und  in  sueh  clear  and  luiambignoot 
wonN-,  as  that  it  mav  amouir.  of  itself  to  aliiieL 
In  such  a  case,  the  Court  wants  no  circom* 
stances  to  make  it  clearer  than  it  is  of  itfHft  | 
and  therefore,  all  foreign  circumstances  intrtf"     1 

*  Respecting  certainty,  see  the  "£«■'•*••   * 
^iirrn  .\dvertisement,  part  2,  ch.  6,  aod  ft  N^     , 
to  Kuiiomus,  i)tilog«ie  ^^  p.  46. 


i 


- 1 


5)3] 


Jitr  a  I.ihel. 


A.  D.  1777. 


rw* 


ucetl  upOA  the  recnnl  irniiUI  be  only  iii»tter  of 
jperproijration.  Dut,  if  the  terms  ul'  the  writ- 
iii  are  fj^encriil,  or  ironicnl,  or  Hpokeii  by  way 
faMitsiun  or  retVretice ;  ahhou^jrh  every  man 

hu  rcniU  such  a  writing',  may  put  the  ranie 
onslniriion  upon  it,  it  is  by  uiiilerstQn(lin;r 
jmc'liiut;  not  expresspd  iu  dirifct  woriU  ;  and 

b^Miio  a  matter  of  crime,  ami  the  party  liuMe 
I  be  punished  lor  it,  tinre  wants  sometiiincf 
iDie.  Ii  ou^^ht  to  receife  a  judicial  ^nse, 
helhcr  the  application  is  just :  and  the  fact, 
:  the  nature  of  the  fact,  on  which  iliat  de- 
L*nds,  is  to  be  determined  by  a  jury.  But  a 
iry  cannot  take  cognizance  of  it,  unless  it  ap- 
rara  upon  the  record ;  wliich  it  caunot  do 
ithout  an  averment. 

Thus  much  is  sufficient  to  be  said,  in  rej^ard 
I  the  matter  that  is  necessary  to  be  averred. 

Secondly,  as  to  the  manner  of  makinir  the 
rernient :  there  are  cases,  where  a  liirectand 
osiii\e  averment  is  neces>ary  to  be  made  in 
|ieci lie  terms ;  as,  where  the  law  has  bflixed 
nd  a{tpro|>riated  techuical  terms  to  ilescribe  a 
rime ;  as  in  murder,  burglary,  and  others. 
I  is  likewise  true,  that  in  all  cases,  those  facts 
rbich  are  descriptive  of  the  crime,  must  be 
Dtroduced  upou  the  record  by  averments,  in 
ppo»ilion  to  ar^rument  and  inference,  lu  (he 
.'■eof  a  libel  which  does  not  in  itself  contain 
be  crime,  without  some  extrinsic  aid,  it  is 
lecessary  that  itKhould  be  put  upon  the  record, 
ly  way  of  introduction,  if  it  is  new  matter;  or 
>v  way  of  innuendo,  if  it  is  only  matter  of  ex- 
naoation.  For  an  innuendo  means  nothing 
Dore  than  tlie  words,  *  id  e^t,'  '  scilicet/  or 

meaninnTi*  or  *  aforesaid,'  as  cxplanatorv  of 
I  fubjpct  matter  sufficiently  expresseil  before ; 
ti,  such  a  one,  meaning  the  defendant,  or  such 
k  subject,  meaning  the  subject  in  question. 
But  as  an  innuendo  is  only  used  as  a  word  of 
explanation,  it  cannot  extend  the  sense  of  the 
npn-s^ii»ns  in  tlie  libel  hf  >ond  iheir  own  mean- 
ing, unless  Komctiiing  is  put  upon  the  record 
Tur  it  to  explain.  As  in  an  action  upon  the  ca«e 
iflftiiisi  a  man  for  saying  of  another,  *■  He  has 

burnt  my  barn,'  [4  Co.  Harham*s  case],  the 
[plaintiff  cannot  xUmvc,  by  way  o(  innuendo,  say, 
■ne-jntni;  '  hi'i  barn  tiill  (if  corn  ;'  because,  that 
*Dot  an  explanaiion  of  •vbal  was  said  before, 
>ut8!i  addition  to  it.  Hut  if  in  the  introduction 
t  hftd  lieen  averred,  that  the  defendant  had  a 
^ro  full  of  corn,  and  thit  in  a  discourse  about 
Iwb'jrii,  the  defend::i>t  hail  spoken  the  words. 
'luri^ed  in  ilie  hbcl  of  the  plaintiflT;  an  in- 
^uoudo  of  -1^  beini;  the  barn  full  of  corn  woubl 
live  been  L'^od  :  f^r  by  couplint;  the  innuendo 
Q  the  libel  with  liie  i  .iroductory  averment, 

liisbarn  full  of  corn,'  it  would  have  made  it 
^mpltle. 

And  1  conct  ive,  that  this  kind  of  extrinsic 
^rr  may  Ih'  introduced  UfMin  the  record, 
•ither  by  dire*.',  averment,  or  by  recitals,  or  by 
fcoersl  inference ;  and  that  such  introductory 
"^tprs  and  explanatory  innuendoes  so  made 
^  appeitr  upon  the  record  do  all  amount  to 
^vfieii-nt  •venneots. 

'  Au  innuendo  is  au  afermtiit,  that  such  •  oae. 


meinf!  such  a  particr.lar  person ;  or,  that  such 
a  thing,  means  sueli  a  particular  thingf :  and 
when  coupled  with  the  introductory  matter,  it 
is  an  averment  of  the  whole  connecied  propo- 
sition, by  which  the  cognizance  of  the  charge 
will  be  bubinitied  to  the  jury,  and  the  crime 
appear  to  tIil'  Court. 

'I'he  libel  in  the  present  case  says,  *  That  the 
'  siibhcriplion  proposed  to  be  ent'red  into  was 
'  for  the  relirf  of  the  widows,  orphans,  nnd  aged 
'  parents   of  our  bebived.  American  subjectF, 

*  who,  faithful  to  tbecharnctei  of  Knglishiueo^ 
'  and  preferring  death  to  slavery,  were  for  that 
'  reason  only  inhnmaidy  murdered  by  the 
'king's  troops.'  It  is  not  necessary  to  con- 
sider, whether  this  lifiel  comes  within  the  de- 
scription of  a  libel,  which  constitutes  a  crime 
of  itself,  without  any  assiatance  of  other  cir- 
cumstances ;  or  what  our  opinious  upon  that 
question  might  he ;  because,  we  are  all  of  opi- 
nion, tliat  there  is  sufficient  matter  expressed 
with  sufficient  certainty  to  constitute  tlie  crime.' 

But,  two  questions  have  been  made  upon  the 
introductory  part  of  the  information :  First, 
Whether,  the  interior  subsequent  matter  being 
introduced  by  the  words  *  of  and  concerning 

*  his  majesty's  government,  and  the  employ* 
ment  of  his  troops.'  these  words  amount  to  a 

sufficient  averment  to  put  it  lastly  upon  the 
record  ?  And  secondly.  Whether,  admitting  it 
to  be  lej^ally  put  upon  the  leeonl,  the  sense  of 
it  must  be  understood  to  be  a  libel  upon  bis 
majesty's  government  ? 

And  first,  '  Whether  it  is  legally  put  upon 
the  record  in  point  of  formf — ^It  is  put  upon 
the  record  by  these  words : — '  That  the  de* 

*  tendant  wrote  ami  published  such  a  libel,  of 
'  and  concerning  his  majesty's  government  and 
'  the  employment  of  bis  troops.'  This  is  an 
averment;  for  the  fact  is,  that  '  he  wrote  and 

*  published  the  libel ;'  and  the  circumstance 
connected  with  the  fact,  and  which  therefore 
makes  a  part  of  it,  is,  that  *  he  wrote  and  pub- 

*  lished  the  naper  or  libel,  of  and  concerning 

*  bis  majesty's  government  and  the  em|>lov* 

*  ment  of  his  troops.'  If  the  jary,  upon  the 
defence  set  up,  had  found,  that  ibe  libel  ^vas 
not  published  relative  to  the  king's  government, 
or  the  employment  of  his  troops,  the  informa- 
tion was  not  proved :  for  it  contains  an  entire 
proposition.  And  if  it  had  appeared,  that  the 
paper  related  to  a  voluntary  act  of  the  troopa  . 
only,  and  not  to  an  employment  of  them  by  , 
government,  the  information  would  be  false : 
liecuuse  the  prosecutor  would  have  failed  in  the 
proof  of  the  pro|M>fcitioii,  that  it  was  written, 

'  of  and  concerning  the  king's  government  and 

*  the  employment  of  his  troops. 

This  is  no  new  doctrine:  the  cases  cited  at 
the  bar  shew  it.  In  Tiitchin's  case,*  one  part 
of  the  libel  was  this :  ^  The  mismanagements 

*  of  the  navy,  have  been  a  greater  tax  upon 

*  the  merchants,  than  the  duties  raised  by  go- 

*  vernment.'  It  might  have  been  said  there. 
What  nary  ?  Whose  navy  P  was  it  the  navy  of 

«  See  it  in  thU  Collection,  vol.  14|  p.  109«. 


ft 


793] 


17  GEOllGE  III. 


Proeeedingi  against  John  Home, 


[796 


£iil(Uii<1,  or  ilid  it  mean  only  tlio  merchant 
•li^)9  ?  The  iufiinnation  char^red,  that  tliu  de- 
fendant liad  written  u  bcandaious  and  seditious 
.libel;  in  wliicli  tlie  inf'uruiaiion  stated  in  the 
introductory  part, '  of  and  conceruinj^  the  royal 

*  navy  of  this  kini;dntn  and  liie  {HfoTernment  of 

*  thefiaid  nn\y,  it  is  written  so  and  so.'  When 
tlie  inforuKiiion  came,  in  stating;  the  libel,  to  the 
uord  *  navy,'  by  an  innuendo,  it  explains  it 
thus:  *  meaning  the  royal  navy  of  this  king- 
^onn  ;'  which,  being;  coupled  with  the  aver- 
Ipeut  in  the  introductory  part  of  it,  made  the 
flense  and  the  charge  complete. — A^aiu,  in  ano- 
ther part  of  the  same  information  for  another 
libel,  one  part  of  the  libel  was  thus:  <  There  is 
'  another  plot  against  you :'  *  and  afterwards, 
<  it  is  a  plot  preparatory  to  your  trial.'  What 
trial  ?  The  introductory  part  of  the  informa- 
tiOD  charged,  that  this  libel  was  written,  '  of 
f  and  <oiicerning  the  defendant,  and  a  prosecu- 
^tidb  to  be  had  against  him  for  divers  aeditious 

*  libels  by  him,  before  that  time,  composed  and 

*  published.'  The  information  ai'terwarda  ex- 
plains '  you'  thus ;  meaning  *  the  defendant.' 
This,  connected  with  the  averment  in  the  intro- 
ductory part,  was  a  sufficient  explanation  of  the 
charge.  The  defendant  was  found  guilty  of 
the  several  libels  in  the  information.  He  moved 
ID  arrest  of  judgment ;  but  not  upon  the  ground 
f>f  the  insufficiency  of  the  averments:  for  it 
was  sufficiently  understood,  that  *  of  and  cod- 

*  cerning  the  royal  navy,  &cc.'  was  good  with- 
out any  other  additional  averments.  In  the 
case  of  Rex  v.  Matthows,*  which  was  an  in- 
dictment upon  Stat.  6  Ann.  c.  7,  the  words  of 
the  libel  were  these ;  *  From  the  solemnity  of 

*  the  Chevalier's  birth,  and  if  hereditary  right 

*  be  any  recommendation,  he  has  that  to  plead 

*  in  his  favour.*  It  was  there  said.  What  Che- 
valier? Who  is  he?  What  recommendation? 
And  to  what  thing? — In  the  introductory  part, 
the  information  charged  the  libel  to  have  liecn 
.written,  '  of  and  concerning  the  Pretender,' 
and  *  of  and  concerning  his  right  to  the  crown 

*  of  Great  Britain.^  And  it  was  hehl,  that  the 
innuendoes  in  the  body  of  the  libel,  explaining 
the  wonis  *  Chevalier,  &c.'  to  mean  the  Pre- 
tender and  his  hereditary  right  to  the  croivn  of 
Great  Hntain,  when  connected  with  the  aver- 
ments in  the  introductory  part,  of  its  l>eing 
written,  '  of  and  concerniug  the  Pretender  and 

*  bis  right  to  the  crown  of  Great  Britain,'  were 
a  sufficient  explanation  to  make  good  the 
charge. 

In  the  case  of  Rex  versus  Alderton,  [Sayer's 
Reports,  280],  tlie  libel  was  an  advertise- 
ment, reciiintf  ceitain  orders  made  for  col- 
lecting money  on  account  of  the  distemper 
aiiion^bt  the  horned  cattle,  advertised  by  the 
ci«rk  of  ihe  peace  for  the  county  (»f  Sutfolk  ; 
and  it  charged,  that  by  these  orders  the  money 
collected  hud  been  improjierly  applied.  The 
information  charged  tliis  to  be  a  libel  on  the 
justice's  of  Suflfolk.  In  the  bo<ly  of  the  libel,  it 
was  not  said, '  by  order  of  the  justices,'  nor  did 

*  Set  it  m  this  Collectioui  toJ.  15|  p.  1389; 


the  information  in  the  introductory  part  say, 
that  it  was  a  libel  *  of  and  concerning  the  jus- 
tices of  Snffi)lk.'  But  when  the  informatioa 
came  to  slate  any  of  the  orders  in  the  adver- 
tisement, it  addi  d  this  innuendn,  *  meaning 
'  an  order  of  the  justices  of  peace  for  the  county 
'of  Suffolk.'  But  these  innuendoes  could  not 
supply  the  want  of' an  averment  in  the  intro- 
ductory part,  of  its  being  written  of  and  con- 
cerning the  justices ;  because  they  were  not 
explanatory  of,  but  in  addition  to,  the  former 
matter;  and  the  Court  were  of  opinion,  that 
the  information  having  omitted  the  words,  *  of 

*  and  concerning  the  justices'  in  the  introduc- 
tory part,  such  omission  was  fatal :  and  judg- 
ment was  accordingly  arrested. 

From  these  cases  it  is  clear,  that  the  wordi 
'  of  and  concerning'  are  a  sufficient  introdoc- 
tion  of  the  new  matter.  And  therefore  in  the 
present  case,  it  is,  in  point  of  form,  a  sufficient 
averment  upon  the  record,  that  the  paper  Ntf 
written  '  of  and  concerning  the  king's  govem- 
'  ment' 

But  secondly,  it  has  been  argued  u|ioo  the 
further  charge  respecting  the  troops,  tbtt  it 
duos  not  im|>oit  that  these  troops  were  so  em- 
ployed by  act  of  government.  And  therefore, 
though  it  should  1^  held  to  hiive  been  wiitten, 
'  of  and  concerniug  the  king's  goTcmnent,' 
yet '  it  does  not  appear  to  be  so,  relatire  to  the 

*  act  of  the  troops.'  It  has  been  further  argued, 
that  in  giving  their  opinion  upon  this  point, 

*  The  judges  can  take  no  knowledge  of  idj 

*  thing  that. is  said  or  written,  but  what  they 

*  can  collect  from  the  record ;'  and  likewise, 

*  That  every  accusation  taken  from  the  record 

*  must  be  plain  and  clear,  and  is  not  to  be 
'  strained  by  any  forced  meaning  or  constroo* 
'  tion.'  But,  as)  the  crime  of  a  libel  consists  in 
conveying  and  impressing  injurious  reflectiooi 
upon  the  minds  of  the  subject ;  if  the  writiug 
is  so  understooil,  by  all  who  read  it,  the  injury 
is  done  by  the  publication  of  these  injurious  re 
flections,  befoie  the  matter  comes  to  the  jury 
and  to  the  Court.  And  if  courts  of  justice  vreie 
bound  by  law  to  study  for  any  one  possible 
or  supposahle  case  or  sense,  in  which  the  vionli 
used  might  he  innocent,  such  a  singularitv  uf 
understanding  might  screen  an  offender  troin 
punishment,  but  it  could  not  rccal  the  wordii 
or  remedy  the  injury.  It  would  be  strange  to 
say,  and  more  so  tu  give  out  as  the  law  of  fbe 
land,  that  a  man  may  be  allowed  to  defame  is 
one  sense,  and  to  defend  himself  by  another. 
Such  a  doctrine  would  indeed  be  pregnant  with 
the  '  nimia  subtiiitas,'  which  my  lord  Coke  so 
justly  rejMobates. 

The  true  rule  to  go  by,  is  laid  down  by  nj 
lord  King  in  the  case  nt  lUx  versus  Matthewi^ 
which  is  this:  *  That  tlie  court  and  jury  roaft 
'  understand  the  record  as  the  rest  of  mankind 
do.' 

This  being  the  rule,  and  the  accu8atkMi-iUci> 
as  I  liave  before  stated,  it  remains  to  beieea 
only  what  the  wonIs  in  the  present  case  aifc 
They  are  these:  •That  the  defeudapt,  of  all 
t  GOBcemiiig  the  king's  govenunoit  aid  d# 


" 


cT  i  ^^ 


V 

4 


)7J 


for  a  Libel. 


.employment  of  his  troops/  said,  '  that  inlio- 
:eut  tubjvcts  hail  been  inhumanly  murdered 
ly  the  kind's  troops,  only  for  preferrinsf  death 
u  »la?ery/  Do  these  words  import  in  their 
itural  and  obvious  sense,  that  the  king's  troops 
pre  eiiiployetl  by  the  act  of*  j^overnment,  in- 
imiinly  to  murder  the  kin<^'s  innocent  sub- 
lets ?—^Thcre  can  be  no  doubt  but  that  the 
ntr'8  govcrntneut  comprehends  all  the  exe- 
ilive  power  of  the  state,  both  civil  and  mili- 
ry  ;  that  he  employs  all  the  national  force, 
id  that  his  troops  are  the  instruments  with 
hich  pait  of  the  executive  government  is  to 
!  c;arrit.il  on.  The  introductory  part  of  this 
formal  ion  charjres,  that  the  subject  of  the 
riliut;  in  the  present  case  was,  '  The  troops, 
mil  the  king^s  troops,  and  the  business  they 
liad  done.* 

It  has  been  tru!y  said,  that  the  king's  troops 
ay,  like  othci'  men,  act  as  individuals:  but 
cy  can  be  employed  as  troops  by  the  act  of 
jvernment  only.  If  the  averment  therefore 
nonnfs  to  this,  that,  in  the  discourse  which 
as  held,  the  aords  were  said  *  of  and  concern- 
in;i(  the  king's  government  *,'  the  natural  im- 
irtofthcin,  wiihout  any  forced  or  strained 
leaning,  appears  to  us  to  be  this ;  I  am  speak- 
ig  of  the  king's  administration  of  his  gorem- 
lent  relative  to  his  troops,  and  1  say,  *  that  our 
fellow  subjects,  faithful  to  the  character  of 
Englishmen,  and  preferring  death  to  slavery 
ware  for  that  reason  only  inhumanly  mur- 
dered by  tlie  king's  order ;  or  the  orders  of 
his  officers.'  The  motive  imputed  tends  to 
gfgravate  the  inhnmanity  of  the  act,  and  con- 
■quently,  of  the  imputation  itself:  because  it 
rraigns  the  government  of  a  breach  of  public 
list,  in  emphiying  the  means  of  the  defence 
r  the  subject  in  the  destruction  of  the  lives  of 
Mse  who  are  faithful  and  innocent. 

As  to  any  other  circumstances  not  stated  in 
le  information ;  if  those  which  are  stated,  do 
r  themselves  constitute  an  offence,  the  rest 
apposed  by  the  defendant,  whether  trne  or 
the,  would  have  been  only  matter  of  aggrava- 
OD,  and  not  any  ingredient  essential  to  the 
onstitution  of  the  crime,  and  therefore  not  ne- 
ntary  to  be  averred  by  the  record. 

Upon  the  whole  of  the  case  therefore,  we  are 
iiauimousl|^  of  opinion,  that  the  record  con- 
dot  *  all  facts  and  circumstances  necessary 
to  warrant  the  conclusion  of  the  jury.  And 
that  it  likewise  contains  all  facts  and  circiim- 
stances  necessary  for  the  information  of  the 
Court  to  give  their  judgment  upon  the  occa- 
•ioD.* 

Whereupon  it  was  ordered  and  adjudged, 
Cliat  the  judgment,  given  in  the  court  of  King's- 
tBcb  for  the  king,  be  affirmed,  and  the  record 
Mtted,  &c.— CCowper*  licjforlSy  p.  682.^ 


htbeeonrse  of  the  debate  Joly  17,  1819, 
}iyaiiug  lord  Holland's  bills  relative  to  in- 
%BidoM  ex  officioy  (see  New  Pari.  Deb.  vol. 
^4.^e87|  1009,  €l  teg.)  lord  HoUand  bif- 


I  1.4 


A.  D.  1777.  [798 

ing,  in  support  of  his  argument,  rolied  on  the 
authority  of  Mr.  Justice  Blackstuue's  Com- 
mentaries, it  appears  that  lord  Ellenborough 
mixed  with  general  expressions  of  praise  others 
extremely  depreciatory  of  that  work.  «*  He 
would  say  that  at  the  time  of  writing  his  Com- 
mentaries, judge  Blackstone  was  extremely 
ignorant  of  criminal  law."^*^  Blackstone  when 
he  compiled  his  lectures  wos  c<»m]Kirativeiy  au 
ignorant  man,  lie  was  merely  a  frllow  of  All 
Smils  College,  moderately  skilled  in  the  law. 
His  true  and  solid  knowledge  was  arquireil 
afterwards  ;  he  grew  learned  as  he  proceeded 
with  his  work."—**  There  were  many  tilings 
in  Blackstone's  work  \\hich,  us  a  lawyer,  he 
was  bound  to  say  were  mis-statements,  among 
them  was  the  proposition  to  which  the  noble 
lord  had  rel'erred."  Lord  Erskinc,  however, 
powerfully  vindicated  the  Commentaries^ 
**  The  work  shewetl  the  author's ^deep  re- 
searches into  all  the  principles  of  our  legal 
constitution,  and  as  informations  ex  itfficio  iiere 
part  of  the  ancient  law,  it  was  from  history  ami 
writers  of  authority  which  were  open  to  htm, 
that  their  true  nature  was  to  be  traced ;  fnnn 
his  not  having  attended  the  courts,  he  might 
not  know  the  modern  practice,  but  he  knew  thd 
grounds  upon  which  such  informations  had 
been  first  adopted  and  finally  retained,  wheo 
their  expediency  came  to  be  consiilei  cd  ;  ami 
he  appeared  to  him  to  he  correct,  when  lie  «aid, 
*  that  the  objects  of  them,  were  properly  audi 
enormous  misdemeanors  as  tended  to  endanger 
or  disturb  the  government,  and  in  xs  liich  a  mo- 
ment's delay  might  be  fatal;  in  such  cases, 
the  law  had  given  to  the  crown  the  power  of- 
an  immedmte  prosecution  without  waiting  for 
any  previous  applicationtoany  other  tribunal.' 
— He  entirely  agreed  with  his  noble  and  learn- 
ed friend  that  this  was  not  quite  a  correct  view 
of  the  use  of  informations  in  our  own  times, 
nor  even  when  tlie  Commentaries  were  writ- 
ten ;  but  to  arraign  the  work  on  that  account, 
would  be  trying  it  not  by  the  principles  of  th« 
law,  but  by  the  very  abuse  complained  of." 

Indeeil,  whatever  be  the  authority  of  Mr. 
Justice  Blackstone's  opinions  at  the  time  of  his 
death,  to  that  authority,  and  not  merely  to  the 
weight  of  his  opinions  when  he  compiled  his 
lectures,  are  his  Commentaries  as  he  left  them 
entitled.  Nine  editions  of  Blackstone's  Com- 
meiitaries  were  published  in  his  lifie-time,  and 
it  appears  from  Hargravc's  Jurisconsult  Ex* 
ercitations,  vol.  1,  p.  :$81,  that  the  tenth  edition, 
though  publishcfl  af\er  Blackstone's  death,  had 
been  corrected  by  him. 

Not  nnconnected  with  the  law  of  libel  upon 
which  Mr.  Home  said  so  much  in  this  case,  is 
the  dictum  of  lord  Ellenlmrough  in  the  case  of 
Dubost  V,  Beresford,  (2  Campbell's  M^i  Prius 
llep.  5i  1,)  being  an  action  for  destroyin:jf  n  pic- 
ture, which  was  publicly  exhibited,'biii  which 
it  appeared  was  highly  dofiimatory  of  a  gentle- 
man and  his  wife  who  was  the  dt- fondant's  siMer. 
Lord  Ellenhoroiigh,  C.J.  B.  U.  snid  "  If  it  was 
a  libel  upon  the  persons  iatroduccd  into  il,  tbt 
i  I 


•  « 


/ 

» 


T9DJ              IT  GEORGE  HI.              Prc€€e£ngi  a^cUd  J.\n  Hime,  [SOO 

hw  car.&bt  C4«v«44er  it  iiifaai*ie  as  a  picture.  "  Much  t!oa*:»c  ki«  tcco  f'>ra:eflv  emenaineil 

f,'p«>v  fto  a|^licaiK/n  lo  iLe  L/^4  Cbuacdior,  bi  iLcA««iiOiibrre[i.<;4ieii:i^cci.\dk-tiiU£uis(iH| 

be  w««l'l  ba««  granted  41:1  ir  jaDctMO  affU&M  ha  for  tbcir  konift^s^e  crf  tke  cnmical  law*  of  ibu 

«zhiUii«>o,  ao<l  \Jbit  p!ain*utf  was  Uiib  cifiilj  ,  coaDtf\,    aii€tL<r  ani    criniio^  lofonuat&M 

an-i  crimioaJlj  ra>»fe  for  tntia^  eabibiied  h."    >  were    Uwf'ul.     Tee  coosLiictioBs    of  3lagi)4 

I   bate  beeo  iDf<«ruif-d  I't  «erv  hitfh  auiho-  '  Charu,  cap.   I?,  soom  atkciect  »taiu:e».  atd 

ritr,  that  iL«  pr>ffi^.lj^at.o  j    ot    iln«  dcctri&e  b'xkdcf  the  law,  drcl^re  and  asnrt«,  That  u 

refatio{rtrilh«  l><rii  ClfabC«:i>or\  if  juDCtr'/n  ex-  ia«a  caa    be  ciu'^'tnt,   but    b%   indirtnieot  ir 

CkUA  |(fr«at  aaiObi%hin6rit  in  the  ri-iii<j»  r.f  alt  ilic  f'resf-b'rTi'Dt  — In    iKe  ca«e  ot'  ibe  King*  ajJ 


practiijobera  of  the  C4ij;!4  of  e'lUiiv.  aii«l  I  bail 
■pprehetylM  that  this  nuM  i.«v  b^pp^-nfri; 
Wknt.H    I   belle  re  th#'rc  ia  oot  to  be  tound   io 


ijf-rci.tt  ami  oiLtnr,  1  acd  S  W  ill^io  afi4 
3Iar-v,  re|««^rt<:d  in  Jih  31>i*i.  4<>S.  and  thriv 
called  P.iniifc's  ca«e,  «;r  Fntorls  iViacin^ttrii 


the  lio'A*  auy  d^r-tsioo  '>r  aay  d.ctacii.  \i>A\fT\ftT     arerred  ibat  lor  J  ch;ri  ju^iice  Hale  bad  often 


t/>  tiffe  da^i  of  the  Sur  Chariibrr.  from  v«hich 
■uoh  doctnne  can  he  deiluced,  f-iii.er  direci!y, 
4r  by  iiifenmce  or  anaUnry  :  unless  iiid««J  we 
are  V»  ezrepi  the  prfjcee<.in;(ii  of  ]  ird  Elleoho- 
roii|(h'4    yreidtctnior   Sci<>tfj»    ard  hit  asso- 


iaid,  *  Tliat  if  €»'-r  i:.f'>ruiaiioos  came  iodk- 
pfite,  tl:e}  cuu  li  ni't  »:aDd,  but  must  necesariiy 
fall  10  t.'ie  srnutjd/ — it  is  admittrd,  bcwtrrr, 
that  the  ojui  t  of  kiii:;*s-bencb  io  that  case  belu, 
that  iafonnaiiiibs  lav  at  ctimmon  law. 


ci«ic«i  in  the  ca«e  of  lltu-.y  Cii:fr;  in  which  ;      *'Tiie  prf-^ent  question  thereffrc  will  be,  Wl.« 
rsmtr  *' Ori'inatuai  •>!  rjij'>«l  liber  ifiiiiuiai  *  llie     are  the  r-:fii»-rs    kiiOHn   to  the    law,  and  dc- 

persoosaiiii 
ihibiting  iiifornaalioci 
■1  early  cot!ec;«}f     ^ 
qiiH.  "      See  the  Order  lu  «ol.  ij,  p.  19d,  in  ;  from  the  auiliority  of  the  letrislalure,  abtJ  the 
'^i'''(?^*i»  CJasc.     Ste  Ilei.ry  Csre's  Case,  in  I  law  hooks,  that  these  oficera  were  only  iLe     j 

king's  aiioruey- general,  and  the  k'ni^'s  co- 
roner, tu  whicli  latter  is  always  added,  in  »'.ch 


rsmtr  **  ^fniiuziuai  t>i  (^WM  iUier  ifiMiuiai  *  ilie  are  the  r-nii»-rs  kiioiin  to  the  I 
IVerkly  l^ar:ket  of  Adtice  from  Rome,  or  the  -  scribed  in  the  Uw  books,  a»  1  he 
lli«rtory  of  i'o|«ery,*  nun  ulimi'jn  ini)irimafur  .  whum  only  thi>  ri^hi  of  exhibiting 
»ef  poblicelur  per  ^h'quain  |M'r*><iiiaiii  qiiaiiicrin-  '  er  onlao  reeled  ? — It  may  be  i-lea 


▼ol.  7,  p.  nil.     8cealso,  vol.  Vj,  p.  1152. 

C'or»cernin(|^  appeal  of  murder,  spokr-n  of  in  p. 
TlOi  %ee  the  cases  of  Npencer  Cowjier,  vol. 
12,  p.  HOG,  and  Tboiaas  Bauibrid^p,  vol.  17, 
p.  3'J7. 


In  Vol.  IG,  which  in  just  puhlishe«l,  of  the 


rates,  the  title  of  attorney  al>o — No  act  of  |»ar- 
liamcnt,  no  law  book,  mentions  any  other  odiccf, 
as  bavins;  this  power  in  any  case,  or  uodei  any 
circumsijinces. — Froiu  the  king's  coroner  ili.» 
power  was  taken  away  by  the  statute  4  sjid  S 
William  and  Mary,  cap.   IB,  and  was  then  kit 


New  I'arliumentary  History  (p.  42.)  it  appears  '  in  the  attorney  general  onU. — Serjeant  Han- 
that  the  attempt  at  the  time  of  the  involution  ■  kins  in  his  second  volume  of  t^leasof  theCrnwo,   * 
to  take  away  Informations  in   the  cfiurt   of  |  fol.  2C8,  observing  upon  that  statute's  tukis;: 


King'H  IVncn,  (see  p.  678)  was  mentioned  by  j  away  this  pouer  from  the  king's  coroiiir 
5lr.  Nicholson  Calvert  in  his  speech  on  March     attorney  only,  says,  from  whence  it  f<>ll< 


4 1  176^1  in  the  llous<;  of  Commons,  upon 
iiioiin;;  for  leave  to  brint;  in  a  Llill  *  lor  the 
relief  of  his  Majesty's  suhjecty,  toucliint;  Infbr- 
iiiutionH  in  the  King's-bem-li,  by  and  in  the 
name  ot  his  Majesty's  Attorney-General.' 

On  the  writ  of  error  in  Wilke^V  Case,  (See 
Vol.  19,  p.  1120)  in  support  of  the  first  error 
assi|rni*<l,  viz.  **  That  it  does  not  a|>iiear  by  the 
said  ri  coriis,  itiat  the  said  sir  Fletcher  Norton, 
kiiit;ht,  by  uhoin  the  said  informations  against 
the  said  John  Wilkes  were  exhibited,  had  any 
lawful  power,  warrant,  or  authority,  according 
to  the  Law  of  the  land,  to  exhibit  the  said  in- 
formiitions  in  the  records  aforesaid  specified  ; 
and,  thf  refbre,  that  the  said  infonnatiuns  are 
not  Nufiicient  infontiations  in  law,  h  hereon  to 
contict  the  said  John  Wilkes  of  the  ofl'euces  in 
and  by  the  same  inrnrinations  chart;ed  upon 
him,  and  to  t^Mnind  the  aforesaid  jiidfrments 
ogaiuNt  liiiu,"  the  follotving  reasons  were  al- 
h-i^ed  in  his  printed  Case,  signed  by  his  counsel 
(<j|ynn  and  Davenport.) 

"  J.  Ih'cause  the  said  informations  are  ex- 
hibited ami  filed  by  the  suid  sir  Fletcher  Nor- 
ton, as  his  Majesty 'sStdicitor  General,  ex  officio, 
when,  by  virtue  of  such  his  office,  he  had  uo 
geueral  authority  so  to  do. 

**  II.  iiecauseit  does  not  appear,  tbat  he  bad 
any  apecial  luthority  so  to  do. 


sl4 
lloai, 


I 


that  mtbrmations  exhibite<l   by  the    attorufV 
general   remain  as  they  were  at  common  U«- 

'*  iSuch  informations  can  only  be  exhibited  m 
the  court  of  King's-bcnch,  of  which  court  the 
king's  attorney  general  and  the  king's  coroorr 
and  attorney,  commonly  called  the  roaster  of 
the  Cruwn-oiiice,  areutticers  upon  record,  and 
have  their  known  seaisand  places  there  as  such. 

**  Sir  Uarlholomew  Shower,  in  his  Ue[M>r(s 
fol.  114,  in  the  same  case  above  mentioned  in  3 
Alod.  argues  and  observes,  upon  the  statute  ."^l 
Elizabeth,  cap.  5,  and  its  proviso  in  sect.  3,  pro- 
viding **  That  that  act  shall  not  extend  Io  aav  ly 
such  ofiicers  of  record  as  have,  in  respect  nt  « 
their  offices,  theretofore  lawfully  used  to  ex-  ij 
hibit  informations,'  that  it  is  the  judgment  of 
parliament,  that  there  were  ofiicers  to  exhibit 
them,  and  those  that  are  meant  must  be  the  at- 
torney and  his  deputy  the  coroner,  for  I  knoV) 
says  he,  no  other. — It  may  he  thaught  that  sir  f» 
Bartholomew  rSliower  is  inaccurate  in  calling  L 
the  coroner  deputy  to  the  attorney,  becausethr 
coroner  has  a  sn|ierior  seat  in  the  court  of 
Kin;; 's- bench  to  the  attorne\. — Hut  sir  K«r- 
thidomew  Shower  must  be  understood  to  sfK'ak 
of  the  coroner,  as  deputy  only  in  this  iustaDrCf 
he  not  having  equal  power  with  the  alturuej 
over  the  information  when  exhibited  ;  for  the 
coroner  cannot  put  a  stop  to  it  even  Uiougb  k^ 


«  * 


SOI] 


JbraUbd. 


A.  D.  1T77. 


[801 


ihould  hare  the  kinji^'s  warrant  under  his  tign 
manual  fur  the  purpose ;  and  yet  the  attorney- 
greoeral  can,  by  Tirtue  of  his  office,  atop  it  at 
Dooe  by  a  noli  prosequi,  which  appears  by  the 
caae  of  the  Kiiif^  v.  Benson,  t  Vent.  33.  Sir 
Bartholomew  Shower,  fol.  120,  says  further, 
rbat  in  case  of  malicious  prosecution,  no  action 
lies  aj^inst  the  attorney  or  coroner,  any  more 
thanaf^insta  p'and  juror  or  prosecutor;  and 
the  rea»(t>n  f^iven  fur  it  i^,  because  they  are 
upon  their  oaths,  and  so  says  he,  they  (mean- 
ing' the  attorney  and  coroner)  are  here  as  offi- 
cers upon  record  ;  and  fol.  122,  he  says,  the 
way  of  apprizing  the  Court  is,  by  *  dedit  curie 
bic  intelligi  et  informari'  before  any  process, 
which  is  done  by  a  sworn  officer  filed  of 
record. 

'*  If  it  lie  contended,  that  durincf  the  facancy 
oftli^  office  of  attorney  {general,  bis  authority, 
in  this  resjiect,  devol?es  upon  the  solicitor  f(e- 
Deral ;  it  is  answered,  that  no  law  book  or  ju- 
dicial determination  warrants  that  argument. 
It  is  admitted  that  there  are  some  modern  ia- 
•laoces  in  the  rolls  of  the  Crown-office  of  in- 
formations filed  by  the  solicitor  general,  ex 
officio  bome  of  which  describe  the  racancy  of 
tlie  office  of  attorney  general,  as  if  that  was 
Ibe  circumstance  from  ^hich  the  Sitlicitor  fe* 
Dera*  denred  his  authority,  and  raised  to  him- 
•elf  this  |>ower.  But  as  the  others  are  ailent 
about  such-  racancy,  they  must  prore  a  general 
original  auihority,  or  nothing ;  because  if  a 
special  authority  is  to  gire  the  title,  it  most  by 
tbe  rules  of  law  be  set  forth  in  the  record,  for 
iothing  out  of  tbe  record  can  warrant  the  judg- 
neot  Ufion  the  record.  There  does  not  appear 
to  be  one  instance  of  a  litigation,  or  judicial 
•pinion,  conccrninf;  such  iutormatioos  filed  by 
tbe  solicitor  general. 

'*  It  appears   upon  the  records,  that  the 
attorney  general  became  the  prosecutor  of  tbe 
present    informations,    before  the  judgments 
were  given.     But  no  adoption  afterwards,  by 
the    attorney  general,    of   these  illegitimate 
aflbpring  can  sanctity  their  birth.     If  the  infor- 
mations were  bad  when  thev  were  filed,  no  aub- 
•equent  act  whatsoever  could  make  them  good. 
**  Wherefore,  as  the  legislature  haa  not  sub- 
ilitated,  nor  meant  to  substitute  tbe  solicitor 
general,  or  any  other  person  or  persona,  in  the 
raom  of  the  coroner,  from  whom  they  took  this 
^wer,  or  in  the  place  of  the  attorne3r  general, 
daring  the  vacancy  of  that  office,  as  it  was  al- 
ways in  the  power  of  the  king  to  supply  that 
Vacancy  at  any  moment  he  pleased ;    as  the 
ligislature  has  \eh  the  attome3r  general  the 
owly  kuown  officer  in  law,  authorial  to  exhibit 
•riminal  informations  ei  officio ;  as  tbe  solicitor 
tcneral  i^  no  aworn  officer  of  tbe  court  of 
MgVbenob,  either  filed  of  record,  or  other- 
wise ;  as  all  the  law-books  are  coosibtently  ailent, 
about  any  power  kidgeil  in  him  for  such  pur- 
|sae ;  as  this  |)ower  has  of  late  time  only  been 
isurped  by  the  aolicitor  general  in  aoine  roo- 
^ern  inatances,  and  those  too  varying  in  tlicir 
brm,ii«  if  he  dkt  ant  knnw  on  wnut  ground  he 

VOL.  TOL. 


claimed  or  exercised  the  power ;  and  tt  he  ap- 
pears to  have  had  'no  warrant  or  authority 
whittaoever  to  act  in  this  intunce  aa  attorney 
for  the  crown  ;  il  Is  humbly  submitted  by  the 
plaintiff  in  error,  that  the  informations  in  ques- 
tion were  filed  without  anv  lawful  authority^ 
and  for  that  reason  are  fundamentally  bad  and 
void,  so  as  not  to  warrant  any  judgments  upon 
them  agaiost  the  plaintiff  in  error." 

On  the  part  of  the  crown  it  was  said  in  an- 
swer, **  That  an  information  for  an  offence  is  n 
surmise  or  suggestion  upon  record,  on  behalf 
of  the  king,  to  a  court  of  criminal  jurisdiction, 
and  is,  to  all  intents  and  purposes,  the  suit  of 
the. king;    and  that  it  would  be  difficult  to  as- 
sign a  reason,  why  his  majesty  should  not  hare 
equal  liberty  with  the  subject  of  commencing 
and   prosecuting  his  suits,   by  those  persons 
whom  he  thinks  fit  to  confide  in  and  employ. 
That  the  attorney  and  aolicitor  general  are  in- 
vested, by  their  offices,  whh  general  authority 
to  commence  and  proselcute  the  suits  of  tbt 
crown  :  it  is  true,  the  attorney  geceral,  aa  the 
superior  officer,  has  the  direction  and  control 
of  his  majesty's  prosecutions,  lu  which  the 
solicitor  general  sekioin  interferes ;    but  it  is 
equally  true,  that  during  the  vacancy  of  the 
office  of  attorney  general,  all  the  auits  of  tbe 
crown,  both  criminal  and  civil,  are  commenced, 
provecuietl,  and  carried  on  by  the  Solicitor  Ge- 
neral.   That  at  the  time  u  lien  these  informa- 
tions were  filed  against  Mr.  Wilkes,  the  office 
of  attorney  general  was  vacant,  and  conse- 
quently the  solicitor  general  was  the  proper 
officer  to  exhibit  them.    But  it  is  said,  that  the 
fact  of  the  vacancy  ought  to  appear  ii|ion  the 
record :  the  only  pretence  for  such  an  averment 
is  to  inform  the  court  of  the  vacancy,  as  an  in- 
ducement to  receive  the  information  from  the 
solicitor  general ;  but  there  is  no  necessity  for 
that  intelligence.    The  attorney  general  is,  in 
truth,  an  officer  of  and  has  a  place  in  the  court 
of  King's-bench,  and  the  Court  will  take  notice 
of  the  vacancy  of  the  office ;    and  there  are 
multitudes  of  instancesof  suits  commenced  and 
prosecuted  by  the  aolicitor  general  on  behalf 
of  the  Cniwn,  without  any  averment  or  notice 
taken  of  the  vacancy  of  the  office  of  attorney 
general.    Bnt  if  the  circumstance  of  an  infor- 
mation  being  filed  by  the  solicitor  general  fur- 
nished any  real  ground  of  objection  to  the  pro- 
secution, yet  it  was  conceived,  that  the  plainiiff 
in  error  waa  now  precluded  from  availing  him- 
self of  it;  it  could  at  most  amount  only  to  an 
irregularity,  and  the  remedy  must  have  been 
by  application  to  the  court  to  have  the  informa- 
tion taken  off  the  file,  or  the  proceedings  stayed. 
It  coulil  never  be  a  cause  of  demurrer,  or  of 
arrest  of  judgment,  or  a  ground  of  error  \  and 
'Mr.  Wilkes,  having  pleaded  to  tbe  ofi*ence,  bad 
waived  any  advantage  of  that  irreguUrity. 
Besides,  tlie  solicitor  general  having,  during 
the    auit,    been  appjinteil   Attorney  General 
adopted  the  information,  joined  issue  with  the 
plaintifi'  in  error,  nod  prosecuted  the  suit  te  • 
conviction.'' 


«F 


80S] 


10  GEORGE  III. 


Trial  of  John  Alnum^ 


]m 


S53.  The  Trial  of  Jonv  Aliion,  Bookseller,  upon  an  InformatioD, 
filed  er  officio,  by  William  De  Grey,  esq.  his  Majesty's  At- 
torney-General, for  selling  Junius's  Letter  to  the  King :  Be- 
fore the  Right  Hon.  William  Lord  Mansfield,  and  a  Special 
Jury  of  the  County  of  Middlesex,  in  the  Court  of  KfngV 
Bench,  Westminster-Hall,  on  Saturday  the  2d  day  of  JudCi 
IOGeobgeIIL  a.  d.  1770.     [Taken  in  Short-hand.^] 


Copt  of  an  Information,  filed  Ex-Officio  by 
'  WiLUAM  De  Gret,  et^.  hit  MHJeitjf'f  At- 
torney   Geoeral,    aipaintt  Jobn   Almon» 
Boolueller,  for  publisbinf^  a  Libel. 

MiddUtex^  Filed  Hilary  Term,  10  Geo,  3. 

Information  aeti  forth,  That  John 

AlmoD,  late  of  the  pariah  of  St.  Jamea, 
withio  the  liberty  of  WeatmtDater  in  the 
conoty  of  Bliddleaex,  bookseller,  baring  no 
resrard  to  the  laws  of  this  king^dom,  or  the 
public  peace,  good  order,  and  gofernmeot 
thereof,  and  moat  unlawfully,  aediiiously,  and 
roaliciouslv  contriTing  and  intending  by  wick- 
ed, artful,  acandalooa,  and  aialicious  allu- 
aiont,  aup|KMitiona  and  insinuationt,  to  mo- 
lest and  disturb  the  happy  slate,  and  the 
public  peace  and  tranquillity  of  thia  kingdom, 
and  most  insolentlv*  audaciously,  and  nnjnatly 
to  asperse,  scandalize,  and  yility  our  said  pre- 
sent soreretgii  lord  the  king,  and  to  represent, 
and  to  cause  it  to  be  belier^,  that  our  said  so- 
vereign lord  the  king  had  by  bis  measures  of 
gofemment  lost  the  affections  of  his  subjects 
in  that  part  of  Great  Britain  called  England, 
and  in  Ireland,  and  in  his  dominions  of  Ame- 
rica, and  brought  the  public  affairs  of  this  king- 
dom into  a  most  distressed,  disgraceful,  and 
lamentable  state  and  condition  ;  and  also,  most 
unlawfully  and  maliciously  contriving  and  in- 
tending to  reuresent,  and  cause  it  to  be  belief  ed, 
4hat  our  said  lord  the  king  had  besto\red  pro- 
motions and  faTours  upon  his  subjects  of  that 
part  of  his  kingdom  of  Great  Britain,  called 
l^cotland,  in  preference  to  his  subjects  of  that 
part  of  Great  Britain  called  England,  and 
thereby  to  create  q^roundless  jealousies  and 
uneasiness  in  his  mnjesty  *s  subjects  of  England, 
and  also  most  unjustly  to  represent,  and  cause 
it  to  be  believed,  that  our  said  lord  the  king  had 
bestowed  promotions  and  favours  upon  one  part 
of  his  said  majcKty's  army,  commonly  called 
the  guards,  in  preference  to  another  part  of  his 
army,  mmmouly  called  the  marchinjif  regi- 
ments, and  thereby  to  create  groundless  jea- 
lousies, uneasiness,  and  mutiny,  in  that  part  of 
his  army  called  the  marching  regiments,  and 
to  bring  our  said  lord  the  king  and  his  adminis- 
tration of  the  government  of  this  kingdom, 

*  Printed  for  J.  Miller,  in  Queen's- Head- 
Puiage,  Paternoster-row,  1770. 


into  the  otmost  dishonour  and  contempt,  and  to 
poison  and  infect  the  minds  of  his  roajeaty'b 
aobjecta,  with  notions  and  opinions  of  our  said 
lord  the  king,  highly  unworthy  of  oar  said 
lord  tbe  king,  and  of  that  paternal  love  and 
concern  which  he  hath  always  showed  and 
expressed  for  all  his  subjects,  aa  if  omr  Slid 
lord  the  king  bad  unjustly  taken  a  part  with 
some  of  bis  subjects  against  otliers,  and  had 
nnjiistly  prostituted  the  meaaures  of  his  go- 
vernment to  gratify  personal  resentment ;  and 
also,  thereby  as  much  aa  in  him  the  said  Jobs 
Almon  lay  lo  alienate  and  withdraw  from  oor 
said  lord  the  king  that  cordial  love,  allegiaoee^ 
and  fidelity  whicm  every  sulject  of  oar  said  kwd 
the  king  snonUl  and  of  right  ought  to  haveaad 
shew  towards  our  said  lord  the  king ;  and  abo, 
most  unlawfully,  wickedly  and  malidously  coo- 
trivingand  intending,  by  wicked,  artful,  scandal- 
oofl,  and  malicious  allusions,  suppositions  sod 
insinuations,  to  traduce,  scandalize,  and  vilify 
the  principal  officers  and  ministers  of  oor  siid 
lord  the  kmg,  employed  and  entrusted  by  oar 
said  lord  the  king  in  the  conduct  and  manage- 
ment of  the  weighty  and  arduous  affairs  of  this 
government,  and  to  represent,  and  cause  it  to 
be  believed,  that  said  principal  officers  and  mi* 
nisters  had  violated  the  laws  and  cimstitutioB 
of  this  kingdom,  and  adopted  weak,  oppressire, 
and  infamous  measures  in  the  admioistratioo 
of  the  public  affairs  of  this  kingdom,  and  had 
brought  distress  and  misery  upon  the  subjccti 
of  this  kingdom  ;  aud  thereby  to  weaken  and 
diminish  the  public  credit,  power  and  autho- 
rity of  the  government,  and  also,  as  much  as  in 
him  the  said  John  Almon  lay,  contriving  and 
intending  to  asperse,  scandalize  and  vilify  tbt 
members  of  the  present  House  of  Commons 
of  this  kingdom,  and  to  represent  them  as  to 
abandoned,  profligate  set  of  men,  who  had  arbi- 
trarily invaded  the  rights  of  the  people,  violated 
the  laws,  and  subverted  the  constitution  of  thii 
kingdom,  and  also  as  much  as  in  him  the  siid 
John  Almon  lay,  to  move,  excite,  and  stir  op 
the  subjects  of  our  said  lord  the  king  to  instir- 
rection  and  rebellion  against  our  said  lord  tbt 
king,  he  the  aaid  John  Almon,  upon  the  fir^ 
day  of  January,  in  the  lOlh  year  of  the  reiffi 
of  our  saifl  present  sovereign  lord  George  the 
3d,  by  the  ffrace  of  God,  of   Great  Britailf 
France  and  Ireland,  king,  defender  of  the  faitbi 
and  so  forth,  with  force  and  arniki  at  Uie  ptriA 


805] 


for  M  Libel. 


A.  D.  1770. 


[506 


r>f  St.  Jamei  aforesaid,  withio  the  liberty  of 
Westminster  aforesaid,  ia  the  county  of  Mid- 
dlesex aforesaid,  uolawfully,  wickedly,  sedi- 
tiously, and  maliciuusly  did  publish,  and  did 
cause  aud  procure  to  be  published,  a  roost 
MTicked,  scandalous,  Keditious,  and  malicious 
libel  intituled,  The  London  Museum  of  Po- 
litics, Miscellanies,  and  Literature,  in  which 
iud  libel  of  and  concerning^  our  said  present 
wvcreijj^  lord  the  kioi|^,  and  of  his  adminislra- 
tion  of  the  government  of  this  kiuf^dum,  and 
iIm  of  and  concerning  the  public  affairs  of  this 
kingdom,  and  also  of  and  concerning  the  prin- 
cipal officers*  and  ministers  of  oor  said  lord  the 
lung,  employed  and  entrusted  by  our  said  lord 
ihe  king  in  the  conduct  and  management  of 
ibe  weighty  and  arduous  affairs  of  this  govern- 
nent,  and  also  of  and  concerning  the  members 
>f  the  present  House  of  Commons  of  this  kiog- 
lom,  are  contained  (amongst  other  things)  di- 
rers,  wicked,  scandalous,  seditious,  and  roali- 
aous  matters  (that  is  to  say)  in  one  part  thereof 
iccording  to  the  tenor  following,  to  wit,  **  Ju- 
lias's  letter  to  the  ****  (meaning  our  said 
•nl  the  king).  When  the  complaints  of  a 
mre  and  powerful  people  are  observed  to  en- 
Tease  in  proportion  to  the  wrongs  they  have 
luffcred,  when,  instead  of  sinking  into  submis- 
iioD,  they  are  roused  to  resistance,  the  time 
vill  soon  arrive  at  which  every  inferior  consi- 
leratioo  must  yield  to  the  security  of  t^e  so- 
vereign, and  to  the  general  safety  of  the  state. 
Pbere  is  a  moment  of  difficcklty  and  danger,  at 
rhicb  flattery  and  falshood  can  no  longer  de- 
rive, and  simplicity  itself  can  no  longer  be 
Dialed.  Let  us  suppose  it  arrived.  Let  us 
luppose  a  gracious,  well-intentioned  prince, 
oaue  sensible  at  last  of  the  great  duty  he  owes 
o  his  people,  and  of  his  own  disgraceful  situa- 
ion ;  that  he  looks  round  him  for  assistance, 
ind  asks  for  no  advice,  but  how  to  gratify  the 
tiahes«  and  secure  the  happiness  uf  his  subjects. 
[d  these  circunAstances  it  may  be  matter  of 
various  speculation  to  consider,  if  an  honest 
nan  were  permitted  to  approach  his  king,  in 
vhat  terms  would  he  address  himself  to  his 
iOfereig'n.  Let  it  be  imagined,  no  matter  bow 
mprobable,  that  the  first  prejudice  against  his 
character  is  removed,  that  the  ceremonious  dif- 
Icalties  of  an  audience  are  surmounted,  that 
le  feels  himself  animated  by  the  purest  and 
Doat  honourable  affections  to  his  king  and 
uiaotry,  and  that  the  great  person,  whom  he 
tddresaes,  has  spirit  enough  to  bid  him  speak 
reely,  and  understanding  enough  to  listen  to 
lim  with  attention.  Unacquainted  with  the 
^ain  impertinence  of  forms,  he  would  deliver 
iw  sentiments  with  dignity  and  firmness,  but 
lot  without  respect.  Sir,  (meaning  our  pre- 
leot  sovereign  lord  the  king)  it  is  the  misfor- 
4ine  of  your  life,  and  originally  the  cause  of 
nrery  reproach  and  distress  which  has  attended 
jTOor  government,  that  you  (again  meaning 
Mr  present  sovereign  lord  the  king)  shoold 
acrer  have  been  acquainted  with  the  language 
vi  troth,  until  you  heard  it  in  the  coronlaints 
If  jow  people.    It  is  Dot^  howcfer,  too  late  to 


corrtet  the  error  of  your  education.  We  are 
still  inclined  to  make  an  indulgent  allowance 
for  the  pernicious  lessons  you  received  in  your 
youth,  and  to  form  the  most  sanguine  hopes 
irom  the  natural  benevolence  of  your  disposi- 
tion. We  are  far  from  thinking  you  capable 
of  a  direct,  deliberate  purpose  to  invade  those 
original  rights  of  your  subjects,  on  which  all 
their  civil  and  political  liberties  depend.  Had 
1%  been  possible  for  us  to  entertain  a  suspicion  so 
dishonourable  to  your  character,  we  should 
long  since  have  adopted  a  stile  of  remonstrance 
very  distant  from  the  humility  of  complaint. 
The  doctrine  inculcated  by  our  laws,  that  the 
king  can  do  no  wrong,  is  admitted  without  re- 
luctance. We  separate  the  amiable  good- 
natured  prince  from  the  folly  and  treachery  of 
his  servants,  and  the  private  virtues  of  the  man 
from  the  vices  of  his  government.  Were  it 
not  for  this  just  distinction,  I  know  not  whe- 
ther your  m y's  (meaning  majesty's)  con- 
dition, or  that  of  the  English  nation,  would  de- 
serve most  to  be  UmentM.  I  would  prepare 
2 our  mind  for  a  favourable  reception  of  truth, 
y  removing  every  painful,  offensive  idea  of 
personal  reproach.  Vour  subjects.  Sir,  (agaiu 
meaning  our  said  present  sovereign  lord  the 
king)  wish  for  nothing  but  that  as  they  are  rea« 
sonable  and  afiectionate  enough  to  separate 
your  person  from  your  government,  so  vou 
(again  meaning  our  said  present  soverei^p  lord 
the  Icing)  in  your  torn  should  distinguish  be- 
tween the  conduct,  which  becomes  the  perma- 
nent dignity  «f  a  k-*g,  (meaning  king)  and 
that  which  serves  to  promote  the  temjiorary 
interest  and  miserable  ambition  of  a  minister. 
You  ascended  the  throne  with  a  declared,  and 
1  doubt  not,  a  sincere  resolution  of  givinff  uni- 
versal satisfaction  to  your  subjects.  You  (again 
meaning  our  said  present  sovereign  lord  the 
king)  found  them  pleased  with  the  novelty  of 
a  young  prince,  wliose  countenance  promised 
even  more  than  his  words,  and  loyal  tOiyou  not 
only  from  principle  but  passion.  It  was  not  a 
cold  profession  of  allegiance  to  the  first  ma- 
gistrate, but  a  partial,  animated  attachment  to 
a  favourite  prince,  the  native  of  their  country. 
They  did  not  wait  to  examine  your  conduct, 
nor  to  be  determined  by  experience,  but  ^ve 
you  a  generous  credit  tor  the  future  blessings 
of  your  reign,  and  paid  you  in  advance  the 
dearest  tribute  of  their  affections.  Such,  Sir, 
(again  meaning  our  said  present  sovereign  lord 
the  king)  was  once  the  disposition  of  a  people, 
who  now  surround  your  throne  with  reproaches 
and  complaints.  Do  justice  to  yourself.  Banish 
from  your  mind  those  unworthy  opinions  with 
which  some  interested  persons  have  laboured  to 
possess  you.  Distrust  the  men  who  tell  you 
the  English  are  natnrally  light  and  inconstant, 
that  they  complain  without  a  cause.  Withdraw 
your  confidence  from  all  parties  ;  from  minis- 
ters, favourites,  and  relations  ;  and  let  there  be 
one  moment  in  your  life  in  which  you  (again 
meaning  our  said  present  sovereign  lord  the 
king)  have  consulteu  your  own  understanding. 
When  you  (again  meaning  our  said  lord  tlie 


807]  10  GEORGE  IIL 

kiog)  affectedly  renounced  tlie  nanae  of  Eng" 
lithmao,  believe  me,  Sir,  (again  meaning  our 
faid  Jonl  the  king^  you  were  persuaded  to  |iay 
a  ?ery  ill-judged  compliment  of  one  part  of 
your  suhjecta  at  the  expence  of  another. 
iVhile  the  uativea  of  Scotland  are  not  in  actual 
rebellion,  they  are  undoubtedly  entitled  to  pro- 
tection, nor  do  I  mean  to  condemn  the  policy  of 
S'ving  some  encooracrement  to  the  novelty  of 
eir  uffectiona  for  the  Houae  of  Hanover.  1 
am  ready  to  hope  for  every  thing  from  their 
new-born  zeal,  and  from  the  future  ateadineaa 
of  their  allegiance.  But  hitherto  they  have  oo 
claim  to  your  favour.  To  honour  tliem  with  a 
determined  predilection  and  confidence  in  ex* 
elusion  of  your  EogUah  suhjecta,  who  placed 
Tour  family,  and,  in  spite  of  treachery  and  re- 
bellion have  supported  it  upon  the  th — ne 
i meaning  throne)  is  a  mistaLe  too  gross  even 
iM*  the  unsuspecting  generosity  of  youth.  In 
this  error  we  see  a  capital  violation  of  the  most 
obvious  rules  of  policy  and  prudence.  We 
ipace  it  however  to  an  original  bias  in  your  edu  • 
cation,  and  are  ready  to  allow  for  your  inexpe- 
rience. To  the  same  early  influence  we  attri- 
bute it,  that  you  have  descended  to  take  a  share 
not  only  in  the  narrow  views  and  interest  of 
particular  persons,  but  in  the  fatal  malignity  of 
their  passions.  At  your  accession  to  ihe  throne, 
the  whole  system  of  government  was  altered, 
not  from  wisilom  or  deliberation,  but  because  it 
had  be<>n  ailopted  by  your  predecessor.  A  little 
personal  motive  of^pique  and  resentment  was 
fufficient  to  remove  the  ablest  servants  of  the 
orown,  but  it  is  not  in  this  country.  Sir,  (again 
meaning  our  said  lord  the  king)  that  such  men 
can  be  dishonoured  by  the  frowns  of  a  k — , 
(noeaning  the  king)  they  were  dismissed  but 
could  not  be  disgraced.  Without  entering  into 
a  minuter  discussion  of  the  merits  of  the  peace, 
ive  may  observe  in  the  imprudent  hurry  with 
which  the  first  overtures  from  France  were  ac- 
cepted, in  the  conduct  of  the  negociation,  and 
terms  of  the  treaty,  the  strongest  marks  of  that 
precipitate  spirit  of  concession  with  which  a 
certain  part  of  your  subjects  have  Ijeen  at  all 
times  ready  to  purchase  a  peace  with  the  natu- 
ral enemies  of  this  country.  On  your  part  we 
are  satisfied  that  every  tiling  was  honourable 

and  iiincere,  and  if  E d  (meaning  England) 

was  sold  to  F e  (meaning  France)  we  doubt 

not  that  your  m -y  (meaning  ranjesty)  was 

equally  betrayed.  The  conditions  of  peace 
were  matter  of  grief  and  surprise  to  your  sub> 
jects,  but  not  the  immediate  cause  of  their  pre- 
■ent  discontent.  Hitherto,  Sir,  (again  meaning 
our  said  lord  the  i:ow  king)  you  had  been  sacri- 
ficeil  to  the  prejudices  and  passions  of  others. 
With  what  firmness  will  \ou  (again  meaning 
our  said  lord  the  king)  bear  the  mention  of  your 
own  ?  A  man  not  very  honourably  distinguish- 
ed in  the  world,  commences  a  ibrmal  attack 
upon  your  favourite,  considi'ring  nothing  but 
how  be  might  bestex|)Ose  his  person  and  prin- 
ciplea  to  detestation,  and  the  national  character 
of  his  countrymen  to  contempt  The  natives 
of  that  couBtrji  Sir,  (again  meaning  our  aaid 


Trial  of  John  Almon,  [GOB 

lord  the  now  king)  are  as  much  dirthigpisbed 
by  a  particular  character  as  by  jour  majesty's 
favour.  Like  another  chosen  people  tbey  hai e 
been  conducted  into  the  land  of  plenty,  where 
they  find  themselves  actually  marked  and  divid- 
ed from  mankind.  There  is  hardly  a  period  at 
which  the  must  irregular  character  may  oot 
be  redeemed.  The  mistakes  of  one  sex  Had  a 
retreat  in  patriotism,  those  of  the  other  in  devo- 
tion. Mr.  Wilkes  brought  w  ith  bim  into  poli- 
tics the  same  liberal  seutiments  by  which  Us 
private  conduct  had  been  directed,  and  seeoiei 
to  think  that,  as  there  are  few  exoesaea,  is 
which  an  English  gentleman  may  not  lieocr- 
mitted  to  indulge,  the  same  latitude  was  allow- 
ed him  in  the  choice  of  his  political  priodpkf 
and  in  the  spirit  of  maintaining  them,  I  aieu 
to  state,  not  entirely  to  defend  his  conduct; 
in  the  earnestness  of  his  zeal,  he  suffered  some 
unwarrantable  insinuations  to  escape  him.  He 
said  more  than  moderate  men  would  justify,  bet 
not  enough  to  intitle  him  to  the  honour  ol  your 
m — y'a  (meaning  majesty's)  personal  reseat- 
meot.  The  rays  of  r — I  (meaning  royal)  iodigti 
nation,  collected  upon  him,  serv^  only  to  illo- 
minate,  and  could  not  consume.  Animated  by 
the  favour  of  the  people  on  one  side,  and  bat- 
ed by  persecution  on  the  other,  his  views  ni 
sentiments  changed  with  his  situation.  Hardly 
serious  at  first,  he  is  now  an  enthusiast ;  tM 
coldest  bodies  warm  with  opposition,  the  faardat 
sparkle  in  collision.  There  is  a  holy  mistakes 
zeal  in  politics  as  well  as  religion.  By  pff- 
suading  others  we  convince  ourselves.    The 

{mssions  are  engaged,  and  create  a  material  tt- 
ection  in  the  mind,  which  forces  ua  to  love  the 
cause  for  which  we  sufier.  Is  this  a  conteatiM 
worthy  of  a  k —  ?  (meaning  king).  Are  yo< 
(again  meaning  our  lord  the  now  king)  notees* 
sible  how  much  the  meanness  of  the  came 
gives  an  air  of  ridicule  to  the  serious  diflScultief, 
mto  which  you  (ag^in  meaning  our  said  M 
the  king)  have  been  betrayed  ?  The  destruc- 
tion of  one  man  has  hreo  now,  for  many  yean, 
the  sole  object  of  your  government,  audit  there 
can  beany  thing  still  more  disgraceful,  we  bate 
seen  for  such  an  object,  the  utmost  influence  of 
the  executive  power,  and  every  ministerial  ar- 
tifice exerted  without  success.  Nor  can  yoa 
(ugain  meaning  our  said  lord  the  now  king) 
ever  succeed,  unless  he  should  be  imprudest 
enough  to  forfeit  the  protection  of  those  laws, 

to  which  you    owe   your  c n  (meaoinf 

crown)  or  unless  your  ministers  should  |)cr- 
suade  you  to  make  it  a  question  of  force  aloo^ 
and  try  the  whole  strength  of  government  in 
opposition  to  the  people.  The  lessons  he  bii 
received  from  experience  will  probably  guard 
him  from  such  excess  of  folly ;    and  in  your 

m s  (meaning  majesty's)  virtues  we  find  il 

unquestionable  assurance  that  no  illegal  vio* 
lence  will  be  attempted.  Far  from  suspediflff 
you  (again  meaning  our  said  lord  the  now  kii^ 
of  so  horrible  a  design,  we  would  attribute  tvl 
continual  violation  of  the  laws,  and  even  tkil 
last  enormous  attack  upon  the  vital  priodphl 
of  the  constitution,  to  an  ill-adviied,  unwiray» 


for  a  LiM. 
Frtim  ant  fnlw  aipp  jnii 
(H^aio  Rimnintf  our  ssiil  lurd  llie  now  kioq;) 
hafe  been  Iviinvnl  iixo  anoilier,  and  an  the 
CBU»  was  uiiwiirtliy  nf  }'iiu  (at;aiii  meaning' 
our  said  I'inl  the  now  kinii)  your  ministers  «ere 
dcif  rrniDCd  llial  the  [iriiiletice  ol'  the  execution 
ihniiM  mrreajKind  with  llie  wiolom  am!  dii^niljr 
ufihe  deiiijn.  They  have  reduced  you  (ai;Rln 
meinitiic  our  said  lord  (he  nnw  kinu)  to  ihe  ne- 
cr9»ii>  of  cliomiiig-  outul*  b  variety  urdtfflciil- 
liei; — ina  lituaiinn  so  (inlmpity  that  yon  (ignin 
DieatiintC  our  uiri  ii-nl  the  iioif' kiiijf)  van  Dei 
Ihrr  Hu  vrr.-iit.'  wiihi'ut  ruin,  nor  n^lit  wiili'>iit 
aSiuiion.  Tliese  worthy  Ml  tantshavrund'iuht- 
edly  atv^n  ynu  m«ny  aintciiUr  immli.  iiC  their 
■biJilin.  Nul(»nl>'»lr<t»il1iniHkiiii£Mr.  Wilkes 
i  man  of  iinjioriauce,  they  haiejuiliciou^ly  trann- 
(tnul  the  quesiiuii  I'ruin  (be  rii;lit«  soil  lalvreRl 
nroaemnulD  the  oiiat  inipiirtani  rights  and 
talPTHl*  ol'llie  jwople,  and  I'urced  yourauhjrula, 
fnitn  nishini;  hcII  to  the  cniii>e  of  an  iodirj. 
ilnat,  to  unite  »ith  him  in  their  nnn.  Let  them 

jiinceed  >i  ihey  liMe  begun,  and  your  m y 

jmeknini;  majetty)  nei-d  not  duubt  that  the 
calulro|i1ie  will  dn  no  ilinhonour  lo  the  cuaduct 
ofibe  |iiec«.  ThecircuirisWncw to  whicbyou 
(ii;ain  meaning  uur  laiil  lord  tlienow  king)  are 
winced  mill  not  ailnil  of  a  com  promise  with 
Ibc  Eoylish  natinn.  Uiidecisifp,  quBtifyin;^ 
mraiurei  «ill  disgrace  your  goverumcnt  Btjll 
moteilian  open  tioleiiee,  aud,  wilhuut  aatitfy- 
ing  the  people,  will  exHte  their  cotiiempt. 
Tlicy  hate  too  niucli  undenisndini;  and  ipirit 
MiLTept  of  an  lodirEcl  Miiabctlon  fur  a  direct 
iojgry.  Notbing  Ifu  than  ■  repeal,  la  fiirinal 
u  the  reaulutlon  itself,  cuo  Ileal  the  wound 
"bich  ba*  lieen  gircn  to  the  constitution,  nor 
*ill  any  thing  less  be  accepted.  I  can  readily 
Uieie  that  there  is  an  Influrnce  sufficient  to 

iieilllial  pernicious  *ule      TlieH of 

[iHtning  the  House  of  Commons  in  this  kine- 
Ha}  nndonbledly  consider  their  duty  to  ibe 
t- — D  (meaning  craun)  a^  |>aramnunl  lo  all 
Wbtf  oblii^ationi.  Tu  us  Ibey  are  only  in- 
Mtcd  for  an  accidental  existence,  and  have 
i«Wly  Iranal'erred  iheir  graliiude  from  tUeir 
~~'  '   Xn  ibeir  benefactors ;  from  those,  who 

fr,  from  whose 

Ibey  deri>e  the  comforts  and  plea- 
of  their  political  life;~wlio  has  taken  the 
kadereal  care  of  tbeir  infancy,  relieies  Ibelr 
MCeuilJe*  without  offending  their  delicacy,- 
Udha*  giran  them,  what  Ibey  value  most,  a 
^iRaons  edijcallon.  But  if  it  were  possible  tbr 
UMt  integrity  lo  be  degraded  lo  a  cumtiliaii  so 
^fle  asd  abjecl,  that  compared  with  it,  the  pre- 
sent cilimalion  Ihey  stBTi<l  in  is  a  slate  of  bo- 
■Ubi  and  rMpecl,  consider,  Sir,  (again  mean- 
Uy  oar  said  lord  the  nnw  king)  in  what  maii- 
Hr  ^ou  will  aAerwards  nroceed.  Can  ^ou 
(■gain  meaniDg  our  said  lord  the  nnw  kinL') 
CIIMdT«  that  the  people  of  this  counlry  will 
itnf  rabmit  lu  be  ko*b">^<'  ^y  w  flexible  a 
H-  of  -  —  !  (meaning  Ibc  House  of  Com- 
nous.)  Il  is  not  in  the  nature  of  human  so- 
ciety, that  Buy  form  of  goiernment  in  such 
citcumstauces,  can  long  i>e  preserved.      In 


A.  D.  1770. 


[SIO 


cm  till 

•ttevok 


ersonnllv  D' 


onrt  tlia  (renvral  eontetnpt  of  the  people  is  a* 
fatal  B8  their  dateitakiun.  Such,  I  am  pai^ 
suaited,  would  be  the  neoessnry  effect  of  any 

made  by  the  present  M of 

(ag-ain  moaning  the  present  House  of 
Commons  of  this  kingdom)  and  as  a  qualifying 
measure  woutil  not  be  nccepltd,  it  reinaiiia  fur 
you  (a^ain  meaning  our  said  lord  the  now 
kinf)  to  ilrcide  iiheiher  you  will,  at  any  ba- 
naid,  support  a  aet  of  men,  who  haie  reduced 
you  lo  this  unhappy  dilemma,  or  wbetlifryoit 
will  gratify  the  united   wishes  of  the  whole 

people  of  Bni;1and,  by  diwolTinif  the  |i ; 

(meaning  parliament]  Taltlnif  it  liir  granted, 
as  1  do  very  sincerely,  that  you  (again 
iiig  our  aaid  lord  (belting)  hai  - 
design  against  the  conslilulion. 
incoDsisient  with  the  good  of  your  subjeels,  i 
ihink  you  cannot  liesitaie  long  u)>on  the  cboioa, 
which  it  equally  noucerna  your  interest  ■nil 
yoor  lioDourts  ednpl.  Oo  one  side,  ynu  (again 
meaning  uur  said  loid  the  nnw  king)  liasarLl  the 
affections  of  all  jbnr  English  subjects ;  ynu  re- 
linquish every  hope  of  reiKite  to  yoiirssl^i  and 
y»ii  (again  meaning  our  said  lord  the  now 
king)  endanger  the  establishment  of  your  fa- 
mily for  ever.  All  this  yuu  venture  fur  do  ob- 
ject whatsoever,  or  for  such  an  olijcct,  as  it 
would  be  an  affront  to  you  tu  name.  Men  of 
sense  will  examine  your  conduct  with  siw- 
|Hcinn ;  wliile  those  wlio  are  incapable  of  cotn- 
prehendiog  to  what  degree  Ibev  are  injured, 
afflict  ynu  with  cinranurs  eqnally  insolent  and 
unmeaning.  Supposing  it  possible  thai  im 
fata)  sinigffle  shonld  ensue,  you  (again  mean- 
ing our  said  lord  the  present  king)  determine  at 
onre  lo  be  unhappy,  withniil  the  hope  of  a  eoiw- 
penwlioo,  either  truro  intf  real  or  anibiiioB,  )f 
an  E sh  (meaning  Englisli)  k (mean- 
ing king)  he  haled  or  despised,  he  must  be  un- 
happy; and  this  perhaps  i:i  the  only  politigal 
triiih.  which  he  oufibt  to  be  convinced  uf  with- 
out experiment.  Bui  if  (lie  English  people 
should  no  longer  coiiflne  iheir  resentment  l»  a 
Bubmisalve  representation  nf  their  wrongs  )  if 
following  Ihe  glorious  exam  pie  of  iheir  aneea- 
tors,  they  should  no  longer  appeal  lu  the  crea- 
ture of  the  coDBlitution,  bat  to  that  high  being 
who  gave  them  the  rights  of  humanity,  wlioae 
gifts  it  were  sacrilege  to  aurrender,  let  me  ask 
you,  Sir,  (sgain  meaniuguur  aaid  lunl  the  pre- 
sent king)  upon  what  part  of  your  subjects 
would  ynu  rely  fur  assistance  f  Tbe  people  of 
I — I— d  (meaning  Ireland)  have  been  uniformly 
plunderet)  and  oppressed.  In  return,  they  give 
vnii  every  day  fresh  marks  of  their  resenlmeni, 
Tliey  dt^pisu  the  miserable  governor  yoa 
(again  meaning  onr  said  presivt  sovprri;;n  lord 
the  king)  have  leul  them,  btcanoe  he  is  tli« 
creature  of  lord  Bute  ;  nor  is  it  from  any  nam. 
ral  confusion  in  their  ideas,  that  ihry  nre  so 
ready  to  confound  the  original  of  a  k~g 
(meaning  king)  with  the  disgraceful  represen- 
tation of  bim.  The  distance  af  the  colonies 
would  make  it  itnpossible  furiliemio  take  an 
activt  concern  in  your  affairs,  if  ihey  were  •• 
well  affected  to  your  goveroinnit  as  tbey  odm 


Sll]  16  GEORGE  III. 

firatefMM  to  be  to  yoor  peraoo.  They  were 
ready  eooagb  to  dintiDgfuish  between  you  (a^ain 
meabiog  our  taid  present  sovereign  lord  the 
king)  and  your  miniiters.  -  They  ooroplaioed 
ot'an  act  ofibe  legislature,  bot  traced  the  origin 
of  it  no  higher  than  to  the  servants  of  the  c — o 
(meaning  crown)  they  pleased  themselves  with 
the  hope  that  their  s — r — n  (meaning  sove- 
reign) if  not  favourable  to  their  caote,  at  least 
was  impartial.  The  decisive  personal  nart  you 
look  against  them,'  has  effectually  banished 
that  first  distinction  from  their  minds.  Thtfy 
consider  you  as  united  with  your  servants 
against  A — r — a  (meaning  America)  and  koow 
bow  to  distinguish  the  s  n  fmeaning 

sovereign)  and  a  venal  p  t  (meaning 

parliament)  on  one  side,  from  the  real  senti- 
ments of  the  English  people  on  the  other. 
I/wking  forward  to  independence  they  might 

Iiossibly  receive  you  (again  meaning  our  said 
ord  the  now  king)  for  their  k — ;  (meaning 
king)  but  if  ever  you  retire  to  A— r— a  (mean- 
ing America)  be  assured  they  will  give  you  such 
a  covenant  to  digest,  as  the  presbytery  of 
Scotland  would  have  been  ashamed  to  offer  to 
Charles  the  second.  They  left  their  native 
land  in  search  of  freedom,  and  found  it  in  a 
desart  Divided  as  they  are,  into  a  thousand 
forms  of  policy  and  religion,  there  is  one  point 
in  which  they  all  agree :  they  equally  detest 
the  pageantry  of  a  k — ,  (meaning  king)  and 
the  sup&rcilioos  hypocrisy  of  a  bishop.  It 
is  not  tlien  from  the  alienated  affections  of 
I— I— d  (meaning  Ireland)  or  A — r — a  (mean- 
ing America)  that  you  Regain  meaning  our  said 
Iiresent  sovereign  lord  the  king)  can  reasonably 
ook  for  assistance  ;  still  less  from  the  people 
of  £ — U— d  (meaning  England)  who  are  ac- 
tually contending  for  their  rights,  and,  in  this 
great  question,  are  parties  against  you  (again 
meaning  our  said  present  sovereign  lord  the 
king.)  You  (again  meaning  our  said  present 
sovereign  lord  the  king)  are  not  however  desti- 
tute of  every  appearance  of  support ;  you 
(again  meaning  our  said  present  sovereign  lord 
the  king)  have  all  the  Jacobites,  Nonjurors, 
Roman  Catholics,  and  Tories  of  this  country, 
and  all  8 — I — d  (meaning  Scotland)  without 
exception.  Considering  from  what  family  you 
are  descended,  the  choice  of  your  friends  has 
been  singularly  directed ;  and  truly.  Sir, 
(again  meaning  our  said  lord  the  now  King)  if 
you  had  not  lost  the  Whig  interest  of  England, 
I  should  admire  your  dexterity  in  turning  the 
hearts  of  your  enemies.  Is  it  possible  for  you 
to  place  any  confidence  in  men,  who,  before 
they  are  faithful  to  you  must  renounce  every 
opinion,  and  betray  every  principle  both  in 
church  and  state,  which  tbey  inherit  from  their 
ancestors,  and  are  confirmed  in  by  their  educa- 
tion ?  whose  numbers  are  so  consideral>le,  that 
they  have  long  since  been  obliged  to  give  up 
the  principles  and  language  which  distinguish- 
ed tnem  as  a  party,  and  to  fif^ht  iwder  the  ban- 
nera  of  their  enemies  ?  their  zeal  b(»ins  with 
hypocrisy  and  must  conclude  in  treachery.  At 
fiirst  Ibey  daceife;  al  last  they  bttray.    Aa  to 


Trial  afJakn  Almon^ 


[8lf 


tbe^Scotch,  I  must  suppose  your  heart  and  un- 
derstanding so  biasseil,  from  your  earliest  ia- 
fancy,  in  their  fdvour,  that  nothing  leu  tbaa 
vour  own  misfortunes    can    undettive  you. 
Vou  (again  meaning  our  said  present  sovereign 
lord  the  kinff)  will  not  accept  of  th«*  nnifnrm 
experience  of  your  ancestors ;  aud  u  ben  oiice 
a  man  is  determined  to  belieire,  the  very  ab- 
surdity of  the  doctrine  confirms  him  in  hit 
faith.    A  bigotted  understand iug  can  draw  a 
proof  of  attechmeot  to  the  House  of  11— n— r 
(meaning  Hanover)  from  a  notorious  zeal  for 
the  House  of  Stuart,  and  find  an  earnest  of 
future  loyalty  in  former  rebellions.      Appcsr* 
ances  are  however  in  their  favour ;  so  strwiglj 
indeed,  that  one  would  think  they  had  foi^« 
ten  that  you  are  their  lawful  k — ,  (meaniojj: 
king)  and  had  mistaken  you  for  a  pretendtf  ts 
the  o— n.  (meaning  crown)    Let  it  be  adoiilted 
then,  that  tlie  Scotch  are  as  sincere  in  tb«ir 
present  professions,  as  if  you  were  in  reality 
not  an  Englishman,  but  a  Briton  of  the  norib, 
you  would  not  be  the  first  p — -e  (mcaoiDg 
prince)  of  their  native  oountnr  against  whom 
they  have  rebelled,  nor  the  first  whom  tbef 
have  basely  betrayed.     Have  you  (meaaiig 
our  said  lord  the  now  king)  forgotten,  Sir,  or 
has  your  fiivourite  concealed  from  you  tbtt 
part  of  our  history,  when  the  unhanpy  Chsiiei 
(and  be  too  had  private  virtues)  (led  from  thi 
open  avowed  indignation  of  his  English  Mb- 
jects,  and  surrendered  himself  at  diacretioo  to 
the  good  faiib  of  his  own  countrymen.    With* 
out  looking  for  support  in  their  affecttooi  u 
subjects,  M  applied  only  to  their  honour, « 
gentlemen,  for  protection.    They  received  hin 
as  they  would  your  m— -y  (meaning  m^j) 
with  bows,  and  smiles,  and  falshood,  and  kept 
him  until  they  had  settled  their  bargain  wiiii 
the  English  parliament ;  then  basely  sold  their 
native  k —  (meaning  kin^)  to  the  vtMigeauceof 
his  enemies.    This,  Sir,  was  not  the  act  of  • 
few  traitors,  but  the  deliberate  treachery  uf  t 
Scotch  parliament  representing  the  nstiuo.    A 
wise  p — ce  (meaning  prince)  might  draw  Cron 
it  two  lessons  of  equal  utility  to  himself;  oo 
one  side  he  might  learn  to  dread  the  uodis- 
guised  resentment  of  a  generous  people,  vbo 
dare  openly  assert  their  rights,  and  who,  40  & 

juit  cause,  are  ready  to  meet  tlieir  s -o 

(meaning  sovereign)  in  the  field  ;  on  the  olhtf 
side,  he  would  be  taught  to  apprehend  sonw- 
thing  far  more  formidable— a  fawniug  tret* 
chery,  against  which  no  prudence  can  guir^ 
no  courage  can  defend.  The  insidious  imiki 
upon  the  cheek  would  warn  him  of  the  cioktf 
in  the  heart.  From  the  uses,  to  which  oai 
part  of  the  army  has  been  too  frequently  SP* 
plied,  you  (again  meaning  our  said  lord  tat 
now  king)  have  some  reason  to  expect,  tkit 
there  are  no  services  they  would  refuse.  Bert 
too  we  trace  the  partiality  of  yonr  understas'- 
ing.  You  take  the  sense  of  the  army  from  tbi 
conduct  of  the  guards,  with  the  same  juiMi 
with  which  you  collect  the  sense  of  the  peopti 
from  the  representations  of  the  ministry.  Yotf 
marcbiog  regimsBts,  Sir,  (again  meaniog  M 


nH  Urt^lM  now  king)  irill  cut  make  llie 
IfuirAllmreximpIc  either  as  sDliliers  or  cub' 
jects.  Tliej  Feet  anil  resenl,  ai  Ihry  ou[;lil  to 
ill),  thil  in*Brialle,  uiiJislJDguiBliini;  I'araur 
nith  whicti  the  frmrdi  are  Ireated,  wliile  (buse 
(;allani  Iroopi,  by  «>ii>m  etery  liii£arJoui, 
every  lilmriiiui  service  is  (leTformed,  are  leli 
10  prrish  in  garrisons  abrond,  oi'  [tine  in  quar- 
ter* ■!  hotnp,  neglecleil  anil  lurcolten.  IT 
theji  liad  no  lense  of  Ilie  great  original  duly 
liiey  owe  iheir  country,  iheir  resentment  would 
oprrale  like  [islriotiiiu,  and  leave  your  caiiu  to 
be  deTMideii  by  those  lo  wbom  you  (a^'ain 
raeaDing-  our  saiil  fireseot  Barerei<^n  lord  the 
kinir)  bate  lavished  Ibe  rewards  and  homiura 
of  their  profession.  The  pnelorian  bands, 
enerrated  and  dehnuchefl  as  they  were,  bad  still 
Mrenglh  eooii^b  to  awe  ibe  UomBD  populace; 
but  when  the  ilifitant  legions  look  the  alarm, 
Ibfy  tnarched  In  Rome,  and  gHve  away  Ibe 
empire.  On  this  side  then,  wbicbever  way 
ynu  (sgaiu  meaning  our  said  lord  the  now  kin^) 
nay  determine  lo  Eiipport  tbe  lery  miaietry 
who  have  reduced  yuiiraflairs  tolbis  dejilorabU 
lilualion  :  you  may  shelter  youraell'  under  the 

lormt  oC  >  ji 1  (memiiiig  pwliaroent)  and 

Rt  your  people  at  tleliance.  But  he  assured, 
SSr,  ilial  such  a  rcaobilion  would  be  as  impru- 
tm.  as  it  would  be  odious.  II'  it  did  nnt  ira- 
mnJiaiely  sbake  your  eslnblisliment,  it  would 
nib  you  of  your  peate  of  mind  lor  eter.  On 
ibe  oilier,  bow  different  is  the  prospect!  hnw 
(«>}',  buw  safe  noil  honoorahle  is  the  path  be- 
Fiitc  yon !  tbe  English  nation  declare  Ibey  arc 
iinmly  injured  by  their  representatives,  and 

Hicit  your  m (meaniug  majesty)  to  enert 

fwt  lawful  prerogalive,  and  gire  them  an  op- 
unrliiniiy  of  recnilin^  a  trust  which,  they  find, 
lii<  been  io  iRandalously  abused.     You  are  not 

In  be  loIJ  that  the  p»wer  f^  the   II of 

■ (meaning  House  of  Commons)  is  nol 

■nginal,  hut  delegated  to  Ibera  tor  tbe  wellare 
»f  Ibe  people,  friim  whom  they  rpreive  it.  A 
numinn  of  right  arises  between  llie  conslitnetit 
»>d  Ibe  repiesentaiire  body.     By  what  aulho- 

niy  iball  It  he  ileridfd  ?    will  your  m y 

(mnnini;  mnjesly)  inUifere  in  a  qiieatiou  in 
"hich  you  iiave  properly  no  immediate  con- 
fiTn  ?  It  would  be  a  alep  efpially  odious  and 
oinrcMMrv.  Hhall  the  Lords  be  called  upon  lo 
■tHrrmineOie  rights  and  privileges  of  the  Com- 
•nom  ?  They  cannot  ilo  il  wiilmut  a  flagrant 
l"etch  of  the  const i lotion.  Or  will  you  (ai^Bin 
"■nning  our  laid  lord  the  now  king)  refer  it  lo 
Itic  judges?  They  have  often  laid  your  an- 
"slnrs,  ilmt  ihe  taw  of  parliament  is  aboie 
|bmi.  IViial  party  then  remains  but  to  leave 
"  lu  tbe  people  to  deleroiine  lor  themselves  ? 
tbcy  alune  are  injured;  and  since  there  are  no 
•njiriuf  power  lo  which  the  cause  can  be  re- 
■rreit,  ibey  alone  ought  lo  determine.  1  do 
lot  mean  lii  perplex  you  {npoin  meauing  our 
ttiil  present  sovereign  lord  the  king)  with  a 
Minus  argument  u|>on  a  subject  already  so 
diKUBcd.  ihni  in<pirBlii<n  could  hardly  throw 


yonr  ni— y  (meaning  majesty)   to  consider 

the  late  proceedings  of  the  H of  

[meaning  House  uf  Commons.)  By  depriving 
a  subject  uf  his  birthright,  they  have  ntlribuled 
10  Iheir  own  vote  an  authority  equal  lu  an  act 
of  ibe  whole  legislature ;  and  though  perhaps 
not  with  the  same  motives,  have  slrlclly  lut- 
lowed  ihe  eitample  of  the  Loag  Parliament, 
which  first  declared  ihe  regal  office  useless,  and 
soon  after,  wiih  as  litlle  ceremony,  dissolved  the 
House  of  Lords.  The  same  pretended  power 
which  robs  an  English  suhjecl  of  his  birthright 
may  rob  an  English  k —  (meaning  king)  df  his 

c n  (meaning  crown.)  In  anoiber  view,  ibe 

resolution  of  the  H of (meaninff 

House  of  Commons)  ap|jareolly  not  so  dan- 
gerous lo  your  m ,  (meaning  majesty)  is 

still  more  alarming  to  your  people.  Nol  con- 
tented wilb  divesting  one  raao  of  his  right, 
they  have  arhitrvrily  conveyed  Ibat  right  lo 
another.  They  have  set  aside  a  return  as 
illegal,  without  daring  to  censure  ihase  oSi- 
cers  who  were  particularly  appriied  of  Mr. 
Wilkes's  incapacity,  not  only  by  tbe  declara- 
tion of  the  H (meaning  the  said  House) 

hut  expressly  by  Ihe  writ  directed  to  them,  but 
who  nevertheless  returned  him  asdnty  elected. 
They  have  rejected  Ihe  majority  of  voles,  the 
only  criterion  by  Which  our  laws  judge  of  Ihe 
sense  of  the  people;  Ibey  have  iraiislerred  the 
right  of  election  from  ihe  collective  lo  ihe  re- 
presentative body  ;  and  by  these  acta,  taken 
separately  or  together,   they  hate  essentially 

altered  the  original  conslilulicm  of  the  H 

of  C (iDeauiog  House  of  Commons.) 

Versed,  as  your  m (meaning  majesty) 

undoubtedly  is,  in  the  English  history,  it  can- 
not easily  escape  you,  how  much  it  is  your 
interest,  as  well  as  your  duly,  to  prevent  one 
of  Ihe  three  estates  frnm  encroaching  upon 
the  province  of  Ihe  other  two,  or  assuming 
tbe  auiboriiy  of  them  all.  When  once  they 
hare  departed  from  the  great  const ilulional 
line,  by  which  all  iheir  proceedings  should  ba 
directed,  who  will  answer  for  their  future  mo- 
deration ?  Or  what  assurance  will  ibey  give 
yoti  (again  meaning  our  said  preKnl  sovereign 
lord  the  king)  that,  when  Ihey  have  trampled 
upon    Ibeir    er^uals,    they    will  submit    to    a 

superior?   Your  m •  (meaning  majesty) 

may  learn  hereafter,  hiw  nearly  Ihe  slave  and 
tyrant  ace  allied.  Some  of  your  council,  mora 
candid  than  Ibe  rest,  admit  the  abandoned  pro- 
fligacy  of  Ihe   prevent   H of   

(meaning  House  uf  Commons)  but  oppose 
Iheir  dissolutluQ  upon  an  npinioo,  I  confess  not 
very  unwarrantable,  that  Iheir  successors  would 
be  equally  at  the  disposal  of  the  treasury.  I 
cannot  persuade  myself  that  the  nation  will 
have  profited  so  litlle  by  experience.  But  iT 
tbatopininn  were  >vel]fouoded,you  (again  mean- 
ing our  said  present  sovereign  lord  the  king) 
might  then  gr&lily  our  wishes  at  an  easy  rate, 
and  appease  the  present  clamours  against  your 
gorernmrni,  without  offering  any  material  in- 
jury to  the  livunrite  cause  of  corruption.  You 
(Again  Bieajiing  ouf  aaid  present  sovereign  loni 


S15] 


10  GEORGE  III. 


Trial  of  John  Altnon, 


[816 


the  king)  have  itill  au  honourable  part  to  act. 
The  afl'ectionsof  your  ftuLjectsnnay  still  be  re- 
covered. But  betbre  you  (again  meaning  our 
said  present  soTereign  lord  the  king)  subdue 
their  hearts,  you  must  gain  a  noble  victory 
over  your  own.  Discard  those  little  personal 
resentments  which  have  too  long  directed  your 
public  conduct.  Pardon  this  man  the  remainder 
of  his  punishment,  and  if  resentment  still  pre- 
vails, make  it  what  it  should  have  been  long 
■ince,  an  act,  not  of  mercy,  but  contempt.  He 
will  soon  fall  back  into  his  natural  station,  a  si- 
lant  senator,  and  hardly  supporting  the  week- 
ly eloquence  of  a  news-paper.  The  gentle 
breath  of  peace  would  leave  him  on  the  sur- 
face, neglected  and  unremoved.  It  is  only  the 
tempest  that  lifts  him  from  his  place.  Without 
consulting  your  minister,  call  together  your 
whole  council.  Let  it  appear  to  the  public  that 
you  can  determine  and  act  for  3[ourseif.  Come 
rorward  to  your  people.  Lay  aside  the  wretcheil 
Ibrmalities  of  a  k —  (meanm^  king)  and  speak 
to  Vour  subjects  with  the  spirit  of  a  man  and 
in  the  language  of  a  gentleman.     Tell  them 

J  oil  (again  meaning  our  said  present  sovereign 
»rd  the  king)  have  been  fatally  deceived.  The 
acknowieilgment  will  be  no  disgrace,  but  rather 
an  honour  to  your  understanding.  Tell  them 
you  are  determined  to  remove  every  cause 
of  complaint  against  your  government ;  that 
you  will  give  your  confidence  to  no  man  who 
does  not  fiossess  the  confidence  of  your  sub- 
jects ;  and  that  you  (again  meaning  our  said 
present  sovereign  lord  the  king)  will  leave  it  to 
ibemaelves  to  determine,  by  their  conduct  at  a 
future  election,  whether  or  not  it  be  in  reality 
the  general  sense  of  the  nation,  that  their 
rights  have  been  arbitrarily  invaded  by  the  pre- 
sent H of  C '  (meaning  House  of 

Commons)  and  the  constitution  betrayed.  They 
will  then  do  justice  to  their  rcpre&eDtatives  and 
to  themselves.     These  sentiment,  Sir,  (again 
meaning  our  said  present  sovereign  lord  the 
king)  and  the  stile  they  are  conveyed  in,  may 
be  ofieiisire  perhaps  because  they  are  new  to 
yon.     Accustomed  to  the  language  of  courtiers, 
you  meosu:-.*  their  aftections  by  the  vehemence 
of  tlK'ir  rxprei^ions  *,  and  n  hen  iliey  only  praise 
you  indirectly  y«iu  admire  their  Hiicerity .     But 
this  is  not  a  liinv  to  Ititle  with  \our  iortune. 
They  deceive  yon,  Sir,  (.it^ain  mnining  our  said 
present  sovereign  lord  the  kinu)  uho  tell  you 
that  you  (aifsin  meaning  our  said  h>i-d  the  kiiiir) 
have  many  IrieiuU,  whfise  affections  are  found-  | 
•d  upon  a  principle  of  pergonal  attachments.  ■ 
The  first  foundation  of  fneiMlsiiip  is  net  the  j 
power  of  ctMit'erring  benefits,  but  the  equality  ■ 
witii  which  they  are  recfivt'd,  and  may  lie  le-  ' 
turneil.      The  t'oriune  wliich  maile  ynu  (attain 
mc«ninir  our  said  present  S(ivereii;n  lord  the  ; 
kins)  a  kioir  (meaning  kins:)  tiwbad  you  to  have  i 
a  friend,     ll  is  a  law  of  nature  which  cannot 
lie   violated   with   impunity.      The  mintaken 
p«-e  (meaBinK  prince)  w  ko  kioks  torfriendsbip, 
will  find  a  favoarilc,  ami  ia  Ibal  favourite  the 
raitt  of  Im  allMn.    Tha  pcoiile  of  £— gl-Ml 
(aiMHV  taf/imi}mmMgmHfkmU9mm9i 


Ha — ver  (meaning  Hanover)  not  from  a  vtia 
preference  of  one  family  to  another,  but  from 
a  conviction  that  the  establishment  uf  ibat  fa- 
mily was  necessary  to  the  support  of  their  civil 
and  religious  liberties.  This,  Sir,  (again  mean- 
ing our  said  present  sovereign  lord  the  kinv )  ii 
a  principle  of  allegiance  equally  solid  and  ra- 
tional, fit  for  Englishmen  to  aclopt,  and  well 
worthy  your  m— — y*s  (meaning  majektv'a| 
encouragement.  We  cannot  long  be  cleliulM 
by  nominal  disttnctiuos.  The  name  of  Stosit 
itself  is  only  contemptilde; — armed  with  tbt 
sovereign  authority  their  principles  were  for- 
midable. The  pnnce  who  imitates  their  csa- 
dnct  should  be  warned  by  their  example;  ni 
while  he  plumes  himself  upon  the  security 
of  bis  title  to  the  crown,  should  remembtf, 
that  as  it  was  acquireil  by  one  revoluiioo,  it 
may  be  lost  by  another.  Junius." — ^To  tbs 
great  scandal  and  dishonour  of  our  said  presnt 
sovereign  lord  the  king  and  of  liis  adroinislrs- 
tion  of  the  government  of  this  king«lom.  To 
the  great  scandal  and  dishonour  of  the  naid  |^ 
sent  House  of  Commons  of  this  kinirdom ;  ni 
also  to  the  great  scanilal  and  disgrsce  of  iks 
said  priucipaT  oflicers  and  ministers  of  our  nii 


lord  the  king  employed  snd  entrusted  by 
said  lord  the  king  in  the  managing  and  con- 
ducting the  weighty  and  arduoua  aflairs  of  thii 
kingdom.  To  the  great  disturbance  of  tbt 
public  peace  and  tranquillity  of  this  kingdoSt 
In  contempt  of  our  said  lord  the  kioar  and  Ui 
laws.  To  the  evil  and  pernicious  example  of 
all  othera  in  the  like  case  offemiing ;  and  abt 
against  the  peace  of  our  said  lord  the  kiag 
his  crowu  and  dignity.  And  the  said  Attor* 
ney- General  «f  our  said  lord  the  king,  kt 
our  said  lonl  the  kiug  giveth  the  Court  btft 
further  to  umlerstand  and  be  informed,  that  tbt 
said  John  Ahiion  again  disrcKardint;  the  laws 
of  this  kinii^doin,  anil  the  public  peace,  i^ood 
order  and  government  thereof,  and  most  unlaw- 
fuWy,  seditiously,  ami  maliciously,  contririog 
and  intending  by  wicketl,  artful,  scandalous, sad 
malicious  suppositiims,  allusions,  and  iniutios- 
tioos,  to  distuib  the  huppy  state  and  puUic 
peace  and  tranquillity  of  tiiis  kingdom,  sad 
most  iiibolently,  audaciously,  and  uMJnstl),to 
8S|>er8e,  scandalise,  and  vilify  our  said  present 
sover«*ign  lurd  the  king,  and  to  rif present,  sod  ts 
cause  it  to  be  belie%cd,  that  our  said  lord  tht 
king  had.  by  his  measures  of  government,  l<tft 
the  affr'ctions  of  his  suhjecis  in  that  part  of 
Grvat  Briiain  Called  England,  and  in  Irelaodi 
anil  in  his  doiniuions  of  America,  and  brongbt 
tbe  public  affairs  of  this  kingtlAm  into  a  nKNt 
di*itres«ei<,  disgraceful,  and  lameniahle  stall 
snd  condition.  And  also  most  unlawfully  aad 
maliciously  contriving  an^l  miending  to  lepie* 
sent,  snd  cause  it  to  be  be!ieie<l,  that  our  Mid 
lord  the  king  had  bestowed  promotions  and  fa* 
vours  upon  tiis  subjects  ol  ihai  part  of  kil 
kingdom  of  Great  Kntain  called  Scotland,  ii 

Errlereoce  to  his  subjects  of  that  |iart  uf  Ureal 
Irit.iucalletl  Enijland,  and  thereby  to  oealt 
grouiHlless  jealousies  and  uneasiDcases  in  bil 
«iU«m'<»*kKc«aoffiogbwlal«raHid.   id 


S!7] 


Jbr  a  LiM. 


A.  D.  1770. 


[818 


alio,  most  unjustly  to  reprpeent,  and  to  canxe  it 
to  be  bciiered,  that  our  said  lord  the  kioir  had 
beatowfd  pntmoiions  oiid  favoura  upon  one  part 
of  bii  said  majesty's  army,  commonly  called 
the  guards,  in  preference  to  another  part  of  his 
army 9  commonly  called  the  marching  re|p- 
ments,  and  thereby  to  create  soundless  jea- 
lousies, uneasiness,  and  mutiny,  and  desertion, 
in  that  part  of  bis  army  called  the  marching 
refi^iments,  and  to  bring'  our  said  lord  the  kiopr 
idH  his  administration  of  the  i^ofernment  of 
this  kin^lom  into  the  utmost  dishononr  and 
contempt,  and  to  poison  and  fnfect  the  minds 
)€  his  msjesty's  subjects  with  notions  and  opi- 
nions of  our  said  lord  the  kinn^,  bicj^hlj  unwor- 
Ai?  of  our  said  lord  thektnsf,  and  of  that  pater- 
nal   love  and  concern   which  he  has  always 
ihewed  and  expressed  for  all  his  subjects,  as  if 
sor  said  lord  the  kinif  had  unjustly  taaen  a  part 
with  some  of  his  subjects  against  others,  and 
had  unjustly  prostituted  the  measures  of  his 
government  to  gratify  personal   resentments, 
and  also  thereby,  as  much  as  in  him  the  said 
John  Almon  lay,  to  alienate  and  withdraw  from 
sor  said  lord  the  kin^,  that  cordial  love,  alle- 
gianre,  and  fidelity,  %%hich  every  subject  of  our 
aid  lord  the  king,  should,  and  of  right  ought 
ts  have  and  siiew  towards  our  said  lord  the 
king.     And  also  as  much  as  in  him  the  said 
John  Almon  lay,  to  move,  excite,  and  stir  up 
tbesolgects  of  our  said  lord  the  king  to  insur- 
Kction  and  rebellion,  he  the  said  John  Almon 
ifterwanN  (that  is  to  say)  upon  the  said  first 
^y  of  January,  in  the  10th  year  aforesaid,  with 
fcfee  and  arms  at  the  parish  aforesaid,  and 
vilhin  the  liberty  aforesaid,  in  the  said  county 
sfMiddlesex,  unlawfully,  wickedly,  seditiously, 
•wl  maliciously,  did  publish  and  cause  and 

Core  to  he  published  a  certain  other  scanda- 
,  seditious,  and  malicious  libel.  In  w  hich 
Mat  taut  mentioned  libel  of  ami  concerning  our 
nid  kmi  the  king  and  of  his  administration  of 
the  gnvernuient  of  this  kin«:dom,  and  also  uf 
sad  concerning  the  public  affAJrs  of  this  king- 
dsm  are  containe4l  amongfst  other  thin!;s,  divers 
Snoflalous,  seilitious,  and  malicious  msiters, 
(that  is  to  say)  in  one  pnrt  thereof  acconling  to 
tfie tenor  following :  **  When  }uu  (meaning' our 
laid  lord  the  king)  affectedly  renouiiceiJ  the 
■aroe  of  En(^Vi»<hman,  believe  me,  Sir,  (again 
■eaning  our  said  lord  the  kin<;)  you  v%  ere  per- 
iMiled  to  pay  a  very  illjudifeil  compliment 
to  ooe  part  of  ynur  Kuhjectn  at  the  expejice  of 
■Mlher.  While  the  naiives  of  Scotland  (ineau' 
lag  that  p:irt  of  Great  Brituin  called  Scotland) 
wrt  not  in  actual  rehellKni,  tliey  are  nndoubt- 
Mfy  intitled  to  protection  ;  nor  do  I  mean  to 
CMidemo  the  policy  of  giving  some  encourage- 
ment to  the  noveliy  of  their  afi'ections  for  the 
HaoM  of  Hanover.  I  am  ready  to  hope  for 
crery  thing  from  ilieir  new  born  z^^si,  and 
lUm  the  future  Rteadine^s  of  their  allegiance. 
B«i  hitberiu  ihey  have  no  claim  tn  your  favour. 
To  honour  them  witii  a  itetermineil  predilec- 
ilB  aod  ronfidenre,  in  exciusiiHi  of  your  Eng- 
llh  sohjectx  (meaning  the  subjects  of  our  said 
IM  the  king  in  that  part  of  Great  Britain 

vouxx. 


caRed  Englaod)  who  placed  your  family,  and, 
in  spite  of  treachery  and  rebellion,  have  sup- 
|M)rted  it  upon  the  th — ne  (meaning  throne)  is 
a  mistake  too  gn»ss  even  for  the  unsuspecting 
generosity  of  youth.  In  this  error  we  see  a 
capital  violation  of  the  must  obviotis  rules  of 
policy  anil  prudence.  We  trace  it,  however, 
to  an  original  bias  in  your  education,  and  are 
ready  to  allow  for  your  inexpeneoce.'*  And  in 
another  part  of  the  said  last  mentioned  libel  ac* 
cording  to  the  tenor  following :  **  it  is  not  then 
from  the  alienated  affections  of  1 — I — d  (mean- 
ing Jreland)  or  A — r — a  (meaning  America) 
that  you  (again  meaning  our  said  lord  the  now 
king)  can  reasonably  look  for  assistance ;  still 
less  from  the  people  of  E^l—d,  (meaning 
England)  who  are  actually  contending  for  their 
rights,  and,  in  this  great  question,  are  parties 
against  you  (again  meaning  our  said  lord  the 
now  ktng^  you  (again  meaning  our  said  lord 
the  now  sing)  are  not  however  destitute  of 
every  appearance  of  support:  you  (again 
meaning  our  said  lord  the  now  kin^)  have  all 
the  Jacobites,  Nonjurors,  Roman  Catholics, 
and  Tories  of  this  country,  and  all  S — 1— d 
(meaning  that  part  of  Great  Britain  called 
Scotland)  without  exception."  And  in  another 
part  of  the  said  last  mentioned  libel  according 
to  the  tenor  following :  <*  From  the  uses  to  wbicb 
one  part  of  the  army  (meaning  the  army  of  our 
said  lord  the  king)  has  been  too  frequently  an* 
plied,  you  ^again  meaning  our  said  lord  tne 
now  king)  have  some  reason  to  expect,  that 
there  are  no  services  they  would  refuse.  Here 
too  we  trace  the  partiality  of  your  (again  mean- 
ing*  our  said  lord  the  king's)  understanding. 
You  (again  meaning  our  said  lord  the  king) 
take  the  sense  of  the  army  from  the  conduct  of 
the  gnards,  (meaning  the  said  pari  of  the  army 
of  our  said  lord  the  kmg  called  the  guards)  with 
the  same  justice  with  which  you  (agnin  mean- 
ing our  said  lord  the  king)  collect  the  sense  of 
the  people  from  the  representations  of  the  mi- 
nistry. Your  marching  regiments  (meaning 
the  said  other  part  of  the  army  of  our  said  lord 
the  king  called  the  marching  regiments)  Sir, 
(iigain  meaning  our  said  lord  the  now  king) 
will  not  make  the  guards  their  example  either 
as  soldiers  or  subjects.  They  feel  aod  resent 
as  they  ought  to  <lo,  that  invariable  undistin- 
guishing  favour  with  which  the  guards  are 
treated  ;  while  those  gallant  troops,  by  whom 
every  hazanSous,  every  laborious  service  is  per- 
formed, are  \eii  to  perish  in  garrisons  abroad, 
or  pine  in  quarters  at  home,  neglected  and 
forgotten.  If  they  had  no  sense  of  the  great 
original  duty  they  owe  to  their  country,  their 
resentment  would  operate  like  patriotism,  and 
leave  your  cause  to  be  defended  by  those  to 
whom  3'ou  (again  meaning  our  said  lord  the 
king)  have  laviKheiUhe  rewards  and  honours  of 
their  profession.  The  prcetorian  bauds,  ener- 
vated and  debauched  as  they  were,  had  still 
strength  enough  to  awe  the  Uoman  popu- 
lace: but  when  the  distaut  legrions  took 
the  alarm,  they  marched  to  Rome  and 
gave  away  the  empire."  And  in  another 
3G 


«19J  10  GEORGE  III. 

pari  of  llj«  Mid  last  meolioned  libel  accord- 
ing ID  tlie  Icnor  fbllnwia^ :  "  Vou  (again  meBii* 
iui{  our  laid  lord  ihe  now  kioif)  hate  aiill  an 
linriouraljle  part  to  act.  Tbe  ati'ections  of  your 
aiil'jecis  may  slill  be recuvereil.  Dul  belbreyou 
(iijfaiii  nieaoing;  our  la id  lord  the  Duw  king) 
aulidue  ibfir  bcarts,  vnii  (again  meaniiii;  our 
Baid  lord  ibe  dow  king)  muit  i^aiii  a  noble  >ic- 
lory  over  your  oho.  Discnnl  those  little  per- 
sonal reienlmeuU  wbicb  have  loo  long  di- 
rected your  |iub)ic  cooducl."  And  in  nnolber 
pari  oflbe  said  lasl  mrntioued  libel  arcurdioglo 
tlie  leoor  following :  "  The  people  of  E — g\ — d 
( mean iat(  England)  are  loyal  lo  ihe  [louse  of 
Ha — ver  (toeaujo^  Hanotei)  not  from  n  vaiii 
prefeience  of  one  lamily  to  aiiuiber,  but  from  a 
GouviclioD  IballbeeBtablishmeiilof  ibat  family 
was  necessary  to  the  support  of  iheir  ciril  and 
religious  liberties.  Tbis,  Sir,  (again  meoDing 
our  said  lord  ibe  not*  kin^)  is  a  principle  of  al- 
legiance equally  solid  and  rational,  Gl  for  Edk- 
lisbiiieii  to  adopt,  and  well trortby  yuurm— y's 
(meaning  majesty's)  eucouragement.  We  cau- 
not  long  be  deludi'd  by  Dominal  disliDClions. 
Tb«  name  of  Slunrl  iteelf  is  only  contemptible ; 
— armed  viib  the  sorereigii  aiUboiity,  tlieir 
piaciplea  were  formidable.  The  prince  wlio 
imitates  their  conduct  should  be  warned  by 
their  example;  and  while  be  plumei  bimsclf 
upon  ibe  securily  of  bis  lille  lo  the  croivn, 
should  remember,  that  at  il  was  acquired  by 
one  revolution.  It  may  be  lost  by  anotber. 

To  the  great  scandal  and  dishonour  of  our 
said  preKCDt  lotereiicn  lord  tbe  king,  and  of  his 
•dminislratiun  of  the  gotemmenl  of  this  king- 
dom. Tn  the  great  dialurbance  of  the  public 
feace,  order,  auil  gorernraenl  of  llii*  kingdnm. 
n  contempt  uf  our  said  lord  tbe  kiog  ami  bis 
laws.  To  (he  eiil  and  pernicious  examole  of 
all  others  in  the  like  case  olfending ;  ami  also 
agHinsI  ihe  peace  of  our  said  lord  tbe  king  bis 
crown  and  dignity.  Andlbetaid  Altoriiey-Ge- 
nrril  of  our  said  lord  (be  king  for  our  said  lord 
tbe  king  givelh  tbe  court  here  further  lu  iin- 
dersisudaod  be  Informed,  thatlielbesaid  Juliu 
Almon  being  sucb  person  as  albreiaid,  and  lur- 
ther  mosi  insolenlly,  auriiciounly,  wickedly, 
and  maliciously  conlriiing  and  Inlending  as 
aforesaid,  aud  ibe  aonner  lo  accomplish,. per- 
fect, Bid  bring  to  died  bia  said  must  unlawful, 
nicked,  aud  sedi(ious  purposes,  attetwui-ds 
(that  is  lossy)  |i  pan  the  paid  first  day  of  Ja- 
nuary, in  Ibe  said  tenth  year  of  Ibe  reign  uf  our 
gaid  lord  llie  king,  with  force  and  arms,  si  ilie 
pariMi  aforesaid,  within  tbe  liberty  aforeuid,  in 
Ibe  ciiunly  aforesaid,  oat  of  his  turiber  malice 
towards  uursaid  lord  Ihe  king,  and  to  bis  ad- 
niinislratioD  of  Ibe  eoternment  of  Ibis  king- 
dom, and  alio  oul  nf  his  further  malice  toward* 
the  said  present  House  uF  Coranions  of  Ibis 
kingdom,  a  certain  nlber  wicked,  scandalous, 
SL-dtiious,  and  malicious  lilx'l,  iotitled  Tbe 
London  Muncuro  of  Politics,  Misi'ellanies,  and 
Lilcraturi' — did  unlawfully,  wickedly,  sfdi- 
limiiilV,  and  maliciously  publish,  and  didcnnse 
ftod  p'racnre  lo  be  published,  in  which  said  hbvl 


Trial  o/Jolm  Almon,  [891 

last  abnie  menlinneil,  be  the  said  John  Almi 
bath  by  such  wicked,  ailful,  scamjuloua,  ti 
malicious  allusions,  Bup|>osiliDiii,  and  iDsinu 
lions  as  aluresald,  most  unlawfully,  wickedl 
and  nialicioiialf  aapersed,  scandalized,  and  *il 
tied  our  said  preieDl  sorereign  lord  the  Iua| 
and  bis  admmislratiun  of  the  government; 
Ibis  kiogilom,  and  lialli  thereby  as  much  a 
him  the  said  Jnhn  Almoa  lay,  endeavourei 
bring  our  said  lord  tbe  kiog  and  his  admiiui 
lalioo  of  (be  government  of  ibis  kingdom  i^ 
the  utmost  dubanour,  haired,  and  cnntein 
with  bis  subjects,  and  to  poiaoo  and  infect  II 
minda  of  his  majealy's  subjecta  with  nolio 
and SFolimenls  highly  unworthy  ofonrsaidla 
the  king.  Aud  liaib  also  by  that  means  { 
much  as  in  him  the  said  John  Almoa  lay)  a 
deatoured  to  alienate  and  withdraw  from  oi 
said  lord  the  king,  Ibat  cnidial  love, allegiiiw  , 
and  fidelity  which  erery  true  and  tailhful  subi 
jeol  uf  OUT  said  lord  (be  king  ahoiitd,  aod^ 
light  ought  to  bear  Inwards  our  said  loid  Ibl 
king,  and  baib  also  by  thai  means  (as  moA* 
as  in  him  tbe  said  John  Alinun  lay)  Hj 
templed  to  move,  excite,  and  slir  up  (benib^ 
Jectsofour  said  lord  ihe  king  to  a  most  unai 
lural  insurrection  against  our  said  lord  tbekinl 
lod  in  which  said  liliel  last  above  menlioM. 
he  (be  aaid  John  Almon  hstb  alto  by  laoli 
.wicked,  ar(ful,  scandalous,  and  mnliciouf  aDu^ 
1,  sopposidoDB,  and  i    '        ~ 


ly  tradi 

sent  House  of  Commons  of  ibis  kitigilom,  *l 
halh  mosl  audacioosly,  wickedly,  and  labt 
represented  Ibe  said  preseol  House  of  CoiaoM 
as  a  most  vile,  profligate,  abandoned,  *ia 
ed,  arbitrary,  renal,  aud  de(e&iable  set  of  nM 
and  halb  thereby  (as  much  as  in  Itiiu  tfaeN 
John  Almon  lay)  endeavoured  to  tillacdpi 
seas  the  minds  lii'  all  the  people  of  this  kmpb 
with  nulions  and  npiiiioos  of  the  preaetit  UN 
of  Commous  highly  unworthy  of  ibe  a 
present  Houue  of  Commons,  anil  bath  al 
(hereby  (sa  much  as  in  him  ibe  said  John  AIb 
lay)  alleuipted  lo  bring  tbe  said  present  Bol 
of  CoQimona  into  the  utinosl  CDOlempI,  Italn 
scorn,  and  dialike,  and  by  ibal  mean*  to  mat 
and  diminish  Ihe  public  credit  and  aulborilyl 
thai  House,  to  Ihe  great  scandal  and  rikht 
ofour  said  lord  the  king  and  uf  bia  adiailu 
tiou  oflbe  goveniinent  of  this  kingdom, 
also  In  the  great  scandal  and  diilmiiour  of  lb 
auid  House  uf  Commons.  In  conlrmpl  of  M 
said  turd  ibe  king  aud  bis  laws.  To  the  gnl 
distui  bgutt  of  ibe  public  peace  and  Iran^Millfl 
nf  this  kingdom.  To  Ihe  evil  aud  pemicli' 
example  ofall  others  io  the  like  caseoffendi 
Aud  also  againsi  the  peace  nf  our  said  bird  tl 
king  bis  cruwn  and  dignity,  Wbereupoalj 
Bind  Alljiruey  General  uf  our  aaid  lord  ll 
king  who  for  our  said  lord  the  king  inlli 
behalf  proseculelb  tvt  our  said  lord  l' 
king,  prayelh  the  cousideraliun  uf  the  MM 
here  in  Ibe  premises,  and  ibHt  due  pioccs)  I 
luw  may  be  aiiunled  agsinsl  hiuj  tbe  said  Jo) 
Alaiun  io  ibis  bcbiilf,  to  make  biiu  aiisffer 


sei} 


far  a  LihtL 


oar  said  1or«]  the  king  toacbing  and  concerning 
tbe  premises  aforesaid. 

To  which  Information  tbe  defendant  pleaded 
Not  Guiltj.* 

In  Easter  term  following,  a  Special  Jur}%  at 
the  instance  of  the  Attorney  General,  was 
stmck  in  the  Crown-office,  befure  the  master ; 
and  the  trial  was  appointed  for  Saturday,  the 
td  day  of  June,  1770,  being  the  sittings  after 
term. 

*    Informations  for  publishing    the    same 

Gper  were  at  the  same  time  filed  against  Mr. 
eory  Woodfall  (the  original  printer  and  pub- 
lisher of  it)  in  the  Public  Advertiser  of  the  19th 
if  December,  1769 ;  Mr.  John  Miller,  for  re- 
^rintiDH^  it  in  the  London  Evening  Post,  pub* 
itbed  in  the  evening  of  the  same  day  ;  Mr. 
[^iMrles  Say,  for  reprinting  it  in  the  Gazetteer 
if  the  20th  of  December,  1769 ;  Mr.  George 
Robfnson,  for  reprinting  it  in  tbe  Independent 
Dbronicte  of  tbe  same  day ;  and  Mr.  Henry 
Baldwin,  for  reprinting  it  in  the  St.  James's 
[?brooicle  of  the  Slst  of  tbe  said  month.  And 
ihhough  Mr.  Almon  did  not  sell  the  London 
Muaeum,  (which  is  a  monthly  magazine)  con- 
teinioir  the  said  psper,  till  tbe  1st  day  of  Janu- 
■ry,  1770,  (according  to  the  information)  yet 
be  was  brought  first  to  trial. 

In  one  of  the  public  prints,  the  following  ob- 
servatious  were  nnade  on  the  Attorney- Gene- 
ral** conduct  in  this  trial,  and  the  subsequent 
trial  of  Mr.  Woodfall,  the  original  publisher. 

**  It  may  seem  extraordinary  to  some,  that 
apoo  Mr.  Woo<l  fa  IPs  trial,  Mr.  Attorney-Gene- 
ral should  employ  the  greatest  part  of  bis  ha- 
nagoe  in  a  justification  of  his  own  conduct: 
what  hail  the  jury  to  do  with  his  motives  P  and 
how  ridiculous  was  it  in  Mr  Attorney,  to  desire 
iselear  up  his  own  intentions  to  thejury,  whilst 
be  was  instructing  them  to  pay  no  regard  to, 
tad  to  have  no  consideratiou  of,  the  intentions 
•f  the  defendant. 

**  Besides,  Mr.  Attorney  does  not  tell  us  who 
Inid  accused  him,  or  of  what  be  was  accused. 
It  is  my  business  to  supply  his  omission.  His 
•WD  conscience  smote  bira  for  the  trial  of  Mr. 
Ahnon.  Mr.  De  Grey,  member  for  Norfolk, 
tbe  Attorney  General's  brother,  had  im|*u<lenlly 
tod  ignorantly  bramled  tbe  electors  of  West- 
Aioster,  for  their  petition  to  his  majesty,  as  se- 
ditious and  base-born  booksellers  and  me- 
chanics. Mr.  Serjeant  Glynn  defended  the 
(lectors,  and  reproved  Mr.  l)e  Grey  for  his  in- 
lolefice.  [See  16  New  Parliamentary  History, 
#06.]  The  electors  of  Westminster  publicly 
ivtamed  their  thanks  to  the  serjeant,  and 
ittoogst  them  Mr.  Almon  was  strenuous  for 
iNse  thanks,  perhaps  the  most  strenuous,  be- 
msebe  must  be  sensible,  from  the  part  he  had 
hfarc  takeo  in  the  petition  to  the  throne,  that 
'  ^  term  *  bake- bom  bookseller,'  was  especially 
^i^mA  at  hini.  This  was  Mr.  Attorney  Gene- 
^%  Motive  for  selecting  Mr.  Almon  from  the 
kt  only  aora  the  lett«!r»  ai  every 


A.  D.  mOs  [828 

Coumel  for  the  King, — The  Attorney  Ge- 
neraly  the  Solicitor  General,  Mr.  Morton,  Mr« 
Wallace,  Mr.  Dunning,  Mr.  Walker. 

Solicitors. — Messrs.  Nuttall  and  Francis. 

Qmntel  for  the  Defendant, '^yit.  Serjeant 
Glynn,  Mr.  Davenport. 

Solicitor, — Mr.  Marty  n. 

other  bookseller  bad  done,  in  a  miscellaneous 
magazine,  after  it  had  appeared  in  all  the  news« 
papers.  Mr.  De  Grey,  member  for  Norfolk, 
under  the  shelter  of  privilege,  pours  out  abuse 
upon  an  English  elector,  for  exercising  his 
franchise.  If  the  man  resents  it  only  by  tell- 
ing the  story,  and  returning  thanks  to  those 
who  defend  him,  his  brother,  Mr,  Attorney 
Genera],  by  virtue  of  an  unjust,  assumed 
power,  takes  the  first  opportunity  to  ruin  him, 
ex  officio,  by  filing  an  Information.  Mr.  At- 
torney General,  no  doubt,  bad  another  motive 
for  wishing  to  try  tlie  cause  in  Weatminster 
first,  before  tbe  original  publisher  was  tried  in 
London.  Tbe  juries  in  Westminster,  it  is  well 
known,  are  generally,  for  very  good  reasons, 
more  complaisant  to  the  court  than  tbe  Londoa 
juries :  even  tbe  foreman  of  Mr.  Almon**  jury 
has  a  place  in  tbe  War-office.  On  Mr.  Alroon^i 
trial,  tbe  Attorney  General  declared,  that  he 
should  certainly  have  tried  tbe  original  4)ttb- 
lisher  ^rst ;  that  he  wished  to  have  done  so, 
and  was  only  prevented  by  an  affidavit  of  tbe 
sickness  of  the  original  publislier.*  Mr.  At- 
torney knew,  that  the  original  publisher  had 
never  pleaded  sickness,  and  therefore  expecting 
now  that  this  falshood  would  be  objected  to 
biro,  pretended  not  to  know  the  name  of  the 
man  he  was  now  trying,  and  against  whom  he 
had  himself  filed  the  information  ;  he  calls  him 
Mr — what's  his  name  ?   When  the  by-standers 

told  him  Woodfall, "  Aye,  says  he,  Mr. 

Woodfall."  This  trick  is  too  gross  to  be  ex- 
posed farther  than  by  relating  it. 

**  Mr.  Attorney  General  pretended,  that,  in 
the  objects  of  prosecution,  be  endeavoured  to 
make  a  distinction,  and  to  pass  by  those  whe 
were  poor,  or  had  large  families  of  children, 
&c.  Monstrous  declaration!  The  two  first 
persona  whom  he  brought  to  trial,  Mr.  Almon 
and  Mr.  Woodfall,  are  far  from  being  rich,  have 
families  of  very  young  children,  the  support  of 
their  families  defiends  entirely  on  their  own 
daily  and  unremitting  industry  in  their  trade, 
their  places  cannot  be  filled  up  by  others,  and 
imprisonment  cutting  oflT  the  only  source  of 
their  supply,  must  make  them  poor  indeed. 

*  Several  persons  present  on  the  trial,  think 
this  part  of  the  Attorney- General's  speech  more 
accurately  stated  here,  than  in  the  short-hand 
writer's  notes.  But  the  editor  did  not  chuse  to 
alter  the  manuscript.  However,  the  obvious 
meaning  is  the  same.  And,  if  it  is  wrong,  the 
Attorney-General  may  easily  exculpate  him* 
self,  by  app^^ling  to  the  notes  of  Mr.  Gumey, 
who  took  this  trial  in  abort- band  for  tbcTrea* 
aury.    Orig.  Ed, 


623] 


10  GEORGE  UI. 

Snctii.  JtiiLY. 


Leonird  Mone,  of  Queen  AiiDe-itreet,  eiq. 
Hertifrl  Muckworlli.  of  CiTendisb-iquBre,  eiq. 
Jobs  Aixlerrap,  Dt  tIesricU>-«treel,  Ct««nditb- 

wjoarr,  e»q.' 
John  Goutil,  of  Harl-itrecl,  e»q. 
Jnaiah  Hulford,  Soiilharaptou-ron',  ctq. 
CbristO|iher  Lrlhirulicr,  of  Ihe  Mme,  etq. 
Solrert  Gary,  or  Hampatf  ad,  e»q. 
Oerranl  HoiranI,  of  the  lame,  aq. 
Benjamio  Booth,  nfUaeoWi  (DD-Gcldt,  Mf. 
Gm^c  Krnt,  of  Tedilin^on.  est]. 
Edward  Lo* ibond,  of  Hampton,  caq. 

Tttlaiaau* 
JoliDSlill>eIl,eon>-cbuidler,  ofRuMcll-ftrMt. 

Hr.  Walker  opened  by  rewlin^  the  record. 

After  him,  If  r.  Attormt^  Cn«i-«/(Oe  Qny) 
prvcecded  ai  foliowi ; 

Hay  it  |itcMe  your  lordahip,  and  yon  gentle- 
Men  of  tlie  jury.  I  ha*athon^t  it  my  duly 
to  IwiiiK  before  you  a  publicaiion  of  thia  libel, 
a  publication  whicb  1  believe  would  be  itermit- 
ted  in  on  civilized  country  in  Ihe  worM,  to  pax 
Moooliced  or  unpunished.  The  law*  uf  this 
oountry  protect  Jiaiababitaota, — Ihecbaroeterof 
•very  aubjvct ;  the  public  peace  rnjuirca  it.  In 
prii|iorii<>n  a*  men's  charactera  riae  in  the  world, 
and  are  Hxtril  with  public  icovernmrnt,  Ibe  de- 
famatory wriiinci  affecting  their  eharactera 
and  conilnct,  tendi'iH  more  to  break  the'puhlic 
peace,  which  it  intimately  conntcled  with  their 
coaduci.  But  the  f^at  otden  of  the  atate, 
and  the  majefly  of  the  throne,  can  never  be  the 
•nbjrct  of  fletraction  of  libela,  without  iojiiHng 
the  iiulilic  peaea  in  the  greateU  degree,  with^ 
nut  breaking  those  bonds  which  lie  men  to^- 


nrge  him  against  any  parlicninr  publishrr. 
Come  forward,  and  t^H  the  world,  ujinii  what 
inoiive  Mr.  Almon  was  liniclcd  out,  and  upon 
«hat  principle  of  justice  ne  was  tried  hrst, — 
for  sellioe  only. 

"  Mr. Attorney  General  said,  as  for  who  was 
the  author  of  Junius,  that  he  could  by  no 
means  discover,  that  remained  an  impenetrable 
•ectet.  Mr.  Attorney  (ieneral  never  demiud- 
wl  Ihe  name  of  the  author.  He  dues  nut  wish 
to  prosecute  Ihe  author.  He  follows  lord 
Nansfielil's  plan  of  iirui  ecu  ting  publishers  and 
booksellers  only.  His  Inrdihip  has  frequently 
Tecomraenited  this  method,  even  from  ihe 
bench.  He  knows  that  publishers  anil  book- 
sellers onl^  exercise  a  trade,  and  have  no  other 
iDOLivep  or  intenliona  than  to  procure  ihr  emo- 
luments arising  from  their  trade.  Multiply 
therefore  prnsvcutioos  on  Ihe  trade,  anil  you 
will  effectually  klup  publication."     Orig.  Edit, 

*  Only  eleven  of  Ihe  Special  Jury  attendinif , 
tba  Court  ware  obliged  to  have  rccvurae  to  Uia 
Common  Jury,  and  the  name  of  the  above 
Tita«iii4D  WH  drawa  out  of  the  box.  Orig. 
E£ti<m. 


Trial  of  John  Almon,  [8M 

ther.andexoilioff  tbeauljactataaadilkn.  Tb 
charge  that  is  brought  acaioat  tba  difaadaal 
with  renrd  to  this  publication,  eDnlaias  tws 
propositions :  the  one,  that  the  pidiltealiaD  con- 
cerns the  king ;  bis  administration  af  f*n»> 
of  puhlio  affaira  of  tba  natiaa ;  tb* 


Houic  of 

hkewiKC  cotilaiiM  another  propoailjM,  ih^tks 
defendsBi  published  thia  writing. — TbMS  m 
the  two  paints,  which  it  is  nccaanry  Ik 
ihoM  who  aupiiort  the  iafonaatieii,  to  pMM  M 
your  satiifiiciiDa,  and  that  is  all  tliai  i»  Baav- 
*ary  fur  them  tu  do.  la  this  particular  ia- 
Blsnca,  there  i«  ptrbapa  leaa  neoaaaily  la  tnt- 
hWyou  much.  bonausetbeaiUbaraflhiapafv 
baa  lefl  very  little  to  iosinuation  or  HffariiMi 
the  mode  am)  shape  in  which  libela  an  wtitUa, 
dun'i  in  any  iaiitancc  vary  ibe  afieace  <f  fig*> 
raiive  eapr«siiati,  wbioh  is  as  iotelllKilila  m  * 
simple  one- — Inwical  ezpreaaiooo  will  daanih 
and  expTM*  the  intention  of  the  write  tr 
speaker,  se  clearly  aod  plainly  aa  dirccl  aMk 
Whether  they  do  so  or  not,  wh«i«  IbajM 
innicel  Of  liigurative,  depvadt  upon  yow  Mt- 
siderauon,  liom  the  circurostaooea  of  tba  CM, 
and  the  evidence  that  ic  laid  bafwe  yoiL  If 
there  arc  aalerisms,  initial  lettera,  or  tRWa- 
lions,  Ibcy  tniy  throw  no  disguiae  on  tba  BNi- 
iog;  if  they  do,  they  disappoint  tba  tiilMliw 
of  the  writer ;  nor  are  rourls  of  Justice  so  pn- 
cirloutly  Ibrmed,  to  mixtake  Ihe  mcaninf  rf 
what  all  the  rest  of  the  world  wotild  aadw- 
stand  ;  aod  to  abut  their  eyes  against  lU, 
which  is  ptsin  to  every  body  els*.  All  thit  I 
have  to  do  at  present,  will  be  to  shew,  that  tte 
expressioos  used  iu  thia  paper,  do  eonearalhs 
\uBg;  his  adminiilratino  M  govcroinaiil  i  ibl 
puUio  affaira  of  the  nation ;  the  ommIm 
of  the  House  of  Commons  ;  and  the  pBbb 
officen  of  sute.— In  ordtr  to  thew  this,  it  aill 
be  necessary  to  mention  to  you,  some  few  rf 
those  pasBages,  the  whole  of  whicli  you  bi'e 
beard  sireaily ;  and  1  think  thai  it  is  impowHt 
for  any  man  (ii  iluubt  a  miiuKut  about  lbs 
meaning  of  the  writer,  and  the  appli(»tioa  of 
the  expressions  which  he  baa  usrd.  Thai  I 
may  lie  surr  1  do  nut  err,  and  put  a  alrangtt 
sense  on  the  word*  than  the  writer  biiuaell  bsi 
used,  I  will  endeavour  as  fur  ss  I  can,  in  tkl 
pasHsges  that  are  alluded  tu,  to  iiieotioa  lbs 
ver)  trnns  of  the  paper.  Can  any  man  dmikl, 
whiit  was  the  luenning  of  ihe  writer  of  this 
paper,  when  he  aays,  "  I  am  tpeakiag  of  ihs 
errors  of  his  eilucation,  the  pe'Uit.'t><us  kwoM 
of  his  yuuih,  the  pHriiaiiiy  nl  bu  underttaa4- 
ing  ;"  and  which  understanding  ia  aaothw 
place  he  says,  "  he  haa  nnt  io  oite  mmnwl 
of  his  lile  cxusulted;  that  he  was  never  a*- 
quainled  with  the  language  of  IrDlh,  tiH  ha 
lieard  it  in  the  complaints  of  bin  peopla;  tW 
bo  had  descended  to  take  a  «har«  in  tba  )■>** 
real  of  particular  peraoni,  and  io  tbe  fatal  ■»- 
lignily  of  their  paasiona :  he  oalla  apon  bini  W 
bear  with  firmness  his  own  paMi<iM  and  pi^ 
dices  of  personal  reseotmaM,  witb  wbiih  bt 
haa  direeled  bis  pitblic  cNdiul,  wd  Iw  afvlr 


ses] 


Jar  a  LtbA 


A.D.  ma 


[m 


cluirfet  liiiD  wkb  a  oonlinunl  TiolatiiMi  of  (he 

1  iriU  not  take  up  your  time  to  prove  to  you 
Ike  apfUioatioo  of  th^  expressioas  to  the  king, 
heeause  I  will  i»ot  do  your  uaderttaodiDgs  the 
4mcrti6k  to  aiiMKiee  you  hate  a  DioiDeiit*8  doubt 
iifioa  that-v-IYheo  1m  speaks  of  the  great  as- 
aenitbly  of  the  oatioa,  be  says  they  sre  people 
who  eansifler  their  Uoty  to  the  crowo,  being 
repreaentatives  of  the  people,  as  their  first 
wigatioQ,  aad  he  srraigna  them  of  feoality. 
When  he  speaks  of  the  public  affairs  of  the 
kiqfdoiii,  be  says,  <*  that  £nglaail  was  sold  to 
Fraaoa,  and  that  the  king  at  liia  saase  tiase 
was  bfliurayed ;  tliat  he  was  sacrificed  to  the 
paasiona  and  prejudiees  of  otheia ;  that  the  mi- 
■isiars  hate  reduced  him  to  sueb  a  aituatioa, 
that  be  cao  oeither  de  wroog  without  ruia,  aor 
ri*^ht  without  affliction ;  the  Irish  are  plunder- 
ed and  oppressed ;  the  king  has  united  wiih 
bis  serfants  against  the  Americans,  whose  af- 
fcctieie  are  all  united ;  the  English  are  actu- 
ally contending  for  their  rights,  and  are  par- 
ties  agaiiikt  him  in  the  quarrel.'' — These  are 
aome  of  Uiose  public  affairs  which  he  thus  re- 
Tilca»  traduces,  snd  misrepresents  :   and,  as  if 
Ibis-  were  not  enough,  he  endeavours  to  set  in 
•pfeaitioB,  to  dis>unite,  and  to  irritate  and  set 
Sf^nsl  each  other,  the  different  dominioas  he- 
lanmg  lo  the  crown— ^different  denominations 
AM  dMriptioBs  of  men  in  the  same  dominions, 
aad  different  parts  of  the  same  professions  ia 
tb^  saase  nation ;  he  bids  a  part  of  the  army 
ftd  and  resent  that  they  are  perishing  in  gar- 
viMBS,  or  pining  in  quarters,  negteded   aad 
Ibrgotteo.    If  one  should  ask  one's  self,  wint 
mM  be  the  motive  of  this  man,  and  to  what 
pornoaa  was  all  this  ?  couM  he  thus  mean  to 
apply  these  expressions  to  the  puUio  affairs  of 
Iba  Kingdom — to  the  House  of  Cktmmons— to 
the  kiatf 's  ministers — to  the  sovereign  himself  P 
Why  ahouU  he  do  it  ?^What  tlie  motive  ?— 
WhoiahaP    produce  himt   perhaps  we  may 
pmm !— bat  there  is  no  country  in  the  world, 
Ihal  does  not  at  some  times  (and  no  country 
Bore  Ukely  in  the  world  than  a  country  of  free 
Kbvrty  lo)  produce  men  who  act  from  various 
Mitives;  their  mc»tives  are  different  to  those 
vbo  are  to  judge  of  their  actions ;  their  actions 
He  what  are  to  decide  on  their   conduct— 
Whether  the  snonynM»us  writer  ni  this  paper, 
Md  those,  who  by  publishing  support  hiui,  act 
fraai  any  desperate  situation  of  their  fortune—- 
from  any  malignity  of  heart — from  any  per- 
vtrseaeas  of  understanding— from  a  low  and 
•ontemptible  ambition  of  ^ing  dbhooourably 
diftiagnished — whatever  the  meaning  may  be, 
that  ia  net  now  material  for  your  consideration. 
^It  is  sufficient  that  there  may  be  such  mea 
is  the  world — the  question  now  before  you  is, 
vbelbcr  there  is  now  such  a  man  P  the  pre* 
•eat  question  is  whether  the  roan  now  com- 

eSM  of,  has  actually  published  this  paper  P 
if  bis  views  are  to  be  considered,  if  lie  bad 
Ibaa,  aa  he  hoped,  dis-united  every  part  of  his 
■aiasly's  doninions,  and  leU  them  abandoned 
■addaatrted:  what  foUows,  (if  it  was  nai  from 


the  impasAbility  of  any  man*s  coBceiving  the 
least  foundation  for  what  was  said)  should  ra« 
ther  be  suppressed  than  repeated : — Say  to  what 
all  this  tends !  see  how  undisguisedly,  how 
expressly,  and  in  words  he  has  presumed*  after 
he  has  disunited  and  provoked  the  people,  to 
provoke  and  irritate  the  sovereign ;  he  says^ 
**  the  drcamsunees  to  which  you  are  reduced^ 
adfliit  of  no  compromise  with  the  £ugti'sh  na- 
tion ;  all  qualifying  measures  will  disgrace  yott 
more  than  open  violeni*e;  supposing  it  pos- 
sible that  no  tifttal  struggle  should  ensue,  yoii 
determine  at  once  to  be  unhappy  ;  for  an  Eng- 
hab  king  bated  or  despised,  must  i>e  unliap- 
py." — ^This,  said  of  a  roan,  such  a  man,  thai 
there  is  not  eae  among  us,  whose  heart  would 
not  gk>w  to  think,  that  be  had  such  a  son,  or  sueb 
a  father ! — "  It  is  barely  possible  that  a  fatal 
struggle  should  not  ensue !"  it  ia  but  a  supposi- 
tioa!  It  is  but  a  possibility  !  What  is  that  fatal 
struggle  but  sedition,  or  a  civil  war  ?  aad  if 
that  does  not  happen,  then  you,  a  bated  aad 
despised  king,  must  be  unhappy  ;-**'  but  if  they 
should  BO  longer  confine  their  resentment  to  a 
aubmissive  representstion  of  wrongs ;  if,  fol- 
lowing the  glorious  example  of  their  anoestots, 
they  siioukl  no  longer  appeal  to  the  creature  of 
the  constitution,  but  to  that  high  being  who 
gave  them  the  rights  of  humanity,  and  whose 
gifis  it  were  sacrilege  to  suirrender ;'' — aa, 
then,  the  suliject  has  susisjned  wrongs ;  their 
rights  have  been  vkdated  ;  it  was  glorious  in 
our  ancestors,  to  stand  against  the  crown,  whea 
thev  had  received  wrongs,  and  their  righta  ware 
violated !  then,  it  is  glorious  not  to  appesi  to 
the  sovereign,  the  creature  of  the  constitution, 
but  to  that  high  being,  who  gave  them  the 
rights  of  humanity — here  be  craees  it ;  "  it  ia 
not  merely  troscbery,  it  is  not  perfidy,  it  ia 
not— but,  it  is  sacrilege,  to  surrender  thoaa 
righta  which  have  been  thus  injured  ;" — bul» 
as  if  this  wouki  not  do,  be  reminds  him  of  tba 
Stuarts,  and  bids  him  remember,  that  as  tba 
crown  was  acquired  by  one  revolutimi,  it  may 
be  iMt  by  another. — And  as  if  that  was  aot 
enough,  haviog  said  that  the  rights  of  the  suIh 
ject  were  violated,  and  their  wrongs  thus  neg- 
lected, be  concludes  the  whole,  by  declaring, 
that  the  English  dare  ojienly  assert  their  rights, 
and  in  a  just  cause— a  just  cause  ia,  where  tiiey 
are  sustaining  public  wrongs,  and  their  righta 
are  violated,  then  the  English  are  lo  meet,  aad 
are  resd^  to  meet. 

This  IS  the  Isnguage  of  this  paper,  this  is  tba 
stylo  of  Ibis  desperate  man— the  defendant  ia 
charged  with  publishing  it — What  defence  can 
be  anticipated r  What  can  we  suggest  to  oufw 
selves  to  bo  the  ground  up<m  which  any  de> 
fence  can  be  made  to  this  information  P  If  it  b 
said,  that  tlie  defeiitUnt  is  not  the  author ;  b 
then  the  author  «»nly  to  be  punisheil  P  Is  a  maa 
who  writes  criminal,  and  be  who  disseminatea 
the  poison,  innocent P  What  signifies  all  tba 
wi  iters  in  the  world,  if  they  are  confined  to 
their  garrets,  and  caa*t  find  publishers  ?  tbay 
vukj  write  to  eternity,  and  nolwitlieiaadiDg  aU 
theur  maUgaity  they  will  da  aa  damaga.    I  am 


827J  10  GEORGE  III. 

persuaded,  that  (be  man  who  introduces  to  the 
public  the  paper  first  written,  is  full  as  crimi- 
Dal  as  the  writer.     You  will  then  affect  the 
liberty  of  the  press ! — The  liberty  of  the  press 
is  as  sacre«l  as  the  coosiitution  itself,  and  is  an 
essential  part  of  it,  so  is  tn^  liberty  to  move  as 
I  please,  to  say  what  1  think,  and  to  act  as  I 
think ;  but  I  must  not  employ  my  tongue,  my 
hand,  nor  sword,  to  the  prejudice  of  another 
man ;  nor  must  you  use  vour  trade  to  the  pre- 
judice of  another  man ;  hut  he  is  not  the  first 
publisher  perhaps!  the  first  paper  was  pub- 
lished on  the  19th  of  December— this  was  ad- 
▼ertised  a  few  flays  afterwards,  and  published 
and  sold,  I  believe,  on  the  1st  or  2nd  of  January, 
1770.    It  is  not  in  the  power  of  any  orfficer, 
whose  duty  it  is  to  briniif  into  execution  the 
public  laws,  to  impeach,  or  to  arraign  offences 
of  this  sort  during  the  intervals  of  the  terms: 
or  when  no  grand  jury,*  or  courts  are  sitting. 
I  thought  it  my  duty,  and  I  think  1  should 
have  deserved  to  have  forfeited  much  more 
than  my  office,  if  1  had  been  wanting  in  it. 
With  as  much  dispatch  and  expedition  as  1 
could,  1  thought  fit  to  take  public  notice  of 
these  publieations.f      I   believe  there  is  one 
person Illness  has  been  the  occasion  of  his 

*  The  Westminster  grand  jury,  before 
whom  this  matter  was  properly  cognizable 
(the  defendant  living  in  VVestminster)  sat  on 
Wednesday  the  3rd  of  January,  and  continued 
sitting  the  4th,  5th,  and  6th  days  of  the  same 
month,  all  which  were  within  a  few  days  af^r 
the  publication.     Orig.  Ed. 

f  The  whole  of  this  assertion  is  utterly  false. 
The  paper  was  published,  or  rather  the  London 
Museum,  containing  the  paper,  was  sold  at 
Mr.  Almon's,  on  the  Ist  day  of  January,  1770, 
and  a  bill  of  indictment  miufht  have  been  pre- 
ferred against  him  to  the  grand  jury  of  West- 
minster, by,  and  before  whom  this  matter  was 
properly  cognizable,  on  the  3rd,  4th,  5th,  or 
6th  da\s  of  that  mouth,  for  upon  each  of  those 
days  that  grand  jury  was  sitting,  which  would 
have  been  *'  taking  public  notice  with  as  much 
disp-itch  and  expedition  as  be  could,*'  and 
would  have  been  likewise  the  regular  and  legal 
mode  of  proreeding.  But  the  fact  is,  Mr. 
Atiornov-Gi-neral  did  not  chuseto  prefer  a  bill 
of  indictment  to  the  grand  jury.  He  knew 
very  well  that  every  syllable  of  the  offensive 
paper  was  true,  and  lie  was  afraid  the  grand 
jury  would  enquire  into  the  motives  of  this  par- 
ticular pnrseculittn.  as  well  as  into  the  contents 
and  \erjcity  of  the  p»|ter  itstlf.     The  grand 


Trial  of  John  Almon, 


[828 


not  being  brought  to  a  trial  now — Others  are 
now  depending.*  This  person  published  tbii 
paper. — I  would  not  aggravate  on  one  side,  or 
extenuate  on  the  other :  1  only  meao  to  explau. 
The  paper  had  been  published  10  or  1 1  dayi 
before  this  was  published.  I  do  verily  bdievs 
there  was  not  a  man  in  the  kingdom  (I  aa 
sure  not  an  honest  man  in  the  kingdom)  who 
read  it,  that  did  not  take  offence  at  it, — the  ex- 
clamation of  nuinkind  against  it  was  general ; 
yet  in  that  situation  it  was  publish^  by  the 
now  publisher.  1  mention  these  circumstMeei 
to  excuse,  or  rather  to  explain  the  coodoctflf 
those  who  have  carried  on  these  prosecotraai. 
The  facts  I  have  mentioned  will  be  proved— It 
remains  then  for  vou  not  to  punish,  for  that  it 
not  the  present  subject,  but  to  enquire  whether 
.he  defendant  has  committed  this  crime  or  not 

William  Bibbin$  sworn. 
Examined  by  Mr.  Sol.  Gen,  (Tbariow.) 

Do  you  know  Almon*sshop  in  Piccadilly  f 
—I  do  ;  a  bookseller's  shop. 

Did  you  at  any  time  buy  any  paper  there  or 
not  ?— I  did. 
■'■"■■■  ■  I  i^—i^— — ^— 

*  With  an  affected  air  of  sincerity,  there  ii 
great  art  in  this  passage,  which  indee<l  caosit 
be  made  appear  so  strongly  upon  pa|>er,  uit 
did  by  the  emphasis  in  speaking.  By  tlie  wonb 
*  one  person,'  and  *  others  are  now  de|»endio^,' 
Mr.  Attorney  could  not  possibly  mean  any  tliiap 
but  the  original  publisher,  and  the  re-  publishers. 
Now  the  fact  is,  that  here  ai;ain  he  must  know, 
he  was  advancing  a  falshood  in  which  he  cooM 
have  no  other  desigfii  but  to  deceive  the  jury ; 
it  being  very  natural  for  the  jury  to  ask  one 
another.  Why  is  this  man  brought  to  trial  be- 
fore the  original  publisher  ?  The  Attorney -Ge* 
neral,  with  great  caution,  takes  care  to  satisfy 
them  upon  that  head.  He  gives  them  to  uo- 
derstaud,  that  the  original  publisher  is  ill,  lod 
for  that  reason  his  trial  has  been  post|»ODe<f. 
The  baseness  of  this  part  of  the  business  would 
exceed  the  possibility  of  belief,  were  not  mioj 
persons  well  acquainted  with  the  notoriety  of  it 
Thereat  truth  is,  the  original  publisher  was  not 
ill.  On  the  contrary,  lie  was  m  p;.'rfect  healUi, 
and  attended  upon  ibis  very  trial,  in  consequence 
of  a  subpoena  on  the  siile  of  the  prosecution,  of 
which  the  Attoniey  General  could  not  be  igno* 
rant ;  and  tbesubpccna  was  so  particular,  that 
by  a  note  on  the  back  of  it,  he  «vas  ordered  to 
bring  with  him  the  original  copy  of  the  adfer- 
tisementof  the  London  .>]useum,  inserted  in  bit 
|iaper.  What  pur(>osethe  original  copy  of  the 
advertisement  was  intruded  to  answer,  it  is  in- 


jury art>  s\\orn  *  t.»  d.liLTt  fitly  enquire  and  true 

presentment  make,'  and  not  lu  find  auf^in^t  any  i  possible  to  say,  as  the  printer  was  nf>t  exi- 

pers«tn   for  haired  or  malice.     And  ihe  paper  '  mined.     But   the   advertisement    was    shena 


beiui;  notnriiHisl\  true  and  the  prosecution  ap- 
parently m'ili(*ion<,  he  durst  not  trust  the 
charge  wiih  a  grand  jury.  But  he  waiteil  in 
secret  tilt  Hi!ar\  term,  which  did  not  bei^in 
till  the  SSid  day  of  January.  1770,  and  then 
fiie«i  an  iutbrmaMnn,  not  in  consequence  of  a 
motion  made  in  open  court,  but  privately,  that 
»,  ex  officio^  io  tke  Crow  ■•office,    Orig,  'Ed. 


alN)ut  to  several  persons,  snd  it  appeared  by  a 
note  at  the  bottom  of  it,  to  have  t>een  inserted 
in  his  paper,  by  the  order  of  Mr.  J.  Miller,  the 
publisher  of  the  Loudon  Museum.  Like  sob- 
|Kenas  were  al<io  seut  to  the  publishers  of  the 
Gazetteer  and  8t.  James's  Chronicle,  but  the 
Attorney  General  tlid  not  think  proper  to  exa* 
mine  an jf  of  them.    Orig,  Ed, 


869]  Jar  a  Uhtl. 

Wh»t  diJ  you  buy  ?— The  London  Muaeuin.  j 
[Proiluced  in  cnnri ;) 

li  lh»l  llie  very  book  you  bought  f — Yes  ; 

What  day  did  you  buy  it  ?~-On  llie  first  of 
January. 

SerJ.  Glynn,  lie  «o  |;ooil  as  1o  let  us  know 
nlio  you  are? — B'ibbins.     lain  a  meiisctjger 

^he  Paper  was  here  read.) 

Sol.  Gen.  1  shall  call  a  nitness,  in  order  to 
ihrw,  that  Alinon  was  one  of  lheun);in*l  (luh- 
fuliers  ;  or,  ore  of  the  jierBons  lo  » liom  the  at- 
Itnlion  of  the  jiubhc  was  called  in  that  cha- 

Serj.  Glynn  to  Bihbins.  Ynu  are  a  nies- 
■cngpr  to  the  (iress,  iileuse  to  le!1  ub  what  that 
office  isf— ll  Is  niy  Winess  lo  buy  all  potiii- 
cil  paniphUrs, 

Have  you  o  salary  for  that  pnrpose  F— There 
ii  a  talary  iiinexcd  lo  that  office. 

Then  niihoutsDy  direction  nliatevttr,  nheu 
a  political  pamphlet  comes  out  you  are  to  buy 
il?-Ve8, 

You  IodKp'I  upon  Ibis  as  a  political  pampli- 
!ei;-Yes:  I  diS. 

Did  you  buy  all  the  Mnseums  that  were 
puUishetl,  or  only  this?— I  bought  them  of  the 
(lubliiber  mentioned  in  the  aitverlisemeot :  I 
hite  a  staoiliriif  order  ;  and  oerer  fvaii  for  di- 

Doyoii  buv  all  nia(;AxineB  and  papera  ivhich 
cMiieoutf — If  any  iliing  pariicular  h  adfer- 
iiv^   to   be  published   in   ibem,   then   J   buy 

I  Iwlieie  Junius  was  adrerlised  in  all  the 
■q^aziaea :  di<l  ynu  buy  all  ihe  aiaga/incs  f — 
iHlnTe  jou  ate  mistiiken.* 

Tbeo  the  liicl  is,  you  did  not  buy  all  ihe  lua- 


*  The  wiltirss  lakes  as  g;reat  a  latitude  as 
tbc  Attorney  General.  The  letter  of  Junius, 
lar  ibe  sellmx  of  which  the  wilneas  informed 
■taiul  the  defendant,  was  prioted  in  mml  LI'  not 
w  Ibe  maijinxines,  published  In  London  on  the 
Ul  day  of  January,  1770.  The  tact  of  llie 
paUicaUoo  of  these  periodical  pamphlets  is 
nK|iM»iiauable.  The  publishers  of  them  are 
in  men  who  act  in  the  dark,  or  who  live  as  if 

Swere  afraid  to  be  known.  Their  names 
places  of  abuile  are  affixed  to  tbeir  bookE>. 
Onetimes  it  happens  that  other  booksellen' 
°>in«i,  besides  the  real  puhlisher«,  are  placed 
't  Ibe  adrertisemenls,  but  Ihe  first  name  ' 


IJI  the  usual  and  general  accepted 
'ted,  where  there  js  no  puhhsher'a  oame  lo  a 
w»k  or  pamphlet,  or  where  the  name  ii  ficli- 
tious,  it  may  be  rigiht  to  deem  the  first  man  a 
publisher,  who  may  he  found  sellini;.  But 
Maimon»en«ereioUsaltheidcaof  pro'eculing:. 
Ud  the  first  too !  a  seller  only  ;  «lien  the  real 
trinler  and  publisher  may  be  easily  come  al  I 
Vr,g.  £</. 


A.  D.  1770.  [830 

gazloetF — I  bought  all  that  1  knew  were  pub- 
lished hv  him.* 

I  would  be  glad  lo  hare  il  understood,  whe- 
ther whal  you  do,  is  done  from  the  idea  you 
haie  of  the  duly  of  your  ofBce,  or  wheiher 
you  are  so  directed?— From  ihe  idea  of  the 
duty  of  my  ofGce. 

Have  you  kept  them  eTersince  ? — I  deiiier- 
ed  them  to  Mr.  Fiancis— and  he  delivered 
them  10  meag:aln. 

How  did  ynu  know  it  ag^ain? — 1  marked  it, 
and  know  il  to  be  the  same. 

Yuu  hate  a  salary  for  ynnr  office ! — I  am 
only  an  acting  messen^r. 

bid  you  buy  Ibe  Luadan  Magazine  T-j- — I 
did  not. 


and  he  dclifered  it  to  me, 

Natlianicl  CroxJrr  sworn. 
Examined  by  Mr.  Mvrton. 

Did  you  buy  any  Lumlnn  Museum,  and 
when  at  ihedetendaul's  shnp  in  I'lccadilly  1* — 
I  did  ,  this  is  it — (pruduciug  it,  and  the  news- 
paper produced) 

l«  tliat  the  adverlisemeni  of  Ibe  I»nd<>n 
Museum?— It  in. 

Is  it  that  which  gate  riselo  your  buying  the 
paper? — Yes,  il  was. 

Lord  Mantfield.  It  is  capable  of  proof,  if  ib^ 
defendnnt  put  il  m, 

Mr.  MvrloB.  The  last  n  ilness  said  Ihat  ba 
bought  all  papers  of  the  pnlitica!  kind. 

Lord  Mamjitld.  To  that  he  has  given  a 
proper  answer. 

lilr.  Davenport.  What  ore  yon? — Crawder. 
I  sunply  the  (Gentlemen  uf  Ihe  Treiisury  with 
all  polilical  daily  publicalionn. 

Then  you  are  a  !<orl  of  mmeuger,  employed 


*  There  was  a  report,  wliich  this  etidence 
aeema  lo  confirm,  lbs t  informs tions  were  drawn 
a^inst  ibe  defendanl,  for  selling,  on  the  first 
day  of  January,  1770,  the  Freeholder's  Hiiga- 
zine,  and  the  Town  and  Country  Maitasine, 
each  containing  Junius'*  leller;  which,  pro- 
bably ihia  evidence  bought  at  hi?  shop  the 
same  morning. — There  is  nut  ndouhl,  that  some 
copies  of  almost  every  monlhly  inagaaine  are 
sold  at  theshopof  every  bookseller  iu  lhekiii<;- 
dum  ;  but  can  il  he  right,  or  ia  il  reconeilalile 
to  any  principle  of  justice,  that  a  man  should 
be  prosecuted  for  only  seliini;  a  book  in  the 
course  of  his  trade,  wbicli  has  been  primed 
and  puhlished  with  impunity,  by  another, 
whose  name  is  mentioned  upon  the  title  page? 
If  the  princlpte  upon  which  such  a  partial  pro' 
seculiou  is  instituted,  be  good,  then  ibe  minii- 
ler,  or,  which  is  the  same  thing,  the  king's 
Attorney  General,  who  always  acts  by  bisdi-. 
rections,  can  at  any  time  prevent  any  particular 
bookseller  Irom  Ib'llowiug  Ills  trade,  and  by  thai 
uicans  ruin  hiro.     Orig.  Ed. 

t  Juuius's  leder  waa  in  lh«  Loud'iu  Msga- 
zine.     Oris.  ^•'- 


831]  10  GEORGE  111. 

b^  the  Treasury  to  select  all  the  papers  they 
direct  yon  to  get  ? — Yes. 

You  (Jofi*t  know  any  thing  of  the  beoksellhig 
trade?— No;  1  do  not. 

Did  they  direct  you  to  go  to  any  particular 
shop? — No.* 

\Vho  delivered  that  pamphlet  to  ymi  at  the 
shop  f— A  young  man ;  1  cannot  tell  who  he 
was. 

What  did  you  ask  for?— I  asked  for  the 
London  Museum,  and  somebody  g^?e  me  one. 

Seijeant  G/vran.  May  it  please  your  lordship, 
and  von  gentlemen  of  the  jury,  to  favour  me 
in  the  present  cause  in  behalf  of  Mr.  Almon : 
and  gentlemen,  out  of  the  concern  that  I  have 
Ibr  my  client  Mr.  Almon,  it  gives  me  a  (leciiliar 
satisfaction,  that  a  cause  of  this  nature,  affect* 
ing  him  so  greatly,  comes  to  be  tried  by  gen- 
tlemen of  your  character.  Gentlemen,  Mr. 
Almon  is  singled  out  for  a  prosecution,  as  the 
publisher  of  a  paper,  contained  in  a  certain 
pamphlet  that  comes  out  monthly,  and  is  called 
a  Museum — for  the  publication  of  a  |>aper  that 
hath  singly  appeared  in  all  newspapers  that 
have  been  published.  The  original  publisher 
well  known,  and  avowing  himself.  I  should 
have  thought  that  Mr.  Almon,  upon  the  evi- 
dence of  a  man,  who  calls  himself  a  nies- 
senger  to  the  press  (an  office,  that  should 
have  expired  with  that  odious  system  of  laws) 
—upon  the  evidence  of  that  man,  finding  this 
book  upon  a  stall,  or  delivered  to  him  by  a  boy 
in  the  shop,  that  Mr.  Almon  should  now 
atriisrgle  against  being  convicted  of  an  offence, 
which  would  bring  upon  him,  undoubtedly, 
very  severe  punishment. — Gentlemen,  it  is  (in 
my  opinion)  a  question  that  goes  very  far  be- 
yond the  person  of  Mr.  Almon.  If  the  pro- 
secutor had  thought  proper  to  bring  before 
you  the  known  and  avowe<t  publisher  of  this 
paper,  in  that  case,  the  question  of  the  guilt 
or  innocence  of  the  paper,  would  have  been 
material  for  your  consideration.  As  Mr.  Al- 
mon is  now  circumstanced,  if  the  paper 
was  mpritori(»u8,  the  merit  could  not  belong 
lo  him.  If  on  the  other  hand,  the  i>aper  is 
criminal,  the  criminality  cannot  be  imputed  to 
him.  This  offence  has  been  dcscrilied  in  the 
information,  and  represented  afterwards  by  Mr. 
Attorney  General,  in  the  opening.  Mr.  Attor- 
ney General  has  said,  that  *^  it  was  published 
in  the  malevolence  oC  the  publisher's  heart,  to 
vilify  and  aspente  the  king  npon  tiie  throne ; 
that  it  was  done  with  an  intention  to  excite 
•edition  and  destruction  in  the  kingdom,  to  di- 

*  This  witness  was  the  informer  against  Mr. 
J.  Miller  (who  is  tlie  publisher  of  the  Ltmdoo 
Museum)  for  printing  and  publiMiing  Jiinius's 
letter  in  the  London  Evening  Post.  Is  K  not 
extraordinary  that  he  shovld  go  to  Mr.  Miller^ 
near  8i.  Paul's,  fiK  the  Loadoo  BvMOfc  Pmc  ; 
•■d  tbeui  of  biv  o«ni  MOMnAi  s»  S"  ■>» 


Trud  of  John  Almond 


PS8 


in  PSccMliUy,  Mi 
wlut  h»  hMI  k 


vide  OBO  part  of  his  majesty's  sulgeels  afttost 
the  other ;  and  pursuing  that  malcirolciit  ia* 
tention  thot  prompted  the  author  to  excite  St* 
affection  to  the  king,  has  taken  that  odious  aiid 
detestable  part  of  exasperating  the  king  agaiaift 
his  subjects." — To  whomsoever  that  inRpati- 
tion  belong,  it  is  certainly  the  grcoteat  offeBCt 
that  a  8ub|ect  of  this  kingdom  (oe  bo  who  be 
will)  can  possibly  commit :  gentlemen,  whe- 
ther that  belongs  to  Mr.  Almon,  or  to  the  writer, 
I  must  submit  to  your  consideration. — ^WbetlMr 
it  belongs  to  the  other,  is  not  now  the  sulMct 
for  your  discussion.— Gentlemen,  I  abouldke 
very  unwilling,  as  1  have  sUted  it  toyo«,ls 
have  it  totally  immaterial ;  as  I  am  uninstrad* 
ed  by  Mr.  Almon,  who  knows  nothing  of  tUi 
paper,  either  to  defend  it,  or  to  submit  to  tbe 
crimiiality  of  it.  As  I  have  no  instruetioai, 
on  the  subject,  I  will  not  tronhle  yoo  vitk 
many  observations:  whenever  the  real  pok- 
lisber  comes  to  be  tried,  the  jury  then  coocen- 
ed  will  consider  and  decide  on  the  qneeties. 
It  has  lieen  said,  that  this  is  "  to  vilif?,  ud 
asperse  tho  king  himself.'*— The  highest  ef- 
fence  that  the  rancour  of  the  most  malevoIeDl 
heart  could  ever  conceive ;  hut  is  it  such  ?  Ii 
it  to  vilify  and  asperse  the  king?  Was  it  the 
opinion  of  the  drawers  of  the  information  tbil 
it  was  so  ?  I  am  of  opinion  that  it  could  not  be 
so ;  I  am  of  opinion,  from  a  single  omisMi, 
that  that  was  not  ihe  construction  the  dnoer 
of  the  information  put  upon  it.  1  have  alwayi 
been  led  to  observe,  that  the  wortl  *  fabe'  biS 
been  inserted  in  these  informations— ever?  sse 
of  them. — IJow  happened  it  to  be  omitted  fiere? 
If  this  conveyed  personal  reflection  on  tbs 
king,  would  not  the  drawer  of  the  informatiea 
have  been  prompted,  for  the  honour  of  the 
king,  to  say  that  it  wasfalse  ?— I  do  say  it,  tkil 
if  there  is  a  single  word  dero};atory  to  the 
personal  honour  and  virtues  of  his  majesty, 
It  is  false  in  the  highest  degree. — 1  say, 
they  should  have  said  it  was  so, — They  caa- 
not  now,  with  decency,  contend  that  the 
king  is  personally  reflected  on,  because  tbey 
have  not  undertaken  to  falsify  the  mstter 
of  that. — There  is  another  observation  that  I 
would  submit  to  you  ;  and  1  don't  mean  ts 
submit  it  to  you  as  at  all  preventing  yonr 
going  into  the'  construction  of  this  paper.— It 
was  only  given  me  to  contend,  that  the  pub* 
lisher  ot'thi.4  paper  is  innocent :  but  1  must  take 
some  hints  from  what  has  been  suid,  and  sione 
doctrines  that  have  been  laid  down.  I  take 
notice  of  it,  because  on  future  occasions  it  wil 
concern  otliers,  and  because  (in  mv  opinion)  it 
concerns  tl»e  public.  I  do  agree,  tliat  |>ersi»flal 
imputations  on  the  king  can  never  he  defended; 
but,  I  do  assert,  that  the  freedom  of  |M>KiKal 
disciissioQ  is  of  the  utmost  consequence  to  sS 
onr  liberties,  and  I  do  insist  upon  it,  that  Ihe  ac- 
tions of  this  government  may  be  canvasfeJ, 
freely,  and  consistently  with  the  duty  of  a  goal 
'  wUmiI;  and  then  ought  always  lo  bedefctm^ 
Tho  linig*8  hand  must  be  employed  totkl 
is  M  impotatio*  to  tho  kmg  loeeMort 

r  gofornmrnt,*— In  oo  mbio  is  tbi 


^i!'  r.  I.Jk"^^ 


.<  T^  f^^^ 


X<^l 


SI!  if  im'_'  aiiiniai'*r^»t*i    m.      ?.  wt\ru 

V  ftiui*     xtiii:  :i»«T(    ifr  I,  rnustirui'ruiii 

•n    ti»t    iMii^'t:-  II*  :iie  rrp»-i.  Inii;^  sp 

nnife  wiKT?  — — ^-^^  «.«   itui:  r* 

u.  nc' r'lVf  :iitn  iT.';rniii:«nr.  'Hmn^ 

iatef\  IT'  prfiieK  r.C»in*«  il:if  <*'*»"'J''nf. 

1  r  V  ,1.  K-  %>iif»r  » i»ia  p:.!iji  »>f  i 
n  ibt  riuiiitsiit? — Mr.  Alrr'ni  i*  &  Srmi> 
i:v€*  1  i»rIi»Te  ir.  Pim.  I'llv.  iT.iix,*!! 
:  cLl-c*-  fcrt:ns:  h.m  :*.  ih^'baiuc  ihif 
1  Li*f:»':  IfskcMil  T»i'J\  ihTr.k.  tor 
ie  c:  :ljfr  broriur  of  ihe  U«js.  !<»r  iho 
At^t-ry  aika.  tuai  is  b\  no  imans prA|<r 
eio  c.>c«  .a  a  man  upitn  :  I  hart-  aluay* 
t,  that  10  \\ie  f*a^eoie  of  a  crime  UclAn^f* 
•D.  1  conld  Def*T  coDcriic  thai  any 
)uiJ  )«e  inii'tT  « ho  was  not  criminal  in 
rt.  1  li<i«e  alna^s  undiTslootl  t<H«.  that 
tr  is  oecessary  to  constitulo  an  oflTonco, 
nheat  oo  the  prosecnlor  tu  provo. — 
nen.  is  there  the  least  tittle  of  eviilence 
ion  to  affect  Mr.  AIiiiod  ?  not  only  w»'h 

malevolent  intention,  abcribotl  toliim  in 
urroation,  but  \%iih  any  ill  inlrntion  a| 
nom  any  mischief  done,  or  to  bo  done  f 
[>er  contained  in  a  miscellaneoiii  trarl ; 
only  at  that  shop. — Gentlemen,  if  Mr. 
vras  to  be  convicted  as  an  offender  in  the 
lion  of  this  ])aper,  I  think  vro  Rhould  he 
bat  never  will  be  allowed  in  thiv  cmin- 
>pe,  and  I  believe  what,  in  no  civilixed 

ever  was that  a  man  should  be  in* 

in  his  intentions,  and  at  the  Kauic  time 
—It  seems  to  me  to  he  the  i^reatcat  pa- 
the  G^reatest  solecism  that  ever  was  nt  • 
I  to  he  proved. — Gentlemen,  therefore  in 
f  Mr.  Almon,  v^e  now  insist  upon  it, 
uq^li  the  fact  is.  tlint  this  hook  wan  fonnd 
hr»p,  yet  that  Mr.  Almon  is  innosmse 
lisher  ;  nor  criminal ;  he  never  \M  it, 
'.  had,  his  mind  never  went  with  il.--- 
avinj;^  observed  to  yon  njion  itliat  has 
)duced  to  you  in  support  oi' the  pros<:<:u- 
A^oulil  be  almost  nnnecessary  to  opf:ii  to 
i  |»arlicular  circiin!stance«i  of  Mr.  Al- 
ise  :  but,  ;ren»li  rri'-n,  %vh  have  not  only 

0  f  I  y 
r.  Af. 

i  not  l>e«n  j-r''.*. '-'I  i'.  !><-  tlit  irtU u\'.;;,i\ 
r  of  the  pa;itr  ':r:!  i"  ■  w:;s  k^^/n^uly 
•y  lo  I*  pro^f!  :.->:  *r  K*  #y.  .:•!  \Ar  ro'.- 
but  we  hav*;  !:  :''j  ■  i«'v  t'#  ;.•'.*«■  »?/>t 
B«  to    M.*".  A  v.".  '  ■'  ■».'.;.■.•:♦.  h.i 

If   ITW  '.  ":  " 


ft'  snr^   hivnl>    -iiii.   ■}.?*  « ii«   iii«j«*t,\'.  ^  !'|i/»i«i 

■ 

•— .hf      tf*f»      lltlti     ^C*"4      «!"'»■       '•ON       •     -I'Ai'l      J.t% 

L'Pf'W  leil^  ft*  in*i»ri  '"i.  :!•«■*«,   ,■•  ^,•'l•|lV|.l»■,vs 

nniaea;  hptoT  s-^t*.    Iv  *  ,*»■»■  *  ■'*>   •!•.%   ■!•«•<  V  • 
\inr»or  j*   c"*'-'   '*'    'MfH'-*-'   "t^    ■  *  i"  •»«»         I* 
y^iihlh''; ;  •»:  »*>  j.r  i\ft  .%>.  .V,       \      /»     ,«,•■.,.,  W 


•it 


.\ 


Tect  of  evidence  wliich  we  ar*:  to  f  I 
re  have  not  '.r'v  to  :h\  iIj^i  M 


IT- 


•  •f. 


[r.  Arr.'-.'*  i-.   •  ' 
r  ;i  "■■*'  • 


J     ....    ,    •  I  •-.  »  4^  . 

•  -   ■•  ■,  ■  •r.r  V,  -^ 
:•■..■    ■  .    ..«vi  ■% 

I'll*  ;»*'.'  'I    id     li*» 


iirt'  %   .npA^pl1t.  c-  .»  .\S    ur  ••  ■»  •  •  -    • 
:!  :ht>  i<  tt^  hf  ;}'."  -«■,■..)«   I  •  '  !^  i^u 

^'*  »\\r".  a  "X  te  nnu  *  ..im-.  .  »*  ;  ■  ■» «  ^  '  i*w 
r*  Jinx  Ml  (in;  Mn  of  mort  -a.  «  't,^-.  c  !»■  *^'t  "  » 
The   «N^,mi>4>:i    i\v;i«r  OA  X     .»'*«      Js"  St  i\i.i  .s^, 

NVKHW*  It   I*  <ja«!i*  Jrti1»i*4',\  It       *     .   ,,  ■  ,-.     .    IX   ,,)^ 

matctial    -4I  mn.i  thc«i  i«  i  iiiv  oa     i^  \*w  h.^  •%  «1 

knr««  ^^hai  wai^  t)«^iii|2.  I  lii^  m<^«t  bis.t  ly 
fuKsrnKe  t%>  a  «Kvtniir  l.-«iii  d>^««i\  l«\  thi  ilr 
lomc\ -t«onrral.  .-%«  I  bniid  ii|t«M\  u«  sihhouM  a 
diVliinr,  «ihi«*b,  I  ihink.  i«  l«  i^hU  i%hitl«« 
iBome  and  brnelu  lal  to  the  «\ibii  i  t«t«l  iln«  kii^in- 
dom.  Hr  hai^  s.iid,  thai  in  nil  «'ii«<^  xi  hiili-«  n . 
the  hbrrlv  of  ihr  piv^s  i«  ih«*  most  >4i  i«d  til  til 
otherx.  lie  haa  trnU  Mtd.  th.il  thnl  ■•niii'iiihk 
ro^tKon  the  «.imo  piun'iph',  and  the  aiitiit  «i<««ii 
lilVi  and  lo  lie  i;o\rin«'d  h^  llie  saini  Uit.  na 
evrrv  oth«r  arliele  wi  luiv  rtbi-iiv  It  m  iim«| 
err  In  inly  HO.  Mr.  .\tltiiiii*\  l«i-iirtnl  has  •md, 
that  the  liberty  o|  the  pii««.  i«  tht<hhiil\  \\\ 
nrilillif  \k\\nl  is  jiul  :  l.iiA^a  hi\  liini>  the  h 
beiiy  ora<iiii|f  nml  doinK  •  Iml,  il  I  nliiisn  ihiil 
liberty,  I  borome  eriminnl  I'lilrtiidv^o!  nn 
pHsiiiiin  ean  ln«  idrniri  I  IT  ihrte  i«  an  nlmsfi 
ol'  thill  liberty,  iiinbnibledly  il  in  llii*  bi||hi*sl 
miMlemeniior,  in  pio|iiMlhin  hi  the  valnn  ii|  ihi* 
libri'ly  lie  ahiinrH  ;  but  Mpi^ly  thiil  in  aiiv  lillii'i' 
Idicrly  to  llir  prenriil  eaue.  I  li«vi>  Ihi*  Idn  Itf 
ofwnlkiiiK;  (when  lean,  I  Iihvm  thatltlNiiy 
tiKi)  but  HUpjiositiif,  thai  in  lli«  i  niiiBn  nf  my 
watkinif,  I  hImiiii*  thai  by  dMiiiu  Hiiy  iiii«i  hii'l, 
then  I  HbiiNe  tlint  hbi'ily  i  m  Mippi»-<iiiii.  Ibiii 
in  niiy  oltiiT  libiity  llnit  I  |i<tvi>  nl  iiiltiiu,  I  m  ft 
nithiniilly,  llii'ti  I  uiii  piiidshHlili' (m  II  l^li>«l 
erriiiiidy  sof  Siippti«ii  I  hN%i'  tlii>  liiiiily  nt 

nsiiiK  my  bund*,  if  I  iisi-  iIm  tfi  in  IIm'  hmmoIi.  *if 
t'l  th«*  niiiioyuiiff  of  my  mi'ii^IiImhk,  I  iiin  Ohm 
(liifrinnl  but  iMid<  r  nvtml  » iiMiift«l«fi<  •  >i  ^  II  I 
flo  It  dit|^iifi|ly,  till  II  I  uiii  f  riffitifNf  ^  \f  t  ''I,  f 
r;iiiiirH  In* ^o  ;  lo'tU  ifil'i  i  »i#y  fil»<  ttf  <•••  'ffif, 
tind  toil  Will  find,  tifti  lU»*  *nt»i»^  *A  (*  *\- 
\t*U*\x  tit»*tU  tl.m  pi  III  ip'i  ,  I  )»iM  ««/•  »t,i#x<.  r  tf 
■  ifi.v.Mi-f  h'ift«'»  t'/  tuy  #/**/*  V»'<t^  I  *»#•  »'i 
•fe'irrji*  »«-f.  *  *r,^vifi .  k'..*  .■#  *  «  •  '  «/'^  t^  J  « • -p 
i/*;i'r  b*  flt%A*:  m  **.ii*  ».•*,  •##. i»*'J  I  •^  ^  >§ 
»A 'fi  ."f«  ;  Soa**  M»  A'*//*'-^/  'r«^»*»  •  •  >  "^ 
.  •,  •  S<:  » «'•  y  ♦  »  >*       *  W'^  *  K%'  •■    Ai'v****/'     ■■'/ 

...  t  /,«^,*^/'. •     '•»..«    •'•i1Ai---»i  'i^    <"  ■- ,     "- 

**'>.*   •♦    *    ,  ••    'i  -I    <■*  or'^'V^V^       »r     «#•!#''    . 

*«''  '.  %:     «^  *I1»I     ••••     ♦itli-'.*':.''-'.    ■         »'  • 

■|-.>»  •.l*»*»      !«•     !•    «»*>     '.^ri»  T.*i        ^/  .       #  -• 

vv  i\/^tiif«i    w  •'■   tfc*  -/.    ■•*■', 

M*    It"*     iu*^f»        9m* rp'^^'^'  .•/.-•'^~ 

MK*     lit#"   _r^   ■♦if    iMspf^^-^  i»»*    ^'        " 


835J 


10  GEORGE  III. 


Trittl  of  John  Almon, 


18S6 


criminal — Mr.  Almon  has,  in  the  course  of 
trade,  published  it ;  that  it  has  been  published 
at  his  shop  ;  now,  it  does  not  appear  that  he 
liad  the  least  knowledj^e  of*  it ;  indeed  we  will 
produce  proof  to  you  of  the  ne^tire,  that 
lie  bad  not  the  least  knowledi^e  of  it.  Stating* 
the  case  thus,  the  same  rules  tliat  extend 
to  a  man's  answering  for  every  act  of  wrongs, 
where  there  is  an  intention,  certainly  the  same 
rules  roust  acquit,  where  there  is  no  wicked  in- 
tention. Gentlemen,  I  will  therefore  submit  to 
you,  upon  all  the  circumstances  of  this  case, 
that  we  are  entitled' to  your  verdict  for  Nr.  Al- 
mon ;  that  his  conduct  cannot  be  condemned, 
without  violating^  one  of  the  first  principles  of  j 
DMtural  justice ;  and  I  do  hope,  that  if  1  should 
be  so  unfortunate  as  to  have  that  ever  admitted 
to  be  violated,  I  hope  it  will  be  violated  for 
iome  greater  purpose,  than  merely  to  effect 
the  ruin  of  a  bookseller,  who,  in  this  part  of  his 
conduct,  is  not  criminallv  guilty  ;  and  whom, 
in  this  case,  gentlemen,  I  must  submit  to  you, 
at  an  honest  and  an  innocent  man. 

Mr.  Davenport.  We  will  call  a  witness  to 
prove,  that  Air.  Almon  is  the  mistaken  object 
of  this  prosecution  ;  that  the  books  were  sent 
to  his  house  without  bis  knowledge.  (Call  John 
MilJer.) 

John  3£tller  sworn. 

8eij.  Giynn,  I  am  not  bound  to  nrove  the 
contrary  of  what  they  have  not  proved. 

Court.    Use  your  own  judgment. 

Mr.  Davenport.  1  apprehend,  in  a  cause  of 
this  sort,  we  need  call  no  witnesses  at  all.  I 
ahali  be  very  short  upon  it.  This  charge  is  a 
malicious  and  wilful  publication  of  this  libel, 
that  has  been  read  to  you  from  the  paper  itself, 
and  from  the  record.  You  will  try  w  hether 
that  evidence  satisfies  you,  that  Mr.  Almon  is 
the  real  or  the  mistalcen  object  of  this  prosecu- 
tion ?  The  parties  who  prove  the  supposed 
publication,  prove  the  going  into  Mr.  Almon's 
fhop,  in  Piccadilly,  and  buying  there  apam- 

£hlet  that  they  asked  for,  under  the  title  of  the 
■ondon  or  British  Museum.    That  is  the  evi-  \ 
4lence.    There  is  no  letter  produced  to  you ; 
there  is  no  specification  of  that  sort  of  libel, 
that  is  contained  upon  the  face  of  the  record. 
The  book,  the  pamphlet  was  sold  there  without 
the  other's  knowledge  of  the  contents  of  it.     It 
is  usual,  and  I  believe  many  of  vou  know  it, 
for  booksellers,  in  different  parts  of  the  town,  to 
aend  pamphlets  and  books  published  for  tliem- 
fdves  to  other  booksellers ;  and  this  appears  to 
be  by  one  John  Miller,  who  stands  forth,  not  ! 
only  as  the  printer  but  the  actual  publisher  of 
it.     If  that  be  the  case,  and,  if  it  were  possible,  i 
that  this  might  be  published  for  some  other 
man,  who  avowa  the  publication,  it  might  be  • 
■ent  very  honestly  to  Mr.  Almon*s,  or  any  ' 
other  shop  in  this  town,  and  they  would  be  ' 
equally  the  objects  of  this  prosecution ;  if  con- 
■eot,  If  eoncuncnee  does  not  go  with  the 
•rioMt  of  thai  yoaara  to  bethejud|^;  of 
»^— »-—  ^jm  gif  on ;  Boriaitpoo- 


as  has  been  described  by  the  Attomey-Geae* 
ral,  on  a  man,  who  himself  has  bad  no  comnMi- 
nication  with  the  publisher.  1  advised  my 
client  to  call  no  witnesses,  and  I  do  submit  ts 
you,  that  he  is  very  clear  of  this  charge :  if 
they  mean  to  try  it  again,  they  will  get  better 
evidence  of  his  guilt. 

Lord  Mansfield.  Gentlemen  of  the  jury. 
There  are  two  f^ronnds  in  this  trial  for  your 
consideration.  The  first  is  matter  of  fact,  wbe 
ther  he  did  publish  it.  The  second  is,  whether 
the  construction  put  upon  the  paper  by  the  ia- 
formation  in  those  words  where  there  an 
dashes,  and  not  words  at  length,  is  the  ins 
construction ;  that  is,  whether  the  applicatioB 
is  to  be  made  to  the  king,  to  the  administratioB 
of  his  government,  to  bis  ministers,  to  ths 
members  of  the  House  of  Commons,  to  Eaf- 
land,  Scotland,  America,  Ireland,  as  put  upoa 
it  by  the  inlonnation ;  because,  after  your  ver- 
dict, the  sense  so  put  upon  it,  will  be  taken  to 
be  the  true  sense :  therefore,  if  you  are  of  opi- 
nion, that  that  ia  materially  the  wrong  sense,  it 
will  be  a  reason  for  not  convicting  bim  npoa 
that  sense. 

In  the  first  place,  as  to  the  publication,  then 
is  nothing  more  certain,  more  clear,  nor  nrnt 
established,  than  that  the  publication — a  sale  st 
a  man's  shop— and  a  sale  therein,  by  his  sir* 
vant,  is  evidence,  and  not  contradicted,  sad 


explaineil,  is  evidence  to  convict  the 
of  publication ;  because,  whatever  any  mii 
does  by  another,  he  does  it  himself.  He  is  Id 
take  care  of  what  he  publishes;  and,  ifwbil 
he  publishes  is  unlawful,*  it  is  at  bis  peril.  If 
an  author  is  at  liberty  to  write,  he  writes  at  hii 
peril,  if  he  writes  or  publishes  that  which  il 
contrary  to  law;  and,  with  the  intentioa  or 
view,  with  which  a  man  writes  or  publishes, 
that  is  in  his  own  breast.  It  is  impossible  fvr 
any  man  to  know  what  the  views  are,  but  Iroia 
the  act  itself:  if  the  act  itbclf  is  such,  as  infen, 
in  point  of  law,  a  bad  view,  then  the  act  itsvlf 
proves  the  thins^.  And  as  to  the  terms  *•  mali- 
cious, seditious,'  and  a  great  many  other  wordi 
that  are  drawn  iu  these  informations,  tliev  arc 
all  inferences  of  law,  arising  out  of  the  fact,  is 
case  it  be  illegal.  If  it  is  a  legal  wriiing,f  and 
a  man  has  published  it,  notwithstanding  these 
epithets,  he  is  guilty  in  no  shape  at  all.    Asd 

*  What  is  unlawful  ?— The  only  sUtutei 
against  libels,  viz.  3d  £dw.  1,  2d  ami  19th 
Ric.  2,  condemn  or  punish  no  other  than  falsi 
news.  They  say,  *'  That  whoever  shall  be  it 
hardy  to  tell,  or  publish  any  false  news  ortalei» 
whereby  discord  or  slander  may  grow  bet  wees 
the  king  and  his  people,  or  the  great  men  ef 
the  realm,  shall  be  takeu  and  kept  in  prisoHi 
until  he  has  brought  him  into  court,  w  Inch  was 
the  first  author  of  the  tale."  Juniua's  letter 
does  not  fall  within  these  statutes,  for  the  At- 
torney General,  in  his  information,  does  ost 
call  it  liaise.    Orig.  £d. 

t  How  is  any  man  to  know  wbatiaalcgii 
wntii^^r    Orig.Ed. 


I 

ii 


for  a  LiM. 

.  ,  _il  Glynn  Inld  ynii  irhtt  was  true  in 
KbeU formerly  :  thty  limt  inoree|iiilieuar(l)*l 
Iriiul,  ami,  iini<>Dtr«t  llir  reti,  iliey  |iut  in  tli« 
wnr^t  ■  bise  (■  but  he  is  niiauken  u  lu  the  lime ; 
it  WW  Icli  out  muny  years  ken ;  anil  llie  mmn- 
mg'Of  lM*in|r  lht«  nul  in,  Ihal  it  n  totally  im- 
material in  pokil  ot  [iruDf,  Inie  nr  folic :  il'  it  is 
true,  tbere  is,  l>y  tlie  eoaiiiluliiiu,  a  legnl  me- 
thod of  iirutcculinn,  from  the  higheil  to  Ihe 
lOKcii— errry  man  fur  hia  offcnciM.  It  has 
been  lelt  out,  ami  maoy  oiheri  ul'  the  mme  na- 
ture, a  BTAi  many  yeara  ago,  in  iiroKciilifliia 
•r  Ihia  kind  :  •  hut  i»  lo  Uie  two  I'acU  now  be. 
fcre  you.  A*  to  llie  |iuMicali'in,  here  are  t»n 
irilneasea  (hat  iwrai  la  ihr  Ud:  Bihbina 
•weara,  that  hein^  M  by  an  ailvertitrment, 
thai  aiieh  a  r'^'iipl'lvl  *a«  piihlioheil  and  sold 
at  tli«  defi-ndani'i,  in  PIcraililly,  iliat  liv  went 
there,  aikeit  for  it  pulilidy  -,  it  wan  puMlcly  ex 
|w*cit  in  aal*.  and  wild  lu  him  by  a  lad  lu  Ihe 
ahogi,  that  acli-il  hk  u  ni-rtllnl  attUe  delendanra. 
There  iR  inolhir  witmrtK,  Crowiler.  who  like- 
*nt  tfrmn.  that  hv  asked  |iublicly  lorune,  and 
dial  tl  »■■  xiiUI  liim   hy  Ibe  detiinilanl'a  uiaii . 

II  auiidx  ii|ii>ii  tlieir  ettiiuni-e.  If  there 
^bcen  aay  ariitic<^,  nr  Irick,  of  Henitintr  " 


^Lbeen 


^ow  muny  yeaisaif"^ — li  whs  lelt  out 
■  iBlorniiiliuii  a|j[aiii(i  Mr.  Wdkes,  because 
rowti  lawyprn  know  *ery  well,  ihul 
wary  wonl  ol  iIihi  N on Ii- Briton  was  true. 
Sul  d»n>  lord  AUnnfield  mean,  il.al  il  baa  been 
left  mil  erer  since  he  knew  the  court  of  King's- 
heocli  f  lit!  cerUioiy  dors  not,  lor  he  knows 
heller,  llecannoihateforirot,  (lielnnaiiliciloi- 
feoeral  at  thai  lime)  that  in  ihe  iaformalion 
a|[aiii>t  W.  Urttn,  tried  lh«  6lh  nf  July,  1753, 
lor  pjl'Kaliiiiij;  the  case  of  Alrsiander  Murray, 
••q. ;  Uwr  wurda  are,  '  a  wicked,  talar,  airanda- 
biu,  •cdititus,  and  malicious  libel.'  Therefore 
il  ia  not  a  ^reai  many  years  a)^,  lince  ihe  uord 
•  Mat'  waa  left  out.  Bui  it  seems  tii  be  omilled 
now,  iu  conformily  with,  and  perhafia  Ihe  bel- 
4tr  to  enlbrce  ilial  new  and  absurd  doctrine, 
that  any  wriiiu)f,  true  or  lalse,  against  a  mi- 
kiitar,  la  a  libel.  Il  uiny  be  ao,  according  tu 
the  Imperial  alaiiah  civil  law  ;  but  it  is  cooira- 
jielad  by  natural  reason,  upon  which  *■*  foiinde<l 
Um  miU  and  liberal  Ian  of  Bi>Kltnii.  ludved, 
lord  Uunafield's  deflnilion  of  the  librrly  of  ihe 
»T«BS,  warranti  ua  in  thii  supixiaiiinD,  lur,  upon 
Mr,  Woodfall's  trial,  he  said,  "  The  liberiy  of 
the  preaa  cnnaiita  in  no  more  than  thi*.  ■  lil>vriy 
to  print  now  wiihnai  a  licente,  wbal  Ibrnif  Hy 
»ld  he  printed  ouly  with  one." — And,  in  the 
'"■nation  agaiiiat  Kichard  Nuit,  lor  pnnliui; 
aahliahing  to  the  London  Evening  Pnul,  of 
klO,  1754,  the  jnper  is  called  a  falie, 
idi  acnnilalnus,  aeilitious,  ami  mali(-ioiis 
I  Thia  infornialiiin  waa  tiled  by  lord 
l«U  himself  uhcn  be  was  aitorney.t(ene- 
KAad,  in  the  liiliirmalioii  ai{ainsl  L>r.  81ieb- 
V^  tried  bjr  lord  IVIanafield  in  Triuiiy  leiiii 
Elbr  pnblNhinglhe  Sixth  Leilcr  to  ihe  Peo- 
n^  EaglsDd ;  that  leUer  i*  called  a  false, 
jd,  B«anJatau»,  fte.  libel,  tiet  Ditfeil  nf 
«w<flibcli.    Orig.Sd. 


n  pni 


tp|y  inio  wuiU,  u 


tS38 
vlip,  1(1  sell 


be  proYtd  by  the  defeudint.  In 
cue,  Ihedelendanl  may  call  aaerrant  nrhialn 
give  evidence;  hnl  Ihey  hare  jud|^ed  il  witet 
and  pruitenier  not  to  call  him ;  therefore  il 
tirtly  upon  this  suggesliun. 
Gli/nn.  Weilid  nolcall  (hestnanl,  »• 
calleil  ,'Ur.  Miller  (he  publisher. 

Lnnl  Maii'feld.  It  certainly  Testa  ainilly 
upon  Ihe  eviilence  of  Ihe  iwn  witneiBes,  wiUi 
reiford  lo  ilie  pubhcation  of  this  papers  if 
you  hi'liere  these  twe  wilnessea,  you  will  he 
ili«6ed  as  In  the  tacl:  it  you  believe  that 
list  they  have  sworn  is  false,  and  not  Irue, 
ou  will  not  be  salisCietl. 
As  lo  the  sense  pat  on  Ihe  words  by  the  in- 
irmntion,  ynu  will  exercise  your  own  jud^ 
lent:  hul  this  certainly,  in  fmint  of  law,  ic 
icainsl  the  defendant ;  and,  it  you  are  al*n  aa- 
lisKed  with  the  seoie  |iut  on  (he  wnrda  by  lb* 
iDliirmaiion,  you  nill  find  the  delemlBOteuiliy. 
Thej  set  era  I  ly  prove  their  lieing  bought 
there  ;  b)it  if  yon  heliere  llwy  were  not 
houghi  there,  or  should  not  agree  with  the  in- 
formalioB,  wiih  regard  to  Ihe  sense  there  put 
n  the  Hords,  in  these  parls  of  Ihe  psper ;  Im 
ilher  of  these  circumstances,  you  will  acquit 
the  defendant ;  and  therefore,  iu  order  lo  guide 
your  judgroent  ihe  belter,  you  will  lake  tba 
paper  and  the  inlijrmatioD  with  you. 

The  trial  was  over  about  twelve.  The  jury 
■hen  went  oni.  and  slaid  out  near  two  houra 
and  a  half.  When  ibey  returned  inlo  court, 
Herbert  Hackworlh,  esq.  (one  of  ibc  jury)  said 
lo  lori!  Mansfield, 

My  lord,  I  am  inslrucled  lo  ask  a  question ; 

Whether  selling  in  ihe  shop  by  a  aertant,  of 
a  pamphlet,  without  ihe  knowledife,  privily,  or 
concurrence  of  ihe  matter  io  the  tale,  or  even 
wilhoiit  a  kuowbdge  nf  the  contents  of  ihn 
hbel  nr  pamphlet  ao  sold,  lie  sufficient  evulniM 
to  couvict  Ihe  masier  ? 

To  which  lord  Mansfield  answereil, 

I  hare  always  understood,  and  take  it  to  ba 
clearly  seiiled,  that  eiidence  of  a  public  sale, 
or  public  eipusal  to  sate,  in  ihe  shop,  hy  ihe 
servant,  or  any  body  io  the  house  or  shop,  ia 
sufficient  evidence  to  convict  the  master  ol  tlia 
house  or  shop,  thougti  there  whs  uo  pnviiy  or 
concurrence  in  him,  unlesa  he  provrs  the  con- 
trary,   or  that  there  waa  tome  irick  ut  vol- 

Tlie  jury  Ihen  agreed  atonug  tliemselrea  ; 
hut  bkiiire  the  verilivt  was  K>ven,  lord  Hans- 
field  Jpsired  the  Attorney  General  and  Mr.  Ser- 
jennl  Glynn,  lUMienU  and  lake  down  but  opi- 
nion i  anil  here  be  re|>eateil  aa  atravc  in  iba 
jury,  excepl,  that  instead  of  saytoic  il  wan  *nf- 
licieiit  eviilrnce,  he  said  il  waa  primajacie  evi> 
deuce  to  charge  him,  iiuleaa  he  could  abew  it 
waa  by  tiick  or  (wIIusiod,  ami  without  hi* 
kuowledgeur  privily;  aud  then  added,  "  Ifl 
am  wrung,  they  may  nwre  Ihe  Couti,  and  llu 
trial  will  be  K( aatdc." 


83<J] 


10  GEORGE  III. 


Trial  of  John  Almjit, 


iuo 


Leonard  Mursf,  ctq.  nid  Giiilly. 

Previous  lo  the  Wc'iiininff  uf  the  luccmling 
term,  llie  liefi^mlinl  liavin^  htil  a  consultatinn 
withliiscounvl,  wusHil vised  10  muTel'nr  a  new 
trial ;  which  wai  accurdinfrly  done  on  Ihe  97th 
of  June,  u|ioii  llic  Eroiind  u(  law,  that  Ihe  mas- 
ter is  nnl  aniweruhle,  in  a  criiuiDal  cu«e,  for  the 
cnnduel  of  hie  wrvant,  where  bii  jiriTilf  ia  noi 
provpif ;  bui  the  Court  did  oot  Ibink  proper  to 
grant  a  new  trial.* 

TUe  rollowint;  account  of  the  Proceedingi 
niMJii  iLii  oci'aiinr  waa  gireo  id  Itie  Londoo 
lluseuni  (of  wIiicLi  N.  B.  Millet  nu  the 
l>rii)terj ; 

Thin  morniDft,  about  tvn  o'clock,  came  nn  to 
b«  iJebaleil  in  the  court  ot  Kinn'i-hencli,  Viett- 
mimter,  before  lord  chief  jiMtice  Mansfield,  the 
jodgj^ca  Asinn,  Willea,  and  Ashhunt,  Ihe  nrgu- 
menlE  on  the  rule  to  shew  causi',  why  Mr. 
AlmoD  ihuiild  not  have  a  New  Trial  ? 

Lonl  Maoitielil  opeoeil  Ihe  cauie  by  rEcitiii(jf 
the  |iriiiri|iBl  circunnlaaces  of  the  lale  trial. 
Attrr  wliidi,  the  Solicitor 'tiencral.  on  ilie  pan 
of  the  cruivD.  declared  he  wat  amazi-d  at  any 
besiialion,  after  a  Tenlict  on  preiumpliie  proof, 
vliich  amoimled  to  a  can cluaite  evidence,  ■> 
Ihe  defendiiiit  had  not  called  soy  witiiewex  lo 
diipmve  whM  the  witneawn  no  the  aide  of  the 
plaiiiliff  had  adranccil ;  and  iirired,  "  tbal  Mr. 
Almnn  WBH  Ixilb  i^dW  of  publication  and  in- 
tenlion — of  puhiicntinn,"  he  said.  "  because  il 
was  (Old  iiiiblicly  in  his  abop,  and  of  intention, 
iecsniw  bis  naino  ajijicareil  in  llie  ailrerlise- 
uient  and  tide  pii>;c,  botli  which  cirnumkiancn 
■trnoirly  iinplinl  his  consent."  He  ibcn  en- 
'tcrcil  iiilii  a  recital  of  the  several  eTidencca  that 
kil  tu  the  runner  verdict,  and  was  gain;;  on  to 
prove  the  imtiility  uf  h  new  trial,  nheu  the 
<'uiii't  m|iii'Nlrd  that  the  dcfendiint's  cnunsel 
■nitrlit  be  tirvi  hfaril  ;  on  ivbicli  Mr.  SprjeBni 
GIvnii  at  once  I'Ulered  iuiu  a  general  review  of 
the  fact. 

lie  said,  "  tliat  the  fur  I  of  publication  was 
not  HilKdently  jnuved  ;  thai  the  cTideiici-  exa- 
iiiioi'd  iiad  pnl  siiore  In  lliu  identity  of  the  pei- 
■nn  who  sold  the  |>ani|dilet,  who  i'nii>lil  nut  lie 
Mr.  Alinon's  servant :  mid  he  parLicukirly  and 
ri'pcuii-dly  un>(-d,  that  pMiint;  criminal  ■  iniciiliun' 
was  iii'Ccssnry  to  run  vitt  in  a  cuuse  of  tliis  kind ; 
dcctariiiu',  be  shunld  never  lie  ahliained  In  as- 
sert lliia,  as  he  tliouKbl  il  liiglily  bernini:i!;  the 
Uionlh  iit'a  kfuiid  lawyrr,  anil  he  cunccived  no 
jnry  riiiild  cnnseienii'iusly  fiud  any  di-lendant 
giiilly,  unless  llie  i^iiiiiiual  andsedi:iuns  ■  in- 
fiiirly  Slid  deilii>n&l  rati  rely  prav- 


crimiual  chtrtcea  maile  in  iba  wttrds  oTlbe  >*- 
formaiion,  wliich  they  ouglit  to  havedoBe.ata 
defeodaiit  is  only  to  comrovert  Ihcir  eviilcBBc^ 
and  make  hia 


ed;  xliei 
plaiottr  had  u 


*  Tiie  realprinlrrK  and  jiiiMUhrrslicin;,'' tried 
At  Giiddhall,  eacli  by  a  jury  of  indcpeuileut 
Cilizens  <il  Limdon,  weie  all  aiqniiltd. 

The  law  prTK'ep<linMi>  aii'.tidiiiu  ibis  trial,  cMt 
Ibc  dcfcndui  Hit,  (to.  llif.    Orig.  £d. 


ipply  a  proof  of  his  own  guilt." 

He  observed,  "  tbai  the  pamphlet  in  ^ns- 
tiun,  was  bon^^ht  in  Ihe  shop  uf  Hr.  Aluwa, 
without  either  his  privity,  eottaent  nr  cnocui- 
reoce,  that  they  were  scat  Ihrre  unkoown  to 
him,  and  Ihst  as  soon  as  he  knew  tlicm  to  ka 
in  his  possession,  he  sent  the  rrmaiadcr  bMk 
lo  the  publisher;  that  vs  to  what  Hr. Solicilar- 
General  had  obaervcd  in  respect  lo  Hr.  AIibob^ 
narae  being  advertised  fur  the  sale  of  lUs 
pamphlet,  or  iu  the  title  page,  it  was  n«  BHira 
than  tlie  known  and  accuatiimed  nsac"  of  bosk- 
iellen  lo  one  another,  who  frequently,  witbort 
consulting  Ihe  parlies,  as  thinking  it  immsle- 
risi,  pretized  the  names  of  Ibuae  whose  mtat- 
lions  or  charactera,  ntight  most  encvura^a  lbs 
sale." 

AFier  thus  poioting  out  the  couraeand  eusloii 
of  Irade,  he  shewed  the  utter  iinpasBibiJity,lhil 
a  buukieller  could  carry  oa  his  Irade  undirrSMb 
circumslauces.  He  siaied  the  prcnlisr  haid- 
bhipof  the  case;  and  aaid,  that  a  lieemcT tni 
much  belter  for  booksellers,  if  they  ate  ra- 
dered  thus  liable. 

He  aliscrved,  "  that  masters,  in  some  casts, 
were  noi  bound  fur  the  errors  ufthnrservsali, 
jiarticulariy  in  matters  of  crimiaalily  ;  was  the 
caseolliernisc,  il  would  be  in  Ihe  power  «f* 
maliciona  servant  to  ruin  bis  niaaler. 

■'  But,  suppose,  my  lords,  (says  tbcSerinU) 
the  indictment  wsa  laiit  fur  high  treason,  sbaon 
the  hare  evidence  of  this  pamphlcl'a  brinf 
bought  in  his  shop,  uiihoul  its  ever  being 
proved  be  was  his  servant,  or  with  bis  pririiy 
andcotuent;  ninst  that  involve  the  maaler,  h 
as  to  forfeit  his  life? — surety  no!  This  wimM 
be  acling  both  against  reason  and  justice.— 
Where  theu  is  Ihe  line  to  he  drawn  f 

•'  But,  mv  lunls,  (continued  the  Serjeant),  I 
believe  it  will  be  (bund  that  Air.  Ahiiui)  is  inly 
convicted  hy  eleven  jurymen,  Mr.  Msi'kivoita, 
une  uf  the  K^ntlenit-n,  having  mistaken  ynar 
lordship  (addressiiic  liiniself  tu  lord  Itlansfltht) 
on  a  ipieslion  lie  jiroposed  to  yuu,  rea|iectint;llN 
inasiir'H  bf'inK  inviitveil  fur  the  act  of  the  >«r- 
vaiil.  Mr.  Muckworth,  though  a  gMillrniiS 
exirrmely  well  acquainted  niih  the  KCntnl 
principles  uf  law,  did  iiol  precisely  knuw  Irun 
yonr  lordship  bnt  that  there  »as  a  pcwuive  ink, 
particularly  applied  lubtMllsellerR,»hiih  bnual 
lliem,  in  ail  retpei'ts,  to  heantwrraUe  lur  «hit 
was  siild  in  their  shopit ;  and,  in  vunM-qunic* 
uf  uiiilerKiaiiding  \nur  Uinlsbip  «>,  1  am  in- 
slriicled  In  &ay,  alut  I  have  an  aBidavil  id  3lr. 
Mai'kuotlh's'iu  this  pntpusr,  ibai  he  ibnufkl 
himself  bum  III  in  GiniKcieni-e  In  briii<;  Mr.  AliuM 
in  ciiiilly  ;  but  if,  iii>  lutd.  be  hud  been  iiilurs)- 
(-■I,  lliat  Iti:  liiiiisell  iiasihe  cuiisiiiniiiiiMl  |ui1|(t 
lit  that  mailer,  hi-  deciaini  he  wuuM  bate  s^ 

iuilied  him.    Ou  ihmr  t>riiuu<lB,  iiij  birds,  ikM 

sue  fill- n  ni-w  Ki  I." 
The  Court  vlyccied  to  the  readiiig  Ibe  afi- 


841] 


J6r  a  LiM* 


davit ;  jnige  Aston  declaringr,  that  it  would  be' 
a  precedent  of  a  moitt  dangerous  kind,  as  no 
trial  would  ever  have  an  end,  if  the  Court  lis- 
leoed  to  affidavits  made  by  jury  men  after  the 
vertlict  given  on  the  trial. 

Mr.  Lee  next  began.  He  did  not  doubt  but 
lir.  Mackworth  had  supposed,  that  in  conse- 
quence of  lord  Mansfield's  declaring  the  evi- 
dence, was  prima  facie  evidence,  be  was  oblig- 
ed by  law  to  find  Mr.  Alroon  guilty,  as  there 
were  actually  cases  in  the  tooks  of  former 
limes,  where  very  strange  precedents  might  be 
leund,  and  immediately  cited  one  from  Fitz- 
Gibi»oos,  where  iu  a  trial  before  lord. chief  jus- 
tiee  Wright,  Elizabeth  Nut,  an  old  bed-riddeD 
woman,  whose  house  was  a  mile  from  her 
abop,  was  convicted  of  publishing  a  libel,  be- 
cause ber  servant  had  accidentally  sold  a  li- 
belleus  pamphlet ;  and  this  upon  mere  evidence 
af  its  lieia^  bought  at  her  shop,  [The  same  is 
Hie  case  in  Barnardiston's  Reports]  and  added 
lAie  case  of  the  Seven  Bishops  in  the  reign  of 
Janeft  9.  He  then  went  further  into  the  na- 
ture of  the  evidence,  and  asked  the  Court, 
whether  in  a  trial  for  publishing  a  paper  tend- 
ing to  levy  war  upon  the  king,  and  which  came 
under  the  charge  of  high  treason,  such  evi- 
dence would  be  thought  sufficient  to  convict, 
ami  uke  away  the  defendant's  lite?  Having 
pleaded  for  a  considerable  time  with  great  abi- 
my.  he  concluded  his  speech ;  when  Mr.  Da- 
venport got  up,  and  began  with  reciting  the 
question  proposed  by  Mr.  Mackworth,  aud  the 
aBh-.ver  given  by  lord  Mansfield.  He  then 
quoted  two  cases,  one  from  Coke,  and  the  other 
Dom  Moore,  where  it  is  laid  dowu  as  a  maxim, 
thai  to  render  a  man  guiUy  of  publishing  a  li- 
bel, it  must  be  proved,  that  he  published  it 
wtato  animOf  with  bad  and  criminal  *  intention:' 
Mr.  Davenport  went  upon  the  same  arguments 
which  the  JSerjeant  and  Mr.  Lee  had  gone 
opon. 

The  Solicitor  General  opened  with  declaring, 
that  the  qufstion  Mr.  Mackworth  had  put,  and 
lord  Mansfield's  answer,  had  not  been  accu- 
lately  stated  by  the  counsel  for  the  defendant : 
he  then  read  them,  according  to  his  notes, 
which  he  said  he  had  taken  on  the  trial,  and 
fsom pared  since  with  those  of  several  others, 
aad  particularly  a  short-hand  writer  present 
the  whole  trial :  be  spoke  for  a  considerable 
lime  on  the  nature  of  evidence  in  general ; 
talked  much  on  the  distinction  of  positive,  ocu- 
larly demonstrative,  presumntive,  and  violently 
Resumptive,  evidence ;  explained  the  nature  of 
prima  facie  evidence ;  asserted  that  the  evi- 
deuce  given  was  prima  facie^  and  sufficient  to 
convict  on,  therefore,  he  could  see  no  reason, 
why  a  new  trial  should  be  granted.— Mr.  Mor- 
ton spoke  next,  and  made  use  of  arguments 
■imilar  to  those  used  by  the  Solicitor  General: 
ha  said  a  thing  might  be  criminal  to  day,  and 
imiocent  to-morrow ;  criminal  in  one  person, 
aad  innocent  in  another ;  criminal  in  this  place, 
ioDOoeDt  ia  that ;  and  this  beautiful  string  of 
ilwtoric  be  explained,  by  a  very  elegant  simile, 
iparing  libelloQs  pamphlets  to  squibt  aod 


A.  D.  1770.  1842 

erackera,  and  a  legal  publication  (o  a  eartridga 
made  for  the  artillery.  Having  fiuished  his 
harangue,  Serjeant  Glynn  presumed  he  had  a 
ri^t  to  reply  ;  he  declared  he  would  not  de- 
tam  the  Court  long,  but  would  conttue  his  ob« 
servatioos  in  as  short  a  compass  as  possible : 
he  observed,  that  his  learned  friends,  Mr.  Lee, 
aod  Mr.  Davenport,  had  the  misfortune  to 
have  bad  their  argunients  unfairly  stated  by 
the  Solicitor  Gfneral  and  Mr.  Morton,  and  ex- 

Clained  the  different  manners  in  which  tbey 
ad  expressed  themselves :  he  then  again  urged 
the  evidence  as  insufficient,  and  declared  that 
Mr.  Mackworth,  in  his  opinion,  founded  his 
question  on  the  reasims  wnicli  Mr.  Lee  had 
asiiigned ;  that  Mr.  Mackworth  was  a  gentle- 
man of  great  natural  talents,  improved  by  a 
very  liberal  education,  but  though  he  might 
know  something  of  the  common  law,  it  mutt 
be  impossible  for  him  to  be  perfectly  acquainted 
with  the  practice  of  that  court,  as  be  was  not 
bral  to  the  bar ;  that  therefore  he  asked  the 

Suestion  as  a  matter  of  law,  and  by  founding 
IS  verdict  on  the  reply,  he  had  inadvertently 
given  up  his  right  as  a  juryman,  who,  he  re* 
peated,  were  the  real  judges  in  these  cases ;  as 
the  Court  very  welt  knew,  upon  a  juryman's  ap- 
plying to  the  Court  to  inform  him  what  verdict 
he  ought  to  bring  in,  the  Court  would  not  answer 
him,  as  it  would  be  acting  in  an  extrajudicial 
manner,  and  take  the  power  out  of  the  jury- 
man's hands;  although  they  would  ceitainly 
give  an  answer  to  any  question  of  law.  He 
again  desired  to  read  the  affidavit,  which  lord 
Mansfield  then  consented  to  his  giving  the  sub- 
stance of;  Mr.  Mackworth  being  in  court, 
bc^rged  to  read  it  himself,  but  the  Court  for- 
bidding it,  as  irreguUr,  he  put  a  paper  into  the 
Serjeant's  hands,  who  read  it  to  the  Court: 
this  was  not  the  affidavit,  but  a  pajier  contain- 
ing Mr.  Mack  worth's  sense  of  his  lordship's 
answer,  and  which  the  Court  were  of  opinion 
entirely  confirmed  the  verdict.  Mr.  Mack- 
worth next,  with  lord  Mansfield's  leave,  ad- 
dressed himself  to  the  Court,  and  gave  his  opi- 
nion with  regard  to  his  question,  and  the  reply, 
which  he  did  in  so  judicious  and  sensible  a  man- 
ner, as  reflected  great  honour  and  compliment 
on  his  character. 

The  arguments  on  both  sides  being  now  eon* 
eluded  (which  took  up  about  three  hours  and  a 
half)  lord  Mansfield  gave  his  opinion  to  the 
following  purport : 

**  I  am  most  exceeding  happy  for  Mr.  Mack- 
worth'a  present  declsration ;  I  understood  bia 
question,  as  well  as  he  did  my  reply.     In  ra- 

fard  to  what  1  had  then  charged  the  jury  with, 
was  so  particular  that  I  took  notea  of  it,  not 
long  after  their  going  out ;  and  though  I  can- 
not be  so  particular  in  respect  to  the  very 
words  I  made  use  of,  yet  I  am  clear  as  to  the 
substance.  1  told  them  that  biMiks  sold  in  any 
shop,  or  warehouse,  though  nut  immediately 
by  the  master,  hut  by  his  bervant.  or  one  en- 
truRied  with  the  sale  of  such  books,  is /rriaw 
facie  evidence,  aud  conclusive  to  all  intent  and 
parpoae,  if  not  contradicted  ;  the  question  ask- 


SA3J 


10  GEORGE  lU. 


«(l  me  by  Mr.  Mtckwortb,  m  I  UB«lcntood  bim 
4bni«  and  1  fiod  1  wai  not  miiUkM,  wai, 
wbetber  tbe  e?  ideooe  (^hiob  he  believed)of 
tbe  piophleCt  beififjr  bought  io  the  shop  of  l|r. 
.  Almoo,  arimiiiaUKi  bim,  thoogb  not  told  by 
biiB.  1  eotwered  bins,  **  roott  oertaidy;" 
'and  I  repeat  it,  tliat  juriet  are  only  jadget  of 
et idtfioe^  tbe  ioferenctrs  from  points  of  law,  not 
properly  oomiog  before  them.  Tbie  ia  what  1 
Be?er  knew  to  be.di8|)uted ;  and  these  are  my 
feasoat  fur  not.  tbiokiog  a  leoond  \rial  neoei* 
•ary.  Hoverer.  1  am  stiU  opeo^o  change  my 
opinion  upon  better  information,  though  I  am 
at  present  as  clear  in  it,  as  I  am  in  ao  eldest 
eon's  title  for  enjoying  his  fatber^a  ertate." 
.  Tbe  other  three  judges  concurring  in  the 
same  opinion,  lord  Mansfield  foibad  Serjeant 
Glynn  to  move  for  an  arrest  of  lodgment,  say- 
ing, Too  need  not  dio  it,  I'll  bear  no  more  $ 
and  bis  lordship  acoofdingly  ordered  the  role 
to  be  discharged. 


On  the  tStb  of  NoTomber  the  defendant  waa 
brought  up  for  judgment  Of  the  proceedings 
upon  that  occasion  tbe  following  account  was 
published  at  tbe  time : 

(From  Uoyd'e  Chronicle,  Nor.  50, 1770  ) 

Substsnoe  of  what  passed  in  Westminster -ball 
yesterday  (Nov.  28)  when  Mr.  Almon  re« 
ceived  sentence  for  selling  Number  I.  of 
thfli  London  Museum,'  containing  Juoios's 
Letter  to  the  K ^. 

About  two  o'clock  Mr.  Almon  was  brought 
Into  tbe  court  of  King's- bench.  LordMansMid 
Wid  the  Court  there  were  six  affidavita  which 
were  strong  in  aliensting  [qn.  alievhUing]  the 
criminality,  and  extenuating  the  degree  of  guilt 
io  the  defondant ;  and  it  was  necessary  they 
should  be  read  in  open  court  Tbe  two  first 
by  Mr.  Miller,  printer,  deposing  that  he  is  tbe 
printer,  publisher ,and  principal  proprietor  of  tbe 
London  Museum  ;  that  he  inserted  therein  tbe 
letter  of  Junius,  without  tbe  privity,  consent  or 
knowledge  of  Mr.  Almon,  or  any  kind  of  com- 
nication  with  bim  ;  that  he  put  Mr.  Almon's 
name  upon  the  blue  cover  of  the  work,  in  like 
msnner,  without  bis  privity,  consent  or  know- 
ledge ;  ^  that  Mr.  Almon,  as  soon  as  he  disco- 
vered his  name  at  tbe  foot  of  tbe  wrapper,  im- 
mediately sent  Mr.  Miller  a  note,  expressing 
his  dislike,  end  desiring  that  it  might  not  appear 
there  in  future ;  this  note  was  accidentally  de- 
stroyed, as  Mr.  Miller  did  not  conceive  it  would 
ever  be  of  consequence  enough  to.  be  preserved. 
Tbe  third  aifidavit  was  made  by  the  defendant 
himself,  who  declared  that  be  was  not  at  home 
when  the  London  Museunos  came  into  bis 
shop ;  that  as  soon  as  he  came  in,  which  waa 
in  the  afternoon  of  Jan.  1,  be  observed  his 
name  at  the  bottom  of  the  cover,  and  imme- 
diately sent  a  note  to  Mr.  Miller,  expressing  bis 
disapprobation  of  it ;  and  the  first  tioM  in  tbe 
afme  (day  thai  he  bad  leisive,  be  perused  the 
OMmthiy  piAlicatioBS,  and  directly  gave  orders 
Ml  stop  the  mk  ef  siiich  as  coatamcd  Jomns'i 


Trial  of  John  Almon  f  * 

letter;  amoogothers#aetheLsidaaMi 
tbe  number  sent  him  by  Mr.  HBIer  wee  SQO^ 
and  about  67  or  fi6  were  oeld  before  he  ewkiei 
thesaleto  bestopt;  theMxtmerBuyheer^ 
dered  what  remamed  to  be  eaniei  op  la' Us 
garret,  and  the  eariiest  opportaaihr  litwnsj 
them  to  Mr.  MUler.  Thefocvth  afidsfvltww 
the  depoeition  of  Mr.  Dilly,  bookseller,  uieiiM^ 
that  it  waa  tbe  customary  practice  6itm  tarn 
to  affix,  io  the  title  negie  ef  uiy  bfel|  se 
nanipblet,  the  namea  of^siwh  hsekaelisw^  «h% 
from  the  coovcnieocy  of  their  sitiMtieB^er  His 
repotatioo  of  their  trader  tBV^^  tettd  mestin 
encrease  the  sale.  .  The  fifth  afiUafit  w 
made  by  Robert  Morris,  cso.  of.  f  i^erfi^ 
Inn,  barfister,  who  depoecd,  thai  he  had  edU 
at  Mr.  Almon's  a  day  or  two  aAer  the  piibi* 
lication  of  tbe  London  Museiwi,  ■  aad  aiM 
him  for  it  s  but  Mr.  Almon  anawered.  hiai  he 
bad  it  not;  this  denonent  further  duisii^ 
that  while  he  was  in  tne  shop  a  stranger  ahv 
came  in  to  boy  one,  but  was  refoMiil  to.  Iha 
same  manner;  that  he  had  bioudf  aiMS> 
bought  it  elsewhere,  bed  |feruaed  it,  aad  eia*! 
ceived  it  waa  do  hVL  The  sixth  afidsA 
was  made  by——  Adams,  sbopoMm  to  Mb* 
Almon,  who  lully  corroborated  and  streagthsail 
what  bis  master  had  previously  depeoed. 

Tbe  Attorney  General  opened  with  dedirim^ 
that  had  not  the  defondant  predooed  the  m 
aflMavits,  he  shookl  have  been  eztrsasslypK 
gent  with  the  Court  for  as  severe  a  pnnishaMSl 
as  couM  be  Inflicted,  as  he  considered  thes^ 
fence  Mr.  Almon  was  convicted  ef,  aa  ewsl 
the  meet  heinous  that  eonM  possibly  bek 
gined ;  that,  as  fiir  as  his  Meaa  carri 
a  publisher  waa  nCit  at  all  Ima  criminal 
he  was  not  the  origmal  publiaher ;  inhissijsi 
be  was  mfinitdy  moreeo;  the  author,  as  thfc 
founder  of  tbe  mischief,  bad  the  greateet  gnSt;. 
tbe  person  who  6rat  printed  it,  without  harisf 
beard  any  opinion  but  his  own,  was  not  nearaa 
criminal  as  he  who,  after  tbe  geoeral^  idea. if 
the  public  was  known  coooemiog  it,  gave.it  Is 
the  world  a  second,  a  third,  or  a  tenth  time ;  ill 
that  remained  now  for  him  was  to  point  out 
such  objections  as  arose  io  his  breast,  tendi|| 
to  lessen  the  efiect  of  tbe  affidavita  in  alicBSt- 
ing  the  criminality  of  tbe  defendant :  be  lb-, 
served  first,  that  what  Mr.  Miller  had  depesid 
might  have  been  given  as  evidence  on  tbe  triili 
that  deponent  havmg  beenltben  called,  if  alt 
sworn,  but  wss  prevented  from  examinatiia 
by  tbe  counsel  for  Mr.  Almon  ;  that  in  thi(t 
case,  be  and  bis  brethren  would  have  b«B 
afioHed  an  opportunity  of  cross-exsmiaisf 
the  witnesses,  and  have  put  such  questions  ti 
them  as  mifbt  have  leMcned  the  weight  iC 
what  they  advanced.  Lord  Mansfield  hers  di^ 
sired  to  set  tbe  Attorney  General  right,  iofiMIK 
ing  bim  that  tbe  affidavits  were  not  now  M* 
ceived  as  impeaching  or  invalidating  tbe  ie> 
corded  verdict ;  if  they  had  been  oflbrsd  Ji 
that  light,  the  Court  couki  not  have  heiii 
them ;  that  the  counsel  for  the  defondant  bei 
wisely  stopped  tbe  evidence  on  their  sidefiea 
bemg  esamuiedi  thereby  frarartrng  mqf  Ihiii. 


>£.'.«.  1  .m. 


f^r  a  LiOei. 
mmriag  out  thtt  might  injure  ih«ir  client:  (hat 
llie  ilHdaTMs  were  now  merely  lo  lessen  and 
fix  ilie  decree  of  puoialimctil  ibe  ilrleiiilanl 
meriieil  i  and.  Iheretbre,  tlie  Attorney  Geiienl 
wvnl  upon  wrong  irrounils  in  cDnsiderilig  tlipm 
u  evidence  tot  Mr.  Almon.  The  Attorney 
Oearnl  next  nrgrd,  ihe  want  of  prrcisentsB  in 
lite  affidavit*,  partlcnlarlv  in  iliat  of  tlie  deff  n- 
iHaat,  wliich,  lie  «aid,  iliil  not  point  out  the  dif- 
fervnce  uflime  iKlwcen  his  leading  llie  letter 
In  Mr,  Miller,  and  slop|iing  the  aale  of  (be 
{lampliln,  and  was  curiously  detiDioi^  ibe  in- 
■c«ur«cy,  when  Judtfe  Aalon  inlerrupled  him 
with  tihartt'iBfl,  Ibat  thai  was  rather  a  nice 
argumeni ;  that  the  Court  understood,  and  be 
dared  ay  Mr.  Almoii  meant  it,  iu  the  afternoOD 
oTlheday  urtlie|iulilicalion  ;  that  if  it  waiany 
way  vquivocal,  the  mailer  was  direct  perjury. 
The  Aitoruey  General  declared,  he  did  not  mean 
hy  nk«.  at  lubile  >rgumeiil«,  to  liurtany  man, 
kul  went  upon  the  hnaesi  grounds  the  afTiitavil 
alTonled ;  iliat  as  it  waa  wbolly  in  the  defen- 
dant's power  lo  produce  all  he  could  in  favour 
»t  bim-ieir,  he  only  wondered  he  had  out  been 
more  full  inil  conclusive,  reciting  Ihe  lenor  of 
the  aliidavil  in  worda  rather  more  cxpretsive 
■ad  cuncisc  than  Aimno's:  he  said,  he  wis 
0iore  |iarlii,'ularly  urgent  upon  this  occasion, 
itiftt  too  great  s  precedent  miehl  not  be  opened 
tor  daliniiututi  to  evade  puniibmcni,  by  lessen- 
ing anil  impeaching  the  verdict  when  brou|j;hl 
to  Kcelve  judgment,  and  that  it  might  not  be 
laid  down  an  a  rule  of  the  Court,  to  BfTonl  a 
■belter  forcriminalsloracapeunder,  upon  a  plea 
al  ignoriDCF,  or  of  a  libel  being  sold  in  ad  ver> 
tently  wilboul  the  knowledge  of  Ihe  vender; 

tLord  Mansfield  informed  him,  he  nceil  not 
t  Dnder  apprehentioas  that  any  such  wnutd  be 
Uiddown  by  I  hat  court;  and  then  askeil  the 
counsel  for  Ihe  crown,  if  they  had  any  afB- 
ilaviu  10  produce  on  their  side ;  ami  beting  an- 
nvreij  iu  the  negative,  he  informed  Ihe  Court 
thtt  he  wiH  obliged  lo  leave  ihem,  but  desired 
Ihr  nailer  mi|;hl  go  on.]  The  Attorney  Ge- 
Beiatnntdislinguiihed  between  aman'a  selling 
t  ptinphlel  aa  long  as  he  could  sell,  and  slopping 
■hile  he  yet  had  it  in  bi»  power  to  aell,  calling 
Hr.  Almun's  the  middle  degree  of  guilt,  but 
]«t  aggraraling,  as  much  as  potsihie,  every 
trreniuatiiice  that  could  tell  ugaiuil  the  dc- 
'eadint,  or  increase-  the  punishment.  The 
fcltcilar  General  seconded  whdt  the  Attorney 
Cawtal  had  JuhI  advanced,  oliserving.  that 
Mr.  Almon'a  aflidnvit  was  very  vague  and  iu- 
wecluiive ;  thai  (be  Court  should  have  been 
inrurmci]  where  Mr,  Aluinn  «*a  when  from 
liOnw,  why  he  went  from  home,  whether  Into 
llw  RDunlry,  or  tn  what  place,  the  butinen  that 
■InaineU  iiim,  and  llie  precise  time  be  slaid  ; 
ttiai  Hr.  AlinoD  had  wr«ie  In  Miller  sbuul  his 
',  why  he  did  not  also  then 
,  ?    ■il.,.  .., 


-k.?  T 


which  his  name 

ireaaed  the  contenta  of  lb« 

lirad  «r  which  stood  Junins's 

Ibe  K~:  Could  hi.' not ne that?  But 

&J,  and  iheii  siupiied,  whf-n  as  hit  aHr- 

"^l,  br  Iaak«d«ver  the  maoiljly  publica- 


lil>.  1770. 

It  wu  not  Iberefure  unknowingly,  or 
agaiuil  Mr.  Almnn's  wilt,  to  sell  what  be  knew 
U>  be  a  criminal  paper ;  but  it  was  the  fear  of 
punialiraeut  alone  that  induced  him  lo  stop  lbs 
sale;  Mr.  Almonhad,on  his  trial,  been  legally 
conricled  ofael  ling  a  libel  of  Ibe  must  infamous 
kind  ;  the  afiidavila  produced  were  with  him  of 
no  weight,  Ihey  were  exiraoeous  10  ibeterdict, 
nor  ihould  they  at  all  alFect  the  punishment. 
Mr.  Morton  gut  up,  as  Ihird  cnuntel  for  lh« 
crown,  spoke  a  few  words,  which  scarce  anj 
body  beard,  and  then  sat  down  auain  ;  wben 
Serjeant  Glynn  arose,  and  began  wiib  ohserria^ 
thai  what  his  learned  brethren  had  said,  as  lo 
the  affidavila  now  produced  not  xnjpeacliind* 
or  tesaeniog  the  VGnlicI,  they  were  cerliiuly 
right ;  Ihe  verdict  of  a  jury  was  solemn,  anil 
ought  lo  he  considered  as  a  sacred  fimling ;  in 
conseijuence  nf  ihe  verilicl,  he  was  under  Ibo 
necessity  of  considering  Mr.  Almon  as  In  soidb 
measure  gnilly,  hut  it  was  bal  right  the  guilt 
should  be  regarded  oiily  in  ils  just  and  proper 
degree;  Mr.  Almon't,  m  bis  opininn,  was  al- 
monl  merely  nominal,  and  was  indeed,  with  all 
due  deference  lo  the  verdict,  next  to  nothing; 
Ihe  sfSdavils  were  strong,  and  ought  lo  lessen 
Ihe  idea  of  criminalily  the  verdict  necessarily 
involveil  the  defendant  in ;  ihe  Attorney  Ge- 
neral might  bdeed  havo  drawn  them  up  witli 
more  accuracy ;  Mr.  Almon,  as  an  honest  man, 
(a  character  in  which  he  had  never  been  im- 
peached) had  only  eiven  ihe  necessary  strung 
lights,  which  he  had  not  done  altogether  wiih- 
nut  the  aisitlance  of  the  Attorney  Genecal ;  for 
il  was  in  iwnsequence  of  the  objections  maJe 
by  that  gentleman,  when  Mr.  Almon  was 
brought  up  for  judgment  la«t  term,  ihat  the 
affidavits  bore  their  present  face ;  ihebencli,  as 
well  as  the  bar,  had  pointed  it  out  as  neeessary, 
Ibat  it  should  be  ascertained  when  Mr,  Almon 
stopped  the  sale,  how  many  he  sold,  and  when 
they  were  relumed;  these  questions  weie  now 
answered ;  that  aa  tn  the  ■  Where  was  he  F 
What  did  hef  ami,  When  returned  he?'  so 
loudly  and  strenuously  called  for  by  the  learned 
Solicitor  General,  they  were  not  necessary  to 
the  point,  nor  were  Ihev  before  demanded  ; 
Mr,  Almon,  of  all  Ihe  publishers  of  Ibis  pa|>er, 
many  avowedly  so,  stood  alone  likely  to  receive 
punishment,  and  certainly  with  ibe  slighleil 
degree  uf  criminalily  ;  bis  crime  wus  merely 
nominal;  and  his  punishment,  if  any,  ihnuld 
be  merely  nominal ;  Ibc  affidavila  might  be 
called  extraneous  fiom  Ihe  verdict,  but  ibey 
were,  of  ibe  kind,  of  weigh!  and  consnjnence 
sufBrieut  to  alleviate,  and  almost  wholly  excul- 
pate the  defendant.  As  In  talking  nf  being 
induced  to  do  tighl  through  fear  of  punish- 
ment, il  was  sn  argument  that  might,  with 
equal  propriety,  he  alledged  againil  every 
man,  tor  every  good  and  just  acii'-n  )  a 
severe  puniihmenl  was  never,  under  Kuuh  clr- 
cumslsoces,  intlicteri  in  that,  or  any  olbrr 
court,  or  legislature ;  be  hoped,  iherrlore,  ihe 
Court  would  properly  cousiiler  the  drgrrv  of 
ex  ten  II  lit  ion  enrDiceil  by  the  aflidaviM,  uuJ 
give  judgment  aocgrdiogly. 


S17] 


10  GEORGE  III. 


Trial  of  John  Almon, 


[848 


Mr.  Lee  spoke  next  for  the  defendant ;  he 
observed,  that  if  Mr.  Almon's  affidaTits  were 
equirocal  or  false,  they  were  not  only  the 
grossest  prejudices,  bat  the  grossest  insults 
upon  that  court  that  evrr  had  been  offered  ; 
but  that  there  did  not  appear  to  him  the  most 
distant  reason  to  doubt  the  validity  or  truth 
of  any  of  them ;  the  affidavit  of  Mr.  Morris, 
an  independent  gentleman,  was  the  most  in- 
controvertible proof  of  their  being  founded  on 
fact  that  could  possibly  be  produced  ;  and 
that  established,  the  whole  was  a  strong  alle 
mtion  of  the  defendant's  criminality  ;  he  de- 
clared he  was  amazed  to  hear  the  gentlemen 
of  the  other  side  prosecuting  this  affair  with 
■0  much  ardour ;  he  imagined  that  Mr.  Al- 
mon had  been  all  along  considered  as  scarcely 
at  all  guilty  ;  that  every  circumstance  told  for 
him;  and  he  bo|)eil  the  Court  would  be  as 
lenient  as  possible  in  the  punishment. 

Judge  Aston  then  began  giving  judgment, 
which  he  prefaced  with  observint;,  that  Mr. 
Almon  had  been  found  guilty  of  publishing 
a  most  wicked,  seditions,  and  malignant  libel ; 
a  libel  on  the  person  of  the  kint;,  a  prince  re- 
markable for  the  excellency  of  his  public  con- 
duct, his  private  and  religious  virtues,  and  his 
steady  attention  to  the  welfare  of  his  people  ; 
as  admirable  in  himself  as  his  libeller  was  des- 

Sioable ;  notwithstanding  the  opinion  of  one 
lorris,  the  defendant  had  been  fully,  fairly 
and  legally  convicted  of  selling,  in  the  London 
Museum,  a  libel  filled  with  defamation  and  fals- 
hood,  abusive  of  the  sovereign,  and  the  great 
officers  of  state,  charging  both  Houses  of  Par- 
liament with  adopting  arbitrary  measures  to 
tiie  injury  of  the  public,  and,  in  contempt  to 
the  laws,  tending  to  disturb  the  public  peace, 
to  destroy  order,  and  create  anarchy  and  con- 
fusion ;  fhe  crime  deserved  the  severest  punish- 
ment that  could  possibly  be  inOicted  ;  but  the 
king  wanted  not  to  oppress  !iis  subjects  with 
cruelty,  he  meant  only  to  correct  their  ill  -sprung 
errors.  The  Court  were  of  opinion  the  affi- 
davits of  Mr.  Miller  and  Mr.  Almon  lessened 
the  guilt  of  the  latter ;  they  did  not  attend  to 
one  of  the  others,  as  they  would  not  pay  any 
regard  to  the  affidavit  of  Morris,  who  cuuid  de- 
clare (thotighonly  in  a  parenthesis)  that  Juuius's 
letter  was  not  a  libel  ;  but  that  the  booksellers 
in  future  times,  might  not  screen  themselves 
by  pleading  ignorance  of  what  they  sold,  it  was 
necessary  to  repeat,  that  the  bare  tact  of  publi- 
cation was  sufficient  conviction.  The  Court 
conceived  that  the  affidavits  were  not  de- 
signedly equivocal ;  if  they  were,  the  defen- 
dant must  know  he  was  guilty  of  perjury  : 
and  notwithstanding  what  had  been  ^aid  by 
gentlemen  of  the  other  side,  jud<:e  Aston  de- 
clared he  could  not  help  defending  the  At- 
torney General  for  pushing  his  prayer  for 
judgment  in  this  cause.  Had  he  done  other- 
wise, he  would  have  neglected  the  duties  of 
his  office,  a  matter  be  never  had  yet  been 
guilty  of.  The  sentence  was,  a  fine  of  ten 
marks,  and  to  be  bound  over  to  bis  good  be- 
haviour for  two  years,  the  defendant  in  400/. 
Mad  two  sureties  in  $00/.  each* 


N.  B.  Copies  of  these  affida?iti  were  givea 
to  the  Solicitor  of  the  Treasury  last  Trinity 
term,  before  the  long  vacation,  and  three  of 
them  had  been  read  in  court.  Af\er  thii 
second  reading  was  finished,  the  counsel  weriB 
beard,  and  then  Mr.  J.  Aston  read  from  a  piper, 
what  the  Court  thought  good  to  pronuoDoe 
upon  the  matter. 

The  reason  given,  for  throwing  out  of  the 
consideration,  a  material  affidavit  made  by  BIr. 
Morris,  a  witness  totally  disinterested,  is  really 
curious.  He  \n  a  youni;  barrister,  and  swears 
that  he  bought  Junius's  letter,  not  thinkiniriti 
hbel.  The  judge  thinks  it  is;  and  the  |Kiint 
upon  which  these  two  lawyers  differ,  is  aifrred 
unanimously  by  the  whole  Court  to  be  matter 
of  law.  Because,  therefore,  Mr.  Morris  is 
wrong  in  big  legal  notions,  he  i^  not  to  be  cre- 
dited as  to  matter  of  fact.  .How  this  miffht 
sound  in  the  four  courts,  I  know  not ;  but,  in 
my  opinion,  it  will  not  pass  in  Westmiuster-hill 
for  fair  inference,  good  logic,  or  pure  justice.* 

The  following  account  was  given  in  tiM 
London  Museum  : 

"  June  SO.  This  day,  on  a  motion  made  by 
his  own  counsel,  Mr.  Almon  appeared  in  IM 
court  of  King^s-beuch  at  Westminster- ball,  a 
little  after  one,  before  lord  chief  justice  Mans- 
field, Mr.  Justice  Willes,and  Mr.  Justice  Ash- 
hurst,  to  receive  judgment.  Serjeant  Glroo 
opened  with  explaining  the  nature  of  Mr.  AI- 
men's  offence ;  and  beginning  to  touch  on  tLe 
evidence  that  convicted  him,  lord  Mans6«U ' 
told  him,  that  if  he  had  any  thing  to  say  ii 
extenuation  of  Mr.  Almon,  he  had  not  the  leiil 
objection  to  hear  it,  but  that  he  could  not  alls* 
bim  to  enter  into  the  evidence.  The  Serjeut 
informed  his  lordship,  that  he  had  mucb  to 
say  in  extenuation  of  his  client ;  so  much,  that 
if  he  had  any  guilt  at  all,  it  was  uf  the  lightest 
nature.  He  re^ieated  to  the  (,^uurt  the  circam* 
stance  of  Mr.  Almon's  having  slopped  thcsak 
of  the  pamphlets  as  soon  as  be  discovered  tbrj 
contained  Jnnius's  letter  ;  that  his  name  vtts 
inserted  on  the  wrapper  without  his  privitv  or 
consent,  and  that  it  was  accidentally  soid,ia 
the  common  course  of  his  business ;  as  a  prool 
of  which,  he  had  very  strong  affidavits  to  pro- 
duce, the  one  Mr.  Almon's  own,  a  second  Mr. 
Miller's,  (tiie  original  publisher)  a  third  by  Mr. 
Dilly,  a  bookseller  in  the  Poultry,  and  a  fonrib 
by  Robert  Morris,  esq.  of  Lincoln's- Inn,  cacb 
severally  and  essentially  tending  to  clear  .Mr. 
Almon  of  any  criminal  intention.  He  saii!  bt 
hoped  the  Court  would  not  think  of  a  sctera 
punishment,  as  if  that  was  to  be  the  cod»C" 
quence  of  a  prosecution  and  conviction  of  thn 
kind,  when  the  guilt  was  attended  wiib  sucb 

*  What  Mr.  Justice  Aston  in  pronouociof 
sentence  said  of  Morris  (see  the  case  betwcei 
him  and  MIns  Harford,  see  also  the  trial  of  the 
Rev.  Bennett  Allen,  a.  d.  1782  ;  forthemurdff 
of  Mr.  Dulany)  was  sharply  reprehended  bj 
Junius,  and  also  m  **  A  Summary  of  the  Lav 
of  libel  in  four  letters  signed  Fhildcatkcrttb 
Anglica&usy"  Lett.  4. 


MO] 


Jbr  a  LibA 


A.  D.  177a 


[850 


lUvialiiig  drcamstdbora,  the  ezercisio^  the 
nde  of  Mokaeller  wuuld  be  extremely  haacard- 
iw ;  and  if  more  than  a  Dominal  puoisbment 
ras  inflicted,  the  beat  advice  be  could  give  the 
ookseHera  and  pabiishers  would  be  to  shut  up 
beir  abops.  Lord  Mansfield  desiring  the  affi- 
•tita  might  be  read,  the  clerk  of  the  court 
smediatelj  read  tliem. 

Mr.  Alnion'a  (which  was  first  read)  de- 
oatd,  that  he  did  not  cause  that  letter  of  Ju* 
ioa  to  be  inserted  in  the  London  Museum. 

Mr.  Miller's  deposition  was,  that  Mr.  AU 
ran  had  no  concern  whatsoever  in  inserting, 
r  causing  to  be  inserted,  that  letter  of  Junius 
I  the  L^don  Museum :  that  he  put  Mr.  Al- 
KMi'f  name  to  the  pamphlet,  as  a  seller  only, 
ecaase  he  knew  many  people  of  fashion,  and 
Brokers  of  the  nobility  resorted  to  his  shop ; 
id  that  it  is  usual  for  the  booksellers  to  add 

•  their  books,  &c.  the  names  of  such  other 
NikaeUerfl  as  appear  most  likely  to  sell  them  : 
lat  be  put  Mr.  Almon's  name  to  the  London 
Imeam,  agreeably  to  this  custom,  without 
(kiug  his  leave;  and  that  he  also  sent  the 
loka  to  him. 

The  affidavit  of  Mr.  Edward  Dilly  was 
BXt  read :  he  deposed,  that  the  above  practice 
r  putting  other  booksellers'  names  to,  and 
Moing  them  books  or  pamphlets  to  sell,  was 
watmoQ  and  usual  in  the  trade. 

Lastly  the  deposition  of  Robert  Morris, 
M|.  waa  read,  which  declared,  that  he  called  a 
ew  days  afVer  the  day  of  publication,  (which 
vas  January  1,)  at  Mr.  Almon's  shop,  in  order 

•  purchase  one  of  the  numbers  of  tlie  Museum, 
Mtainiug  Jnnius's  letter,  and  that  Mr.  Aloaon 
nud  he  had  it  not. 

Mr.  Serjeant  Glynn  mentioned,  as  a  far* 
Imt  proof  of  his  client's  innocence,  that  Mr. 
Moma  was  a  friend  of  Mr.  Almon's,  and  that 
Mr.  Almon  could  not  suppose  a  gentleman  of 
Mr.  Morris's  rank  and  character  came  to  his 
ihop  with  a  design  to  inform  against  him,  bis 
Mfosing  to  sell  him  the  Museum  therefore  waa 
tpUio  proof  he  had  returned  them. 

Lord  Mansfield  observed,  thai  there  was 
•Mae  defect  in  the  affidavits,  none  of  them  men- 
tioning the  precise  time  of  Mr.  Almon's  return* 
iar  the  pamphlets  to  Mr.  Miller,  or  stopping  the 
hJc  of  them  at  his  shop ;  he  recommended  this 
Ibcrefbfe  to  be  supplied,  as  blinking  wonid 
itly  create  suspicion,  and  leave  more  room 
fcr  a  suspicion  of  guilt  than  it  was  posaible  for 
llie  teal  truth  to  imply  :  he  declared  be  men- 
liiBed  this  vAeiy  tor  the  sake  of  clearing  Mr. 
Alinon ;  who  directly  intbrmed  the  Court,  that 
^bca  the  magazines,  &c.  came  into  his  shop, 
kt  waa  not  at  h(»me ;  but  on  bis  return,  he, 
'roin  motives  of  curiosity,  looked  over  each, 
lad  ordered  his  servant  not  to  sell  any  which 
Stained  Juuius's  letter  ;  and  that  to  the  beat 
If  his  metiiory,  the  sale  of  the  London  Mu- 
taaas  waa  stopped  some  time  on  the  first  day 
i  publication.  Lord  Mansfield  then  rtoom- 
MDded  loHcijeaut  Glynn  to  amend  the  afi- 
JMila,  uid  Wing  the  defendant  up  again. 

fiia  kirdahip  takta  Iho  IMicitor  Qtntna  if 

vouxx. 


there  was  any  prosecution  againat  Mr.  Miller* 
lind  being  answered  in  the  affirmative,  he  aaid 
the  defemlant  had  done  right,  in  not  examining 
Mr.  Miller  upon  his  trial ;  and  then  ileclared 
he  wondered  at  bringing  Mr.  Almon  up  lor 
judgment  before  the  other  informatiuns  were 
tried,  and  adi^ised  it  to  be  postponed,  pending 
the  issue  of  the  intended  prosecutions,  as  no 
man  should  be  punibhed  farther  than  his  peou« 
liar  degree  of  guilt,  and  some  one  might  bo 
found  more  immediately  ciiminal  than  Mr. 
Almon ;  that  if  the  counsel  lor  Mr.  Almon 
chose  it,  the  Court  would  not  consider  him  as 
being  brought  for  judgment  that  day,  but 
would  give  judgment  any  future  time  that  the 
counsel  on  both  sitles  should  appoint. 

Mr.  Lee  also  spoke  for  Mr^  Almoh ;  but  aa 
no  arguments  were  entered  into,  it  was  not  ia 
the  power  of  the  counsel  on  either  side  io  exert 
their  abilities,  exclusive  of  the  opening  speech 
of'  Mr.  Serjeant  Glynn,  in  which  all  the  use  of 
ability  that  could  be  made  on  such  an  occaAw 
was  exerted  by  the  very  able  Serjeant. 


The  following  is  Burrow's  Report  concerning 
the  application  for  a  New  Trial,  (see  p.  839.) 

The  defendant  having  been  convicted  of  pob* 
Hshing  a  libel,  (Jouius's  Letter,)  in  one  of  tho 
magazines  calM  the  London  Museum ;  whRh 
waa  bought  at  bis  shop,  and  even  professed  to 
be  **  printed  for  him  ;" 

Hb  counsel  moved,  on  Toesday  19th  Jane 
1770,  for  a  new  trial ;  upon  the  foot  of  the  eft- 
dence  being  insufficient  to  prove  any  criminal 
inteation  in  Mr.  Almouf  or  even  the  leaik 
knowledge  of  tlieir  being  soU  at  his  shop.  Audi 
they  had  affidavita  to  prove,  that  it  was  a  fre* 
quent  practice  in  the  trade,  for  one  publiaber  to 
pot  another  publisher's  name  to  a  pamphlet,  as 
printed  for  that  other,  when  in  fact  it  was  puln 
iished  for  himself.  That  this  waa  the  fact  io  the 

Iireseot  case ;  Mr.  Miller  being  the  real  pub* 
isher  of  this  Museum,  but  having  advertised  it 
and  published  it,  as  printed  for  Mr.  Almon, 
without  consulting  Mr.  Almon,  or  having  hit 
consent  or  approbation.  That,  on  the  contrary » 
aa  soon  as  he  saw  his  name  put  to  it  as  being 

Srinted  for  him,  he  immediately  aeiit  a  note  to 
Ir.  Miller,  expressing  his  disapprobation  and 
disaatisfaction.  That  he  himsett  had  no  oon- 
CKFQ  whatever  in  this  London  Museum.  That 
he  was  not  at  home  when  they  were  sent  Io  haa 
shop.  That  the  whole  numbier  sent  to  his  ahop 
was  SOa  That  about  67  of  them  had  been  sold 
there,  by  a  boy  in  the  shop,  hut  without  Mr. 
Almon's  own  liuiowledge,  privity,  or  approba- 
tion. That  as  soon  aa  he  discovered  it,  he  stopt 
the  sale,  ordered  the  remainder  to  be  carried  up 
into  bis  garret,  and  took  the  first  opportunity 
to  return  them  to  Mr.  Miller.  That  it  was  not 
proved,  that  the  person  who  sold  them  was  Mr. 
Almon's  servant,  or  employed  by  him ;  or  that 
Mr.  Almon  was  at  all  privy  to  the  sale.  [Uo. 
Ibis  arguenth,  and  not  io  affidavit  ?] 

On  Wednesday  S7th  June  1770,  it  caist  oo 
ugaiuv  Midi  ftriciai  GlyoD  aig oad  tlhat  iim  ' 
91 


851]    '         10  GEORGE  in. 

proof  a^inst  Mr.  Alroon  appeared  therefore  to 
oe  (lefectife :  there  waa  notbingf  to  coustitute 
criminalitv,  or  iniluce  punislimpot. 

That  after  the  jury  had  l>een  out  about  two 
bour*,  one  of  them  (Mr.  Mack  worth)  pro|)osed 
a  doubt  **  whether  the  bare  proof  of  the  sale  io 
Mr.  Almon's  shop,  without  anv  proof  of  privity, 
knowled^^e,  consent,  approbation,  or  mulus  ani- 
musy  in  Mr.  Almon  hiniself,  was  sufficient  io 
law  to  ooDTict  htm  criminally  of  pubiishinfl^  a 
Ubel." 

Mr.  Mackworth  understood  his  lordship's 
answer  to  this  doubt  to  be  this—**  That  this 
was  conclusife  evidence."  Otlierwise,  Mr. 
Mackworth  was  convinced  iu  his  own  mind, 
that  the  defendant  ought  not  to  befound  guilty, 
upon  this  evidence ;  nor  would  he  have  found 
bim  guilty.  He  certainly  gave  his  verdict  under 
a  mistake.  If  he  had  apprehended  that  the 
jury  were  at  liberty  to  exercise  their  own  judg- 
ment, he  would  have  acquitted  the  defend- 
ant. The  Serjeant  prayed  that  Mr.  Mack- 
worth's  affidavit  might  be  read. 

Lord  Mantfield'-Yoii  know,  it  can't  be  read. 

Mr.  Justice  Atton^^A  juryman's  affidavit 
>ivith  regard  to  his  sentiments  in  point  of  law, 
at  the  trial,  ought  not  to  be  admitted  ;  what- 
ever may  be  the  case  of  his  affidavit  tending  to 
rectify  a  mistake  in  fact. 

Lord  Mansfieldy  in  reporting  the  evidence, 
laid  he  had  told  the  jury  that  there  was  evi- 
dence of  the  publication,  if  they  believed  the 
witnesses.  And  he  said,  he  had  directed  them, 
(as  he  always  had  done,  and  as  he  took  the  law 
to  be,)  that  if  they  were  not  satisfied  that  the 
blanks  were  filled  up  in  the  information,  in  the 
true  sense  and  meaning  of  the  writer,  they 
ought  to  acquit  the  defendant :  and  that  the 
epithets  used  in  the  information  were  inferences 
of  law,  drawn  from  the  paper  itself ;  and  not 
facts  to  be  proved. 

The  Court  were  of  opinion,  that  none  of  the 
matters  urged  on  behalf  of  the  defendant,  nor 
all  of  them  added  together,  were  reasons  for 
granting  a  new  trial ;  whatever  weight  they 
might  have  in  extenuation  of  his  offence,  and  in 
consequence  lessening  his  punishment.  For, 
they  were  exceedingly  clear  and  unanimous 
in  opinion,  that  this  pamphlet  being  bought 
in  the  shop  of  a  common  known  bookseller  and 
publisher,  importing  by  its  title-page  to  be 
printed  for  him,  is  a  sufficient  prima  facie  evi- 
dence of  its  being  published  by  him  :  not  indeed 
conclusive,  because  he  might  have  contradict- 
ed it,  if  the  facts  would  have  borne  it,  hy  con- 
trary evidence.  But  as  he  did  not  offer  any 
evidence  to  re|>€l  it,  it  must  (if  believed  to  be 
true)  staml  good  till  answered,  and  be  consider- 
ed as  conclusive  till  contradicted. 

Lord  Mansfield  said  and  repeated,  that  Mr. 
Mackworth  had  understood  him  |)erfectly 
right :  and  he  was  very  glad  to  find  that  there 
was  no  tloubt  of  what  he  had  said.  The  sub- 
stance of  it  was,  that  in  point  of  Jaw,  the  buy- 
ing the  pamphlet  in  the  public  open  shop  of  a 
known  professed  bookseller  and  publisher  of 

^BphletSi  of  a  person  sctiog  ia  the  shop, 


Trial  of  John  Almon  f-^ 


[852 


primA  facie  is  evidence  of  %  publication  by  the 
master  himself :  but  that  it  is  liable  to  be  coo- 
tradicte<l,  where  the  fact  will  bear  it,  by  con* 
trary  evidence  tending  to  exculpate  tbe  bmi* 
ter,  and  to  shew  that  he  was  not  privy  nor  as- 
senting to  it,  nor  encouraging  it.  That  this 
being  prim&  facie  evidence  of  a  publication  by 
the  master  himself,  it  stands  good  till  answered 
by  him :  and  if  not  answered  at  all,  it  thereby 
becomes  conclusive  so  far  as  to  be  sufficient  to 
convict  him.  That  proof  of  a  public  exposing 
to  sale  and  selling,  at  bis  shop,  by  bis  servsat, 
was  prim6  facie  su]fficient ;  and  must  stand  till 
contradicted  or  explained  or  exculpated  by 
some  other  evidence ;  and  if  not  contradidcd, 
explained,  or  exculpated,  would  be  in  |ioiotof 
evidence  sufficient  or  tantamount  to  condusifft 
Mr.  Mack  worth's  doubt  seemed  to  be,  "  wb^ 
ther  the  evidence  was  sufficient  to  convict  tbe 
defendant  in  case  he  believed  it  to  be  true." 
And  in  this  sense  I  answered  it.  Ffim6f§6ty 
'tis  good ;  and  remains  so,  till  answered.  Ifit 
is  believed,  and  remains  unanswered,  it  becoisei 
conclusive.  If  it  be  sufficient  in  point  of  Itw, 
and  the  jury  roan  believes  it,  he  is  bound  in  cos* 
science  to  give  his  verdict  according  to  it. 

In  practice,  io  experience,  in  histor?,  is  tbe 
memory  of  all  persons  living,  this  is  (1  beliefe) 
the  6rst  time  that  it  was  ever  doubted  **thst 
this  is  good  evidence  against  a  bookseller  or 
publisher  of  pamphlets."  The  constant  pn^ 
tice  is,  to  read  the  libel,  as  soon  as  ever  it  bai 
been  proved  to  be  bought  st  the  defendaat'i 
shop.  This  practice  shews  that  it  is  considerejl 
as  already  proved  upon  the  defendant :  for,  it 
could  not  be  read  against  him,  before  it  bid 
been  proved  upon  him. 

If  I  am  mistaken,  I  am  entirely  open  to 
alter  my  opinion,  upon  being  convinced  that  it 
is  a  wrong  one :  but,  at  present,  I  take  ibii 
point  to  be  as  much  established,  as  that  ao 
eldest  son  is,  (in  general)  heir  to  his  fatber. 
And  being  evidence  prima  facic^  it  stands,  (if  be- 
lieved) till  contrary  proof  is  brought  to  repel  it. 

Mr.  Justice  Aston  laid  down  the  same  maxim, 
as  being  fully  and  clearly  establishe<l,  *'  tbat 
this  ;)ri'md/ac{e  evidence  (if  believed)  is  biDilisK 
till  contrary  evidence  be  produced."  Bein^ 
bought  in  a  bookseller's  shop,  of  a  person  act- 
ing m  it  as  his  servant,  is  such  prima  facie  efi- 
dence  of  its  being  published  by  the  bookseller 
himself:  he  has  the  profits  of  tbe  shop,  and  if 
answerable  for  the  consequences.  And  here  if 
a  corroborating  circumstance ;  namely,  that  it 
professes  to  be  printed  for  him.  It  is  as  stroi^ 
a  case  as  could  be  put.  The  sale  iu  his  shop  if 
sufficiently  proved  :  and  he  is  answerable  fx 
what  is  done  in  his  shop.  And  here  is  no  lOft 
of  proof  produced  in  contradiction  or  excolpi' 
tion.  This  prima  facie  evidence,  not  answered, 
is  sufficient  to  ground  a  verdict  upon:  a"' 
there  appears  no  reason  for  granting  a  scW 
trial.  If  he  had  a  sufficient  excuse,  be  mi^ 
have  shewn  and  proved  it.  But  be  has  not  at- 
tempted to  prove  exculpation  or  excuse:  there- 
fore the  evidence  of  his  publishing  what  vii 
thus  bought  iA  his  ibopiaitt4  9UBd  till  '   "* 


Earberj^t  Ca$e.  . 

Mn.  TWe  nu;  indeed  bacireani< 
rexlenu>tiop,or«ven  oresculpatioii ; 

were  «  (urpriK  upou  him,  tb«  court 
iTe  rcnrd  to  aiich  drcuraiUDcca,  ■■ 
J  ii)enle<l  tbdr  re)^ril :  bul  bere  wu 
f  proof,  of  tny  sncb  Kirt. 
Hi  Harris'*  Ciw,  [ante,  v.  T,  p.  9J5] ; 
traban,  Hil.  SG.i.  and  R«x  v.  Eliz. 
1.  SG.  9,  Filz-GiliboD,  47. 
Ml,  Wiliei  was  also  of  a|Hoi(m  tbal 
I  DO  fouadatiuD  for  tbe  moiiOB  fur  a 
;  and  Ibat,  upon  all  tbe  circu  mi  lances 
4UC,  Hr.  AlmOD  nu  amwerable  tf 

of  the  libel.  Heiia  common  knoon 
rand  puhliiher  ;  and  it  imporU,  upon 
if  it,  to  lie  printed  for  bim;  and  it 


A.  D.  1770. 


[8M 


xhop.  Ttiis  ia  lafficirnl  prin^ 
of  Ilia  privity  :  and  no  contrary 
■  produced  by  bim.  It  wb«  liabja 
I  or  explained  ;  but  ai  it  nerer  irai, 
jse  ahewQ,  it  stands  gwid  (oconrict 


lit  Athhuril  entirely  concurred  with 
nip  and  the  rest  of  bis  brethren,  in  tbe 
Ibey  bad  laid  down  ;  and  in  holding 
F  was  not  any  fonndation  for  granlin^ 
a] :  and  he  particularly  espreaaed  bia 
j>n  of  lord  Uansfield't  answer  to  Mr. 
rib,  the  jury  nuD. 

mrt  therefore  unanimously  discbarged 
o  shew  cause  why  there  Mould  not  be 

efeodant's  counsel  declined  roaliing 
if  llie  liberty  which  bad  been  reaetred 
of  moling  in  arrest  ofjadgnwol. 


t  upon  the  Attorney- 

'  to  file  informatiODB  against  wbooi, 

'hat  he  pleases;  you  cannot  do  better, 

I,  than  print  tbe  following  Cue  and 

gliel 

from  tlie  duke  of  Newcaaile,  uniler 
of  being  author  of  the  Royal  Oak 
He  was  carried  befoire  Chsrles  de 
Duder-secrelarf,  and  ordered  to  gife 
ler  haling  been  put  to  a  great  deal  of 
id  expeoce,  (oot  much  unlike  the  late 
Ir.  Almnn)  and  not  being  able  to  ob- 
ir  trial,  he  determined  to  move  tbe 
K.iog'1-beDcb  for  the  diacharge  of 
n  tbe  ISth  of  February  1737.  He 
o  several  counMl  to  0)jeu  bis  eause, 
nnanimously  refused  to  do  it,  alleg- 
it  would  be  ridiculous  to  raoTC  against 
e  of  tbe  Court,  which  course  was,  that 

rol.  19,  pp.  1016.  loao :  Burrow's  r«- 
•  CMe  bai  not,  1  apprcbcod,  bng  pub- 


the  king  bad  a  prerogative  to  caJl  OH  a  trial 
vponan  informatinn  at  his  own  plrasure. 

This  was  the  judgment  of  the  court  of  King's- 
bench,  about  fuur  years  since,  when  Mr,  Joce- 
lyn  mored  the  Court,  that  Mr.  Earhery  (Digbt 
be  either  tned  or  discbariced  ;  at  which  moUon 
lord  Hardwieke  sal  as  Ion)  chief  justice. 

tVheu  the  Aiiorney  General  came  into  lb« 
court,  be  exhibited  Mr.  Earbery's  notice  to 
the  Court. 

The  Court  called  far  Mr.  Earbery'ii  counad  ; 
Mr.  Barbery  aaid,  be  had  applinl  to  counsel, 
but  could  get  none.  He  prayed  llierefore  lb* 
Court  that  he  might  be  heard  in  person  ;  which 
the  Court,  with  sreat  indulgeuce  and  lenity, 
grsnied.     Tlie  foHowing  srgument  ensued  : 

Hr.  Earbtry.  Sir,  I'hate  heard  much  lbi« 
day  from  tbe  gentlemen  learned  in  tbe  law, 
on  my  right  hand,  about  the  course  of  tbe 
Court.  1  am  rery  conlident  there  are  no  Ci- 
oeros  there,  though  there  is  a  Knscius  here. 
I  woubl  not  be  understood  to  make  tba  least 
reflection  upon  tbe  honour  and  diqnily  of  tba 
Court,  yet  I  must  all^,  that  the  course  of 
tbe  Court  cannot  be  against  tbe  fundamental 
laws  and  libeniea  of  the  English  nalioo.  Thera 
are  three  things  betbre  this  Court  to  cmisider 
upon.  First,  Tbe  discharge  from  all  prosccu~ 
tioos  in  this  came.  Secondly,  Tbe  discharga 
of  tbe  bai).  Thirdly,  What  you  design  to  da 
with  me.  If  you  commit  uie,  it  follows,  from 
this  pretended  course  of  tbe   Court,  that  K 

Crince,  when  be  prosecutes  upon  informatinns, 
as  a  power  of  perpetual  itDprisoninent,  with- 
out a  trial. 
Hr.  Just.  Page.   Sir,  you  may  wilk  about 


youp 


Earbtry.  Sir,  if  ray  bail  surreoder  ii „ 

how  can  1  walk  about  ?  It  i*ai  tbe  opinion  of 
the  lord  chief  jaslicc  Hardwieke,  that  the 
prince  bad  s  prerogative  to  suspend  a  trial  duT< 
ing  pleasure.  Prerngative,  they  aay,  ia  above 
law ;  granting  tbai,  it  must  ueverliieleas  ba 
coevsl  with  Ian.  I  can  easily  prove  informa- 
tions, as  10  their  origin,  to  bo  against  law. 
Where  then  did  this  prerogative  begin?  from 
whence  could  that  possibly  take  iu  rise  ?  Pro- 
rogative  is  very  lerrible.  This  is  mora  fKgbt- 
ful  to  me  than  all  tbe  rest ;  as  it  baa  takea 
lucb  room  in  your  bench,  we  cannot  be  too 
zealous  to  tear  it  up^by  the  roots,  and  cast  it 
away.  If  the  Court  will  give  me  leave,  1  shall 
proceed  to  shew  the  illegality  of  intbrmalion*. 
I  know  they  are  rooted  in  your  bench,  and 
have  had  so  much  time  to  grow,  that  1  cannot 
presume  to  pluck  tbem  up,  and  I  know  you 
will  uot  part  with  them ;  nevertheless,  tbough 
they  are  established  by  custom,  they  may  hav« 
bad  a  very  wickeil  rise,  li  is  against  the  scop* 
of  Magna  Charts,  and  of  all  our  laws  of  li- 
berty ;  nay,  and  all  the  desifcos  of  our  an- 
cestors,  ihst  a  prince  should  proiecole  •  sub- 
ject sfter  a  civd  manner  f<ir  criminal  actions; 
for  ioformalions  arc  declarations  at  the  kiog'a 
suit.  Tbe  S9tb  chapter  of  Magna  Charia  ia 
the  fbondatiOD  of  our  liberties  ;  the  fanwas 
expltnalory  itatule,  41  Ed.  3,  o.  3,  makes  tba 


«55] 


10  GEORGE  UL 


TfiMl  of  John  Mnon  .-— 


18SS 


f9th  ehapter  plm  and  deiur.  The  woirdt  are, 
•<  No  man  shall  be  pat  to  anewer  without  pre- 
eentiiieiit  before  justicee,  or  matter  of  record, 
or  hj  due  process  and  writ  original  ;*'  and  that 
act  IS  well  Liiown  to  all  of  yon. 

Mr.  Jnst.  Page,  Writ  ori^inalt  (he  seemed 
startled)  1  will  not  safier  informations  to  be 
disputed  here. 

Earhery.  I  only  desire  to  observe,' that  infor- 
mations are  no  process,  for,  if  the  Court  gif  es 
lea?e,  it  will  appear  by  mine,  in  my  bosom, 
that  the  attorney  prays  process. 

Mr.  Just.  Page.  Hare  you  gfot  any  affidarit 
that  you  erer  demanded  a  trial  ? 

Earhery.  Mr.  Jocelyn  moved  ibr  roe,  when 
lord  chief  justice  Hardwicke  ffave  that  opinion 
4if  the  king's  prerogative,  and  for  that  reason 
I  am  detained  here  still.  I  have  had  numerous 
notices  of  trial ;  it  appears  by  the  affidavits 
how  I  have  been  harassed ;  I  rode  all  night 
from  the  city  of  Bath  to  London,  jn  cold  frosty 
weather,  that  alnnost  perished  my  limbs ;  my 
lodgings  were  watched,  to  know  whether  I 
was  come  home  or  not,  in  hopes  to  surprise 
me  with  a  verdict,  without  a  defence.  When 
I  came  to  Guildhall,  nobody  appeared :  I 
moved  the  lord  chief  justice  Hardwicke  to 
have  a  proclamation  made  for  me  to  come  in, 
or  a  Ne  Recipiatur  entered  to  exclude  them: 
he  promised  it  shonld  be  done,  but  it  was  not 
done.  On  the  second  day,  it  was  said  by  one 
in  court,  whose  name  1  forbear  to  mention, 
that  I  had  no  notice  of  trial  at  all,  though  I 
bad  an  affidavit  of  notice  in  my  pocket. 

If  we  proceed  to  consider  the  nature  of  the 
informations,  if  the  Court  will  permit  them  to 
be  read,  there  is  not  the  least  face  of  a  libel  in 
either.  Particularly  the  first  is  so  far  from 
having  the  face  of  a  defamatory  libel,  that  it  is 
a  panef^yric. 

Mr.  Just.  Page.  We  cannot  permit  that :  as 
you  have  pleaded,  the  merits  must  be  left  to 
a  jury ;  we  cannot  have  the  informatioDs  read 
now. 

Earbery,  If  they  had  been  read  before, 
which  mv  counsel  insisted  upon,  these  absur- 
dities could  not  have  happened.  The  Court 
would  have  rejected  them  as  frivolous  ;  tliere 
was  indeed,  one  reason,  why  the  reading  was 
opposed,  viz.  the  frainers  were  ashamed  they 
suould  come  to  light. 

Mr.  Just.  Page.  I  remember  the  motion  to 
have  the  informations  read  very  well. 

Earbery.  By  this  method  of  not  having  the 
informations  read,  the  machinery  is  carried  on 
by  the  clerk  and  Mr.  Attorney,  to  impose  what 
they  please  for  a  libel,  and  make  the  Court  give 
a  sanction  to  it,  who  are  kept  out  of  the  secret. 
I  know  a  great  man,  whp  told  me,  af^er  perusing 
the  copies  of  the  informations,  that  lie  could 
not  conceive,  if  he  had  not  seen  them,  that  such 
stuff  shouhi  he  composed. 

Mr.  Just.  Probyn.  Do  you  assert,  and  will 
ou  staud  by  it,  if  called  in  question,  that  the 
ord  chief  justice  Hardwicke  said,  the  king  had 
a  prerogative  to  defer  trials  upon  inforinatioiii 
during  |»leasure  ? 


I 


Earbefj.  I  w9l  inoat  apMi  it,  tiMt  basH 
that  the  Comt  had  no  power  to  dbthiigi,  aar 
any  power  at  any  time  to  bring  on  a  triaL 

Mr.  Just.  Page.  Look  you  tlMfOy  now  hi 
falls  back  again.  We  base  an  undoaUed  lUt, 
if  applied  to,  upon  delay  of  trial,  to  order  i 
trial:  Mr.  Attorney,  will  you  try  tho  eavN 
next  term? 

Attorney  General  To  toil  yo«  tlw  tralli, 
we  designed  to  hive  tried  it  tbb  term,  bat  wt 
just  wanted  a  little  evidenoe,  whioh  wo  sUl 
prepare  against  next  term.  [Note,  they  hsis 
had  time  from  Michaelnaa  term  17S9,  to  tfcii 
present  term,  1787-8.] 

Earbery.  Sir,  I  do  not  aeknowMgo  that  I 
ought  to  be  tried  at  all ;  I  move  for  a  dii* 
charge. 

Mr.  Just  Page.  Do  yon  see  now,  before fsi 
wanted  atrial,  now  you  would  have  no  triaL 

Earbery,  Sir,  1  move  for  a  dischacge,  if[ 
can't  have  that,  I  desire  my  recognisanoa  Bsy 
be  withdrawn. 

Mr.  Just.  Page,  No,  that  cannot  bo  done. 

Then  Mr.  Attorney  broke  in  with  a  came  of 
the  King  against  Sloaoy  and  the  arguoical 
ended. 

The  Argument  intended  for  the  Court  tf 
King's-Bendh,  Feb.  13,  1757,  by  Mr. 
Earbery,  concerning  Informations. 

As  Mr.  Earbery  found  the  course  of  Ibi 
Court  a  very  formidable  objection  in  his  «sj, 
he  was  obliged  to  change  his  method,  aad  ti 
begin  with  that. 

The  following  arguments  were  what  he  pia- 
posed  to  use,  if  he  bad  not  been  interrupted  bf 
the  Court. 

My  lord ;  mjr  first  proposition  is,  that  ioA^ 
mations  are  against  law. 

I  confine  myself  here  to  informations  at  the 
king's  suit  merely,  when  a  hill  is  drawn  up^ 
the  Attorney  General,  ami  found  by  himfldi, 
for  an  injury  concerning  which  a  grand  jury 
ought  to  enquire. 

These  injuries  are  supposed  to  give  the  kiB| 
a  right  to  damages,  which  are  given  partly  is 
fine,  and  the  rest  in  corporal  punishment. 

An  information  therefore  is  a  declaratioa  it 
the  king's  suit,  aud  is  prosecuting  the  sabjeiA 
aUer  a  civil  manner  for  criminal  actions. 

This  is  contrary  to  the  scope  of  all  our  lawf 
of  liberty  ;  to  the  whole  view  of  our  aoceston ; 
to  the  sense  of  the  29th  chapter  of  Bla^ 
Charta,  and  the  explanatory  statutes  wiiicfc 
were  calculated  to  confine  all  these  matters  !• 
grand  juries. 

If  the  crown  is  allowed  to  engross  conow 
injuries,  it  may  with  greater  reason  take  ii 
treason  and  felonv;  for  the  king  veeriw 
greater  damages  by  them  than  by  coniait 
misdemeanours. 

Our  laws  of  liberty  are  express.  That  ibi 
crown  shall  not  go  upon  any  actions  that  aM 
the  liberty,  possessions,  or  corporal  ease  of  tk 
defendant.  The  words  of  the  89th  chapter  ff 
Magna  Charta  are,  *  oullot  liber  hoflit  ^ 


»71 


Ettrhttfft  Ckui* 


A.D.  mo. 


tBBI 


liiliir/  ifcall  km  takeo,  *  mat  i»pritMMl«r,*  Mr 
10  impriiooed,  *  aut  disMtieUnr  de  libera  ies»- 
nentoMiOy'  or  li«fe  hit  freeboM  taken  firoei 
iiBy  '  f  el  de  Uberia  coneoetiidiDibat,'  nor  hit 
i^hi$  and  privileges,  *  aut  exulet,'  nor  ahaU 
M  be  baniabed,  *  aut  vtlegaftur/  or  oat*  la  wed, 

aot  alio  modo  deatruatur,'  or  by  aay  olber 
Deans  demoliabed,  *  nee  auper  euoi  ibiaoua  aat 
nittemiafl.'  (The  lord  chief  justice  Coke'a  ex- 
Jaoation  b,  we  wiU  neither  proceed  upon  bim 
coram  nobis,*  in  the  King's-bench,  nor  by 
ommiiaioo ;)  nor  will  we  go,  or  aead  upon 
lim, '  nisi  per  legale  judtciam  parium  auorom,' 
inl€«a  it  be  by  the  lawful  judgnaent  of  his  peers, 
aut  per  legem  terrse,'  or  by  the  law  of  the 
ind.  S8  Ed.  i.  Your  lordship  may  please 
9  observe,  that  all  the  penalties  then  m  being, 
re  here  mentioned,  aa  the  known  rules  of  law. 

Bat  lest  any  dispute  should  arise,  what  was 
seant  by  '  lex  terrseet  legale  judicium  parium 
■Oram,'  we  have  the  explanatory  statute, 
9  Ed.  3,  c,  3,  which  makes  the  whole  as  clear 
a  the  sun  at  noon-day. 

Mo  man  shall  be  put  to  answer  without  pre- 
entroent  before  justices  or  matter  of  record,  or 
y  doe  process  and  writ  oi%inal. 

Now,  my  lord,  the  course  of  the  Court  is, 
*hat  if  a  person  is  upon  his  recognizance,  and 
barged  with  an  informatitti^  he  shall  be  put 
» anawer  instantaneously,  without  presentment 
y  justices,  without  matter  of  record,  without 
rucesa,  and  without  writ  original.        % 

That  an  information  is  no  process  is  plain, 
t>m  the  common  form  of  concludinir,  praying 
rooeaaof  theCoort,as  mine  runs;  ** Whereupon 
le  said  Attorney  General  of  our  now  said  kN^ 
le  king,  prays  the  consideration  of  the  Court 
1  the  premises,  and  that  due  process  of  law 
toe  against  biro  the  said  Matthias  Barbery." 

I  f  we  look  farther  backwards  to  the  preamble 
r  this  act,  we  shall  find  it  was  levelled  to  ez- 
lade  informations,  or  proceedings  equally  as 
id.    The  words  are,         ,. 

'*  At  the  request  of  the  Commons,  by  their 
etition  put  forth,  in  this  parliament,  to  eschew 
le  mischief  and  damage  done  to  divers  of  his 
boimoDS  by  false  accusers,  which  oftentimes 
STC  made  their  accusations  more  for  revenge, 
sd  singular  benefit,  than  for  the  profit  of  the 
io^,  or  of  his  people,  which  accuaed  persons 
Hnetimes  have  been  taken,  and  sometimes 
luaed  to  come  before  the  king's  council,  by 
fit  or  otherwise,  upon  grievous  pains  against 
i«  law,  it  is  accorded,  for  the  good  governance 
r  the  Commons,  that  no  man  be  put  to  an- 
srer,  Ike.** 

We  must  observe  this  method  is  said  ori- 
isallv  to  be  against  law,  that  Magna  Charta 
'aa  elad4Mi,  that  this  act  was  contrived  to  give 

new  vigour  by  those  restriogent  lines  which 
aond  op  all  ita  bleeding  wounds. 

1  observe,  my  lenl,  that  this,  and  several 
Ibar  nets  were  pointed  against  bringing  people 
s  answer  by  sugjjfestion,  which  is  only  another 
rord  for  information.  I  do  u<»t  imagine  at  that 
ioM  of  day,  whan  the  acts  were  fresh,  and  in 
bdr  foil  f  igour,  that  any  miniBicr  of  a  piinoe 


I  iTttold  ptafav  A  mggiastiaB  to  tba  KiBg'ibeBcb. 
>  That  Caurt  afar  acted  by  the  known  maxima  of 
oomoiOB  law,  by  rules^  certainty  and  oatha; 
the  aaatbad  then  waa,  to  send  ministerial  par- 
suivants  to  snatch  the  obnoxioua  roan  away, 
and  to  convey  him  by  back  staira  np  to  the 
privy  oouneiL  The  grievoua  pains  mentioned 
mtbeacty  I  suppose,  were  the  motherly  ad* 
oBonitiona  of  the  rack,  that  engine  of  tyranny, 
atill  to  he  aeen,  though  not  need  amongst  na. 

Bataa  often  aa  the  Commona  met,  and  found 
out  these  secret  practices,  so  often  were  thej 
bleated  by  tbeee  memorable  acta  of  our  eon* 
atitution. 

If  we  view  the  preamble  of  our  modem  ia- 
formations,  my  lord,  we  shall  find  they  dificr 
not  in  the  leaat  from  suggestion.    Thus, 

<*  Be  it  remembered,  that  air  Philip  Yorke, 
knt  Attorney  General  of  our  aovereign  kn^  the 
king,  who  for  our  aaid  lord  the  king,  in  his  be* 
half,  proaeeotes  in  his  proper  person,  comet 
here  into  tH^  coort  of  onr  aaid  bird  the  kin|^, 
before  the  king  himaelf  in  Westminster,  6ce» 
and  for  our  aaid  lord  the  king  givea  the  Coort 
here  to  understand  and  be  iofonned,  &c.'^ 

1  think  this  very  information  is  no  mora 
than  a  suggestion  oi^  a  minister  of  the  king, 
not  supported  even  by  oath.  If  Mr.  Attor* 
ney 's  word  is  so  strong,  so  magical  as  to  render 
his  single  faith  the  alrongeat  testimony,  I  think 
we  may  submit  to  a  bow-striog. 

I  shall  now,  my  lord,  intr<^ace  another  net 
previous  to  this,  which  blasts  at  once  the  root, 
the  branches  and  the  blossoms  of  informatiooa, 
at  one  puff.    This  act  was  95  Ed.  S,  c.  4. 

*'  Whereaa  it  is  contained  in  the  great  fnuH 
ebisea  of  Magna  Charta  of  England,  that  non# 
shall  be  imprisoned,  or  put  out  of  his  freehuklf 
nor  of  his  franchises,  nor  free  customs,  unlesn 
it  be  by  law,  it  is  accorded  and  asaented,  and 
established,  that  from  henceforth  none  shall 
be  taken  b^  petition,  or  auggeation  made  to  our 
lord  the  king,  or  to  his  council,  unless  it  be 
upon  indictment,  or  presentment  of  his  good 
and. lawful  people  of  the  same  neighbourhood: 
and  where  such  deeds  be  done,  in  due  manner, 
or  by  proceaa  made." 

IV hen  we  compare  this  act  with  the  Attor- 
ney-General's coining  before  the  king  in  West* 
minster,  witli  his  information  in  his  band,  my 
lord,  he  starea  the  act  full  in  the  face. 

I  could  proceed  to  the  other  explanatory 
statutes,  all  to  the  same  purpose,  particnlarly 
18  Ed.  3,  c.  3  ;  S8  Ed.  S,  e.  3. 

In  the  face  of  all  theae  acta,  we  find  only  the 
bare  sugflfestion  of  an  attorney-general  stand 
instead  of  a  process,  and  instead  of  that  cer- 
tainty the  defendant  baa  an  undoubted  right  to, 
as  our  ancient  courta  of  judicature  always  ra* 
quire.  In  these  acts,  certainty  is  provided  for, 
before  the  defendant  is  brought  to  a  trial,  by  a 
bill  Ibund  by  a  grand  jury.  By  the  modem 
practice  the  aubject  comes  to  no  certainty,  no 
evidence  till  he  comes  to  a  trial.  I  deaire  year 
lerdship  to  observe,  that  very  near  five  yaart 
hate  paned  ainea  1  pleaded,  and  am  arriied  at 
ne  etr|«inty  yoi 


869] 


10  GEORGE  in. 


Tridt  of  John  Almon  .*— 


[860 


The  reitOD  appears  feiy  plain  to  me  why  a 
proeeas  was  so  Teheraently  insisted  upon  by 
onr  ancestors :  it  was  because  it  issued  from 
courts  of  justice  upon  eTidence,  independently 
of  ministers  of  state. 

But,  my  lord,  the  defendant  finds  no  process 
BOW  till  he  is  summoned  by  the  Conrt  to  plead, 
if  that  can  be  called  a  summons.  He  is  obliged 
to  answer  by  being  demanded  to  appear  before 
any  summons  is  sent  out :  how  different  is  this 
from  the  nature  of  a  process  ?  It  is  only  a  sum- 
mons to  plead  to  the  suegestioo  of  an  attornev- 
g^eral.  The  charge  does  not  come  from  the 
court,  and  from  e?idence,  but  from  a  charge 
fereigti  to  the  court,  without  any  evidence  at 

A  process  is  always  attended  with  a  certain 
charge  expressed  in  the  body  thereof;  an  at- 
tachment runs  thus,    *  Attachialur  pro  con* 

*  tcmptu.'    I  ha?e  seen  one  thus,  *  Attachiatur 

*  pro  conlemptu,'  commonly  called  a  forgery : 
but  a  summons  to  attend  an  attorn^-general's 
suggestion,  as  a  bill,  is  setting  aside  tbe  whole 
intent  and  scope  of  those  acts  our  wise  fore- 
fathers made,  to  fence  us  from  the  power  of 
the  crown. 

But  as  we  see,  my  lord,  these  practices  (so 
opposite  to  Magna  Charts,  and  the  explanatory 
statutes)  rif  etted  by  custom  in  this  court,  1 
•hall  hefi^  leave  to  say  something  to  that  part ; 
only  I  kball  previously  premise,  that  the  fre- 
quent statutes,  all  to  the  same  purpose,  crowded 
together  in  Ed.  3d*s  rei^,  were  owing  to  the 
meroaehments  of  the  privy  council,  who  were 
continually  breaking  in  upon  those  sacred  laws, 
by  bringing  subjects  before  them,  and  playing 
a  thousand  tyrannical  tricks,  in  the  wildoess  of 
their  power.  The  wakeful  Commons  drove 
the  sea  back,  and  mended  the  breaches  made 
upon  us  by  those  inundations:  whereas  we 
were  all  safe  in  the  king's  courts,  which  moved 
with  gravity,  by  legal  precedents  in  the  steps 
of  law.  ^ 

From  whence  did  informations  insinuate  into 
your  bench  ? 

The  first  formal  act  of  our  constitution, 
which  favoured  the  proceedings  of  the  council, 
was  made  31  Hen.  6,  quoted  by  sir  £dwai-d 
Coke,  title  Star  Chainiier. 

This  does  indeed  give  a  power  to  the  coun- 
cil, very  inconsistent  with  these  acts.  See  the 
Roll,  31  H .  6,  c.  3.  But  if  we  consider  this 
was  passe<l  in  %ery  troublesome  times,  after  the 
civil  wars,  which  were  just  skinned  over,  and 
Hen.  6,  was  in  effect  deposed,  and  the  duke  of 
York,  under  the  title  of  Protector,  governed 
every  thing,  no  great  stress  can  be  laid  upon 
this  act;  and,  as  it  stands,  it  was  only  tem- 
porary, to  continue  for  seven  years. 

It  seems  calculated  to  serve  the  ends  of  the 
duke,  to  bring  his  enemies  into  his  power  ;  for 
it  is  aimed  chictly  at  the  nobility  and  great 
peers  of  the  realm :  but  if  we  view  an  excep- 
tion towards  tbe  latter  end,  omitted  by  sir  Ed- 
ward Coke,  we  shall  find,  that  though  the 
council  had  a  power  to  call  them  by  sugget- 
tion^  they  were  remitted  to  be  tried  in  the  com- 


mon courts,  according  to  the  old  law.  nis  is 
00  proof  that  informations  were  by  that  set  io- 
trouuced  into  your  bench,  nor  any  new  fbrms 
allowed.  Informations,  as  sir  Francis  Win- 
nington  observes  in  Prynne's  case,  9  Will,  k 
Mary,  were  introduced  in  Henry  rtb'a  reign. 
This  gentleman  undertook  to  shake  inlbnna- 
tious  by  a  very  learned  argament,  to  which  I 
think  he  had  not  very  learned  answers. 

Permit  me  then,  my  lord,  to  make  a  few  ob- 
servations upon  that  reign. 

We  have  got  the  evidences  of  sir  Edwiid 
Coke  and  the  lord  Bacon — We  bate  got  tbe 
Courts  of  Assize  which  banged  Empaon  aa^ 
Dudley,  that  no  reign  was  so  tyrannical  sioee 
tbe  Conquest  to  the  subject :  there  were  tvs 
acts  then  passed,  that  finished  our  slavery; 
the  one  was  the  act  of  Star  Chamber;  ths 
other  was  to  empower  justices  of  the  peaces 
acting  only  by  commission  from  the  crown,  ts 
inquire  without  grand  juries ;  a  third  act  wsi 
passed  to  secure  the  contriver's  brains  from  be- 
mg  knocked  out  by  the  people. 

As  to  the  first,  there  does  not,  in  the  prean- 
ble,  appear  the  least  reason  to  conclude,  tui 
the  king  could  proeeed  to  informations  by  hit 
attorney^  without  a  grand  jury.*  Thewordi 
are,' 

**  By  onlawfui  maintenance,  giving  of 
liveries,  signs  and  tokens,  and  retainders  by  in* 
dentures,  promises,  oaths,  writings,  or  otbe^ 
wise ;  embraceries  of  his  subjects,  untrue  de- 
meauings  of  sheriffii  in  making  panels,  ssd 
other  untrue  returns,  by  taking  of  money,  bf 
injuries,  by  great  riots,  and  unlawful  assem- 
blies, dice,  and  for  the  punishing  of  these  incos- 
veniences  little  or  nothing  may  be  found  by  es* 
quiry,"  &c.  The  court  of  Star-chamber  vai 
erected  up'in  asupposeil  defect  in  grand  jurici^ 
to  find  out  crimes  hy  bill  and  evidence. 

Surely  if  the  kini^  could  then  proceed  by  is- 
formation«  it  must  liave  had  a  place  in  the  pre- 
amble. Your  lordship  may  see  thioujfh  the 
mask.  The  parliament  could  have  no  notice 
of  previous  informations  iu  the  KingVbencls 
when  they  passed  this  act. 

I  desire  to  observe  to  your  lordship,  thst  io« 
formations  in  the  Kind's- bench  differ  widely 
from  the  Star-chamber  ones.  The  judges  who 
sat  there  were  the  greatest  <»ffieers  in  the  kio{(- 
<lom,  and  the  churchmen  of  the  first  rank. 
When  a  bill  was  brou^ht  by  the  Attorney,  it 
was  read,  and  the  persons  were  summoned  is 
to  answer  ;  nor  was  the  hill  found  before  a  fol 
examination  was  taken.  What  I  have  said  be- 
fore, my  lord,  bhews  that  in  your  bench  tbe 
defendant,  if  he  is  upon  recognizance,  ansncrf 
instanler,  nor  doi>8  your  bench  take  any 
cognizance  of  the  information  before  tbe  de» 
fendant  comes  to  his  trial. 

I  shall  proceed  now  to  the  second  act,  wont 
than  the  first:  hear  my  lord  chief  justiO 
Coke  ;f  <<  Against  this  antient  and  fundameotil 


•  3  Hen.  7,  c.  1. 


•  3  Hen.  7,  c.  1. 

+  Coke  S   Inst.  p.  51.    11  Hen.  7,  «.  * 
Repealed  1  Heu.  8,  c.  6. 


»] 


Earhery^s  Case. 


w  (Magna  Charta,  cap.  29)  and  in  the  faee 
ereof,  I  find  an  act  of  parliament  nade,  that 

well  jutilices  of  assize  as  justicea  of  the 
mee  (without  any  finding  or  presentment  by 
e  verdict  of  twelve  men)  upon  bare  iuforaia- 
Ni  for  tbe  king  before  them  made,  should 
ive  full  power  and  authority,  by  their  discre- 
ra,  to  hear  and  determine  all  offences  and 
tDieropts  committed  or  done,  by  any  person 
persons,  against  ihe  form,  ordinance,  and  ef- 
ct  of  any  statute  made,  and  not  repealed,  &c. 
y  colour  of  which  act,  shaking  this  fuiida- 
ental  law,  it  is  not  credible  what  horrid  op- 
tssions  and  exactions,  to  the  undoing  infinite 
imlM;rs  of  |)eople,  were  committed  by  sir 
ichard  Empson,  knt  and  Edmund  Dudley, 
ing  justices  of  peace  throughout  ail  Eug- 
nd ;  and  upon  this  unjust  and  injurious  act 
a  commonly  in  like  cases  it  falleth  out)  a 
iw  office  was  erected,  and  they  made  them- 
Ives  masters  of  the  king's  forfeitures." 
Liet  us  hear  the  lord  Yerulam. 
*'  They  did  not  insist  upon  justice  ;  indict* 
enti  were  become  burlhensome  and  unneces- 
ry  records.    They  sent  forth  their  warrants 

take  men,  and  without  Crowding  Westmin- 
nr-Hall,  would  convene  them  to  their  own 
»08es,  and  without  juries  determine  upon 
eir  estates  and  fortunes."  v 
It  is  not  doubted  but  that  they  extended  their 
fant  jurisdiction  beyond  the  limits  of  the  act, 
r,  as  the  lord  Verulam  farther  says,  **  They 
ied  to  charge  the  subjects'  lands  with  false 
Durea  in  copite,  by  finding  false'  offices,  re- 
siog  to  admit  men  to  traverse  tbose  false 
Bees  by  law.  If  any  were  outlawed,  the  law 
aa  strained  to  its  rigour,  to  amount  to  the  for* 
iture  of  goods  and  lands."  « 

Afler  this  terrible  preamble,  in  which  we  find 
formations  solemnly  condemned  by  the  two 
reatest  lawyers  in  England,  1  am  now  come 
I  the  origin  of  them  in  your  bench. 

In  the  report  of  the  committee  of  the  House 
r  Commons  appointed  to  view  tbe  Cottonian 
brary,  and  other  records  in  this  kingdom, 
an.  1732,  I  find  the  report  of  the  coroner  in 
le  Crown-office,  William  Bellamy,  whose 
iterest  it  wai*  to  stand  tooth  and  nail  by  infor- 
lations,  they  l>eing  the  source  of  tlie  greatest 
art  of  his  wealth:  he  says,  the  early  records 
egio  1  Ed.  3.  If  so,  we  may  surely  expect 
>  fiod  the  antiquity  of  informations,  because 
^  says  the  bag  rolls  contain  an  al»stract  of 
vary  prosecution  by  indictment,  appeal,  infor- 
pation,&c.  He  says,  with  regard  to  informa- 
MNifl,  they  were  very  frequent  in  Henry  7th, 
ad  Henry  8th's  time,  and  long  before. 
,  As  to  their  being  in  Henry  7th's  time,  1  be- 
^t  bim,but  that  there  were  any  before  I  can- 
^  believe,  because  I  am  very  well  assured  of 
be  oootrary ;  it  looks  moreover  very  suspicious, 
bat  the  gentleman  should  begin  at  the  middle 
■f  bis  antiquity. 

I  can  easily  account  how  informations  came 
Bto  the  King's-bench  in  Henry  7th's  reign. 
Hie  act  above  ipentioned  ^ives  power  to  courts 
If  amei  to  enquire  without  grand  jurjet ; 


*     A.D.  moir  C86f 

the  eeaft  of  King's -bench,  being  a  court  of 
Oyer  and  Terminer  to  Middlesex,  it  waa  in* 
eluded  in  the  act.  Sir  Francia  Winniogton 
dates  informations  no  higher,  nor  is  there  the 
least  shadow  of  proof  they  were  ever  heard  of 
before. 

Thus,  mj  lord,  we  are  sufficiently  dear  as 
to  the  origin  of  your  informations.  I  shall 
next  pursue  them  to  their  present  growth. 

Sir  Francis  Winningtou  observes,  that  hi 
Rastal's  and  Coke's  Entries,  there  are  no  infor- 
mations, but  only  upon  penal  statutes ;  and  in 
Rastal,  says  be,  there  is  hardly  one  informa- 
tion. See  Pry  one's  Case,  Modern  Reports,  p. 
5.* 

Thus  informations,  in  the  manner  I  stated  * 
them  before,  slept,  aAer  the  repeal  of  the  act 
(1  Hen.  8,  c.  6,)  to  the  5  Car.  1.  I  suppose  the 
case  was  thus :  [See  the  Case,  vol.  S,  p.  393.] 

Hollis,  Elliot,  and  some  others,  bad  been 
very  troubleaome  in  the  House  of  Commons. 
The  clamour  being  against  the  severity  of  the 
Star  Chamber,  a  lawyer  finding  these  prece- 
dents of  informations  in  Henry  7th 's,  reigo, 
mentioned  since  in  Mr.  Bellamy'a  Report,  a 
prosecution  was  formed  by  way  of  information 
m  the  King's-benclK  Tliis  was  tbe  first  iink, 
and  a  pretty  long  one,  from  Henry  7  to  Chades 
1.  After  this,  as  sir  Francis  Wmningten  ob- 
serves, they  slept  tor  king  Charles  2.  **  Afler 
which  (saya  he)  they  were  sometimes  made 
use  of,  but  very  rarely  neither."  He  says 
moreover,  he  remembers  very  well,  lord  chief 
justice  Hale  often  said,  '*  That  if  ever  infor- 
mations came  into  dispute,  they  could  not 
stand,  but  must  necessarily  fall  to  the  ground." 
He  says  moreover,  **  informations  at  first  were 
never  questioned,  because  they  were  so  very 
rare,  but  of  late  times  they  have  been  more 
frequent  than  ever."  Sir  William  Williams  re- 
plied in  a  very  weak  manner ;  Dolben  and 
Holt  were  judges,  yet  none  touched  upon  in* 
formations,  as  stated  before.  I  c6ncluoe,  that 
informations  merely  at  the  king's  suit,  for 
matters  concerning  which  a  grand  jury  may 
enquire,  are  directly  contrary  to  tbe  scope  of 
Ma^na  Charta,  and  all  our  fundamental  laws 
of  liberty.  " 

I  observe,  my  lord,  that  Magna  Charta,  and 
all  those  laws  of  liberty  were  confirmed,  18  Will. 
3,  c.  3,  which  makes  them  laws,  de  naooy  as 
they  were  before,  in  the  Petition  of  Right ;  and 
that  no  prescription  can  deprive  us  of  the  be- 
nefit of  them,  even  though  an  act  of  parliament 
could  be  produced  before  that  confirmation. 

Thus,  my  lord,  I  have  traced  informations  to 
their  suring-head,  and  a  very  dirty,  muddy 
spring  It  is;  sir  Francis  Winnington  basin- 
formed  us,  how  they  swarmed  after  the  Reyo- 
lution.  Since  1  came  to  act  a  public  part  as  a 
writer,  indictments  for  libels  have  entirely  ceas- 
ed.     I  can  remember  none  after  one  against 

*  Tbe  Report  is  in  5  Mod.  459.  See  also. 
Holt,  368.  See  also  Rex  v.  Abraham,  Comb* 
141,  1  Shower,  4«.  Bex  v,  0erchet|  1  Shower 
10^. 


863] 


10  GEORGE  m. 


Trki  tifJckm  AhnoA  .*— 


[8M 


niyaelf,  nineteen  years  ago;  so  that  by  excises 
and  iDformations  the  doinioions  of  grand  juries 
are  so  narrowed,  tUat  they  bear  the  same  pro- 
portion as  Portugal  does  to  Spain ;  one  slip  of 
bnd  is  Britannia's  jointure.  My  lord  chief 
chief  justice  Holt  said,  informations  were  com- 
mon law,  that  is,  the  custom  of  your  court  is 
common  law.  1  f  that  sort  of  common  law  can 
prescribe  to  Magna  Charta,  and  all  our  statutes 
of  liberty ;  if  the  suggestion  of  the  plaintiff 
against  the  defendant  is  absolute  {>roof,  my 
lord,  I  will  go  to  Constantinople,  and  kiss  the 
grand  seignior*s  patent  for  a  bow-string. 

In  the  case  of  Kendal  and  Roe,*  the  same 
lord  chief  justice  said,  the  secretary  of  state's 

Eower  to  commit  Was  common  law.  I  have 
eard  it  likewise  said,  that  the  practice  of  45 
years  is  above  Magna  Charta,  and  an  hundred 
acts  of  parliament.  I  am  coufide(it  your  lord- 
ship abhors  this  doctrine.  Common  law,  at 
this  rate,  is  more  tyrannical  than  all  our  kings 
since  William  the  Con<|ueror  breathed  his  last. 
My  lord,  I  have  felt  m  my  own  person  the 
power  of  informations.  I  was  bound  over  to 
answer  to  one,  and  to  good  behaviour  six  years 
in  the  last  reign,  and  five  in  this.  I  am  told, 
the  scheme  is  to  keep  me  under  these  circum- 
stances during  this  reign.  1  hope  this  day, 
from  the  candour  and  justice  of  your  lordship, 
better  things ;  that  yon  will  lift  up  Britannia's 
drooping  head,  mq  tell  her.  Magna  Charta 
shall  live. 


The  preceding  article  1  take  to  relate  to  the 
following  Case,  which  is  extracted  from  Bar- 
•ardiston's  Reports,  vol.  8,  pp.  $93,  346. 

«*The  Kino  and  Dr.  Earbery.  ' 

••  Trin.  Term,  6  G.  2,  1733. 

*'  The  defendant  had  siven  notice  to  the  At- 
torney General,  that  he  should  move  the  Court, 
that  his  recognizance  should  be  taken  off  the 
file  and  discharged,  for  certain  errors  appearing 
upon  the  face  of  it.  He  said  he  had  been  taken 
up  by  a  warrant  from  one  of  the  secretaries  of 
state,  signed  De  la  Faye ;  and  he  conceived 
that  this  warrant  ought  to  have  been  signed 
with  the  name  of  the  secretary  of  state  himself, 
and  not  with  the  name  of  one  who  was  but  an 
officer  under  him.  When  he  was  brought  be- 
fore the  secretary  of  state  upon  this  warrant, 
the  secretary  of  state  committed  him ;  and 
since  a  private  justice  of  peace  has  taken 
upon  himself  to  bail  him,  requiring  him  to  enter 
into  this  recognizance.  No  man,  he  submitted 
it,  has  authority  to  bail  another,  unless  he  is 
equal  to  the  person  committing.  A  justice  of 
peace  is  an  officer  interior  to  a  secretary  of 
state  ;  and  therefore  he  conceived  that  this  re- 
cognizance must  be  illegal.  He  observed  far- 
ther, that  the  terms  of  this  recognizance  are, 
that  he  shall  keep  the  peace ;  and  likewise  that 
he  shall  appear  in  the  court  of  King's-bench,  to 

answer  such  matters  as  shall  be  objected  against 

*— i— >— —  ■■■■       ■■      — *i— ■—— ■ 

•  Set  vol,  J2,  p,  1899. 


him.    He  did  agree  that  a  jastioe  •f  peace  has 
authority  to  bind  over  to  the  aesMOiis ;  bvt  this 
was  the  first  time  that  he  ever  heard  that  they 
had  authority  to  bind  over  to  this  court.    And 
to  shew  that  they  covU  not  have  such  an  ai» 
thority,  he  appealed  to  the  statute  of  Ig  £dw. 
3  ;  37  Edw.  9,   18;  49  Edw.  8  ;   and  1  &  9 
Phil.  &  Ma.     He  took  notice  farther,  that  be 
had  entered  into  this  recognizance  so  long  age 
as  Mich,  term  last;  and  no  infonBatkm  has 
been  filed  against  him,  nor  has  he  had  one  sb- 
gle  charge  during  all  this  time.    The  Cosit 
said  that  they  believed  it  was  usual  for  tdis 
secretaries  of  state  not  to  sign  these  warraaH 
themselves.     To  the  second    obfection  tbcj 
could  not  enquire  into  it  upon  this  oMtioo ;  be* 
cause  the  notice  is,  that  the  Court  will  be  movfil 
to  dischaiige  the  recognizance,  for  eirors  a^ 
peering  upon  the  face  of  it.    To  the  third  they 
said,  these  recognizances  are  very  frequent  is 
this  court ;  and  therelbre  they  should  certainly 
not  order  the  present  one  to  be  taken  off  ttie 
file  upon  motion.    If  the  recognizance  is  ille- 
gal, the  defendant  has  his  remedy  another  ws]^. 
To  the  last  objection,  they  did  agree  that  if 
there  had  been  a  year  passed  from  the  titse 
that  this  recognizance  was  given,  and  no  pf»- 
secation  against  the  defendant,  he  wooM  btrt 
been  intitled  to  be  discharged.    But  till  tbcs, 
by  the  rules  of  the  court,  he  cannot;  acoord- 
ingly  the  motion  was  refused." 

"  Mich.  7  Geo.  2,  1733. 

**  Mr.  Josiing  moved,  that  a  certain  reeif' 
nizancc,  by  which  the  defendant  was  bound  lo 
appear  in  this  court,  might  he  taken  off  the  file; 
that  so  much  of  a  rule  of  this  court,  as  relatd 
to  the  defendant's  appearing  to  this  reeogm- 
zance,  might  be  discharged ;  that  the  defefl* 
daot's  papers,  seized  by  virtue  of  a  warrtnt 
from  one  of  the  secretaries  of  state,  might  be 
restored  to  him  ;  and  that  a  satisfaction  might 
be  awarded  to  liim  for  tlic  imprisonment  be 
suffered  under  this  warrant.  He  took  notice 
that  some  time  before  the  beginning  of  lait 
Michaelmas  term  a  warrant  was  issued  forth 
in  the  name  of  the  duke  of  Newcastle,  one  of 
the  secretaries  of  state ;  which  was  directed  to 
two  of  the  king's  messengers,  requiring  tbesi, 
taking  a  constable  to  their  assistance,  to  make 
diligent  search  in  the  house  of  the  defendaat, 
the  author  of  a  treasonable  paper,  intitled  *Tbt 
Royal  Oak  Journal,'  for  all  papers  of  what 
kind  soever,  in  his  custody,  and  to  bring  the 
said  defendant  with  the  said  papers  before  hiB' 
The  messengers,  without  taking  a  constable  to 
their  assistance,  entered  into  the  def'eudaot'f 
house,  seized  his  papers,  and  brought  tbfiBt 
together  with  the  defendant,  before  Mr.  Del* 
Faye,  who  was  the  duke  of  Newcastle's  sedt* 
tary,  and  a  justice  of  peace.  No  one  vH 
examined  by  Mr.  De  la  Faye,  to  prove  thedr 
fendant  to  l)e  the  author  of  this  paper  ;  nor  did 
the  defendant  confess  it.  However,  Mr.  De  h 
Faye  told  the  defendant  he  must  commit  hiflii 
if  he  did  not  enter  into  a  recoguisaMe  fai  l^ 


165] 


pAttherifs  Case. 


■um  of  iOOK  with  tvro  sufficient  Imil,  condi-  | 
lioDed  for  bis  appearance  in  the  court  of  Kitig's-  I 
beocb  the  first  day  of  last  MichaeUims  term, 
and  not  depart  the  court  without  license.    To 
a?oid  being  committed,  the  defendant  with  two 
Buffictent  rail  entered  into  8ucb  reco^^niaance ; 
and  the  recognizance  was  signed  *  Ch.  ])e  la 
Fave.'    The  defendant  appeared  in  the  engirt 
of  King't- bench  on  the  first  and  last  day  of  last 
Michaelmas  term,  and  on  the  first  and  last  day 
of  the  three  following  terms ;  but  on  the  last 
day  of  Trinity  term  last,  as  soon  as  he  bad 
moved  to  have  his  appearance  recorded,  he 
prayed  to  be  discharged.    Upon  this  the  Attor- 
ney-General exhibit^  two  informations  against 
iiim  in  open  court,  and  moved  that  he  itii^ht 
be  charged  with  them.     Mr.  Mastermah  ac- 
cordingly demanded  of  the  defendant,  whether 
he  appeared  to  them.    The  defendant  did  not 
by  any  open  act  either  assent  or  dissent  to  the 
question  demanded  of  him ;  but  insisted,  that 
tbe  recognizance  by  which  he  was  bound  over 
to  this  court,  was  illegal,  ahd  that  he  ought  to 
be  discharged  from  it.    The  Court  told  him 
that  they  could  not  discharge  his  recognizance. 
Upon  that  be  went  out  of  court,  and  tne  officer 
recorded  his  appearance  to  the  informations. 
This  Mr.  Josling  said  was  tbe  state  of  the  fact ; 
and  upon  this  state  of  it  be  apprehende<1  that 
bit  motion  was  regular.      He  said  he  should 
not  contend  but  it  bas  been  resolved,  that  a  ae- 
cretary  of  state's  warrant  to  stize  a  person 
suspected  of  treasonable  practices,  was  legal. 
But  this  resolutiou  w^s  but  a  late  one,  founded 
ooly  upon  precedents,  and  not  one  ancient  re- 
lolution  in  tbe  books  to  justify  it.     Howerer  it 
never  was  yet  resolved,  that  a  secretary  of  state 
could  grant  a  warrant  to  seize  a  person's  papers, 
aod  it  manifestly  is  against  the  rights  and  li- 
berties of  tbe  subject.     As  tbe  warrant  itself 
ivas  illegal,  so  was  the  execution  of  it  likewise. 
For  it  was  done  without  the  assistance  of  a 
constable,  and  the  defendant  not  brought  be- 
fore the  secretary  of  state  himself,  as  the  war- 
rant directed,  but  a  secretary  undiT  him.     He 
then  objected  to  the  recognizance ;   he  saiil  he 
abould  not  contend  but  there  were  precedents 
to  justify  a  justice  of  peace  in  bindmg  a  man 
over  to  this  court :    but  there  was  not  one 
resolution  in  the  hooks  ancient  or  modern  to 
jostily  such   a  practice.      A  justice  of  peace 
bu  a  jnrisdiction  which  is  confined  within  the 
bounds  of  bis  county.  And  it  would  be  a  matter 
very  inconvenient  to  the  subject,  if  it  should 
once  be  settleil  for  law,  that  a  justice  of  peace 
ID  Cunil>erland  'might  bind  a  man  over  to  this 
court  sitting  at  Westminster.    The  manner  of 
liking  the  present  recognizance  was  illegal 
^)  10  as  much  as  there  was  the  oath  of  no 
^t  uor  the  confession  of  the  party,  at  the 
time  it  was  required  of  him.     The  form  of  it 
H  likewise  bad  ;    for  the  defendant  is  bound 
over  to  appear  at  the  court  nf  King's -liench  at 
Vettoiinster  ;    whereas  the  stile  of  this  court 
M  *  coram  re^e  ubicunque;'  it  is  not  inserted 
^  the  recognizance  for  what  cause  he  is  to  ap- 
pear ;    ibe  recognisance  is  signed  too,  Cb.  de 

voju  XX. 


A.  D.  1770.  [866 

la  Faye  ;  so  that  tbe  Christian  name  of  de  U 
Faye  is  imperfectly  set  out ;    and  it  no  where 
appears  in  the  recognizance,  that  he  was  a 
justice  of  fieace.      Mr.  Josling  then  spoke  to 
the  appparance  of  the  defendant ;    and  sub- 
mitted in  tbe  first  place,  that  the  defendant  in 
fact  did  not  appear  to  these  informations ;    and 
in  the  next  place  that  be  legally  could  not.     He 
did  agree  that  when  the  question  was  asked  the 
defendant,  whether  he  api>eared,  he  did  not  in 
words  directly  refuse  it ;  but  he  contended  that 
the  recognizance  by  which  he  was  brought  into 
court  was  illegal ;  which  was  the  same  thing  as 
if  he  had  in  words  directly  contended  that  he  was 
not  obligcil  to  apfiear.  He  submitted  it  therefore^ 
that  when  the  officer  of  the  court  demands  of 
the  party  whether  be  appears,  the  party  insists 
that  be  is  not  bound  to  appear;    the  Court 
tells  him  that  he  is  bound  to  appear,  and  if  he 
does  not  his  recognizance  will  be  forfeited; 
tbe  party  upon  that  goes  out  of  court,  thattnay 
as  well  be  construed  a  departure  without  li- 
cense, as  an  apiiearance;   for  which  reason 
with  regard  to  the  fact  he  submitted  it,  the 
officer  cud  wrong  in  recordio^  that  the  defen- 
dant did  appear  to  these  informations.      But 
supposing  the  fact  to  be  that  he  did  submit  %6 
appear ;    yet  as  the  recognizance,,  which  is 
iu  the  nature  of  a  process,  to  bring  the  party  in 
to  appear,  was  illegal,  for  the  reasons  be  had 
before  given,  he  conceived  that  the  appearance 
could  not  be  legal  neither ;   and  for  authorities 
to  support  the  several  parts  of  his  argument 
he  cited  Godb.  118,  147.   39  H.  G,  27.    Arch- 
bishop of  Canterbury's  case,  4  Jac.  3.  Sid.  32. 
Lut.  951.   Uil.4,7>   Lamb.  89.   Cr.3,  646. 
**  The  Chief  Justice  said  that  in  the  case  of 
Kendal  and  Roe,  it  was  settled  upon  solemn 
debate,  that  a  secretary  of  state  might  issue 
out  his  warrant  to  apprehend  the  person  of 
any  man  on  suspicion  of  treasonable  practices  ; 
and  therefore  did  not  think  that  that  part  of  tbe 
present  warrant  would  have  been  disputed  al 
this  da^.  As  to  tbe  other  part  of  it,  with  regard 
to  seizing  the  defendant's  papers,  be  would  not 
qive  an  opinion,  whether  it  was  legale  or  not. 
This  Court  could  not  make  a  rule  upon  the 
messenger,  that   did  seize  them,  to  restora 
them ;    and  therefore  that  question   was  not 
properly  before  tbe  Court  for  their  determina- 
tion.   There  was  no  occasion  to  determine  neii 
ther,  whether  in  general  justices  of  peace  have 
authority  to  bind  over  to  this  court.    The  per- 
son that  did  this  in  tbe  present  case,  was  a  jus- 
tice of  peace  for  tbe  county  of  Middlesex, 
and    undoubtedly    be    might    hind    over    to 
this  court ;  this  court  having  a  jurisdiction  of 
Oyer  and  Terminer  for  that  county.      How- 
ever he  had    before  him    several  preceileots 
of  justices  of  peace  of  other  counties  biud- 
ing  over  to    this '  court  likewise.      He    had 
likewise  before  him  several  precedents  of   re- 
cognizances taken  by  judges  of  this  court  and 
justices  of  peace,  wherein  the  stile  of  their  au- 
thority was  not  inserted.     He  had  seen  several 
too,  which  arc  only  in  this  general  form  ad 
respondendum,  ike,    Aud  ai  to  tbe  other  ex. 
3K 


867J 


10  GEORGE  III. 


Trial  of  John  Almon, 


|a6B 


eeptions,  with  reg^aH  to  the  form  of  this  recog- 
nizance, if  tliere  was  kny  weight  in  them,  the 
defendant  might  hare  taken  advantage  of  them, 
if  a  Scire  Facias  had  been  brought  upon  it. 
But  what  the  defendant  has  done,  has  in 
Judgment  of  law  amounted  to  an  appearance ; 
and  as  that  is  so,  all  defects  in  the  recog- 
nizance are  thereby  cured  ;  for  this  nnrpose  the 
chief  justice  mentioned  the  case  of  Widrington 
and  Charlton,  Trtn.  1 1  Anne.  That  was  an 
appeal  of  murder ;  the  defendant  did  not  ap- 
pear till  the  £xigent ;  and  when  be  did  appear, 
his  appearance  was  entered  in  the  moslcaultoos 
manner  that  could  be,  for  it  was  in  these  words, 
*  Et  pivdictas  defendens,  satris  sibi  omnibus 
^  ad?antagiis  et  ezoeptionibas  tam  ad  breTe 
'  originate  qnam  ad  nrocessum,  venit ;'  and 
thereupon  for  faults  in  tne  Exigent  he  demurred. 
XiOrd  Macclesfield,  Mr.  Jostice  Eyres,  and  Mr. 
Justice  Powis  held,  that  all  defects  in  process 
were  cured  by  the  party's  appearance.  Mr. 
Justice  Powel  indeed  was  of  another  opinioii, 
as  this  wa^  a  Writ  of  Appeal ;  but  agreed  aocfa 
defect  would  ha?e  been  cored  by  appearance' 
in  every  other  action. 

**  The  rest  of  theConrt  agreed  with  the  Chief 
Justice  in  the  present  case  \  aoc<n^mgly  the 
motion  was  disallowed  of." 

See,  also,  another  report  of  the  same  case 
in  W.  Kelyng,  p.  161.  In  8  Mod.  p.  177, 
'  Fortesc.  37,  are  two  reports  of  the  King  v, 
Earbery,  which  I  suppose  rdate  to  this  same 
peison,  though  the  points  are  not  the  same. 
Foftescue  says,  **  Earbery  was  a  worthy  ho- 
nest clergyman,  and  a  good  divine,  bat  was 
drawn  in  by  some  of  nis  party  to  write  a 
pamphlet,  in  wjiicb  the  ministry  thought  there 
were  some  scandalous  reflections  upon  the  go- 
vernment." 

In  the  preceding  Report  of  Almon's  Case 
are  some  tncorrectneisas  which  I  have  not  ven- 
tured to  alter. 


As  to  the  proceeding  for  an  attecbmcnt 
against  Aknon,  in  respect  of  thepnUication  of 
the  *  Letter  concerning  Libels,  Warrants,  Sei- 
zure of  Papers,  &c.'  see  fol.  19,  p.  1089,  and 
lord  chief  justice  Wilmot's  Notca  of  Opinions 
and  Judgments  as  there  ched. 

Concerning  the  non-examination  of  Miller, 

&835,  see  what  Mr.  Donning  said  in  tbe 
ouse  of  Commons,  reported  16  New  Ptai. 
Hist.  p.  1«79. 

Of  the  conversation  which  passed  betweeo 
Mr.  Mackworth  and  lord  Mansfield,  p.  8S8, 
see  Mr.  Mackworth's  accovnty  16  New  PmI. 
Hist.  pp.  1149.  1189. 

Mr.  Burke,  in  the  debate  upan  a  motioa  tf 
the  late  lord  Mulgrave,  respecting  tbe  Inftr- 
mation  cjr  cffide^  anhnadverted  upon  this 


of  Almou,  see  16  New  Pari.  Hist  pp.  1153, 
1153.  1199.  See,  also,  tbe  Reply  of  tbe  At- 
torney-General De  Grey,  pp.  1155.  1194,  of 
the  sanne  volame. 

To  tbe  words  *<  they  had  affidavits,"  p.  850, 
1.  38,  Mr.  Serjeant  Hill  had  written  in  hit  copjf 
of  Burrow  the  following  Note : 

*<  Tbe  facts  in  the  aMavits  oaght  to  btvt 
been  proved  at  the  Trial  r  as  they  were  not, 
nor  any  reason  given  why  they  were  not,  tbcj 
could  not  by  the  knomn  course  of  tbe  cent, 
nor  ought  in  reason  to  bave  any  weiglit,  os  « 
motioa  for  a  new  trial ;  therefore  there  niH 
be  some  mistake  in  this  report;  perhaps  Ibcj 
miglit  be  read  in  extenoation  of  the  piHMb* 
ment,  i>ut  certainly  could  not  be  for  a  asv 
trial ;  onless  as  above  intimated,  tbe  afidsvin 
bad  gone  further,  and  fp!fea  some  good  rssiei 
why  the  facts  in  the  affidavits  were  not  piwe^ 
sucn  as  sudden  illness  in  defendant's  wttncsKi^ 
or  non^ttendance,  though  s^ved  with  fu^ 
poenas,  for  sickness  of  the  witnesses,  if  not 
sudden,  would  not  be  sufficient,  but  ttie  defes- 
dants  should  have  moved  to  put  off  the  trill" 

See,  also,  9upr,  pp.  844, 845. 


1 


Trial  ^  John  Miller. 


[870 


.  The  Trial  of  John  Millek,  Printer,  before  Lord  Mansfield, 
and  a  Special  Jury  of  Citizens  of  London,  at  Guildhall,  for 
re-printing  Junius's  Letter  to  the  King,  in  the  London  Even- 
ing Post,  of  the  19th  of  December,  1769:  IOGeobge  IIL 
A.D.  1770.    [Taken  in  Short-hand  *] 


Speciu,  JtrRv.f 
el  AtfaiwM,  of  Miriiii's-lane. 
7  Voywy,  Clemen IVI inc. 
b  LsDCwter,  Green  Lettice-lane. 
imOill,  AWhurch  lane. 
Whiiniore,  LAwrence  PonltDej-kae. 
ift  Redshaw,  St.  Peter  le  Poor, 
im  DeTJame,  Btriholomew-laDe. 

Teleimeii. 
un  Cut,  of  FarriD|:doa  WJllioul. 
im  Waiher,  BUhopsgala  Witbio. 
[s  More,  FarrinKilnn. 
a  Woodward,   Betl-yard,   Graccchurch- 

inl  Ajrm,  Bitliopagal*- street. 


I  CMC   irai  opened   by    Mr.  Walker.— 
record  ttsted,  that  the  defendant,  Jobc 


a  paper,  eotitled.  The  London  ETening 
Salurilay,  December  Ifilh,  to  Taeaday, 
nber  19th,  in  vrbicb  vrai  coatained  a 
D  libel,  reflectlnt;  upon  the  Ktnr,  the 
liatratian  of  j^oterninent,  hia  principal 
t  of  state,  and  the  meinben  of  the  ban. 
i  of  CoiumiiDa,  in  tbete  word*,  [Tbe 
read.];      Tbe  defendant  pleaded   Mot 

r- 

.  General  (Tburlon).  Pleaac  your  lord- 
aad  you  ifenlJemeu  of  the  jury,  1  am  hkr- 
'fcouDsel  fur  the  crown  in  tlii«  protecution, 
I  in  brDUKbt  by  the  Aitorney  Gentrat 
(t  Jobu  Miller.  I  hare  *ery  aelaom  tbutid 
Tmore  puzzled  howtnitatea^ueatioo  toa 
and  in  what  mannar  to  adapt  rt  to  a  court, 
(  am  upoD  tbe  prewnl  -     -  '         " 


in  reading  over  tbe  paper  ilaelf,  and  in  coiiridera- 
IJoa  of  tbe  prmili  that  are  to  be  laid  Iselure  yon, 
I  abould  bare  thought  it  a  ca«e  so  plain,  and 
in  ao  ordinary  a  courae  orjuMice,  that  it  would 
absolutely  be  imjioaalble  to  bare  miuaken, 
either  the  applicatino  of  the  ifionfi  of  tbe 
chaq^  Ibat  are  laid,  or  the  conotuaion  lo  be 
made  from  ibcn>.  1  bare  not  of  myself  been 
able  to  imagine,  nor  hare  I  learnl  from  ib« 
coorertalion  of  any  one  roan,  ibai  ibere  ia  ft 
aeriona  mn  of  Ibe  pratesrian  in  the  kingdom, 
wbo  baa  tbe  aniatlest  doubt  whether  thi*  ought 
to  be  deemed  a  libel  or  onl :  my  tpeinory  de- 
aerta  me  exceedingly,  if  itie  learned  e^nileroen 
who  apoke  uf  this  aubjtct  belore,  did  any  time 
rcQture  lo  aay,  in  m  many  plain  vordsi,  that 
Ihe  eontenta  of  tbal  |faper  were  leaal  aiid 
iuQocent.  1  am  mittakeo  if  they  did.  Jl 
aeeisa  to  me  impouible  that  tai^ii  au  idea 
can  be  formed  ;  tut  ioitead  uf  it,  if  I  re- 
;  member  it  right,  Irum  the  general  anil  looae 
1  diacouTM  «f  them,  oonceroiDg  the  liberty  of 
'  the  prcM,  it  wa«  a  lanre  and  lutdefincd  auk- 
ject,  conceroing  (lie  right  of  iodiriduaja  W 
apeak,  to  irrite,  to  publiab  with  freedom,  tfaap 


Published   in   the  London   Muaeum  (of 
I  Miller  was  the  publiaber)  for  Oatober 


Owing  (o  a  neglect  of  ibe 
',  only  aeren  of  the  Special  Jury  allend- 
pon  which  Mr.  Uearilmore,  tbe  delen- 
1  attorney,  complained  lo  tlieCourt  of  ihe 
KMuea  for  Ibe  Hpecial  Jary  not  being  la- 
in proper  time,  and  lliat  lo  fail  certain 
ledge,  no  aummnnkea  were  delivered  tbe 
efore  at  twelre  o'clock.  The  Court  al- 
tbe  complain!  to  be  jiial,  but  took  no 
IT  notice  of  it.  Fire  Talesmen  were  (ban 
9.  Orig.Edit. 
iM  il,  p.  Wi,  of  thia  rolmne. 


tbonghla,  U|NM)  all  reanoer  of  aub- 
theae  lopica  were  pretty  largel  v,  but  i^ 
lue  same  time  pretty  gaorrmlly  baodlri).  Now, 
it  doen  not  appear  to  me  they  were  or  could,  ia 
the  nature  of  it,  be  applied  lo  ibe  present  caae. 
For  I  neither  do,  aor  erer  will,  attempt  lo  lay 
before  a  jury,  a  cause,  in  which  I  was  iindor 
tbe  neceaaily  of  stating  a  single  principle  that 
went  to  intrench,  in  the  amslleat  degree,  upon 
the  arowed  and  acknowledged  liberty  of  tbe 
Mltjecta  of  tbia  country,  eren  with  regard  to 
the  prua.  Tlie  complamt  1  bare  lo  lay  befors 
yon,  ii,  Ibat  that  liberty  has  been  ao  abused, 
M  tamed  to  licentiousuea*,  in  the  manner  w 
which  it  baa  been  exercised  upon  the  present 
occasioB,  that  under  the  notion  of  arrotfating 
liberty  to  one  nan,  that  is,  tbe  writer,  printer, 
and  publisher  of  this  paper,  they  do,  in  effect 
and  conaeqiWDCc,  annihilate  and  destroy  tbe 
liberty  of  all  men,  more  or  leaa.  Undoubtedly 
tbe  man  ibat  baa  indulged  Ibe  liberty  of  rob- 
bing upon  the  highway,  baa  a  i^y  cousidar- 
ahle  portion  of  it  allotted  to  him.  But  where 
ia  tbe  liberly  of  tbe  man  that  is  robbed?  Where 
ia  the  liberty  of  tlie  man  that  ia  injured  7  li- 
berty coBsiata  in  a  fair  and  equal,  public  and 
general  enjoymeDl  of  erery  man's  person,  for- 
tune, and  reputation,  under  tbe  pruleclioa  of 
the  law  ;    and  ibe  moment  th«  law  is  Rileut  or 


*S71] 


10  GEORGE  HI. 


Trial  of  John  Miller, 


[871 


him,  ami  tyranu^  of  the  vilest  sort  is  expected, 
aixl  an  opportunity  is  given  to  hired  and  venal 
writers,  to  vent  their  malice  for  money,  agpainst 
the  hest  characters  in  the  country,  and  against 
every  ciiaracter  wiiich  they  can  be  hired  to 
insult  for  money.  All  I  desire  is,  that  the  line 
may  be  fuirly  drawn,  and  justice  so  admiois* 
tered,  as  to  protect  the  i^eneral  liberty  of  man- 
kin(^ ;  and  not  under  the  notion  of  protecting 
the  liberty  of  those  that  do  wrong,  encourage 
them  in  licentiousness  and  destruction  uf  all 
laws  human  and  divine,  of  all  countries  as  well 
as  this,  which  all  people  will  agree,  uoon  the 
principle  of  common  sense,  ought  to  be  pro- 
tected and  defended.  Gentlemen ;  these  are 
the  only  principles  upon  which  this  prosecution 
depends ;  and  if  the  prosecution  is  not  to  be 
supported  upon  these  principles,  I  desire  it 
may  be  rejected  and  abandoned,  and  I  ought 
to  be  ashamed  to  maintain  it  at  all.  With  re- 
gard to  the  present  libel,  the  business  of  those 
that  maintain  this  prosecution,  is  to  prove 
these  facts.  The  man  that  is  charged  with 
having  printed  and  published  this  paper,  has 
printed  and  has  published  a  paper,  in  which 
concerning  the  kmg,  concerning  the  House 
of  Commons,  concerning  the  great  officers  of 
state,  concerning  the  public  uflairs  of  the 
realm,  there  are  uttered  things  of  such  ten- 
dency and  application,  as  ought  to  be  punished. 
Now,  gentlemen,  when  I  state  the  proposition 
so,  it  will  be  very  manifestly  and  obviously 
understood  I  am  ^iroceeding,  not  only  to  prove 
the  fact  of  the  present  defendant  having  printed 
and  published  that  paper,  but  to  go  so  far  into 
the  particular  parts  of  that  paper,  as  to  prove 
it  does  apply  as  the  charges  of  the  information 
express.  To  prove  that  it  does  apply,  or  to 
consider  it  as  a  subject  liable  to  discussion  and 
doubf,  is,  when  I  come  to  consider  it,  but  an 
insult  upon  your  understandin<^ ;  for  you  have 
uo  one  reproachful  epithet,  which  is  not,  in  the 
Tarious  shapes  which  a  long  jingle  of  words 
could  be  turned  into,  put  upon  the  person  of 
the  king.  He  has  been  reviled  throughout  the 
liistory  of  his  life,  from  his  birth  to  the  present 
moment.  His  education  has  been  represented, 
as  converted  to  the  most  frivolous,  to  the  most 
inaiignant  purpose ;  his  heart  is  represented,  to 
be  corrupt  to  such  a  degree,  to  be  abandoned 
80,  that  all  the  sacred  duties  of  the  great  trust 
reposed  in  him,  have  been  violated  :  thus  the 
possible  business  of  private  contention,  with  a 
character,  for  the  purpose  of  making  a  king 
more  contemptible,  he  is  represented  as  the 
most  contemptible  character  upon  earth.  You 
have  been  told,  in  consequence  of  that,  he  has 
set  upon  edge  against  him  the  minds  of  all  his 
subjects ;  and  \n  conclusion  after  that,  the 
king  is  threatened  with  another  revolution,  in 
the  stile  of  manifest  rebellion,  like  new  pro- 
claiming war.  When  we  are  come  to  that 
situation,  when  it  shall  be  lawful  for  any  man 
in  this  country  to  speak  of  the  sovereign  in 
terms  attempting  to  fix  upon  him  such  con- 
tem|>t,  abhorreoce,  and  hatred,  there  is  an  end 
•fall  goTerDineiit  wbatsoerer,  and  tbeo  liberty 


is  indeed  to  shiA  for  itself.  Now,  gentlemen, 
I  b%ve  stated  to  you  in  general,  wbat  1  look 
upon  to  be  the  import  of  this  libel.  If  I  was 
to  mention  even  the  passages,  is  there  one  of 
them  would  fall  short  of  the  representation  I 
have  given  them  ?  In  the  6rst  place,  th^  king 
is  supposed  utterly  ignorant  of  the  duty  of  his 
office ;  in  the  next  place,  be  is  looked  upon  to 
have  a  fixed  prejudice  against  the  character  of 
an  honest  man.  **  Supposing  htm  (says  the 
libel)  made  sensible  at  last  of  ibe  great  duty  be 
owes  to  his  people." 

Is  it  fit  that  any  magistrate  should  be  talkd 
of  in  that  manner,  much  less  is  it  fit,  that  the 
king  should  **  that  he  should  be  made  sensible 
of  his  own  disgraceful  situation" — is  that  the 
language  for  the  first  magistrate  in  this  couo- 
try  ?  No  matter  bow  improbable  thus  the  best 
of  characters  of  honest  meaning  men,  is  r^ 
moved  by  such  writers ;  but  to  be  sure,  that  ii 
a  very  unfair  and  unjust  idea  to  give  the  pe^ 
son  of  a  king,  and  yet  thry  would  have  joo 
suppose,  that  is  no  libel  at  all.     <'  It  is  the 
misfortune  of  your  life,  and  oritcinally  the 
cause  of  every  reproach  and  distress  which 
has  atteibded  your  governmeui,  that  )ou  shouU 
never  have  been  acquainted  with  the  language 
of  truth,  till  you  found  it  in  the  complaints  of 
your  subjects."     Can  a  man  l>e  branded  with 
a  more  odious  and  disgraceful  repretteutatiOD  of 
him,  than  that  he  had  been  so  educated  froa 
the  beginning  to  the  end  of  his  life,  as  to  be 
utterly  ignorant  of  the  language  of  truth.  The 
stile,  the  insolent  manner  of  it,  is  what  will 
occur  to  any  bo<ty.     He  desires  him  to  dit> 
tinguish   between  the  permanent  dignity  of 
a  king,  and  that  which  serves  only  to  promote 
the  temporary  interest  and  miserable  ambitioB 
of  a  minister.    **  You  ascended  the  throne  with 
a  declared,  and,  1  doubt  not,  a  siin  ere  reiioltt- 
tion   of  giving  universal  salisfai-iion  to  yoor 
subjects.     You   found  them  pleased   with  the 
novelty  of  a  young  prince,  whose  couulniance 
promised  even  more  than  his  wonls,  and  lo^al 
to  you,  not  only  from   principle,   hut  passioo. 
It  was  not  a  cold  profession  of  aikirianoeto  the 
first  magistrate,  but  a  partial,  animated  auach- 
ment  to  a  favourite  prince,  the  native  of  their 
country.    They  did  not  wait  to  examine  yoor 
conduct,  nor  to  be  determined  by  experience, 
but  gave  you  a  generous  credit  for  the  future 
blessings  of  your  reign,  and  paid  you  in  ad- 
vance the  dearest  tribute   of  their  affections. 
Such,  Sir,  Avas  once  the  disposition  of  a  people, 
who  now  surround  your  throne  with  reprMchei 
and  complaints.     Do  justice  to  yourself,  baoish 
from  your  mind  those  unworthy  opinions,  with 
which  some  interested  persons  have  laboured 
to  possess  you.     Distrust  the  men  who  tell  yvo 
the  English  are  naturally  light  and  incoostani, 
that  they  complain  without  a  cause.   VVitbdraw 
your  confidence  equally  from  all  parties,  frof) 
ministers,  favourites,  and  relations,  and  let  thetv 
be  one  moment  in  your  life  in  w  hich  yon  hire 
consulted  your  own  understanding.*' 

Gentlemen  ;  is  it  fit  that  the  first  msgiitnM 
of  this  country  should  be  repmeoted  to  hii 


873] 


Jbr  a  Libelp 


A.  D.  1770. 


[874 


people  jn  the  way  in  which  1  ha? e  now  stated 
to  you,  as  never  having  once  consulted  his  own 
aoderstanding  ?  1  do  not  even  dwell  upon  the 
epitliets,  whitli  are  the  natural  consequences  of 
treating  the  |)er8on  of  the  king  in  that  manner. 
The  next  charge  upon  him,  is,  that  he  takes 
a  share  in  the  narrow  views,  and  fatal  nnaliguity 
of  some  individuals,  and  to  sacrifice,  conse- 
quently, private  objects  under  the  government, 
for  the  private  purposes  of  gratifying  pique  and 
resentment;  then  it  mentions  [that  by  the 
peace]  England  was  sold  to  France,  and  his 
majesty  was  deserted  and  l>etrayed  in  it.  But 
the  next  article,  the  king  is  charged  with,  is 
wbat  I  mentioned  to  you  before,  which  is,  be 
has  put  himself  into  the  condition  of  an  ene- 
my, a  private  enemy  to  an  individual  man. 
For  GoiVh  sake,  why  ?  What  man  could,  with- 
out offending  the  laws,  put  himself  in  a  situa- 
tion, either  to  deserve,  or  actually  to  meet  the 
Krivate  enmity  of  the  king ;  and,  as  I  told  you 
efore,  in  order  to  lessen  the  king  the  more  in 
your  esteem,  this  eentleman  is  represented  to 
you,  who,  in  the  ^rmer  part  of  his  life  had 
acted  upon  a  settled  opinion,  that  there  were 
few  excesses  to  which  the  character  of  an  Eng- 
lisb  gentletnan  might  not  be  reconciled,  and 
that  he  could  take  the  same  latitude  in  the 
choice  of  |iolitical  principles  as  he  had  in  the 
sooduct  of  his  private  life.  With  regard  to 
the  former,  it  seems  to  be  somewhat  singular. 
I  have  always  understood  that  principles, 
either  moral  or  political,  were  fixed  upon  the 
consciences  of  men,  and  an  honest  man  was 
not  at  liberty  to  choose  different  principles. 
But  this  is  an  said  with  a  view  of  lessening  the 
:haracter  of  that  gentleman,  to  make  the  con- 
elusion  afterwards,  that  it  is  an  unworthy  con- 
Itfotion,  (and  it  is  represented  as  unworthy) 
ind  giving  an  air  of  ridicule  to  the  difficulties, 
in  which  the  kin^  has  been  betrayed  ;  and 
making  it  a  priticiple  of  government;  that 
lie  had  not  only  stretched  every  nerve  of 
^vernment,  hut  violated  the  constitution  by  an 
ill-advised  personal  resentment.  Is  this  Ian- 
^lage  to  tell  a  king?  If  you  were  to  tell  a 
common  justice  of  peaoe,  that  in  the  adminis- 
Lration  of  ihe  duty  of  his  office,  he  had  sacrificed 
bis  duty  to  his  resentment,  1  apprehend  my 
lord  will  agree  with  roe,  and  1  lay  it  down  as  a 
proposition  of  law,  you  would  be  liable  to  be 
prosecuted  ;  and  if  such  a  thing  was  pnblished. 
It  would  be  a  libel  if  wrote  upon  him.  And 
tiere  we  are  come  seriously  to  debate,  whether 
telling  the  king  he  has  not  only  sacrificed  the 
duties  of  his  office,  but  lietrayed  the  trust  re- 
posed in  him,  and  his  articles  were  not  per- 
formed—and all  that  to  gratify  ill- humour 
iod  resentment— if  that  is  not  a  libel,  I  own 
my  imagination  cannot  reach  to  what  is  a  libel, 
ind  1  do  not  understand  the  subject  the  least  in 
the  world,  if  it  is  not  to  be  so  understood. 
^Iter  that,  he  is  pleased  to  go  to  the  House  of 
CkMnmons :  with  regard  to  them,  he  says  he 
cao  readily  believe  there  is  influence  enougti 
t0  recall  what  they  look  upon  as  a  pernicious 
role.    The  House  of  CommoDs  consider  their 


duty  to  the  crown  as  paramount  to  all  other 
obligations  whatsoever.  To  us,  says  the  ano- 
nymous writer,  to  us  they  are  indebted  for  an 
accidental  existence.  I  wonder  of  what  mem- 
ber h^  happens  to  be  the  elector !  it  wouU  be 
more  honest  if  he  was  to  shew  himself,  that  we 
might  know  who  he  is.  To  us  they  are  in- 
debted for  an  accidental  existence,  and  they 
have  justly  transferred  their  gratilode  from 
parents  to  benefactors,  meaning  from  the  elec- 
tors to  the  ministers;  from  those  who  gave 
them  birth,  to  the  minister,  is  the  very  expres- 
sion. Now,  whatever  may  be  the  flippancy  of 
some  men's  manner  of  telling  things,  all  orders 
of  government,  where  the  form  of  government 
sufasists,  as  well  as  in  this  country  ;  no  man  of 
sense  can  admit  that  it  ought  to  exist,  and  at 
the  same  time  it  onght  to  be  subjected  to  re- 
proaches, at  the  pl^ure  of  every  man  that 
thinks  proper  to  put  reproach  upon  tbein,  by 
publishing  a  libel.  1  only  wish  to  have  those 
two  proiiositions  examined.  That  two  great 
bodies,  whose  whole  benefit  and  existence,  nay 
their  authority,  is  to  govern  the  whole  nation ; 
and  are  they  to  be  in  the  power  of  every  man 
whatsoever  to  revile  them  with  what  personal 
insolence  of  language  he  pleases  ?  Does  thia 
come  at  all  to  the  idea,  that  an  honest  man 
would  allow  his  own  opinion,  under  the  pre- 
tence of  discussing  public  subjects  ?  Will  any 
man  of  honour  say  you  may  revile,  with  im-' 
putations  of  reviling,  the  persons  of  men,  with- 
out going  any  further  ?  Is  that  a  colour  to  cover 
this  libel?  After  having  treated  the  House  of 
Commons  thus,  he  returns  again  to  the  king, 
and  is  pleased  to  threaten  the  king  with  an  unt# 
versal  revolt  of  all  bis  injured  subjects.  lie 
begins  with  tlie  kingdom  of  Ireland,  which  be 
is  pleased  to  call  a  plundered  and  oppressed 
kingdom,  with  no  more  rmrd  to  truth  than 
understanding  and  knowledge  enough  of  the 
subject  to  keep  up  the  probability  ;  for  of  ail 
quarters  of  the  world,  he  should  not  have  looked 
there  for  that  sort  of  imputation,  as  he  is  pleased 
to  put  it.  And  here  he  is  introducing  another 
character  upon  the  stage,  merely  for  the  sake 
of  traducing  the  king  afterwards  ;  that  is  lord 
Townshend.  **  The  people  of  Ireland  every 
day  give  you  fresh  marks  of  their  resentment, 
(speaking  of  the  king)  They  despise  the  mi- 
serable governor  you  have  sent  them,  because 
he  is  the  creature  of  lord  Bute  ;  nor  is  it  from 
any  natural  confusion  in  their  ideas ;"  no,  they 
are  right  enough  in  that,  he  supposes  **  that  they 
are  so  ready  to  confound  the  original  of  a  king, 
with  the  disgraceful  repreaentation  of  him.*' 
This  is  the  manner  of  talking  to  the  king.  I 
have  had  the  honour  to  converse  and  live  with 
lord  Townshend,  as  long  as  anybody.  ^Ul  I 
have  to  say  of  him,  is,  be  is  very  far  from  de- 
serving such  a  character.  But  I  hope  that 
will  not  be  taken  as  a  very  gross  observation, 
that  a  man  who  has  lived  with  him,  dare  to  say 
so.  But  I  desire  but  one  word  concerning  the 
immorality  of  that  sort  of  conduct,  that  under 
the  cover  of  anonymous  publication,  men  are  to 
bespatter  io  thii  kiud  of  way,  and  in  thai 


875] 


10  GEORGE  III. 


Trial  of  John  Miller, 


[876 


way  reflect  upon  the  condition  of  officers  in 
this  situation.  If  he  should  apply  to  a  court  of 
law,  and  submit  it  to  a  jury,  if  they  were  not 
deaf  to  his  complaints  he  would  Im*  relicTed, 
unless  they  were  not  disposed  to  protest  his 
character,  and,  upon  the  contrary,  were  to 
take  the  part  of  a  man,  who  under  cover  of 
an  anonymous  publication,  attacks  his  cha- 
racter in  this  manner,  with  this  method  of  tack- 
Ing  to  it  at  the  end,  that  he  was  a  proper  re- 
presentative of  the  king-. 

The  next  article  is :  "He  has  taken  a  deci- 
sive personal  part  against  the  subjects  of  Ame- 
rica, and  those  subjects  know  how  to  distinguish 
the  sovereign  and  a  venal  parliament  upon  one 
side,  from  the  real  sentiments  of  the  English 
nation  upon  the  other."  For  God's  sake,  is  that 
no  libel?  To  talk  of  the  king,  as  takinjg^  a 
part  of  an  hostile  sort  against  one  branch  ofhis 
subjects,  and  at  the  same  time  to  connect  him 
in  the  article  of  acting  in  this  manner  with  that 
parliament,  which  he  calls  a  venal  parliament ; 
18  that  no  libel  ?  I  beg  leave  to  ofa«erve,  con- 
cerning what  parts  apply  to  him,  that  Eng- 
land he  has  represented  as  being  engaged  in  a 
Quarrel  against  -the  king ;  and  consequenlly, 
that  he  stands  against  them  with  a  few  un- 
happy people,  who  are  not  at  liberty  to  choose 
their  principles ;  but  fancy  themselves  bound 
to  unhappy  principles ;  those  few  men,  he  de- 
sired to  be  understood,  were  the  whole  support, 
and  the  whole  attachment  to  the  king.  Then 
he  goes  to  the  partiality  of  his  understanding 
to  the  soldiers.  Now  it  is  worth  your  atten- 
tion, gentlemen,  to  see  bow  very  malignant  the 
^object  of  that  man  must  be  who  wishes  to  set 
this  party  against  the  other ;  and  tells  the  king 
he  might  learn  to  dread  the  undisguised  resent- 
ment of  people  that  are  ready  to  meet  their  so- 
vereign in  the  field.  Tlicn  you  see  how  ma- 
lignant that  must  be,  and  how  it  applies,  when 
you  read  that  part  with  respect  to  the  guards, 
where  he  says,  **  when  the  distant  legiotis  took 
the  alarm,  they  marched  to  Rome  and  gave 
away  the  empire.*'  This  is  the  representa- 
tion of  the  occasion,  upon  which  the  guards 
bad  preferments  lavished  upon  them,  and  the 
cruelty  with  which  the  marching  regiments 
had  been  treated,  in  order  to  raise  a  quarrel,  in 
short,  between  them.  Now,  gentlemen,  there 
are  an  hundred  different  passages,  in  which 
the  king  is  told  he  has  no  good  quality,  but 
every  bad  one  upon  earth.  He  is  bid  to  dis- 
card bis  little  persona]  resentments,  which  have 
so  long  directed  his  public  conduct.  Is  it  not 
shameful  to  talk  in  that  manner?  and  in  a 
thousand  instances,  too  long  and  too  disagree- 
able to  repeat,  the  king  has  been  treated  thus, 
from  the  beginning  to  the  end;  and  in  con- 
clusion, he  18  told  what  he  is  to  expect  next, 
unless  he  conforms  to  this  anonymous  writer ; 
that  /s,  another  revolution ;  and  that  the 
prince  who  imitates  the  conduct  of  the  Stuarts, 
.ihould  be  warned  by  their  example,  and  while 
be  plumes  himself  upon  the  security  ofhis  title 
to  tne  crown,  should  remember,  that  as  it  was 
M^oured  by  one  revolution,  it  may  be  lost  by 


another.    If  yon  have  any  difficulty  of  ima- 
gining what  that  crown  is,  what  his  title  is, 
who  IS  in  possession  of  that  title,  acquired  by 
one  revolution,  and  what  it  is  that  is  meant 
by  another;  they  are  difficulties   that  have 
not  yet  occurred  in  any  one  ooffee-bouse  in 
this  great  metropolis,  nor  one  place  in  the  coun- 
try, frofb  one  end  to  the  other,  wherever  this 
libel  has  been  published ;  such  is  the  nature  of 
the  libel,  with  respect  to  that.    Af\er  having 
stated  to  you,  what  I  look  upon  to  be  the  ap- 
plication of  the  paper,  to  the  several  articles 
mentioned  more  particularly  thab  all  to  the 
king ;  and  having  laid  before  you  what  will  ke 
the  general  form  of  the  evidence,  in  order  to 
prove  the  present  defendant  guilty  of  printiDjf 
and  publishing  this  paper,  it  will  be  for  yon  to 
determine,  if  I  may  use  a  word  that  looks  so 
Hke  doubting  the  determining  upon  such  t 
question  as  this.    If  you  have,  any  of  you, 
any  seriaus  thoughts,  whether  the  author  of 
this  paper  did  mean  the  king ;  and  whether  he 
did  mean  the  great  officers,  the  lord  lientenint 
of  Ireland,  or  any  other ;  and  i^hetlier  be  did 
mean  concerning  the  ofl^cers  of  this  countiTi 
and  endeavouring   to  set  one  party  of  the 
country  against  another;    if  you  have  IST 
doubts  upon  that  among  yourselves,  that  wis 
admit  you  to  acquit  him.    If  you  have  so 
doubts,  and  do  return  a  verdict  of  acqoitul 
without  such  doubts,  or  that  you  return  a  ver* 
diet  which  tlie  Court  must  understand  in  a  dif- 
ferent way,  which  the  Court  must  construe  dif- 
ferent from  what  you  intend,  then  you  6od  i 
false  verdict.     For  it  lies  upon  you,  to  fiod  t 
conclusion  from  the  evidence ;  or  to  say,  whtt- 
ever  we  think'  of  the  evidence,   and  howetcr 
we  are  convinced  of  the  conclusion,  we  are  d^ 
termined  to  reject  that  evidence,  and  to  day 
that  conclusion,  and  to  betray  the  sense  of  our 
own  minds,  rather  tlian  to  execute  the  lawi. 
But,    gentlemen,     upon    the     contrary,  yoa 
will  proceed  in  the  administration  of  justice 
and  tne  law,  without  adopting  tlie  part  of  the 
author,  wlio  lias  set  himself  up  for  the  accuser 
of  liis  king,  and  as  yet  has  not  had  the  face  to 
shew  himself,  though  he  has  been  the  rsD- 
corous  enemy  of  so  many  people. 

Daniel  Crowder  sworn. 
Examined  by  Mr.  ATorton. 

Crowder,  what  is  your  business? — I  am  u 
assistant  to  the  messenger  of  the  press,  Sir. 

Very  well.  Do  you  know  tlie  defrodtit 
John  Miller  ? — I  believe  I  know  him,  I  beliefC 
be  is  in  that  quarter. 

Now,  Sir,  give  my  lord  and  the  jury  an  ac- 
count, whether  at  any  time,  and  when,  yoa 
bought  the  paper,  wliicli  I  belifve  you  bav< 
in  your  hand.— [No  answer.  The  paper  pw- 
duced.] 

What  is  Miller?  What  business  does  be  fol- 
low ?~He  is  the  publisher  of  the  LoodiB 
Evening  Post. 

Now  give  an  account  where  you  bought thit 
paper.— I  bought  it  at  Mr.  Miller's;  it  «ii 
served  to  me  by  his  publisher. 


JoraUM. 
t  is  bis  name?— His  name  is  PbippSy  I 

«  did  he  senre  yoa  with  it?— -^Id 
i-Head  Passage. 

It  the  place  where  bis  basiness  of  print- 
mnried  on? — I  nerer  saw  them  print 

It  the  place  where  they  are  soM? — It  19 
?e  where  they  are  pubfisbed. 

you  frequently  boaght  that  paper  at 
'P? — I  have, 
t  name  do  yon  call  his  shop  where  yoa 

it  ?— The  publishing  room ;  1  do  not 

bother  that  is  proper,  but  that  is  what 

Hit. 

ly  time  have  you  been  there,  and  hafe 

n  the  defendant  ?— [No  answer.] 

m  did  you  buy  it  of? — I  bought  it  of  a 

0  is  servant  to  Mr.  Miller,  they  call  him 
and  I  think  Phipps,  I  won't  be  certain 
liat;  he  was  always  called  Frank  by 
>dy. 

( you  at  other  times  been  at  that  place 
he  publishing  room,  for  the  paper  that 
te  name  of  the  London  Evening  Post, 
e  you  bought  them  there  ? — Yes,  Sir, 
me  they  were  published ;  either  I,  or 
onging  to  me ;  1  can't  say  always  that 
leen  there  myself. 

}  you  frequently  ? — I  have  frequently. 
'.  you  waited  at  any  time  till  the  papers 
en  ready  to  be  delivered? — Very  rarely, 
seen  people  wait  and  go  up  stairs,  but 

1  generally  the  readiest  of  any  body, 
are  the  most  diligent  of  any  others?— 

re  in  general  the  most  forward. 
iryman.  You  bought  that  paper?— 
r.  Yes,  gentlemen,  I  bought  that  paper. 
Morton,  How  long  have  you  known 
Phipps,  the  lad  you  bought  it  of  ?— 
r.  I  have  known  him  ever  since  he  be- 
tublish  that  paper, 
long  is  that  ? — About  three  quarters  of 

London  Evening  Post  read  in  court,  N*. 
,  that  part  of  it  signed  Junius. 

Robert  Harris  sworn. 

Examined  by  Mr.  Wallace. 

hat  business  are  you  ?  What  office  do 

ong  to  ? — The  Stamp-office. 

t  office  do  you  hold  there? — ^The  re- 

f  pamphlets  aud  news-papers. 

,  Sir,  are  news-papers  brought  to  your 

)  be  stampt? — Yes,  Sir. 

ou  receive  the  duty  for  advertisements 

^papers? — Yes,  Sir,  I  do. 

,  Sir,  do  you  know  who  the  printer  is 

London  Evening  Post  ? — 1  have  it  here. 

Dg  at  a  large  parcel  of  news-papers 

ogether  in  a  l>ook.] 

^ou  know  the  defendant  Miller  ? — ^Yes, 

papers  brought  to  your  office  for  print- 
I  London  Evening  Post  on  ? — They  are 
ought  to  be  stampt,  and  sent  out  blank, 


A.  D.  177a 


[878 


and  when  printed,  broaght  into  the  office  to  be 
charged  for  the  dntyy  one  of  each  paper  every 
day. 

Whose  serrants  bring  them  to  be  stampt  ?— 
Mr.  Miller's.  After  they  are  stampt,  the  mo- 
ney is  sent,  H  may  be  by  himself,  or  his  ser- 
vants ;  the  money  for  15,000  may  be  brouffht 
together,  then  they  are  returned  to  the  office 
after  they  are  printed,  for  the  number  of  ad- 
vertisements to  be  found  ont  and  charged  with 
the  duty. 

Who  pays  for  the  advertisements? — Mr. 
Miller.  It  does  happen  sometimes  that  the 
number  of  papers  may  not  be  sold,  then  the 
money  is  returned. 

You  say,  the  duty  is  returned  ?— For  the 
unsold,  the  duty  is  returned. 

How  do  you  verify  that  ?— They  are  return- 
ed, and  they  make  an  affidavit  that  they 
made  no  profit  of  the  papers,  and  then  the 
stamps  are  returned  again,  and  the  duty  is  re- 
turned. 

Who  makes  that  affidavit  ?— Mr.  Miller. 

How  is  the  account  of  the  advertisements 
settled  ? — We  settle  it  efery  month. 

Who  comes  to  settle  with  you  ?— We  charge 
them. 

Whom  do  you  charge  the  London  Evening 
Post  to  ?— To  Mr.  M  ilTer. 

Who  comes  to  pay  you  at  the  end  of  the 
month  ? — It  may  be  two  months,  or  it  may  be 
three  months  before  they  are  paid. 

Who  comes? — May  be  Mr.  Miller,  may  be 
his  porter. 

Does  be  come  himself  frequently? — ^Yes, 
sometimes. 

Does  he  settle  and  pay  for  the  advertise- 
ments ? — Yes. 

Have  you  the  paper  of  Saturday  December 
16,  to  Tuesday  December  19, 1769  ? 

STbe  witness  looks  at  bis  volume  of  papers 
turns  to  that  paper.] 

This  is  the  paper  sent  from  Mr.  Miller  to 
your  office  ? — Yes,  Sir,  they  are  brought  into 
our  office. 

Mr.  Wallace.  The  paper  is  of  the  same  date, 
and  number  26,672. 

Mr.  Tkurlow  to  the  defendant's  counsel. 
Do  you  ask  this  witness  any  questions  ? 

Defendant^ i  Counsel.  No. 

Sot.  Gen.  Then  we  have  done. 

Serj.  Glynn.  Please  ypur  lordship,  and  yon 
gentlemen  of  the  jury,  to  favour  me  in  this 
cause,  in  behalf  of  Mr.  Miller,  the  defendant. 
Gentlemen,  the  learned  gentleman  who  opened 
the  cause  in  support  of  the  information,  has 
told  you,  that  of  this  publication,  no  lawyer, 
not  a  man  of  the  profession  in  the  kingdom,  he 
thinks  will  seriously  avow, — the  learned  gen- 
tleman who  appears  in  supnort  of  the  informa- 
tion, has  said,  no  man  wiA  seriously  avow  a 
defence  and  justification  of  the  publication  now 
under  your  consideration.  Gentlemen,  I  have 
had  the  misfortune  to  be  very  much  misunder- 
stood, if  I  gave  any  inference  of  m^selC^^&t  «n<| 


879] 


10  GEORGE  III. 


Tritd  of  John  Milter, 


[880 


•dmiMion  of  the  least  degree  of  gotlt  or  tsrimi- 
nalitv  in  a  similar  publication  to  this.  I  en- 
tered into  a  defence  as  seriously,  and  as  ar- 
dently wished,  that  such  weak  arguments  as 
mv  understanding  might  furnish  me  with, 
might  be  pretalent  in  that  case,  with  that 
anxietv  that  always  will  attend  questions  of  the 
most  important  nature,  and  expecting  an  in« 
atant  decision.  I  appear  uow,  as  then,  avow- 
edly defending  the  publication  of  the  paper.  I 
approach  with  the  same  anxiety,  and  have 
■ome  relief  to  that  anxiety,  finding  the  deter- 
mination of  this  important  question  in  the  hands 
of  a  jury  of  the  principal  citizens  of  London. 
Gentlemen,  I  made  no  objection  to  that  neglect 
and  remissness,  in  convening  a  full  Jury  here, 
persuaded  as  I  am,  that  collect  the  jury  where 
they  will,  among  the  inhabitants  of  this  me- 
tropolis, it  is  impossible  to  find  men  with  hearts 
•0  foreign  to  the  ideas  they  owe  to  liberty  and 
public  justice  as  to  allow  tue  con? iction  of  the 
present  defendant.  Gentlemen,  my  learned 
friend  has  said,  that  upon  the  last  trial,  no  par- 
ticular passages  were  pointed  out  to  which  we 
thought  proper  to  apply  a  particular  vindica- 
tion. The  cuarge  was  general ;  the  answer,  I 
allow,  was  as  general ;  and  I  think  it  seems  as 
proper  and  becoming  to  leave  the  construction 
of  a  paper  to  a  jury  of  citizens,  who  are  the 
most  competent  judges  of  what  sense  and  con- 
struction belongs  to  a  paper,  unassisted  by 
counsel.  And  if  I  did  not  enter  into  a  defence 
of  particular  passages,  it  was  because  a  general 
charge  was  exhibited,  and  no  particular  pas- 
sages pointed  out,  as  bearing  an  unjjstifiable 
construction.  My  learned  friend  says,  he 
knows  no  party  so  dangerou.4,  as  mercenary 
writers  employing  their  pens  in  the  aspersion 
of  private  characters,  or  the  misrepresentation 
of  public  measures.  I  do  most  heartily  agree 
witli  the  gentleman,  in  a  detestation  of  those 
men  who  can  be  procured  by  any  emoluments 
coming  from  any  quarter,  to  prostitute  their 
pen  to  the  calumniation,  slander,  and  depre- 
ciating of  the  best  characters  in  the  king- 
dom. 1  do  most  heartily  agree  with  him  in 
despising  and  contemning  the  authors ;  but  I  I 
do  look  further,  and  1  bestow  the  higher  mea- 
sure of  indignation  and  condemnation  on  that 
fountain  from  whence  flows  the  encouragement 
to  such  pernicious  prostitution.  None  of  that 
sort  has,  however,  been  thought  proper  to  be 
brought  before  you,  with  regard  to  the  great 
and  respectable  characters  that  have  been  at- 
tacked, us  they  say  they  have  acted  with  im- 
propriety in  leaving  the  publisher  to  the  pu- 
nishment that  a  Just  and  indignant  public  jury 
will  always  inflict  upon  indignant  writers  ; 
and  if  that  is  to  be  pursued,  it  should  be  of 
those  writers  there  should  be  a  reparation 
sought  tor,  to  the  constitution  ;  and  those  cha- 
racters that  you  see  every  day  in  daily  publica- 
tions, publicly  libelled  and  traduced,  there 
might  be  reparation  sought  for  to  those  great 
characters,  though  they  cannot  be  protected 
from  the  scurrihty  of  malignant  pens.  But 
gentlemen,  none  of  them  are  brought  before 


you ;  it  is  a  case  of  a  difl*erent  sort ;  and  1  am 
at  a  loss  to  guess  how  the  word  '  mercenary' 
can  bear  any  application  to  the  present  charge. 
1  have  always  in  my  own  thoughts  distia^ 
guisbed  between  those  that  prostitute  their  oirn 
pens,  and  become  the  stipendiary  instruments 
of  parties  and  ministers,  and  those  pens  which 
are  called  forth  in  the  defence  ot  particalar 
opinions,  and  only  ofl*er  the  disctissions  of  those 
opinions  to  the  public.     1  have  always  lliougbt 
it  of  the  utm(»bi  importance,  that  the  latter 
ahould  be  j)rotected  and  encouraged.     J  f  in  the 
paper  here  before  you,  you  see  uo  more  than  1 
profess  I  see,  a  writer  calietl  forth  by  ardeat 
zeal,  for  the  safety  of  that  sovereigu  which  he 
tliinks  in  danger,  and  for  the  safety  of  that 
country  whose  rights  are  involved  in  the  same 
danger,  called  out  to  deliver  his  opinion  of  that 
in  this  publication  ;  I  am  so  far  from  thinking 
that  paper  obnoxious  to  any  degree  of  censure 
and  condemnation,  that  I  think  the  author  must 
hare  been  said  to  have  acted  a  justifiable  part, 
to  have  obeyed  the  call  on  a  good  citizen,  ia 
convieying  the  alarm,  and  giving  notice  whert 
he  thought  it  necessary.     My  learned  friend 
has  the  same  idea  of  the  matter  now  to  be  de- 
termined, upon  the  grounds  on  which  you  are 
to  form  your  decision,  that  I  entertain  ;   it  lies 
entirely  in  your  own  breasts  to  determine  it ; 
and  I  would  not  insinuate  any  thing  that  I 
think  they  ought  to  adhere  to,  as  I  know  yoo 
to  be  a  jury  so  well  acquainted  with  your  duty, 
that  no  instructions  are  necessary.     For  we  til 
know,  that  in  all  times,  the  honest,  intrepid, 
upright  conduct  of  a  jury  must  l»e  the  refugt 
of  the  people  of  this  kingdom.    That  has  btta 
their  security,  when  all  other  securities  have 
been  taken  away,  and  their  liberties  likewiif. 
They  must  and  will,  in  the  natural  course  and 
evolution  of  things,  flee  again  to  the  same  asj- 
lum  ;    and  upon  that  account,  gentlemen  lint 
are  called  to  exercise  that  important  duly,  flo 
not  want  to  be  informed  of  that  line  of  juris- 
diction  that  falls  to  them  ;  that  jurisdiction  tbit 
they  are  to  keep  inviolable,  and  that  jurisdic- 
tion upon  which  depends  the  security  of  every 
subject  of  this  kingdom:  and  that  jurisilictioff, 
if  once  broke  in  upon,  makes  juries  usetris; 
and  the  practice  and  insult  upon  that  substas- 
tial  benefit,  the  constitution  hoasis  of  in  it.ao^ 
the  public  have  constantly   reaped    fmm  il« 
that  line  of  distinction  the  jury  have  to  detpr* 
mine  of  the  full  matters  b^ore  thrm,  and  1 
believe  I  shall  be  in  no  decree  contradicted, 
when  I  shortly  state  the  question  you  are  1^ 
determine.     Gentlemen,  Mr.  Miller  is  a  citiuo 
of  London,  and  is  charged  with  having  sedi- 
tiously published  a  paper  reflecting  ujiod  lb* 
person  of  the  king  ;  vilifying  his  subjects,  an' 
wrote  vith  a  view  of  exciting  a  sedition  ;  vili- 
fying the  person  of  the    king  ;    wrote  with  i 
view  of  exciting  sedition,  with  intent  to  anes- 
ate  the  afl!*ections  of  the  subjects  from  bisRis* 
jesty.     That  is  the  general  description  of  ikt 
charge  against  him  before  you.     It  is  MikfH 
in  the  information,  that  it  is  a  seifrtKNii  I3i<^ 
reflecting  upon  the  king»  his  •dministratioB  ^ 


881] 


Jbr  a  Libel. 


i 


gOTerament,  and  bis  principal  officers  of  statci 
aad  the  boD.  House  of  CominoDt ;  and  in  the 
words  and  daabes  cooiaiued  in  the  specifica- 
tion of  tbe  letter  itself;  and  if  tbose  words 
were  admitted,  it  is  incumbent  upon  yon,  and 
you  must  give  satisfaction,  and  conrict  tbe 
aeftodant;  and  if  tbat  is  not  wanting,  you 
are  called  upon  by  your  duty,  to  convict  tbe 
defendant.  Gentlemen,  I  would  not  be  under- 
stood here  to  be  making  a  cavil  of  defence, 
as  if  1  insisted  literally  upon  a  proof  of  every 
part  of  it.  This  I  insist  upon,  that  in  all  eases 
whatsoever,  tbe  principle  of  the  crime  is  the 
malignant  mind,  the  bad  design  and  intention 
in  tbe  writer ;  and  you  must  be  satisfied  of  the 
proof  and  the  nature  of  the  subject  before  you, 
that  there  was  that  malignant  disposition  in  the 
writer.  You  must  be  convinced  here,  that 
there  was  sedition  in  the  intention ;  and  if  that 
proof  is  wanting,  that  charge  is  not  made  out ; 
It  IB  like  all  the  other  cases  of  criminal  prose* 
cations,  whether  for  felony,  perjury,  or  trea- 
son ;  you  must  find  the  intention  ;  it  must  be 
proved  wilful  and  corrupt,  in  case  of  perjury ; 
and  if  they  were  to  say  they  found  the  word 
filse,  without  wilful  anil  corrupt,  they  have  in 
cftct,  acquitted  the  tlefeudant.  They  would 
do  better,   if  in  eipHctt  w«)rils,   they  would 

rk  in  the  language  of  the  law,  in  snyiug, 
defendant  is  not  guilty.    There  is  danger 
ia  not  being  explicit,  where  the  facts  justify  an 
explicit  explanation  ;    and  I  do  submit,  gentle - 
Ben,  that  m  tlie  present  case,  you  must  be  con- 
vinced there  is  a  seditious  meaning  and  inten- 
te  running  though  the  whole  of  this  publica- 
tien,  though  I  don*t  see  it  is  necessary  to  give 
proof  of  the  whole,  but  you  must  be  convinceil 
«f  the  seditious  intention,  so  as  to  affect  the 
defendant  with  a  proof  of  the  seditious  inten- 
tioQ  at  the  time  he  published  it.     Gentlemen, 
■y  learne«l  friend,  knowing  that  to  be  the  case, 
koowing  the  necessity  of  such  proofs  to  sup- 
port tbe  present  charge,  he  has  entere<l  into  an 
examination  of  the  paper,  ami  he  has  laboured 
teooovince  you,  that  this  is  a  direct  personal 
fiiiel  and  invective  at^ainst  the  king.     Gentle- 
tteo,  if  a  subject  of  this  kingdom  so  far  forgets 
kisdaty,  as  to  traduce  and  calumniate  the  per- 
son of  the  king,  in  that  cabc  it  would  cut  off  a 
^oua  defence;  but  it  is  necessary  to  the  |)re- 
*%t  prosecution,  you  should  understand  it  so  ; 
^e  learned  gentleman  has,  for  that  reason,  so 
Itbonred  it,  and  you  will  judge  of  the  success 
^his  labours.    You  will  judge  how  well  war- 
Elated  by  the  paper  before  you,  are  the  con- 
fections the  learned  gentleman  has  put  upon 
It    In  the  Arst  place,  says  the  learned  geu^ 
^loQau,  every  bad  quality  is  im{)uted  to  the 
^iog;  every  good  quality  denied  him.      Gen- 
^l«inen,  I  submit  to  your  own  consideration, 
^^Km  reading  the  paper,  whether  the  obvious 
^ieaoing  of  the  author  is  not  quite  contrary  to 
^  meaning  put  upon  it  by  my  le&rni-d  friend ; 
^  whether  he  has  not  repeatedly  borne  testi- 
*^v  of  the  royal  virtues  of  tlie  king.     Is  that 
^IphcatioD  jutt  ?  Is  it  just  to  sav,  this  is  a  paper 
^Munioi^  the  imputation  of  all  bad  qualifica- 


A.  D.  177a  [881 

tiona  to  the  king  himself,  and  denying  thos6 
virtues  which  afl  the  world  knowbim  to  b«' 
possessed  of?  Through  the  whole  of  the  paperi 
there  is  not  an  imputation  of  any  bad  quality 
in  the  king.    On  the  contrary,  those  bad  qua* 
lities  are  imputed  to  others.    The  learned  gen* 
tieman,  in  his  further  prosecution  of  that  dc" 
sign,  to  make  you  assent  to  his  propositions,  if 
subtilty  can  draw  it  from  the  line  ot  truth,  and 
give  it  that  aspersion  he  aaya  it  contained  ;    ha 
has  told  yon  his  education  is  libelled;     his 
condition,  bis  situation,  and  the  whole  ia  a  libel 
upon  him  in  the  supposed  difficulties  in  the 
access  of  an  honest  man  tn  his  closet,  to  tell 
him  he  ia  surrounded  by  flatterers,  and  that 
truth  don't  find  easy  access ;   and  that  is  an 
aspersion  upon  the  king.    It  baa  been  the  case 
of  the  best  of  kings ;  and  no  good  qoi^itiea 
in  the  mind  of  a  sovereign  can  guard  against 
it.    The  most  active  and  vigihint  kings,  nave^ 
in  some  part  of  their  lives,  suffered  in  the  ad- 
ministration of  government,  from  the  diffi-* 
culty  there  is  to  convey  the  truth  to  their  ear. 
It  is  not  the  person  of  the  king,  it  is  the  mis- 
fortune of  a  throne  that  it  cannot  be  accessible 
to  people  of  all  denominations.  If  their  servanta 
are  corrupt,  they  are  surrounded,  and  a  barrier 
is  formed  against  the  approach  of  all  others, 
that  would  convey  any  useful  caution  to  the  ear 
of  the  king.     If  he  is  in  the  hands  of  bad  ser* 
vents,  the  most  wholesome  steps  are  to  be  taken 
to  deliver  himself  from  those  servants.      Haa 
that  construction  coutended  for  by  my  learned 
friend,  and    iogenionsly  stated  to   you,  has 
it  been  well  warranted  by  the  paper  before 
you  ?    Let  us  consider  the  other  ground  upon 
which  it  has  been  contended.   It  has  been  said^ 
the  lord  lieutenant  of  Ireland  has  been  treated 
wrongfully,  and  he  don't  deserve  that  title ; 
and  my  learned  friend  said,  he  himself  would 
defend  him,  as  he  has  known  his  conduct,  and 
been  acquainted  with  him.  The  lord  lieutenant — 
with  regard  to  what  it  said  of  him,  and  to  make 
it  apply,  it  has  been  said  it  infers  an  insult  upon 
thekuig,  because  he  is  told,  after  the  disgraceful 
picture  has  been  drawn  of  the  viceroy  and  de- 
puty, that  he  is  a  fit  orworthv  representative  of 
the  person  that  sent  him.    Itead  that  passage, 
gentlemen  ;  I  desire  that  passage  may  be  fair- 
ly read.    The  import  is,  as  1  am  warranted  br 
the  words — and  1  expect  to  find  no  credit  witn 
this,  or  any  jury,  if  1  wilfully  misrepresent  any 
thing— the  import,  as  I  take  it,  is,  that  a  dis- 
graceful viceroy  has  been  sent  to  a  neighbour- 
ing kingdom  ;   and  the  ini{>ort  of  the  |>aper  is, 
it  was  that  viceroy  that  has  drawn  discredit  upon 
the  person  that  sent  him.  Whoscnt  him  ?  that 
person  is  not  named  that  sent  him,  nor  is  ther^^ 
a  word  said,  nay,  it  is  so  far  fn^m  lieing  said,  that 
representative  is  a  worthy,  becoming,  or  similar 
representative  of  his  sovereign,   the  contrary 
is,  in  direct  words,  said — his  sovereign  is  dis* 
(graced  by  him.      This  is  the  thir<l  (ground  by 
which  it  is  represented,  there  must  be  a  per- 
sonal application  of  this  to  the  king.      Then 
my  learued  friend  says,  the  next  charge  upon 
him  is,  tbat  be  takes  a  share  in  the  iiarre\f 
SL 


B8S]  10  GEORGE  m. 

▼iewt  and  fatal  malignity  of  some  indif idnali, 
to  sacrifice  a  pri?ate  object ;    and  that  he  had 
stretched  every  nerve  of  government,  and  tio- 
lated  the  constitution,  by  an  ill-advised  per- 
sonal resentment.     Is  it  criminal  to  say,  evsrv 
ministerial  power  has  been  employed  to  crusn 
that  man  ?  if  it  is  criminal,  Mr.  Miller  makes 
one  amongst  millions  of  guilty  gentlemen. 
Does  that,  however,  in  the  least  degree,  apply 
to  the  person  of  the  king?    Are   you    not 
then,  by  reading  the  paper  itself,  convinced, 
that  this  has  no  application,  in  any  de^j^ree, 
of. that  kind,  to  the  person   of  the   king? 
It  contains  no  insinuation  to  his  disgrace,  no 
reflection,  no  personal  resentment  upon  him  ; 
and,  is  it  criminal  in  a  man  to  say,  if  be  thinks 
so,  that^  discontents  prevail  in  this  kingdom? 
is  it  criminal  to  state  the  grounds  of  it?    is  it 
criminal,  if  he  thinks  it,  to  say  there  are  dis- 
contents between  one  party  and  another  ?    is 
it  criminal  for  a  man  who  thinks  there  are 
evil  counsellors  about  tiie  king,  to  express  his 
wishes,  that  they  may  be  removed  ?   In  direct 
terms,  these  are  the  vpords,  that  thev  may  be 
removed,  and  the  parliament  dissolved,  and 
every  cause  of  complaint  reniovod  from  his 
government.      And  those  who  wish  for  the 
prosperity  of  the  king,  and  content  and  hap- 
piness, may  form '  such  a  wish  ;    and,  if  justi- 
fiable in  making  it,  certainly  are  justifiable  in 
expressing   it;    and  it   can   be  no   imputa- 
tion upon  the  person  of  the  king  through- 
out.   But  the  measures  of  government  have 
been  freelv  censured,  from  one  end  of  this 
paper  to  the  other,  as  the  cause  of  the  discon- 
tents, and  that  has  been  lamented ;   and  an  in- 
Tidious  interpretation    has  been  given  it,  as 
if  it  was  a  menace  to  the  sovereign.    Gentle- 
men, y^ou  all  know,  that  whoever  gives  a  picture 
of  a  distracted  and  discontented  people,  if   he 
means  to  convey  honest  advice,  would  name 
those  consennences,  which,  in  the  course  of 
things,  arc  lifcely  to  follow ;  the  more  he  dreads 
and  apprehends,  and  wishes  to  avert  them, 
the  more  freely  will  he  name  them,  heeause 
that  is  the  means  often  to  prevent  them  ;  and 
the  author  mny  say,  I  fear,  in  course  of  time; 
they  may  happen,  and  he  may  point  out  the 
means  hy  which  they  may  he  averted.    The 
fears,  and  not  the  menace  ()f  the  writer  is  con- 
veyed to  the  crown.    Then,  gentlemen,  I  sub- 
mit to  yon,  upon  a  full  consideration  of  the 
paper  before  you,  there  are  no  refieclions  upon 
the  person  of  the  kin;; ;    hut  the  measures  of 
government  are  canvassed  with  that  freedom,  I 
J)0|ie  I  shall  always  see  them  treated  with  in 
tliis  k'u)(;dom.     I  hope  I  shall  never  see  them 
meet  wiih  any  (liscournsfement  from  juries,  to 
say  the  p('r>oii  of  the  king  is  surrounded  with 
evil  couLsellors;  upon  an  examination  of  it,  if 
that  should  be  the  case,  and  ihey  should  meet 
with    discouratjement,    it    is    shutting    their 
mouths  to  any  enquiry  at  all,  and  they  must 
rest  contented  at  every  act  that  is  done  by  the 
kinvr's  servants,  though  that  is  virtually  a  dis- 
tinction in  law  from  the  king.    We  do  not 

•outider  that  it  ii  tbe  luog  iamt$  w»r  or  peacci 


Trial  of  John  MtBeTf 


(88« 


and,  it  is  not  only  justifiable  to  say,  that  war  ia 
not  begun  properly,  but  peace  is  not  made  pro- 
perly :  for,  it  has  been  frequently  the  case  of 
this  kingdom,  to  exercise  the  royal  prerogative 
of  the  seal  to  a  peace,  which  has  been  de- 
clared to  be  ignommioDS  and  diihoDOuraUe  it 
the  same  time.  At  the  same  time  we  gmrd 
the  person  of  the  king ;  it  is  not  his  peace,  but 
the  ministers,  and  they  should  be  puoiahed  kt 
it.  The  ministers  have  then  made  use  of  this 
argument,  it  is  the  king's ;  unfaithful  to  tkeir 
sovereign,  if  they  have  drawn  reproach  opoa 
themselves,  the^r  will  shelter  tbemselTei  be- 
hind the  curtain,  and  will  produce  hn. 
Whenever  measures  are  freely  wrote  of,  who- 
ever should  introduce  the  name  of  the  lung  ai 
the  author  of  it,  he  is  the  person  who  acts  oa- 
worthy  of  that  duty  he  owes  to  the  king,  sad 
he  has  libelled  the  king,  and  brought  his  per- 
son into  danger:  those  that  take  from  tbeoffi* 
cers  of  the  crown,  and  throw  that  upon  tbs 
king  which  belongs  to  them,  treat  the  person  of 
the  king  ill,  and  make  a  libel  upon  him :  kt 
the  jury  wiU  pot  a  right  construction  upon  tbii 
paper.  The  jury  wm  consider  the  necessity  of 
a  free  examination  of  measures,  and  they  wl 
not  suffer  an  expedient  to  take  place,  wUdl 
woald  be  at  once  unfaithful  to  the  crown,  ud 
dangerous  to  the  subject,  to  shut  our  moolli 
to  all  sorts  of  discontent,  and  to  reduce  thisai* 
tion,  Uke  all  others,  where  oppressions  caaail 
be  expressed,  where  discontents  are  not  knowB, 
till  they  breaik  out  in  events  too  danp^rous,  ni 
too  melancholy  to  be  jnentioned.  And,  ai 
their  discontents  are  known,  they  may  be  la- 
moTed  ;  if  well  or  ill-founded,  they  may  kl 
answered  by  argument ;  if  they  are  ill-OMf 
sures,  it  is  the  happiness  of  this  kingdom,  tbil 
we  owe  to  the  freedom  and  liberty,  which  ill 
security  to  the  throne  and  people. 

Gentlemen,  I  have  troubled  you  thus  largelf 
in  tliis  cause,  in  answer  to  my  learned  friend i 
arguments,  and  I  hojie  my  endeavours  will 
nut  be  needless ;  for,  you  are  the  constitfl* 
tional  judges  of  the  question.  You  have  tbi 
paper  before  you.  It  you  see  upon  examina- 
tion of  this  paper,  that  there  are  none  of  thoie 
seditious  desii^ns,  nothing  of  that  tendeocj, 
nothing  that  conveys  a  proof  of  such  a  male- 
voleut  disposition,  either  in  the  writer  or  tbi 
defendant,  which  is  charged  in  the  informatios, 
I  am  persuaded  you  will  do  your  duty,  an4 
will,  hv  an  explicit  verdict,  not  to  be  misunder- 
stood, declare  the  defendant  not  guilty.  I  trust 
you  will,  gentlemen,  and,  for  that  reason,  I 
don't  trouble  yon  with  comments  upon  the 
evidence  produced  before  you.  It  Is  left  ti 
you,  whether  you  will  say,  a  citizen  of  Londoa 
shall,  for  any  paper  published  in  such  a  way, 
be  so  far  affected  with  the  contents  and  know- 
ledge  of  it,  that  he  should  be  said  to  hsTt 
formed  horrible  and  seditious  machinitioos 
agaicst  the  king  and  the  subjects  of  this  comr 
try.  Gentlemen,  I  shall  not  trouble  you  with 
an^  more  questions  of  this  sort,  beeaoie  I  cia* 
ceive  the  defendant  to  be  si^  in  vonr  handii  I 
hftve  taken  the  liberty  toiubamthat  n  71% 


885] 


Jhrti  Libd. 


-A.  D.  1*770^ 


t88« 


and  yoa  will  terioiitlj  consider  upon  what  yon 
ttre  to  decide.  You  will  consider  whether  he  is 
milty  iu  the  manner,  form,  and  char;^  in  this  in* 
formation,  and  whether  he  is  stulty  in  every  part, 
which  moftlie  added  to  make  up  the  whole  oF 
this  charge.  And,  if  you  say  he  is  guilty,  you 
in  your  own  consciences,  pronounce  him  guilty 
of  erery  particular,  specified  offence,  if  you, 
Qpon  the  other  hand,  should  not  suffer  the  de- 
fendant to  he  non*8uited  upon  the  paper  before 
you,  and  that  you  will  eive  an  example  which 
mie  dsLj  or  another  will  do  honour  to  the  names 
of  the  itirv,  and  the  nation  wiH  derire  that  be- 
nefit which  it  has  always  derired  from  a  jury, 
md  I  hope  it  ef  er  will  •  I  jim  persuaded  you 
will  not  disapprove  of  that  freedom  which  is 
■nde  use  of  in  that  paper,  when  you  see  there 
is  no  intention  of  dom^  ill  in  it,  which  must  be 
left  to  the  wisdom  and  mtegrity  of  those  gentfe- 
Baeo,  who  are  now  the  great  judges  of  that,  and  I 
^rost  I  ha? e  nothing  to  hnr  in  Uie  behalf  of  my 
^iiait. 

Mr.  Bavenpart,  Please  yonr  lordship,  and 
joa  gentlemen  of  the  jur/^  I  anH  of  counsel 
wewMe  for  the  defendant ;  and,  af)er  so  very 
able  a  speech,  by  my  learned  leader,  I  should 
kwe  sat  down  rery  contented  indeed,  if  I  had 
IIkni^  what  the  learned  gentleman  bad  said 
VpOB  the  other  side,  deserved  to  pass  without 
ftotiee.  But  it  has  alarmed  me ;'  and  I  will 
gift  y4>a  the  reason,  why  I  think  it  ought  not 
ia  pass  in  silence.  The  gentleman,  wnen  he 
§rat  opened  it,  took  it  for  granted  it  was  a  libel, 
which  he  presumed,  without  asserting  the  guilt 
It  wan  a  charge  he  would  have  thrown  upon 
others,  but  it  was  a  measure  he  himself  adopted ; 
•ndl,  1  did  expect  from  bis  ability,  and  from  the 
situation  he  fills,  that  you  would  hare  had  a 
eiear  line  of  precision  drawn,  without  a  possi- 
hiltty  of  error,  where  the  libel  began,  and 
where  it  stopped.  He  has  not  ventured  into  a 
particular  explanation  of  the  whole  of  what  he 
oalls  the  libel :  he  has  commented,  indeed,  and 
ia  a  way,  of  which  I  shall  take  notice  bye- 
aiid-b5re  to  you,  upon  broken,  disjointed  mem- 
hen  of  sentences,  without  reading  the  fair  and 
Open  sentence  to  you.  Is  there  any  book,  either 
in  aacred  or  profane  history,  that  would  ad- 
■lit  of  such  a  tearing  and  dismembering  as  that 
htm  been,  withoutleaving  the  book  absurd,  and 
poaaibly  criminal.  Gentlemen,  I  will  now  state 
(a  you  the  manner  in  which  this  prosecution 
oomes  before  you ;  because  I  shall,  b;^  that, 
wipe  off  from  your  minds  any  Impression,  if 
faaoible  any  could  have  been  made,  of  a  sup- 
Ipoaition  that  this  information  has  gone  through 
asiy  consideration,  much  less  received  the 
aaoction  of  any  one  person,  or  anj  court,  but 
cnniei  merely  from  the  hand  of  him  who  has 
taken  the  liberty  to  bring  it  before  you.  Gen- 
tfemen,  the  power  of  exhibiting  these  informa- 
fiaoi  has  fatally  enough  been  lefl  in  the  At- 
fame^  General :  it  is  a  claim  of  office,  and  be 
wees  It  now.  When  the  court  of  Star  Cliam- 
ler  was  abolished ;  when  the  licenser  of  the 
yioss  was  taken  away;  when  the  master  of  the 


Crown-office  was  restrained  from  preferringany 
information,  without  leave  of  the  court,  bume 
how  or  other,  this  power  rema*netl  in  tlie  At- 
torney General.  Gentlemen,  if  thiti  libel  be 
so  clear  and  so  notorious,  why  was  it  not  left 
in  the  ordinary  mmie  of  indictment,  and  why 
not  led  to  a  grand  jury.  ti»  pass  their  senti* 
ments  upon  it  r  why  was  not  the  Court  nrio%ed, 
whether  the  matter  miifht  have  been  h(>ard, 
that  it  might  be  detiTmined  in  some  measure, 
on  its  first  appearaocp?  The  leave  of  the  Court 
would  have  been  obtained,  if  they  had  seen 
proper  ground  ;  an  ans^^er  would  have  been 
given  by  affidavit,  and  by  that  an  o|)pt)rtunity 
of  exculpation;  but  it  comes  iu  that  naked 
state  of  it,  in  the  information  of  that  arhitrary 
creature,  the  Attorney  General,  who  lias  the 
power  to  exhibit,  in  the  way  and  manner  that 
the  luxuriance  of  his  fancy,  and  the  intemper- 
ance  of  his  zeal  may  sugfgest.  Gentlemen, 
you  will  take  it,  divested  of  all  that  circlh 
of  epithets  with  which  it  is  surrounded,  and 
clear  it  from  all*that  imputation  of  office.  I 
will  now,  gentlemen,  consider  the  nature  of 
this  (Question  that  comes  before  yon,. and  tha 
foH  and  the  absolute  power  which  you  have 
over  it ;  for  no  power  in  this  kingdom  has  tha 
least  control  over  you ;  nor  have  they  tha 
least  power  entrusted  to  them  of  deciding  upoa 
the  sulject,  but  what  you  refer  to  them:  it  is 
in  your  hands,  and  it  is  solely  there.  Gentle- 
men, the  learned  gentleman,  taking,  ai  I  said 
before,  the  broken  parts  of  sentences,  has, 
in  my  mind,  introduced  more  real  reviling 
against  the  sacred  character  of  that  person, 
whom  be  supposes  here  to  be  introduced,  thao 
from  any  part  of  the  pamphlet  it  fs  possible  to 
collect.  Yoa  will  obcerve,  that  in  the  very  first 
opening  of  the  writing,  the  writer  states  as 
a  maxim  of  this  constitution,  and  it  is  the  hap* 
piness  of  it,  that  the  king  can  do  no  wrong. 
He  says,  that  he  will  separate  the  private 
virtues  of  the  roan,  from  the  vices  of  his 
government;  the  amiable  prince,  from  tha 
folly  and  treachery  of  his  servants ;  that,  iu« 
stead  of  friends,  persons  in  that  situation,  ara 
too  liable  to  meet  with  the  imputation  of  fa« 
vouriles.  It  is  in  that  manner  he  introduces 
that  very  abuse  that  is  supposed  to  be  thrown 
upon  his  majesty.  Gentlemen,  you  cannot  be 
ignorant,  how  many  controversial  pamphlets 
and  papers  of  every  sort,  of  Juniuses  and  Anti- 
Juniuses,  there  have  l>een  puhiislied,  l»y  every 
man  who  thought  he  had  a  riij^ht ;  and,  I  hope, 
you  will  be  of  opinion,  every  man  has  a  right 
to  submit  his  doubts  to  the  public,  provided  he 
confines  himself  to  a  free,  open,  public,  and 
able  discussion  of  those  grievances,  which,  wa 
cfmceive,  scarcely  affectii  the  mere  ima^ina* 
tioo,  without  a  ground;  and  this  anth(»r  niuRt, 
most  sensibly  have  felt  it,  as,  I  think,  is  mani- 
fest from  the  strength  and  enertry  with  which 
the  paper  itself  ia  couched.  Gfi'itlemen,  you 
will  find,  through  the  whole  uf  this  |iamp1iler, 
the  maxims  with  which  he  sets  out.  1  pre»iumo 
you  will  see,  thattbe  minister  has  found  himself, 
with  all  bis  tribe  of  writers,  unable  ta  dei^sA 


iB7] 


10  GEORGE  m. 


biiDtelf,  and  to  rafate  it ;  and  10  liM  luid  raeomte 
to  the  ool  V  iottraoMOt  which  it  left  in  the 
Iwnila  of  the  Attarncy  General^  the  power  of 
YnSemnf  an  infonnation,  in  order  lo  infol? e, 
in  crimiDai  gnilt,  the  author  of  this  paper, 
whom  he  found  be  oonld  not  refote  by  all  hie 
▼ain  atlenpte.  Gentlemen,  it  haa  beoi  the  ob« 
ner? alien  of  all  agea,  that  when  a  hot,  a  weak, 
and  inexperienced  miniater  happena  to  be  at- 
tacked, nia  conatant  refuge  ta  under  the 
wing  of  majcaty ;  and  that  he  aeraena  him- 
aelf  behind  that  throne,  which,  he  ia  in  hopca, 
the  Bubject  darea  not  approach ;  and,  you  will 
find,  that  the  calm,  the  able  and  experienced 
•tatcaman,  treats  the  attackaupon  hia  meatorea, 
or  upon  hia  character,  with  the  contempt  it  de- 
ner? ea,  if  it  be  true.  .  Gentlemen,  whether  the 
nolNecta  of  thia  paper  be  or  be  not  true,  I 
.  viU  obaer? e  to  you,  that  the  drawer  of  the  in- 
ftrmation,  that  the  exhibitor  of  it  to  you,  the 
Attorney  General,  baa  not  pretended,  in  any 
part  of  It,  to  aay  it  ia  lalae ;  that  you  will  find, 
through  the  whole  tenor  of  thia  information. 
Why  then,  gentlemen,  if  thia  be  the  nature  of 
the  quealion,  and  if  you  hare  the  power  orer 
it,  it  ia  for  you,  anil  you  only,  to  determine, 
whether  th!i  paper  deaert ea  all  the  branding 
•pitheta  with  which  it  w  loaded ;  whether  the 
anbatantial  allegations  drawn  from  it  are  true ; 
which,  upon  your  oaths,  yon  roust  find,  if  yon 
find  the  defendant  guilty— -that  he  has  at- 
tempted to  draw  the  anbjecta  from  their  ao?e» 
reign,  and  to  excite  them  to  an  unnatural  inanr- 
reciion  against  their  prince :  that  ia,  not  by 
words  of  courw,  not  by  aifiectirea,  but  it  ia  in 
snbatantires,  to  be  found  upon  oath  by  yon, 
if  yon  are  of  opinion  he  is  guilty,  I  should 
not  stand  np  for  or  support  a  traitoroua  pur- 
pose ;  but,  it  is  not  exfiected  of  his  majesty,  to 
defend  the  weak  and  misguided  miDister,  whose 
conduct  is  his  own,  with  reii^ard  to  the  public ; 
and,  whenever  that  is  sullied,  he  is  liable  to  be 
told  of  his  faults.  And  if  you  should  be  «of 
opinion,  that  this  ia  a  free  and  bold  discussion 
of  the  measures  of  a  misguided  minister,  and 
that  this  was  an  tnformatioo,  Tvhich  the  author 
of  the  paper  meant  to  convey  to  those  who  had 
poiver,  be  it  lodged  where  it  may,  and  might 
possibly  correct  the  errors  of  a  misguided  leader, 
and  iufonn  a  coDMcientious  good  king  of  it; 
then  you  will  riew  it  in  the  way,  which  I  be- 
fore gave  reason  for,  and  I  hope,  find  a  ver- 
dict i'ur  the  defendant  of  Not  Guilty.  It  has 
been  always  the  language,  the  king  him- 
aelf  cannot  be  affected ;  thnt  no  man  raises  a 
nersonal  invective  against  him;  that  attempt,  I 
Delieve,  was  hardly  ever  made,  and  yet  you 
will  (ind,  1  dare  say,  from  your  memory  of  his- 
tory, there  have  been  instances,  where  several 
applications  have  been  made  to  the  throne,  face 
to  face,  bv  the  parties  Uiemselves ;  as  was  the 
case  of  tlie  learned  Bishops*  who  presented  a 
petition  to  the  king,  arraigning  the  conduct  ao 
m  of  those  that  advised,  and  they  expressed 
the  evil  tendency  of  a  proclamation  of  hia  own. 

•  See  ¥qL  U|  p.  193. 


There  waa  DOiproof,  only  preiBnrafkMi,  ftr  aq^ 
ine  it  oaoMfraa  their  banda.     Itwaaneba 


petitioo,  arraigning  the  condnct,  and  axplainwf 
"    -'*  tendaicy  of  the  pmriawMtiwi,  Ihiit  S 


waaby  an  boneat  inr^  tbbogbt  a  fttf,  a  Imd^ 
andaconatitntiooalpedtMMi;  aadtbeyiiaaitas 
they  bad  a  right  to  do,  their  refecend  leidrtiipi 
not  guilty,  after  a  king  deBberatiae  ;  aad  I 
shall  ait  mm  in  peiftct  hopea  and  oaaidonea 
yoa  will  find  thia  defendant  not  fniltj  aim. 

SoL  Gen.*  PIcaae  Toor  Kwdahipt  aad  yai 
gentlemen  of  the  jury,  f  hope  yea  will  fiti  aa 
leave  to  aay  a  word  or  two  upon  tliia  Mmm 
that  haa  been  made*  There  bare  beea  ataa 
motwna  of  UanM  upon  my  cooduot,  wfaidi  ha 
been  for  aome  porpoaea  ao  drawn  into  the  ao» 
tion,  that  if  f ,  in  the  aituatkn  in  which  1  aaio 
atood,  aboaki  reoBain  ailent  open  that  aafaiael,! 
ahould  he  thought  perhapa  aa  well  to  Mny 
myself  in  the  bosinesa,  as  the  priociplaa  of  har 
upon  whk$h  f  stand  in  this  prosecution,  thaogk 
I  do  not  think  it  of  exceeding  great  aoaw 
qnence  to  the  hmoo  of  this  cause,  wnetbar  thisi 
prineiplea  bo  actually  aettled  ooo  wayorthi 
other,  hecauae  there  are  no  pointo  of  law  ojpn 
thb  aobject,  that  in  my  mind  require  partieaiv 
atrengtb  of  argument  or  great  abatroaeacsstf 
reaaoning,  in  order  to  come  at  them.  They  Mi 
open  and  upon  a  leret  to  common  anderaHai" 
ing,  to  that  obrioua  moral  ohaervatioB.  of  si 
mankind,  do  no  wrong  to  another ;  hat  yea  an 
deaired  to  underatond,  the  juatic»of  Una  eiMi 
haa  been,  in  fact,  entangled  in  the  Ibroser ;  aai 
that  it  ia  neceasary  for  you  to  go  through  si 
that  ia  called  the  inducement  of  tho  infciia 
tion ;  to  find  the  party  guilty  according  to  lbs 
extent  of  erery  epithet :  where  ia  that  law  ta  ka 
found  ? 

Serj.  Glynn.  I  must  beg  leave  to  interrapt 
you,  it  was  the  substantial  proofs,  not  of  tas 
epithets. 

SoL  Gen.  It  is  a  matter  of  no  kind  of  ooos^ 
qoence  to  this  business,  whether  the  gentlenca 
spoke  it  expressly  in  the  extent  I  really  under* 
stood  tbem  to  s|)eak,  or  whether  they  left  it  ts 
be  collected  and  inferred  to  extend  farther  by 
construction,  than  they  really  ventured  ;  that 
is  of  no  consequence  to  this  busineaa.  All  I 
meant  was  to  introduce  that  idea.  I  sheaM 
have  taken  the  freedom  to  state,  aa  a  prapoo* 
tion  of  law ;  that  is  to  say,  the  substantial  alls* 
gations ;  let  it  be  worded  by  epithet,  or  not, 
tbe  accnsation  is  of  the  part  the  defendant  has 
published  in  writinp:  or  printing,  concerning  tks 
character  and  person  of  another,  which  is  in- 
jurious to  his  person  and  character ;  and  that 
tbe  offence  is  considerably  enhanced,  whtt 
applied  to  the  person  of  magistrates,  and  ptf^ 
ticularly  to  the  highest  magistrates  whatsaever. 
That  is  the  ground  which  I  go  upon ;  sol 


*  Concerning  the  right  in  crown  , 
tions  to  a  reply  on  the  part  of  the  crown  tboafl 
no  witneashave  been  examined  on  thoodMT 
aide,  aee  Mr.  Home*a  Case,  a.  (151  of  Aii 
rolome. 


S89} 


Jor  a  ISbA. 


A.  D.  1770. 


[890 


tboogh  I  did  andentAnd  the  doctrine  of  ano- 
Iber  effect  stated  in  the  outset,  I  am  well  con- 
leyt  if  we  are  agreed  in  law,  and  will  proceed 
upon  it  just  in  the  manner  in  which  I  think  it 
ttanda.  1  did  understand,  when  the  learned 
gentleman  spoke  6rst  of  it,  when  he  entered 
into  a  defence  of  the  paper,  and  embarked  in  it, 
that  it  was  upon  the  same  line,  and  same  nO" 
tion  of  law  I  hare  gone  upon.  The  learned 
gentleman  who  spoke  second,  thought  proper 
to  go  a  little  wider,  and  give  a  more  general 
discnssmn  than  my  learned  friend  who  spoke 
first ;  and  he  thought  it  necessary  to  tell  you, 
that  this  information  came  under  no  sanction, 
BO  kind  of  authority  whatsoever.  I  refer  to 
your  own  memory,  gentlemen,  whether  1  re* 
tied  in  the  opening  of  this  cause  at  all  upon 
the  authority  under  which  thia  information  is 
filed  ;  not  the  least  upon  earth ;  did  not  I  ? 
and  yet  at  the  same  time,  if  that  should  come 
to  be  called  in  Question,  1  am  to  inform  yon  it 
is  filed  by  an  officer  of  the  crown,  and  whom 
the  constitution  of  this  country  has,  in  all  ages, 
intrusted  to  his  duty  and  his  knowledge,  a  dis- 
cretionary power  of  filing  these  informations ; 
and  the  very  statute  alluded  to  by  the  gentle- 
naen,  was  after  the  Uerolution,  and  at  a  time 
when  the  constitution  was  well  considered,  and 
the  liberty  of  the  subject  supposed  to  be  esta- 
blished. At  that  time,  and  for  the  sake  of  the 
constitution,  under  which  we  live  now,  it  waa 
expressed  to  be  in  (hat  officer  of  the  crown 
to  file  informations  for  the  sake  of  the  preaer- 
Tation  of  public  order  ami  peace.  This  is  the 
law  of  the  country  firmly  settled  at  the  time  of 
the  Revolution ;  and  yet  now,  when  the  law 
comes  to  be  put  in  execution,  juries  are  enter- 
tained with  an  idea  of  the  oppressive  qualities 
eiifrting  in  that  law,  which  the  wisdom  of  aipes, 
and  the  bi>st  correction  possible,  applied  to  that, 
have  established  what  it  is  that  officer  is  en- 
trusted with,  a  matter  of  duty  and  honour  not 
to  file  informations,  which  in  liis  judgment  and 
discretion,  do  not  call  for  the  extraordinary  in- 
terposition of  bis  office.  Whenever  they  do,  it 
is  his  duty  to  file  ihem,  unless  something  had 
been  saiu  to  impeach  his  proceedings  in  that 
part  of  the  execution  of  his  duty.  But  I  can 
say,  myself,  it  was  filed  by  an  officer  of  great 
judgment,  and  unimpeached  honour;  and  it 
was  his  opinion,  and  it  was  accordingly  done, 
not  to  proceed  by  indictment,  but  information 
in  the  court  of  King's-bench.  The  Court 
would  not  have  heard  a  motion  at  the  instance 
of  the  Atton:ey  General  to  file  that  which  is 
bis  duly  to  file.  The  very  circumstance  of 
bis  being  to  fif^e  it,  would  have  prevented  the 
Court  from  he^iring  the  motion ;  they  would 
bave  called  to  him  to  do  his  duty  in  the  course 
of  information.*  And  is  the  Attorney  General, 
wben  he  plainly  sees  it  with  the  same  eyes 
the  rest  of  mankind  have  seen,  and  the  same 
yiew  in  vrhich  they  have  ulked  of  it,  when  he 
a  durect  malignant  attack  made  upon  the 


•  Sea  the  Case  of  Bex  v.  Phillipa,  cited  p. 
070|Oftbisyoluma. 


person  of  the  kin^  himself,  is  he  to  wait  till  a 
grand  jurjr  finds  it  such  attack,  and  presents 
nim  what  is  his  office?  and  is  he  not  to  inter* 
pose  upon  such  subjects  as  this,  where  it  is  hia 
duty  P  and,  frentlemen,  these  are  tlie  grounda 
npon  which  it  is  to  be  tletermined  by  yon.  To 
apeak  properly  of  the  gentleman  that  spoke 
first,  they  are  not  his  grounds;  though  the 
aecond,  be  has  endeavoiu^  to  mislead  yon 
npon  the  subject,  by  telling  you,  that  in  his 
opinion,  this  is  not  a  libel ;  but  be  has  withal 
^iven  yon  his  reason  why  he  offers  to  argue  it 
18  no  libel,  because  he  says,  it  does  not  apply 
to  the  person  of  the  kin^.  Now  I  agree  per* 
fectly,  that  as  far  as  this  information  go^,  it 
charges,  that  this  libel  does  affect  the  person  of 
the  king ;  and  if  he  has  made  out  to  your  sa- 
tisfaction that  no  part  of  the  libel  does  so  affect 
him,  then  that  part  of  the  charge  will  lall  to 
the  ground,  as  well  as  that  part  that  affects  the 
great  officers  of  state.  If  the  defendant  has 
made  out  there  are  no  passages  that  apply  to 
those  persons,  then  he  is  discharged  from  that 
part  of  the  information ;  so,  with  regard  to 
that  part  affecting  the  House  of  Commons,  if 
he  haf  made  out  that  the  House  of  Commons 
ai^  not  directly  and  personally  reviled  anil  taxed 
with  the  grossest  corruption,  even  with  liciog 
bought  by  the  ministry  ;  if  he  has  made  out 
that  proposition,  then  that  will  fall  to  the 
ground.  1  do  not  mean,  (because  vou  bava 
the  paper  before  you,)  to  go  over  those  pas* 
sages,  at  the  outset  of  wliich  it  appears,  tha 
person  of  the  king  has  been  directly  meant, 
though  some  bave  been  taken  up,  and  others 
omitted,  by  my  learned  friend  in  the  defenca. 
I  will  connne  myself  to  those  that  have  beea 
taken  up.  He  tells  you,  there  is  a  great  ac- 
knowledgment of  the  ro^al  virtues.  What  a 
wretched  misery  is  that  in  the  obvious  sense  of 
those  that  are  to  determine  upon  it.  If  he  does 
acknowledge  those  royal  virtues,  he  taxes  tha 
king  with  those  that  are  directly  op|M>8ite  to 
those  qualities,  and  the  taxing  of'^  tbem,  I  will, 
point  out  to  you  immediately.  In  the  first 
place,  my  learned  friend  says,  what  is  said  of 
the  king,  is  but  the  ordinary  accident  of 
thrones,  and  the  most  active  of  kings  havoy 
in  some  part  of  their  lives,  suffered  in  the  ad- 
ministration of  government.  Anil  therefore  it 
might  be  as  well  said  of  all  kings  whatsoever,  or 
at  least  the  greatest  number  of  kings,  and  no 
harm  could  come  from  the  zeal  that  is  express- 
ed to  the  present  king.  Observe  thd  langusga 
of  the  paper,  itself.  **  It  is  tlie  misfortune  of 
your  life,  and  the  cause  of  your  reproach  and 
distress."  Is  this  the  language  that  may  ba 
said  of  all  kings  P  and  his  being  unacquainted 
with  the  language  of  truth.  This  is  only  drop- 
ping ideas  concerning  the  application  to  tha 
Ling,  and  very  far  from  fact;  and  therefore 
the  officers  of  the  crown,  are  they  who  want 
to  make  that  a  libel  upon  the  king,  that  was  no 
libel.  Were  it  only  about  in  coffee- bousea, 
that  the  king  was  unacquainted  with  the  laa- 
guago  of  truth,  and  constantly  erring,  and  that 
be  bad  not  disoovered  bis  pr^udioBSi  wara 


•01]  lOeEOBGB  m. 

iM  liid  dbMt  iipOB  tftbbi  IB  ta?«B0  aW  aa^ 
to  kaMM,  noMjr  wdtnlood  iltotealiM. 
B«l  H  iM«m9 1 IM*  whflB  the  ofioen  of  the 
gwma,  itff  the  fiadJotti—  of  Um  duuroelflr  of 
Iho  1^»  Ibovgbi  propor.  to  bnaf  it  before  t 
ttolMJiiiUM  ' 


QM 


thore.  With  ngird  to  tho 
kff4  lioolHUuit  of  IroUndk  my  korood  friood 
■oyi,  tlMtc  is  no  opplicotion  to  the  Jang. 
«  CortMoly  thm  is  no  appUootioo  to  tbo  idof 


wlMlMMTor.'    Now  lot  no  ioo  t  littlo  wbcUier 
llMraisnot. 

MlWMoplooflfolindgifoyott  oforjdoj 
DriiliaHurlaioftlMirnMntniont;'*  oothotit  io 
itrodnoodtotlMfking.  **  Thoj  deiyiao  tho  at^ 
MiaUo  gOfotnor  yon  horo  oeat  thoMr  beoonao 
Im  io  n  emtuo  of  lord  Bnto.'*  Tbioiotho 
ahoto  upon  lord  TdiTMhend;  farwhot  iwnon 
k  bcot  known  10  tho  oathorhioMolf;  botifthoy 
nro  Miittfi  of  mon'i  choraotao  to  tral  tb^m 
jtwtao  tboy  ^oooe»  thore  it  on  ood  of  oil  kw 
end  JMtieo.  Bol  whon.it  conoarno  thn  poraon- 
€f  a  kmgt  it  io  not  from  tho  natorol  idooa  tboy 
•TO  00  raady  Io  oooiNnid  tho  poioon  of  o  king^ 
In  tho  ponon  of  hit  riprMtntotifo,  oo  bo'itotoo 
iho  pooplo  of  Ireland,  ofenr  day  gifiogr  fneb 
BMurko  M  their  reoentment,  beeaine  tboy  nador- 
maad  them  it  no  difeienee  between  tlw  original 
<f  a  king)  and  thcur  repreeeBtetive.  It  ie  not 
mmiug  to  a  eoafiiaioii  of  their  iiieeo  they  do  io 
that  manner  ooofoond  it.  Wliat  does  lie  loy  io 
the  next  porl  after  Irelond  ?  He  then  proeeede 
Oo  auto  AmerioA,  of  which  he  fint  of  all  eayo, 
*<  they  wororeadj  ODOOffb  todietioguith  between 
tfio  king  end  hia  mimateroy  end  to  throw  the 
Ihnlt  npon  them ;"  and  that  I  suppooe  ia  not  to 
ho  applied  to  the  king.  But  atterwardo  be 
naya,  '*  the  dodnre*  peraonal  part  you  took 
egaiaat  thma ;" — ia  tbie  charging  tbe  minialry  P 
<*  that  decisiTe,  perMmal  part  you  took  against 
them,  baa  effectually  banished  that  first  dis* 
tinction  from  their  minds ;  they  consider  ;jrou 
na  united  with  your  senrants  againat  America, 
they  knowing  bow  to  distinguisu  the  sovereign 
oiraa  renal  parliament  on  one  aide,  from  the 
real  sentiments  of  the  English  people  on  the 
Other."  Has  this  oo  application  to  the  king  ?  It 
certainly  has.  I  have  stated  these  few  in* 
otances,  merely  because  they  were  those  that 
ha? e  been  taken  up,  in  order  to  show  they  bare 
BO  application  to  the  king.  Gentlenien,  1  hare 
elated  them  to  you,  imagining  we  are  so  far 
vpon  a  juat  ground,  and  that  yon  can  imagine 
BO  other  but  that  the  kiog  is  as  pbinly  distin- 
guished  from  erory  bod^  else,  as  ony  thing  in 
the  world  can  bedistingmshcd. 

They  are  right  in  aaying,  that  if  yon  find  it 
Is  meant  ao,  what  arails  all  that  has  been  said. 
But  they  go  beyond  that ;  and  fcry  properly 
say  you  are  the  refuge  of  liberty.  You  are 
io.  Ypn  are  the  rnngo  of  those  who  find 
thcmaehrea  wronged  contrary  to  the  laws  of 
Ihia  ooontry,  and  apply  to  the  laws  of  this 
gjimtry  for  redresa.  And  if  yon,  who  are  tho 
flvfogo  of  liberty*  io  that  sense,  should  either 
hf  such  delusion,  or  infloaoco  of  pngudioeoBd 


taanOth  in  fikvoiirof  aoeh  atnmgoideoa, 
wm^AWh^tmnm^l^i^^^^  thatjnattoo 


to  thooo  thot  omiy  ftr  )natleo»  lhoi#  4 
Ijr  io  neither  ibarty  nor  property,  nor 
tion,  nor  any  thii^  whieh  thia  conniiy  haa 
hitharlo  Ihonght  worth  protaetioB,  and  tho  kws 
wonM not  bo oble to  pratoet  then.  IpMart 
to  Ood,  it  oppoara  to  mo  in  a  reneonlnf  way, 
teo  strnfe  a  projposhion,  to  any  liberty  la  om- 
oorood  u  protoetioganian  in  writing im«iiB«riy 
and  opprohrioosly  ogoioat  tho  charnoler  af  a 
HHtt,  which  io  tho  aaoM  aa  if  it  wao  eoBoenai 
inpralooliogftnionur  robbing  open  tho  hig^ 
ways.  Qenthmen,  yon  nay  aa  well  hafote 
fneatian  pot  far  yoor  dikeooBOns  whether  yea 
woud  bavo  tan  or  fincen  gninooa  nnvalsly 
atolen  from  yoor  peraon,  by  whieh  tho  pai^ 
would  bo  UaUo  to  be  condonnod,  or  wbinhw 
yoo  would  hoTO  yoor  name  hnng  oBt.la  Iha 
public  aa  a  man  who  ia  di^graoefol,  dishOaOi^ 
and  unworthy  of  any  poet  yoo  hdd.  Whith 
would  yon  obooseP  Audio  thotene  of  Oi» 
BMU  aenae,  which  can  any  man  onoat  yoa 
flhonldohoooeP  And  how  oon  yon  find  3^ 
TenUet  when  yon  are  desired  to  withhold,  cBl^ 
Irary  to  all  evidence,  and  ovury  aooaanny 
oondnaioo,  that  joetico  which  tbooo  canals 
aionodo  caU  forP  Yon  aro  not  dealrH  tari» 
liofe  they  hio  not  published  by  tho^diffiafaal; 
that  is  giveo  up  here ;  yott  aro  deairai  tol^ 
liove,  that  they  do  not  talk  of  tho  kng  klha 
paper.  That  argument  ia  not  what  1  a» 
peeted  to  hare  been  proved.  Yon  aro  derini 
to  thmk  it  would  bo  a  derogatMNi  ftoaa  year 
authority,  should  you  be  obliged  to  fiod^aiN 
eordiog  to  the  evidence.  To  be  aura  you  wn 
bound,  if  we  could  not  make  out  the  truth  that 
beloaga  to  tbo  charge,  which,  if  wo  do,  withal 
you  can  find  reasons  to  deny  that  TOfy  tralb 
which. your  reasons  and  conseienceo  oaaa^ 
resist ;  to  be  sure,  that  is  one  of  the  Inferior  li* 
tuations  of  a  iury.  But  that  is  an  inferiority 
which  don't  belong  to  your  situations  aloaa 
Judges  are  likewise  sworn  to  pronounce  aa* 
cording  to  law  ;  and  that  is  all  the  constraint 
upon  the  oflice  yon  now  hold  ;  and  if  you  fiod 
the  facts  are  as  I  stated  in  the  outset,  notwitin 
standing  what  has  been  said  in  the  defence,  it 
will  be  too  plain  an  absurdity  to  say  ho  is  ast 
guilty. 

Ijofd  Mansfield.  Gentlemen  of  the  jory,  if 
the  direction  that  I  aro  going  to  give  yoo,  aati 
the  object  of  your  conmderation,  and  the  fait 
and  ground  upoo  which  your  verdict  ought  H 
be  founded,  according  to  the  law  and  oonstito- 
tion  of  this  kingdom,  and  that  oath  that  h 
taken  by  each  of  you  ;  I  say,  if  that  dirediM 
should  be  mistaken,  I  have  this  comfort  in  mj 
own  mind,  that  it  will  not  be  final,  but  opaa 
application  to  the  Court  for  a  mia-directioo^  ^ 
can  bo  aet  riglit.    The  direction  I  am  goiog  la 

five  you,  is,  with  a  ftiU  conviction  ai5l  omfi* 
once,  that  it  is  the  language  of  tho  law.  lUl 
is  an  information  that  is  brought  agonal  tla 
defendant  for  printing  thia  letter,  whtoh  ]00 
bavo  beard  read,  of  the  tenor  net  forth,  oar  tf 
Iho  BMonfaig  put  upon  thoer  parto  of  i^ 
whioh  aio  blanka  in  tho  orifmal/ly  te hiP^ 


899] 


Jora  tibA 


A.  D.  mo: 


im 


rormatioo,  and  eonemiog  the  penont  cbtrg- 
ed  by  the  informatioiiy  to  be  the  pertoM 
Gonceniiog  whom  it  was  wrote.  This  is  the 
charge.  Now  the  question  fbr  yoa  tq  try 
upon  the  eridence,  is,  whether  the  defen- 
dant did  printer  publish,  or  both,  a  paper  of 
the  tenor,  and  of  the  meaning,  so  charged  by 
the  information  ?  As  to  its  being  of  the  tenor, 
the  paper  has  been  read  to  you,  and  if  it 
bad  not  been  of  the  tenor,  there  would  have 
been  an  objection  made  durinsf  the  course 
of  the  reading ;  and  there  would  have  been, 
ao  end  of  the  information,  if  the^  charges 
were  wrong,  for  they  could  not  have  gone 
on  ;  therefore  there  is  no  objection  as  to  the 
t^or. 

The  next  thing  is  the  meaning;   and  the 
meaning  is  what  is  put  unon  it  by  the  infor- 
mation, in  those  places  wnere  there  are  blanks 
to  the  origioal,  as  k  dash  g  for  king,  m  dash  v 
for  majesty,  and  so  on,  as  you  heard  it  read. 
As  to  that,  there  has  been  no  particular  ob- 
jection made  by  the  counsel,  that  in  any  one 
instance  the  blank  is  ill  tilled  up.    If  that  could 
ha?e  been  made,  tlieir  ingenuity  would  have 
found  it  out.    If  you  say  they  are  not  well 
filled,  and  the  paper  is  not  of  the  meaning  set 
forth  in  the  information,  then  you  must,  to  be 
awe,  acquit  him.    But,  if  it  is  of  the  tenor  and 
meaning,  set  out  in  the  information,  the  next 
consideration  is,  whether  he  did  print  and  pub- 
fish  it?  Now,  as  to  that,  the  evidence  stands 
mieontradicted,  and  without  any  obserfatioos. 
It  is  proved  to  be  bought  of  his  servant,  at  his 
boose:  that  dropt  from  the  counsel  without 
any  observation.     If  yon  by  your  verdict  find 
the  defendant  not  guilty,  the  fact  established 
by  that  verdict,  is,  he  did  not  publish  a  paper 
of  that  meaning;  that  fact  is  eMtablisbed,  and 
there  is  an  end  of  the  prosecution.    You  are  to 
try  that  fact,  because  your  verdict  establishes 
that  fact,  that  he  did  not  publivh  it.     If  you 
find  that,  accor  !iog  to  your  judgment,  your 
Terdict  is  final ;  and  if  you  find  it  otherwise,  it 
is  between  Qod  and  your  consciences,  for  that 
is  the  basis  upon  which  all  venlicts  ou^ht  to  be 
founded ;  then  the  fact  finally  established  by 
jour  verdict,  if  you  find  him  guilty,  is,  that  he 
printed  and  published  a  paper,  of  the  tenor,  and 
f>f  the  meaning,  set  forth  in  the  information ; 
that  is  the  only  fact  finally  established  by  your 
verdict ;  and  whatever  fact  is  finally  established, 
Siever  can  be  controverted,  in  any  shape  what- 
soever.   But  you  do  not,  by  that  verdict,  give 
mo  opinion,  or  establish  whether  it  is  or  not, 
lawful  to  print  or  publish  a  paper,  of  the  tenor 
•nd  meanmg  in  the  information;  for  supposing 
the  defendant  is  found  guilty,  and  the  paper  is 
•ocb  a  paper,  as  by  the  law  of  the  land  may  be 
|irinted  and  published,  the  defendant  has  a  right 
to  have  judgment  respited,  and  to  have  it  car- 
tied  to  tlie  highest  court  of  judicature.    There 
ia  nothing  upon  the  fact :  if  in  point  of  law  it 
ie  innocent,  it  would  be  an  innocent  thing,  ap- 
pearing 80  upon  the  record.  Neither  is  it  found 
established  upon  your  verdict,  that  he  did  it 
with  aoj  degree  of  malignity  or  guilt  in  the 


bavo  ad  of  printing  and  pnblisbiiur.    If  ho 
prints  that  which  is  onlawful,  H  follows  in 
course,  whether  it  is  with  a  degree  of  greater 
or  less  maiigaity.  For  there  is  no  one  act,  thai 
may  be  attended  with  a  greater  variety  of  cir- 
camstances  (ahnost  infinite^  than  the  manner 
in  which  a  man  might  print  and  pnblish ;  it 
roig4it  be  from  the  lowest  to  the  highest  de* 
gree  of  gnilt,  even  to  a  very  venial  degree  of 
guilt    New  that  is  not  established  by  your 
verdict,  all  those  epithets  being  a  mere  form 
in  informations,  and  they  are  inferences  of  law^ 
which  are  drawn  upon  the  printing  and  pnb- 
lishing  a  libel,  if  it  comes  out  upon  the  faoe  of 
it  to  te  a  libel.    It  is  very  true,  I  am  nsed  to 
speeches  made  to  juries,  to  captivate  them,  and 
carry  them  away  from  the  paint  of  enquiry. 
Mr.  Serjeant  Glynn  did  admit,  the  ioduoemeot 
was  not  to  be  proved ;  not  so  mtich  proved,  an 
is  set  feith,  as  malice  of  foretliouffht,  in  eases 
of  morder,  or  the  Instigatioo  of  the  devil,  and 
yet  the  form  is  kept  up.    As  to  the  other  epi- 
thets, ho  did  admit  of  them,  as  his  candor  mado 
him  do.    After  argning  upon  the  epttlieta  of 
seditious  and  malicious,  he  did  say  at  last,  I 
do  not  see  it  is  necessary  to  give  proof  of  tho 
whole ;  therefore  that  is  not  the  fact  to  bo  found 
by  your  verdict,  that  is  inference  of  law ;  and 
many  instances  shew  when  the  jury  have  foimd 
him  guilty,  before  the  defendant  comes  up  for 
judgment,  be  ia  at  liberty  to  extenuate  hii 
crime,  and  even  bis  own  affidavit  will  do  it ; 
and  if  the  foot  bad  been  found  by  the  verdict, 
it  is  impossible  that  can  ever  be  controverted, 
nor  ever  foftber  looked  into.    These  are  tho 
grounds,  therefore,  which  I  leave  to.  yon  for 
your  consideration.    If  you  are  not  satisfied 
that  the  naper  proved,  is  of  the  meaning  put 
upon  it  oy  the  information,  where  the  blaniu 
are  filled  up,  and  the  persons  concerning  whom 
it  is  spoken  of,  you  must  acquit  the  defendant. 
If  you  doubt  of  the  evidence,  as  to  its  being 
proper  evidence,  you  must  acquit  the  defondant. 
If  you  are  satisfied,  as  to  both  those,  that  ia 
the  matter  to  be  established ;  by  both  those, 
and  according  to  right,  you  oup^ht  to  find  it. 
And,  indeed,  if  you  were  for  having  the  power 
of  pronouncing  a  verdict  of  not  guilty,  as  to 
the  fact ;  to  be  sure  the  jury,  in  every  cause, 
may  make  an  end  of  the  question,  whether  they 
have  not  a  right  to  find  that  verdict.*    If  you 
take  upon  you  to  determine  the  law,  yon  mast, 
for  the  sake  of  your  own  consciences,  be  sure 
to  determine  according  to  law,  and  you  most 
be  sure  that  the  law  is,f  that  such  a  paper  may 
be  printed  and  published,  of  the  tenor  yon  fliid 
it;  the  oonsequence^  of  which  is  very  obvious 
to  be  seen  upon  this  occasion.    If  the  law  was 
to  be  determined  in  every  particular  cause, 
what  a  miserable  condition  would  this  country 
be  in  with  reffard  to  that  part  of  it,  as  it  is  said 
there  cannot  be  a  greater  curse  than  uncertainty 

*  See  voL  6,  pp.  lOlS,  et  ieq. 

f  As  to  this  method  of  address  to  a  jury  in 
such  a  case,  see  '  Aaother  Letter  \a  Mr.  Al* 
moD,'  p.  j8. 


895]  10  GEORGE  UL 

in  the  law ;  for  one  jury  in  Middlesex  ^d  one 
way,  and  a  jury  in  London  another  way.  A 
jury  in  Middlesex  has  found  a  Terdict,  and 
(»nvicted  one  person  *  for  the  pablication  of 
this  same  paper,  but  you  are  not  bound  by  that. 
If  juries  were  to  find  according  to  the  different 
ioDpressions  the  different  points  of  law  have 
upon  them,  there  might  be  no  law  at  all  upon 
the  subject.  You  will  consider  of  it,  and  I  will 
repeat  to  you  again,  vou  must  be  satisfied  as  to 
the  meaning  laid  down  in  the  information, 
and  eonoerniog  the  persons,  and  you  must  be 
■atisfied  with  regard  to  the  uublication ;  if  you 
are  satisfied  you  will  find  him  guilty ;  if  not 
yon  will  find  him  not  guilty.f 

The  Trial  began  about  nine  o'clock  in  the 
morning,  and  was  finished  about  twelve.  The 
iury  retired  into  a  private  room,  and  continued 
locked  up,  till  half  an  hour  past  seven  in  the 
evening,  at  which  time  they  were  agreed  in 
their  verdict ;  and  the  Court  being  broke  up, 
they  carried  it  to  lord  Mansfield,  at  his  house 
in  Bleomsbury-square.    His  lordship  met  them 

^  See  Almon's  Case,  p.  868,  of  this  volume, 
f  But  now  see  stat  38  G.  3,  c.  60. 


Tlie  Case  tfH.  S.  fFoodfaU, 


[896 


at  his  parloor  door,  in  the  paasage,  and  the 
foreman  having  pronounced  their  vardict  Not 
Guilty,  his  lor&hip  went  away  without  saying 
a  word.  But  there  being  a  vast  concourse  of 
people  in  the  square,  who  had  followed  the 
jury  from  Guildhall,  they,  as  soon  aa  the  ver- 
dict was  known,  testified  their  joy,  by  the 
loudest  huzaas. 


Several  inaccuracies  in  the  preceding  re- 
ports of  the  cases  of  Almon  and  Miller  I  havs 
not  ventured  to  alter. 

As  to  the  proceeding  for  an  attachment 
against  Almon  in  respect  of  the  puUicatieo  of 
the  '  Letter  concerning  Libels,  Warrants,  Sd- 
Eure  of  Papers,'  Sec,  see  vol.  19,  p.  1088 ;  tad 
Lord  Chief  Justice  Wilmol's  •  Notes  of  Opi- 
nions and  Judgments'  as  there  cited. 

Concerning  the  non-examination  of  Milkr, 

E.  835,  see  what  Mr.  Dunning  said  in  tbs 
louse  of  Commons,  reported  16  New  Pvl. 
Hist  p.  1879. 

Of  the  conversation  which  passed  beCweca 
Mr.  Mackworth  and  lord  Mansfield,  p.  838, 
see  Mr.  Mackworth's  account,  16  New  Pail 
Hist.  1149,  1189. 


S55.  The  Case  of  Henry  Sampson  Woodfall,  on  an  Informatioa 
filed  by  the  Attorney  General  for  publishing  Junius's  Letter  to 
the  King:  10  Geouge  III.  a.d.  1770.*    [London  Museum.] 


June  IS. 

X  HIS  day  came  on  at  Guildhall,  before  lord 
chief  justice  Mansfield,  the  trial  of  an  iDforma- 

*  The  report  here  ^iren,  is  the  fullest  which 
I  have  seen  of  this  Tnal.  I  have  therefore  io- 
aerted  it,  notwithstaodin^  the  flippaocy  and 
partiality  of  its  manner.  In  Mr.  G.  V^^oodfall's 
recently  published  edition  of  Junius's  Letters 
(in  which  edition  is  exhibited  various  illustra- 
tion of  that  work,  and  consequently  of  the 
history  of  these  prosecutions)  is  inserted  in  a 
note  to  the  author's  preface,  a  very  abridged 
account  of  this  Trial,  from  which  1  shall  print 
below  the  report  of  lord  Mansfield's  charge  to 
the  jury. 

The  following  passage  from  a  note  to  vol.  2, 
p.  62,  of  Mr.  WoodfalPs  publication,  is  not 
impertinent  in  this  place: 

"  The  address  to  the  king  through  the  me- 
dium of  this  Letter,  made  a  very  great  im- 
pression upon  the  public  mind  at  the  moment 
of  its  appearance,  and  though  500  copies  of  the 
Public  Advertiser  were  printed  in  addition  to 
the  usual  numbers,  nut  a  single  copy  was  to 
be  procured  in  a  few  hours  af>er  its  publica- 
tion. The  author  himself,  indeed,  seemed  to 
entertain  a  very  favourable  opinion  of  it ;  as  in 
Prifate  Letter,  No.  iB,  speaking  of  this  Letter, 


tion  filed  by  Mr.  Attorney  General  e4p  qfino^ 
against  Henry  Sampson  Vroodfall,  for  prmtisg 
~  publishing  a  letter  signed  Junius,  in  the 
lie  Advertiser,  of  the  I9lh  of  Dec.  1769. 


and 
Publ 


he  says,  *  I  am  now  meditating  a  capital,  and, 

*  I  hope,  a  final  piece.'      It  was  for  this  pro- 
duction that  the  printer  was  prosecuted,  tod 

ri»l>tained  the  celebrated  verdict  of  *  guilty  of 
printing  and  publishing  only,'  the  consequence 
of  which,  as  already  observed  in  note  to  vol.  1, 
p.  29,  was,  that  two  distinct  motions  were 
made  in  court ;  one  by  the  counsel  tor  the  de- 
fendant in  arrest  of  judgment,  grounded  on  itf 
ambiguity,  and  anottier  by  the  counsel  for  the 
crown,  to  compel  the  defendant  to  shew  cause 
why  the  verdict  should  not  be  entered  up  tc- 
cording  to  the  legal  import.  The  case  being 
argued,  the  court  of  King's-bench  ultimate!/ 
decided,  that  a  new  trial  should  be  granted. 
This  accordingly  commenced,  when  the  At- 
torney General  observing  to  the  Chief  Justice, 
that  he  had  not  the  orii^^iual  newspiper  by 
which  he  could  prove  the  publication ;  bii 
lordship  laconically  repiit  d,    *  That*s  not  nj 

*  fault,  Mr.  Attorney :'  and  in  this  maaner 
terminated  the  second  trial.  The  fact  is,  tbit 
the  foreman  of  the  jury  upon  the  first  trial  bsd 
pocketed  the  paper,  upon  its  being  handed  ta 
the  jury  box  for  inspection,  and  bad  aAerwaidb 
destroyed  it.    The  ez][)ence  the  defeadtat  vii 


n  InfiftiiationJoT  publishing  a  LibtL  A.  D.  1770. 


[898 


WitUsTn  Qond.of  IValbrook. 
IVler  CiRilet.  Swlthin's-Une. 
AleunJar  Peicr  Allan.  Alark-lane. 
Prcikrick  Cumerell,  Miririnij-laue. 
Hnoiiii  Htyrr,  'IJUu. 
John  Tbomat,  illrln. 
Barnin^un  Buggin,  Philpol  lane. 
TV>  which    were  added  the  rullowiiig    five 

William  Ualyanl. 

Pmil  ViiTicea.  carjientef,  Uitlaff-lane. 

Williara  KUitry. 

fVitliant  Willcl,  plaUterer,  DUlaff-laae. 

William  Dafia. 
AfW  Ittr.  Walker  had  npened  ihe  canw,  by 
•adiiii;  ibe  letter  sijtDed  Junitu,  ftc.  with  tlie 
lUentMei  ol'lbe  iiirorinatioii, 
Mr.  Attorney  Generai  (De  tire;)  began, 
nciiy  Bl  ten  o'duck,  by  «Bjin|f,  ibat  DoUiingr 
ad  c*er  raised  a  juiter  indigiialiiiii  in  Ibe  luiiid 
f  etefy  mm  wlia  wUhea  tile  ciHiiiauaace  of 
ur  tixc«lleui  couMituiion,  iban  ihi«  teller  of 
Uli*a.  He  then  addresaeil  himsflf  lo  tlie 
MMOU*  and  interest  nf  the  jurors,  by  (ellin;; 
wm  tliat  lliey  were  more  than  any  nllier  men 
Moerneil  to  brin^  bucIi  oHVndera  In  Juitice, 
(Ciine  »ay  lliiag  that  tepiled  to  public  cnofu- 
OR,  waa  oiore  especially  fatal  to  cointnerce, 
ul  to  those  wbn  hazard  1ar|re  rnrtunes  in 
Ddr.  He  (aid,  thai  tUis  letter  of  Junius 
::.M  to  public  oonliisiaD.  lis  then  Imrao- 
'  <i  Miib  irreal  leemiog  zeal  uii  ilia  glorious 
:  1 «  of  the  press  f  liich  lie  ai^kunwIedgeJ 
'^■lii  la  be  encouraged  and  excrcined,  as  far 
■  euuld  posaibly  cinsiM  with  tlie  rn'y  being 
TMciety.  But  be  said,  thai  Ihe  abuse  ofthe 
bwty  or  the  presi  is  more  Talal  than  any 
iher  ;  and  therolhre  entrealeil  lliem  not  to 
diet  tlitt  liberty,  intended  lor  our  stdtatiop,  to 
B  lurtied  lu  acdilion,  to  our  perdiliou.  tie 
tid,  th«  jury  would  be  insirucied  I'rom  the 
each,— that  ia,— a— a— he  must  believe  tbey 
mid  be,  instructed  Troni  the  bench  ;  that  the 
lly  two  things  fur  Itieir  sonsideraiioii  were, 
>  Wbttber  the  blanks  in  the  iirinted  paper 
Waftifly  filled  up  in  Ihe  inlbrmalion  :  anU 
.  WiMlher  there  were  toffident  eriJence  fur 
WM^caliuB  «!'  the  paper  by  WootJIalt. 
Hr.  AUamey  General  theo  laid,  he  ibongbl 

Btuinlhisproseciilioii.  u  Etsted  in  triTste 
clUr,  Nu.  Ifl,  smounted  tu  about  V20i.  The 
to  tit,  Almon,  who  was  also  proaeculed  lor 
llUaira  repriat  of  ihia  Letter, MKrta,  iuanole 
lamMhtr  eriition  of  Ibia  work,  ihu  tlic  tegtl 
■ncnca  incurred  in  ilelendiug  bis  own  DCtioo, 
'-''-li  eouM  not  eiueed  that  vf  the  oiigiuil 
.i':r,Biiuuililed  lu  between  sand  000^!  An 
.■^nation  which  provec  the  necMaily  of 
.iiiiaiDK  no  am^l  degree  of  cautiua,  in  eati- 
latiag  WhBtM'Mr  olber  tacts  be  baa  allcmpted 
*  idvue*.  With  K  rict*  of  etodiUtiog  the  ge- 
■al  hiriory  «E  Itu  liiUM. " 
VOL.  XX. 


it  proper  lo  (.■xplain  his  onn  conitiiCt ;  because 
he  was  not  merely  an  advocate  in  these  nut- 
ters, but  olHcially  ftnswemble.  This  letter  of 
Junius,  lie  assured  the  jury,  ha<l  giten  uniTer- 
tal  offence.  He  bad  therefore  ia  hsttU  mx 
ulber  prosccutiaiis  uf  different  publisbera  for 
the  same  utfeocc.  Ue  thought  it  bis  duty  lo 
prosecute  them,  anil  had  therefore  demanded 
the  names  of  the  publitheis,  becuuse  he,  Mr. 
Attorney  General,  Uoes  not  read  Dews-jispen. 
In  the  objects  of  prosecution,  he  endeacoured 
to  make  a  distinction,  and  lo  pass  by  those  who 
were  poor  or  had  large  families  of  children, 
\c.  He  d^claral  upon  his  honour,  as  a  man, 
that  he  had  no  motive  to  urge  him  against  any 
particular  publisher,  but  merely  the  execiitian 
of  his  office.  That  be  could  have  wished  to 
have  tried  Mr.  what's  his  name  ?— Wuodfall, 
aye,  Mr.  Woodfall,  the  original  publisher,  first: 
because  na  fur  who  was  the  author  of  Jimiui, 
that  he  could  by  nu  means  discorer,  that  re- 
mained an  impenelrable  secret. 

After  ibis  defence  of  himself,  Mr.  Atlnniey 
General  returned  again  to  the  cause  in  hand ; 
by  repealingtothe  jury  that  if,  Isl.  iheblank«in 
the  Public  Advertiser  were  laitly  filled  up  by 
the  ionendoes  of  the  inluriuaunn  ;  and  it,  2dty, 
the  puhliculino  was  proved,  ibe  jury  must  fiud 
Mr.  Woodfall  guilty. 

Crowder,  the  firsi  witness,  was  then  called 
at  twenty  ntinuies  afier  ten,  and  examined  by 
Mr.  Thurlow.  (Holicilor  General.) 

Cromdcr  deposed.  That  it  is  his  office  and 
employment  to  buy  up  the  puMirations  of 
every  day  tor  the  1  leasury  (on  Almnu's  trial, 
this  same  wilnuss,  Crowder.  calleil  himself,  an 
assistant  to  the  Messenger  nf  the  Pre«s)  iliat  he 
bought  the  Public  Advertiser  in  question,  of 
one  Cnlford,  whom  he  supposes  to  be  Mr. 
Woodfall'*  man  ;  he  bought  It  iu  Mr.  Wood- 
fall's  pnbliablag  room  ;  he  bought  twelve  of 
them.  He  had  bought  (he  Public- Advertiser 
every  day  at  Mr.  Woodfall's  for  a  year  past. 

TheLetterof  Junius  wa«lbeD  read  froiD  tii« 
paper. 

The  Kcond  witness,  Rnberl  Harrii,  w«i 
sworn,  and  examined  by  Mr.  Morton.  He 
raid  he  was  the  register  of  the  stainps.  He 
produced  his  book,  in  which  the  news-paprr  of 
each  day  is  kept,  for  an  account  of  th<:  adver- 
tisements ivliicb  are  paid  for :  he  said,  the  ac- 
coDntforthe  Public  Advertiser  is  kept  in  the 
name  of  Mr.  Woodftll ;  that  receipts  are  made 
out  la  him ;  that  his  servant  generalTy  elii^nils 
monthly  lo  settle  sccnunts  tot  the  duly  on  the 
advertisements  iu  that  iwper,  hut  that  tome- 
times  Mr.  Woodlkll  bail  attended  in  perann. 

The  third  witness,  [Z<ee]  was  sworn  and 
examined  by  Mr.  WallMe.  He  said  he  was  a 
servant. U  sir  John  l''i«ldiug}  that  he  had 
nfWn  carried  advertisemenls  Irom  his  nuister  to 
Mr. Woodfall;  had sometimesteenMr.  Wood- 
fall  and  delivered  them  lo  bitii.  but  very  rarely : 
that  he  bad  one  receipt  for  advertininesita  in 
the  Public  Adiertiacr,  «gued  by  Mr.  Woodtall, 


S'J'J] 


lOGEOllOE  III. 


TAc  Cast  nffl.  S.  Woodfatt, 


I 


Hrre  tnAeA  tlie  evidence  and   pletilincr  on 
the  lide  uf  the  prosecuiiaD. 

Ur.  SprJFBnl  C/ynn  %a\A,  He  a^eed  villi 
Mr.  Atlomry  General  as  to  the  eicellpnceof'a 
LodJod  jury,  and  donbted  not  tlie  liberties  of 
tlie  penpie  uere  luffieiently  stXe,  white  there 
were  trials  hy  jury.  He  told  the  jury,  that  if 
ihey  were  or  npimon,  that  the  tense  put  upon 
Janiui's  Letter  in  tlie  inrnrmalion,  was  the  trti  ~ 
•enie ;  irit  wai  dear,  that  il  wai  a  false,  scan 
Jalnus,  and  leditrous  Ithdl ;  if  tliey  thought  hi 
client  published  it  uith  a  profeued  ioleniiun, 
premedilaleilileaiifn,  of  aboMng;  and  aspersing 
ihe  king;  if  the  defendant  meant  or  wished  In 
alienate  the  affeciinni  of  his  majetly's  aub)! 
if  il  appeared  to  Ihem  that  hjB  end  la  printing 
it  was  In  stir  up  rebellion  and  cofnmotion ;  as 
bonesl  men  they  oughl,  and  tioilouhledly 
would,  bring  his  client  in  guilty :  but — if,  on 
the  contrary,  the  temper  of  the  times  was  sucb, 
that  the  people  needed  that  kind  of  information 
contained  in  Ihe  letter;  if  tbe  facia  could  be 
proved  ;  if  )be  acts  of  government,  in  which 
■lie  king,  at  a  part  of  government,  was  neces- 
•arity  and  virtually  concerned,  hif^hly  de- 
-  itided       '"  ■       ■ 


d  the  prints 


id  public  reprehi 
pnblislied  il  with  the  truly  laudable 
informing  his  t'ellniV'SubjecIa ;  if,  so  far  from 
coulaining  au;^  personal  abuse  of  the  kins,  it 
was  written  with  an  honest  but  guarded  tree- 
dom  ;  (he  author  and  publisher  wnutd,  by  all 
worthy,  all  sensible  men,  be  considered  as  Uav- 
ing  acted  Ihe  parts  of  good  subjecta,  and  good 
oitiiens.  He  informed  (he  jury,  thai  ibe 
<»unsel  for  the  crown  had  not  gone  upon  Ihe 


cpitbeU  bestowed  upun  it  in  tbe  iuformali 
and  that  the  paper  in  which  itwsalirtl  printed, 
wBB  not  hy  any  means  set  apart  solely  to  can- 
vass  lor  pari  v  or  faction,  but  was  equallv  ojien 
to  all ;  he  admilted,  that  private  persooalabuije 
was  wrong,  hul  Ihe  public  acls  of  govemoienl 
otlen  demanded  public  acruliny ;  (bat  many, 
very  man}' of  thebi^^heat  rank,'aa  well  as  from 
Ihe  highest  to  (be  tuwett  in  the  oppu»ilion, 
had  been  scandalously  traduced  and  viliRed  io 
Ihe  public  papers  with  impunity  ;  that  if  ihe 
defendant  was  brou<;lil  in  guilty,  the  hands  of 
every  publtaber  would  he  tied,  and  the  gentle- 
nieti  not  in  office  might,  hy  Ihe  ministerial 
scribblers,  he  abused  lu  the  grossest  degree,  as 
il  would  be  daugerous  la  ansiver  tliera,  if,  upon 
the  appearance  of  every  free  answer,  inlbnna- 
tious  were  to  be  Sled,  and  the  printers  con- 
vioted  and  punisbed;  the  liberty  of  the  preits 
was  immeiliatuly  r.oncerned  ;  the  stroke  was 
lerelled  at  it  in  this  prosecniion :  but  be  did 
not  doubt  Ibe  jury  would  maturely,  deliberaU;. 
ly,  and  attentivelv  consider  the  matter,  read 
over  Ibe  Letter  with  care  and  cirenmspection  ; 
and  if  they  found  it  was  not  written  with  intent 
to  vifify  the  person  of  Ibe  king,  but  freely  to 
canvass  the  acis  of  goveruiDent,  they  would 
consiiler  the  publisher  B!I  having  dune  his  fet- 
J«ir-f  ul^ecls  etsODlial  service,  and  acquit  him. 


,.,,b 

iider  I 


Mr.  Lett  the  other  counsel  for  the  dcfendi 
then  got  up,  and  began  wiib  ab.setving,  tl  _ 
after  the  very  learned  and  able  speech  made  fa 
"~   Serjeant  Glynn,  little  remained  for  him  j 
■■■■I  be  particularly  urged  tbe  jury  lo  « 
le  intention  of  (be  printer  io  pi '"  " 
lo  remember  how  iieculiarly  ni 
it  was,  at  this  juncture,  that  tbe  ptes 
be  open  to  all  political  discussion.    He  dcfendi] 
(be  piper  on  (be  same  principles  as  Mr.  Glynl 
and  made  a  ver^  eloquent  and  judicious  h"' 
raiigue,  concluding  mih  declaring,  thai  as 
intention  could  be  proved,  ihey  ought  not  to  ' 
find  his  client  gnilly. 

Mr.  AHorney  General  alfecled  a  bind  «f 
surprise ;  lie  said,  the  counsel  Ibr  the  defn- 
dani  hail  staled  points  of  law  to  the  jury ;  thai 
he  believed  he  had  a  right  to  reply,  notwilb* 
standing  they  had  not  examined  witnessts; 
and  hebelleved  an,  hesaid,  because  they  hid 
slated  points  of  law  which  he  did  not  allow. 

Lord  Manifield  lold  him,  that,  as  Attoney 
General,  he  might  reply,  nnlwithttandiog  IH 
defendant  hud  not  examined  witnesses :  tbil 
Ibe  Solicitor  General  indeed,  c 
counsel,  could  not;   but  that  the  Attorney  Oe- 


hada    _. 

cular,  that  he  would  not  reply  (yet  a' 
while  be  still  kepi  making  a  reply,  inch  W  H 
was)  at  length  Hniabed  with  saying.  The  bc«A 
will  reply  on  those  points  t»  tbe  delendsaA 
counsel,  and  instruct  the  jury  properly. 

Mr.  Attorney  General  w 
bis  former  belief,  and  in  his  laller  declaiaL..   . 
of  what  the  bench  would  do  sud  say  :   tbrlM'   ' 
niansiield  then  gave  liis   charge  to  the  jifj 
according  to  Air.  Allorncy  Gcoerart  aolkip*' 

Lord  Manifietd  lold   tbe  jury,*  that  tbm 

•  The  following  is  the  report  of  lord  Mial- 
field's  direction  to  the  jury,  given  in  tbe  prt-     ' 
face  to  Mr.  G.  Woodlkll's  edition  ol  Junius: 

"Lord  MansHeld,  in  his  charge,  told  iM 
jury.  That  there  were  only  two  points  for  lh«r 
consideration :  the  first  Ihe  printing  and  pub- 
lishing Ihe  pBjier  in  question  ;  the  second,  ll>< 
sense  and  meaning  ol  it :  ihalat  tolhecbargt* 
of  iu  being  maliciiius,  seditious.  Sec.  tliey  wn* 
inlcrences  in  law  about  which  no  evidence  of° 
be  given,  any  more  than  that  part  of  an  indict' 
inent  need  be  proved  by  evidence,  wliiC" 
charges  a  man  with  lieing  moved  by  the  io>^' 
gttion  of  the  devil:  Ibai  therefore  the  printtuS 
and  sense  of  Ibe  paper  were  abine  what  tii' 
jury  bad  to  consider  of;  and  that  if  the  (lai^  • 
should  really  contsin  no  breach  of  the  k  jf 
thai  WIS  u  matter  which  might  afterward*  T 
OTOved  in  arrest  of  judgment :  that  he  had  ' 
evidence  to  sum  up  to  tiiem,  as  tbe  defemlaM 
counsel  admilted  the  printiog  and  publiealU 
'"  be  well  proved ;  tbai  aa  lo  "'"  " 
id  not  called  iu  doubl  the  a 


F 


n  an  Iij/brmaiwHjor  puiluhilig  a  LiM.  A.  D.  1770. 

two   point!  on  whicb  they  ivertj 
»«  their  rerdict:   there  were  only 


Ml; 

10  ^ire  their  ferdict:  there 
[WO  painu  on  which,  icconltn^  lo  their  oatii, 
ibcy  mutt  determine.  Thai  m  lor  the  inien- 
lion,  ttte  mnlioe,  leililion,  or  any  other  Eiill 
Mnler  wonlt  which  might  be  siven  io  int'or- 
nalioai  tut  tibelt,  whether  pubUc  or  privaie, 
Jiejr  were  nere  tnmial  wurdi ;  mere  worJa  of 
XHitM  i  nwre  intereoce  of  tiw,  with  which 
;beJDff  were  uoi  locoDoero  ihemsetrcKj  ihit 
ibey  were  words  which  lignify  nolliing' ;  juit 
IB  when  it  i*  aaid  in  bill*  of  indictment  Tur 
■nntor,  "  initi|[Bted  by  the  devil*,"  Ace.  that 


lie  iluhes  ia  ih«  |>Bper  were 
rMorJ,  by  gif  id;  aaj'  other  i 
ngMi  irthey  had,  the  Jury 
a  coiutdar  which  appli 
'  U  cbar^ced 


filled  up  in  the 
eoie  10  the  pas- 
*ouM  have  been 


inrormalion,  or  BUEge«ted 
y  the  deiendunL  That  (he  jury  might  now 
wmpare  the  pnper  with  ihe  int'ormaiion :  that 
f  ifaey  did  ddI  hnd  the  application  wrong,  ihey 
auM  find  the  (lefeiiilaot  guilty  ;  anil  if  they 
lid  fiod  il  wrong',  they  muat  acquit  him :  that 
Jiia  was  not  Ihe  lime  for  alleviation  or  a^ra- 
rmljon,  that  being  for  future  consideratiott : 
Inl  «tery  suliject  was  under  the  controul  of 
itte  law,  and  had  a  right  to  expect  frura  it 
n«teeliun  for  hii  perfon,  hii  properly,  ami  his 
[ood  name :  that  if  any  mati  offended  ihe  laws, 
ne  wan  anienahle  to  tbeni,  and  was  not  lo  be 
MB *u red  or  punished,  but  in  a  legal  courae: 
ilU  any  perum  hbelled  had  a  ri^hl  either  to 
[■ring  a  cirit  or  a  criminal  pro^eciiiioti :  that  in 
the  lalter,  which  is  by  intormaliun  or  indicl- 
n«nt,  it  n  immaterial  whether  ihe  puhlicalion 
he  talae  or  true :  that  it  is  no  defence  tu  say  it 
I*  tme,  because  it  is  a  breach  of  the  peace,  and 
therefore  criminal ;  but  io  a  civil  proiiecutiun. 
It  ia  a  delence  to  say  the  charges  in  the  publi- 
BBIioB  are  Irue ;  because  tbe  plaiatifT  iliure 
•oes  only  for  a  jiecuoiBry  salistaclion  to  him- 
nit;  and  that  thia  is  tUe  distinction  at  to  that 
naturcof  defence.— His  lordship  said,  he  was 
ifiaid  It  was  too  true  that  few  cbaraclert  in 
the  kio^doni  escaped  libels:  that  many  were 
rcry  injuriously  treated— and  if  sn,  that  Ihe 
beat  way  to  preveol  il  was  by  an  application  to 
Ihe  law,  which  is  open  lo  evtry  man ;  that  the 
liberty  of  ihe  prets  consisted  in  everji  man 
having  the  power  In  publish  hia  seotiiuenta 
irilliout  Rral  applying  for  a  licence  tu  any  one ; 
bni  if  any  man  published  what  was  against 
Uw,  he  did  it  at  his  peril,  and  was  answertdile 
for  it  in  the  same  manner  as  he  who  suffers 
hi>  band  to  commit  an  assault,  or  his  tongue 
to  utter  hlwuhemy." 

'In  the  '  Iietter  from  Candour  to  the  Public 
Mieillsii.'  it  it  mentioned,  that  in  the  trial  of 
Vtt  printMSof  the  North  Drilon,  Nu.  46,  in 
irtti,  bill  Mansfield,  in  a  very  mastetty  man- 
ner, iuteimplei]  the  couoset,  and  informed 
ibtfli,  and  afterwards  in  an  elaborate  iliscourse 
ahnly  inatiDrted  the  jury,  thai  the  words  in 

Iiaforaialion,  charging  the  paper  to  have 
I  f  ubiiihed  with  Ihe  most  wicked  intent,  in 
I  to  «scilc  hit  uiajesly's  dutiful  subjecU  lo 


Ihe  two  poinla  mcRlioned  were  the  only  thing* 
for  theconaiderstionof  ihejury.  Tliatiflbere 
was  indeed  nothing  criminal  in  Jnninx's  Letter, 
their  verdict  of  guilty  would  do  no  hnrra, 
would  he  attended  wilh  no  ctiiisfqaences.  Tbe 
Court  Hould  consider  of  ibal  ;  Ihe  Court  wero 
the  only  judges  of  that.  If  that  is  made  ap- 
par  lo  the  Court,  the  Court  wilt  arreU  Judg- 
ment. He  said,  my  brother  Glynn  bss  ad- 
mitted that  the  truth  or  talsliond  of  a  liliel, 
whether  public  or  privale,  however  proseculed, 
is  out  of  tbe  quest  ion. 


At  this  assertion  of  lord  Ulansfield  every 
man  in  court  was  shncked.  ,  Serjeiol  Olynn 
wat  astonished,  and,  on  spplicatiuu  made  to 
him  instaolly  hy  several  of  the  counsel  and  his 
friends,  10  contradict  lord  Munslield's  nssrrtion, 
Mr.  Glynn,  uiih  Ihot  hooest  ditlidence  natural 
to  him,  asked  tbeni,  >■  Goml  Gud !  Did  I  ad- 
mit Boy  thing  like  what  lord  Manslield  says  P 
Did  l,]iy  any  incorrectness  in  the  expression, 
or  hy  any  mistake,  use  words  ihut  could  be  so 
misunderstood  or  misinterpreted  f"  Every 
gentleman  near  him  assured  him  that  he  had 
not.  Whereupon  Serjeant  Glynn  rote,  and 
very  modestly  assured  his  lordship  that  he  had 
never  admitted  what  his  Inrdship  supposed. — 
Lord  Mansfielil  hegged  Mr.  Glynn's  pardon, 
and  turoeil  il  olT  whh  Rreat  dexierity,  just  aiy- 
iogsliglilly,  "Ob!  I  find  I  wasmislskeu; 
well  ilien,  my  brnlher  Glynn  is  of  a  ditfereal 
opinion:"  Dnd  then  instantly  pmcetded: — As 
you  have  been  told  these  are  Ihe  only  t»o 
points  for  your  decision  ;  if,  indeed,  you  think 
that  the  otank^  in  Junius's  Lrlter  can  have 
another  appticaliun  than  that  put  ugion  them 
by  the  information,  that  is  a  matter  tor  your 
judgment;  but  you  uiust  observe,  Ihat  even 
ibe  counsel  for  the  defendant  have  not  pre> 
tended  to  yut  any  other  meaoiog  to  the  blanks. 
If  you  think  the  evidence  for  the  pnhlication 
not  sufEcieni,  that  it  likewise  a  matter  for  your 
consideration ;  but  yon  must  observe,  that 
even  ihe  counsel  for  the  defendant  have  ad- 
milted  the  publication.  Lord  Manslield  then 
observed  ihst  the  laws  and  proceedings  in  re- 
gard to  libels  weie  periectly  equal,  equally 
advantageous  lo  high  and  lo  low :  for  that  the 
low  might  prosecute  for  a  libel,  if  they  were 
defamed,  as  well  as  ibe  rich,  and  would  be 
sure  lo  have  jnsliee  done  ihera  by  Ihe  law.  Ha 

sedition,  and  clinrging  it  lo  be  a  false,  scan- 
dalous, and  seditious  libel,  were  words  of 
course  ;  like  '  corrupt'  io  an  indictment  for  per- 
jury, or  tike  those  in  an  indictment  for  mnnler, 
charging  the  murder  to  have  been  committed 
at  the  instigation  of  the  devil,  and  thst  Ihe  Jury 
ought  not  10  regard  them  at  all.  The  author 
of  Ibc  letter,  alter  making  this  italemcul.  and 
coniparing  the  language  so  ascribed  lo  lord 
Manstielir  with  thnt  of  Jeffreys  in  the  case  of 
sir  Samuel  Bai-nardiston,  see  vol.  9,  pp.  1349, 
13S1,  13S5.  remarks  upon  the  concurrence  of 
the  two  chief  Justice*  not  only  io  teDlimeU  but 
in  enpreSMon. 


903] 


10  GEORGE  IIL 


Tke  Case  qfH.  S.  WioodftU^ 


[go4 


said,  that  it  wai  not  then  the  proper  time  for 
mi^gravation  or  alleriation,  or  coomderatioB  of 
tbe  mttter  of  the  Letter,  or  of  Mr.  WoodfalPs 
iatentioir;  to  be  sure  the  Courfwoold  consider 
all  that,  when  they  should  come  to  pass  sen- 
teaee.  As  for  the  liberty  of  the  press,  (said  he) 
I  will  tell  yoQ  what  that  is ;  the  liberty  of  tbe 
press  is,  that  a  mao  may  print  what  be  pleases 
without  a  licenser :  as  long  as  it  remains  so, 
the  liberty  of  tbe  press  is  not  restrained.  It  is 
the  same  thing  as  in  all  other  actions :  a  man 
may  use  his  arm ;  but  he  must  not  strike  his 
neighbour :  a  roan  may  use  bis  tongue,  but  he 

must  not  speak  blasphemy. At  the  word 

*  blasphemy'  so  lugged  in,  there  was  a  general 
whisper  rati  through  the  Court :  for  every  one 
perceived  the  aim  of  it,  Mr.  Wilkes  sitting  so 
▼ery  near  the  Chief  Justice. 

About  twelve  the  jury  withdrew.  At  half 
an  hour  after  three  lord  Mansfield  began  to 
whisper  with  serj.  Davy,  who  had  been  out  of 
court  and  returned,  with  the  Attorney  General, 
^ith  Mr.  Wallace,  and  the  other  crown  lawyers. 
In  the  space  of  a  quarter  of  an  hour  he  sent 
three  times  to  the  jury  to  know  if  they  were 
not  agreed  in  their  verdict.  He  said  he  would 
not  sit  longer  than  four,  if  the  other  business  of 
the  Court  should  be  over.  The  jury  not  re- 
tnrning,  lord  Mansfield  proposed  to  Mr.  Lee 
that  he  should  sign  an  agreement  with  Mr. 
Attorney  General,  that  the  jury  might  give 
their  verdict  to  lord  Blansfield  privately  at  lord 
Mansfield's  house.  After  some  time  and  per- 
suasion from  lord  Mansfield,  Mr.  Lee  con- 
tented, and  signed  such  agreement;  after 
which  lord  Mansfield  pulled  off  his  hat,  and 
said,  Mr.  Lee,  you  have  done  right  to  consent. 
Lord  Mansfield  then  adjourned  the  Court,  and 
retired.  The  jury  continued  undetermined  till 
near  ten  at  night,  when  they  agreed  upon  their 
▼enlict,  and  went  in  hackney  coaches  from 
Guildhall  to  lord  Mansfield's  house  in  Blooms- 
bury-squarpt  ami  gave  their  verdict  in  these 
words :  **  Guilty  of  printing  and  publishiujg 
only." 

Lord  Mansfield  stood  at  his  parlour  door, 
and  made  the  jury  give  their  verdict  in  his  hall 
where  the  footmen  were,  and  when  they  had 
given  it,  he  withdrew,  without  saying  a  word. 


Jufy  3,  1770. 
The  King  against  Henry  Sampson  Woodfall. 

Since  the  verdict  ol'  the  jury  in  this  cause, 
two  motions  had  been  made,  which  were  this 
day  hroufifht  to  receive  the  decision  of  the 
Court.  The  first  was  upon  the  part  of  tbe 
crown,  Why  the  verdict  should  not  be  entered 
up  accordinsr  to  the  legal  import  of  the  words*; 
the  other.  Why  the  defendant  should  not  be 
discharged  from  any  judgment  on  this  verdict. 

Mr.  Serjeant  Olynnt  ot  counsel  with  tbe  de- 

*  The  motion  was  thus  worded  at  the  spe- 
cial direction  of  lord  Mansfield  ;  who  in  theae 
oauses  is  always  of  counsel  with  the  crown.— > 
fand.  Mui, 


fendant,  first  obaerved  sligbtlj  vpta  thealavd 
motion  fiir  amendnaent,  that  was  nMle  on  lbs 
side  of  the  crown,  which,  if  carrisd,  wtfM  ¥Si 
require  itself  to  be  amended,  w  tehire  lbs 
matter  as  mocfa  at  large  as  ever ;  lasce  the 
clerk  must  be  thereby  redoced  to  miakc  anttber 
applicaiion  to  the  Conrt,  to  be  inibrmcd,  HhKt 
that  legal  import  is :  after  thb  be  preceedad  k 
tbe  following  manner,  taldng  ep  the  aifcuitat 
upon  both  the  motions  united : 

My  lords ;  this  is  an  inlmnatioB  for  m  scfi^ 
tlous  printing  and  pnblisfaing  of  ft  neper  signed 
Junius:  the  jury  have  fbued  Mr.  WeedU 
guilty  of  printing  and  publishing  only. 

1.  I  shall  first  contend  that  thta  ia  e»  as^ 
quittal.  The  charge  brought  belbre  the  jorfi 
is  grounded  upon  the  defendant*a  evil  and  ssiii> 
tious  design  in  publishing.  Tbe  jury  iodths 
publishing  only.  This  then  is  not  oottifcthg 
him  of  the  charge;  which  is,  the  eedilisei 
intention.  It  is  first  necessary  to  prove  epsl 
the  trial,  the  fiict  of  publieation ;  next  tbe  CM- 
struction  put  upon  the  paper  in  tbe  iafai«. 
tion.  These  are  the  points  which  ere  la  l| 
given  in  charge  to  the  jury ;  and  the  jtn 
must  be  convinced  of  both.  By  tbe  gtinii 
word  of  *  guilty,'  the  jury  find  the  wbsia 
charge  to  be  true.  They  have  not  does  ss^ 
They  have  found  the  fact  of  publieation  mac- 
ly ;  but  they  have  added  negative  wofdi,  H 
exclude  every  thing  else.  To  what  the  jsiy 
do  not  say,  there  is  by  law  a  negative.*  M 
here  tbe  jury  have  themselves  taken  care,  list 
their  silence  shall  not  be  misinterpreted.  Hal 
they  been  silent,  whether  the  paper  vro  aM 
or  not,  and  not  referred  it  to  tbe  opinion  of  ths 
Court,  their  silence  must  have  acquitted ;  bit 
here  they  have  used  the  word  *  only,'  ex- 
pressly to  exclude  every  idea  of  a  crime. 

If  juries  may  be  justly  said  to  negative  every 
thing  they  do  not  find,  in  a  question  of  civil 
property,  much  more  must  they  be  said  to  do 
so  now,  where  the  criminal  motive  makes  the 
offence  they  have  in  charge.  I  do  not  nr, 
that  a  stnci  and  literal  proof  must  be  brougil 
of  every  part  of  the  information  ;  but  I  dosaj, 
that  crmiinal  intention  is  the  essence  of  a  crimen 
and  must  enter  into  every  idea  of  gnilt.  Of 
this  criminal  intention  tbe  jury  are  the  judgss; 
and  if  they  exclude  that,  the  defendant  is  ac- 
quitted. 

To  support  a  general  verdict  of  guilty^  it 
must  appear  that  the  iury  believed  the  paper 
libellous.  Whether  libellous  or  not  depeadi 
only  upon  the  construction  put  in  the  infonna* 
tion.  This  construction  they  have  excluded; 
therefore,  though  they  have  not  said  in  n 
many  words,  that  the  paper  is  not  a  libel,  tbey 
have  negatived  the  libelling  construction,  sai 
said  as  much,  in  conseijuence  by  legal  iofe- 
rence.  Where  the  subject-matter  bmre  tbt 
jury  are  not  mere  legal  words,  or  words  tf 
legal  import,  it  is,  in  my  opinion,  tbe  previoek 

*  So  determined  by  all  the  jndgea  hi  iki 
Exchequer-chamber,  Withers  v.  lora  Jcfwy^ 
I/md.  Mus, 


n  Information Jor  intHUhiHg  a  LtbeL  A.  D.  1770. 


[f06 


Va  jni7  to  fiml,  "htther  they  nre  criminal  or 
aoi.  Juriei  are  juilges  botb  of  law  ami  TacI  ; 
I  niHu,  aa  filr  ai  the  lormer  ii  tnfaWed  in  the 
taller.  The  jury  lliererore  had  a  right  to  con- 
•nler  lh«  |ia|ier  cnnrged  ai  a  htiel  hefure  them. 
Tbejrmiifht  Uk«  it  upon  thmiif  ihey  ptewcil, 
or  tbey  mi^ht  resort  to  the  jmlgoi  for  aJvice. 
H*rB  they  have,  hy  their  word  of  exeluiion, 
gumuftrai  to  determine,  ihat  there  n  no 
([wilt  in  the  paper ;  whether  they  hate  deier- 
raiined  *tati^  ur  right  ii  anolher  (jiieslioD. 

I'hey  may,  an  doubt,  determine  (generally  ; 
and  witere  tliej  to  determine  airainsi  the  clear 
pTonfnf  the  fact,  and  letter  of  the  kw,  (botUuf 
which  constitute  the  crime)  lliey  determine  at 
th<  {leril  of  their  conic^ience.  Yet  ■  niatler 
■B»y  be  clearly  libelloua,  snd  a  mm  nnt  Incur 
([attl  by  the  mere  |ioMicatioD.  Ai  in  the  cate 
«f  a  fVlendly  admoniiion  from  a  father  upon  a 
■iipiK»K<l  miuonduet  of  lilt  son  ;  or  of  giving 


9  tliai  might  be  mentioned,  Here  the  in- 
tenliiHi  becomes  material,  and  properly  loquir- 
able  by  3  jury;  though  thiH  is  not  Ga[iab1e 
of  direct  proof,  it  is,  honever.  to  he  dis- 
cetereil  by  infereace,  of  Hliicli  the  jury  are 
lh«t  jiiilgea.  ' 

'i.  Upnii  the  second  head,  I  am  to  conterxt, 
that  if  the  rerdict  is  uncertain  or  insu(Rcii;(ii, 
ibtrc  muil  be  n  new  Jury  aiimmoni-d  to  try  the 
canw  afmh.  If  I  am  not  authorised  to  say, 
that  the  TerdicI  amoiiniK  to  an  acquittnl,  I  am 
•or*,  they  are  aa  little  aulliorised  on  the  olher 
nda  to  any,  that  it  amounia  to  a  cnnvicljon.  If 
iha  (bmier  interpretation  i«  not  iiljsl'actory,  the 
latter  (.'erlainly  cannot  be  «o.  If  aome  other 
aenae  i«  given  to  the  word  'only'  than  what 
I  bate  pui  u|Hinit,  the  whole  became  doubt 
tnil  Bmhif^iiy  ;  and  a  new  trial  most  be  had 
by  anotjier  jury.  This  cannot  be  taken  olher- 
wbe  than  ns  a  general  verdict ;  and  in  {{eneral 
Tcrdiotfl,  nolhliig  in  lel>  to  inference  or  Intend- 
nwot.*  >■  You  niunt  have  the  nnderstandini; 
oT  another  man,  hear  wlih  other'i  ear*,  and 
tec  Willi  anolher's  eyes,  before  you  can  know 
what  a  jury  meant.  n|iun  what  they  have  not 
cxiireaaed."  There  i»  in  the  bonki  the  plainest 
caae.  wbere  a  direet  iiilerence  must  unavotda- 
y  lie  made  from  the  findinc  of  the  Jury  ;  aoil 
it  (bat  not  being  expressed,  the  rerdict  was 
~~'yi  a«  iniafficient. I 

I  Jory  had    found  the  damages  to  the 

",  ia  the  dt'lt-'Klnnl'^    nni   keeping;  hia 

id  yet,  nut  tiaring  liiund  directly 

le  such  promise,  the  retdict  iv^is  act 

If  thvnwe  suppuac  llie  other  tide  ritjht 

J,  that  the  jury  ha*e  found  nufGcienlty 

I  dtCffuilt  of  the  dofendani  t>efnre  the 

"  '1  at  least  siying  t»,  wiihoul  know- 

■  Jury  mrnni,  ai  to  the  cnnMruc- 

,  «  the  libel.     Let  them  model  it  ai 

I,  they  caimnl  make  it  n  j(eneral  ver- 

;ai|iy,  witliout  letting  their  senac  upon 


the  construction  unknonn,  nliich  miitl  necet* 
ily  be  Included  in  erery  verdict  of  gnilly. 
But  let  what  arifuments  there  will  be  made 
for  this  new-modelling  the  verdirl  of  the  Jury, 
there  is  one  superior  to  all  the  rest  against  iI ; 
which  is,  that  the  defendant  would  be  thereby 
precluded  from  taking  the  sense  of  a  superior 
coml  of  review  upon  llie  verdict,  as  at  present 
farmed .  If  the  defendaut  is  fuund  guilty,  (t]iy 
is  not  the  Judtjraeut  entered  as  it  is  found,  and 
the  sentence  of  the  Court  passed  upon  himf 
It  will  then  appear,  by  writ  of  error  to  the 
Lords,  what  this  verdict  was,  bv  which  he  is 
said  to  be  convicted.  But  if  thia  new-model- 
liug  takes  plare,  he  will  tw  fur  e»er  deprivtMl  nf 
this  advantage*;  which  indeed  i^  the  only 
reason  I  can  suggest  to  myself  for  the  attempt 
that  is  made  to  ohlain  it.  Por  if  it  Is  a  general 
verdict  of  guilty,  1  suy  again,  it  need  nut  be 
eotered  otherwise  than  it  ii  found.  No  case 
can  be  produced,  uhel'e  the  words  of  a  general 
verdict  have  been  altered  I0  make  room  for 
other  wonls.  They  would  llid<^eil  be  wonU 
different  from  the  n        * 


;rdici  o' 


11 1 J : 


■iction.  Jour 
lordship  will  not  alter  it  :o  make  it  so  ;  and  if 
it  is,  let  it,  as  it  must,  be  entered  in  the  wofdt 
wherein  it  is  found. 

Mr.  Let  on  the  same  side.  It  \s  an  absurd 
and  impossible  idea,  that  the  Jury  should  con* 
vIct  thai  Dian  of  a  libel,  whom  iliey  meant  (g 
acquit  of  a  crime ;  ami  this  meaning  is  plainly 
demonstrated  by  the  word  of  cKclu^inn,  which 
they  have  introduced  into  itieir  verdiol.  Tlie 
Jury  will  never  be  said  tu  hiive  liinnd  stieh  a 
verdici,  as  shews  their  Inleiition  to  Hnd  him 
guilty  of  the  cbar^e  laid  in  the  information. 
They  meant,  no  doubt,  lo  have  found  him  the, 
printer  and  publisher  of  the  iiaper,  as  it  ap- 
(leared  in  the  Public  AdverliM-r,  and  nut  as 
coupled  with  all  those  heavy  charge*  and  iu- 
nuendoeii.  as  deecrilitd  in  the  informalion. 
There  are  strong  uases  >a  the  law  10  prove,  that 
a  partial  linding  is  insufScient.  Whereauan 
was  chained  iviiti  au  intrusion  into  a  house  and 
lands,  and  the  jury  only  found  the  intrusion 
into  the  lands,  ibe  verdici  was  declared  to  be 
wholly  void. t  Hut  In  Ibis  case,  let  the  finding 
of  the  Jury  be  what  iLwill,  it  is  impossible  for 
the  Court  lo  alter  it;  for  it  is  moatdecialiely 
laid  down,  in  books  uf  the  tfii^atesl  aulhoriiy, 
that  the  Court  c:kiinot  amend  a  genieral  verdict 
in  a  criminal  mailer. . 

Oa  the  Part  of  the  Caoww. 

Solicitor  Central  (Mr,  Thurlow).  I  know 
no  rule,  or  case  in  luw,  by  which  Ihe  silence  of 

■  Because  the   alteration  1 
upon  the  record  ;   and  by  some 
tiitinn  in  the  jurisprudence  ot  thU  c»unu-y,  iiu 
court  of  review  can  take  notice  of  the  miscon- 
duct of  Judges  in  inatuug  such  slterailona. — 

Load.    Mhii. Tliis.   I   suppose,    alluih!*  m 

lord  Mansfield's  directing  the  in  forms  lions 
against  Wilkes  lu  lie  amended,  see  tol.  19,  p. 
1075.  t  *  l.eona[il,  396. 


flOi] 


10  GEORGE  IIL 


«  jory  opoD  any  fad,  ibat  abould  be  made  « 
partof  tbeir  teniictt  mmt  be  coostnied  toini* 
ply  tbe  acquittal  of  any  defeodaot.  Oo  the 
cootrary ,  tbere  ia  aotbority  io  tbe  law  a|ioo  tbe 
▼cry  eaae  of  a  libd,  where  a  partial  fiooio^  of 
tbe  jory  was  held  saffidcfit.  A  charge  was 
brought  for  the  wrhio^,  eollcdiog,  aod  priot- 
isflT  a  nomber  of  balbdtf,  aod  thmby  foraiog 
a  Gbel  open  the  king.  The  jury  foood  the  de- 
fadaot  gailty  ouk  of  tbe  prioting ;  and  thb 
verdict  waa  auowed  to  be  good  opoo  the  iaioe. 
Wbereser  the  jory  shall  hate  omiUed  a  matter 
of  fact,  tbe  Coort  will  oot  intend  that  fact; 
neither  will  they  eondode  the  defendant  inno- 
cent, because  the  iory  have  oot  said  that  he  ia 
ao;  butthey  will  then  order  a  new  jury  to  come 
aod  try  the  caoae  again. 

If  It  is  said  that  the  jory  meant  to  ezclode 
m  eoDclnsioo  of  law,  that  were  moostroos.  To 
■ay  that  the  jory  fonnd  the  fact  of  puUishing 
the  paper,  aa  charged  in  the  infbnnatioii,  but 
that  they  denied  the  interpretation  of  the  law 
upon  it,  were  bringing  them  wholly  out  of  their 
prorinee;  fortheyareonlyjodgesof  fitct,  and 
with  the  bw  they  have  noUung  to  do.  If  the 
jory  are  said  to  baTe  firand  toe  publication  of 
some  other  paper  than  that  as  charged  in  the 
information,  it  is  saying  that  they  Mve  found 
a  fact,  which  they  are  not  charged  to  enquire 
into.  This  were  making  them  to  have  done 
more  absurdly  than  they  have ;  and  what  they 
have  manifestly  uo  right  to  do.  Their  words 
must  necessarily  lie  referred  to  aomething ;  but 
why  substitute  a  subject  out  of  tbe  iofonnation  ? 
For  if  they  have  found  that  the  defendant  only 
printed  and  published  the  libel  charged  in  the 
raformatioD,  they  have  found  what  will  ever  be 
enough  to  convict.  The  jory  cannot  prevent 
tbe  judgment  of  law  from  passing  upon  the 
facts,  which  roeo  are  found  to  have  committed. 

The  jury  are  to  inquire  into  a  fact  as  cbarffed 
in  tbe  ioformation ;  and  the  short  answer  they 
give  in  the  words  guilty  or  not  guilty,  must  lie 
referred  to  that  partictilar  charge ;  otherwise 
they  say  nothing. 

It  is  oot  necessary  for  me  to  contend,  that 
any  facts  shall  be  supplied  by  ioDuendo  in  the 
Itndiog  of  a  jury ;  but  if  the  lury  meant  to  ex- 
clude a  conclusion  of  law,  I  dare  say  your  lord- 
ships will  not  attend  to  it;  for  when  a  jury  has 
found  sufficient  facts  to  support  some  verdict 
in  the  cause,  they  cannot  go  further,  and  find 
a  wrong  conclusion  of  law.  When  the  jury 
have  found  sufficient  matter  of  fact,  your  lonf- 
ahips  will  supply  the  matter  of  law ;  as  was 
determined  in  tbe  case  of  lord  Paget ;  where, 
in  the  question  of  a  fraudulent  conveyance,  the 
jory  having  found  sufficient  special  matter,  the 
Court  inferred  tbe  conclusion  of  law,  that  the 
conveyance  was  fraudulent,  though  the  jury 
had  not  expressly  found  the  fraud.*  However, 
Sn  this  case,  the  jury  have  expressly  found 
some  guilt ;  aod  it  is  now  become  the  province 
•f  this  court,  to  say  what  that  guilt  amounts  to. 

Mr.  Morton,    The  subject  for  the  jury  to 

*  Moore,  194.    Dyer,  369. 


The  Case  c/H.  S.  JFoodfidl^  [908 

haveeoquiied  into,  was  tbe  application  of  this 
fibel  to  tbe  person,  opoo  whom  it  is  charged  ia 
tbe  informatioB  to  have  been  ooade.  f  confiesi 
that  the  matter  here  charged  woaU  not  be  fi« 
belloiia,  if  it  affected  any  body  else  than  tbs 
king.  The  jury  have  foQod  the  fad  of  pdnt- 
inr  and  pobltshing  only  ;  and  that  waa  tbe 
only  thing  they  had  to  find.  For  whal  ia  tbe 
crime  charged  ?  It  is  the  printing  and  pobUi* 
ing  tbe  matter,  and  thinga  oootained  in  the  ia* 
formatioo.  Upon  which  tbe  jory  aeem  to  as 
to  have  aaid,  tiiat  he  ia  only  gnilty  of  prialiBg 
and  jmUishing  the  paper  cna^ged  in  tbe  inlbr- 
mation  (for  that  ia  all  we  have  to  add);  aad 
this  is  the  same  as  if  they  fbond  him  goikf 
geoerally. 

Mr.  WaUace,  The  verdict  is  full,  aad  it- 
^oirca  no  intendment.  The  charge  ia  for  prill- 
ing and  pnbGshing  a  libel ;  the  defettdaal  says 
he  is  not  goihy  of  tbe  charge:  the  jaiy.  boaf 
asked,  tl^y  say  he  ia  guilty ;  that  ia,  od^  «i 
printing  and  publishing;  which  is  the  mm 
thing  as  finding  him  guilty  fieoerally. 

It'woidd  have  been  material  if  the  jiiiy  hid 
excluded  in  this  verdict  the  allusioos  naadafiav 
tbe  paper  in  question  to  the  libel  in  the  iijbr* 
motion.  As  to  the  obfoetioo,  that  thcty  have 
not  found  tbe  intentkNi,  that  will  avail  as  fidls 
now  aa  It  did  before  in  the  case  of  Uie  ESmg 
and  Beare.*  It  was  objected  there  also^  tbil 
the  jury  had  only  found  part  of  tlie  cbanfy 
and  that  so  much  as  they  found  did  not  inni 
any  illegal  act ;  for  that  there  are  cases  ii 
which  it  may  be  lawful  to  write  a  libel,  as  Ik 
a  clerk  drawing  ao  indictment,  or  a  stodmt 
taking  notes  in  court:  but  the  Chief  Jwtica 
said,  their  finding  such  a  fact  in  the  case  of  a 
information  must  necessarily  infer  a  crime. 

Mr.  Dunning.  Verdicts  are  not  to  be  ci* 
tered  in  any  case  io  the  precise  words  tbe  jaiy 
give  them ;  nor  are  th^  so.  Something  M 
always  to  be  added.  Had  the  word  *  oalf* 
been  omitted,  there  is  no  doubt  the  verdict  is 
this  case  would  have  been  competent ;  for  tbe 
clerk  would  have  added,  *  tbe  matters  charged 
in  the  information.'  Let  those  words  beitiB 
added,  and  the  insertion  of  the  word  *  only'  wiS 
make  no  difference. 

All  tbe  books  aeree,  that  the  jury  may,  n 
these  instances,  take  the  law  and  fkct  togetbefi 
and  give  a  general  verdict.  This  I  know  bM 
beendisput^;  but  whether  disputable  or  B«t| 
is  snother  matter.  However  it  has  not  vet 
been  insisted,  that  iuries  ought  to  take  nil 
upon  them ;  nor  will  I  intimate  my  own  opi- 
nion upon  it. 

In  tnis  case  at  least  the  jory  have  not  tikii 
upon  them  to  decide  the  law.  They  have  sai^ 
that  the  defendant  is  guilty  of  printing  sol 
publishing  a  certain  paper ;  but  whether  tbnt 
IS  any  guilt  in  that,  or  what  degree  of  ffA 
they  do  not  chuse  to  determine ;  they  Icsit 

~      1        I  _         ■L__«L_^ ^^ 

*  See  this  case  considered  much  at  laifi  it 
*  Another  Letter  to  Mr.  Almon.'  The  cass  i| 
reported  in  Lord  Raymond,  Carthew.  If  Mli 
Saik. 


1  liifvrmation  for  publishing  it  Libel.  A.  D.  1770- 


[91(1 


Am  to  olbcn ;  I'ur  ibc'ir  own  part,  they  lieg  to 
b«  «xcuwd.  It  being  tbeo  at  beat  b  milter  oC 
diipute,  wbelbvr  llie  jury  slioulil  d«cide  upon 
tbc  law  or  iioi,  and  u  lliey  baie  nul  ilone  id 
«s)intaly  bvre,  why  nhould  ibey,  liy  infcTence, 
be  cvBcluded  lo  bate  done  id,  in  delennining 
die  pBjieT  not  lo  be  h  lih«),  upon  ibose  pcriis  to 
wbitb  Ibey  will  be  Ibereby  »ubjecle<l. 

A*  l»  the  objection,  ibm  Ibe  alteration  will 
not  appear  upon  the  record,  whrti  removed  by 
etrur  iola  aootber  court ;  this  k"^*  fo  Imther 
than  in  eT«ry  olher  case,  when  ibe  court  or 
derk  add  wurda  lo  tbe  general  finding  of  juries. 
Betidei,  thii  is  a  mstlrr  of  fact,  wRelber  tbe 
jury  have  lound  (be  defendaiit  H^uilly,  or  not ; 
and  no  niatler  of  fad  i»  «iibject  tu  any  rerisal 
by  error.  Upon  Ibe  whole,  1  am  sBiiafled,  that 
Ibe  meaning  of  the  jury  wai  to  find  (be  faci; 
and  whether  bbel  or  not,  lo  lea?e  lo  the  deter- 
mination of  ibe  Court. 

Mr.  Walker.  As  lo  tbe  objection,  that  the 
)tiry  hare  nol  found  ihe  intenlinn,  it  ia  mini- 
t««,  that  if  Ihc  jury  find  llie  facl,  they  must 
Arid  the  design  with  which  it  ii  done;  for  ibe 
dtfeadani  i«  a  free  a^enl,  and  therefore  an- 
iwcrabte  fur  the  legal  consequencei  of  his  own 
act. 

Mr.  Serjeant  Glynn  in  reply.  It  aeeina  lu 
be  allowed  by  all  Ihe  counsel  for  the  prowcu- 
tioo,  that  the  Tcrdici,  a«  il  slands  at  preteni, 
rc^nirei  mine  klud  of  amendment ;  witboiil 
t*hkh  no  judgment  can  lie  giren  upon  it.  I 
beg  leave  lo  lay,  if  such  words  were  to  be  add- 
rd,  ai  Ihe  gejiileioen  on  the  other  side  would 
with  to  anoex  In  the  wordi  found,  auch  addi- 
liOB  would  flatly  contradict  Ibe  obiiont  spirit 


■Balie  III 


■Tici' 


^*ea  apon 


i  such  a  jumble  of  cool  rad  id  ion 
hat  no  judgment  could  pouihly 
1.     Mr.  Dunning  says, 


u  the  n 


a  of 


tbe  jury,  williout  adding  aomethiog. 
let*  it:  but  what  is  that  sonielhing,  and  who 
inakn  tbe  addition  i  To  tbe  bare  words  ■  guilty' 
or  *  uol  guiliy'  is  added,  '  of  the  matters  and 
*  tbinn  chap,{ed  in  the  information'  in  such 
'  li  wurda  as  paraphrase  ihe  clear  indispiit- 
ktdiiigofihejnry,  without,  inibesnialt- 
'~~'>,  impaitiog,  amplifying,  or  altering 
This  entry  or  addition  is  made  by 
trit ;  and  inch  an  addition,  should  the 
legkct  to  make  il,  the  Court  will  aFter- 
Hpply,  as  a  mere  clerical  omission.   But 


ibtMl  oroitiion  of  the  jury.  When  ihe  jury 
-— nf  irt  a  ci)mmon  verdict,  the  clerk  eotera  it 
iti<^  common  form;  but  lh«  clerk  has  no 
jiit  lo  expunge,  or  eras*,  or  alter  tbe  words 
'••  Ltie  jury,  when  ihey  hare  nol  found ibem  io 
■he  cwntnon  way ;  and  I  affirm,  thai  Ihe  Court 
ha*  no  more  power  lo  supply  such  an  oinisslno 
of  Ihe  jury  Itian  tbe  clerk.     The  Trnlict  of  the 

I  is  uul  at  all  allerail  or  impeached  by  sup- 
t  clerical  defects;  but  iu  ibla  case,  Ibe 
bftlMJary,  not  of  ihecletk,  Ibe  verdid 
llTMiliI  be  maiarially  apd  menlially  sf- 


fecled  and  changed  by  the  alteration  proposed 
to  be  made  by  the  Court. 

It  has  been  said  too,  that  the  jury  meant  to 
find  the  fact  specially,  or  to  bring  In  a  special 
terdid,  but  is  it  ■  fair  inference  from  lh«  %vorda 
that  they  meantto  do  so?]  Il  is  welt  kiinwo, 
that  in  a  special  renlict  all  the  fads  must  bo 
found,  ami  il  must  conclude  with  desiring  Ibe 
advice  and  opinion  of  Ihe  Court  upnn  the  wTioIe : 
is  this  Terdid  so  circumstanced?  Do  thejurjr 
here  ask  any  iguestion  of  the  Court,  or  cra*a 
its  assistance  lo  guide  Ihrm  ?*  But  it  it  were  • 
special  vrrdict,  llie  Court  could  only  determine 
upon  what  was  expressly  found,  and  nol  upon 
inlendmeuls  and  cooslrudjooa  of  Ihcir  own 
raising.  Howerer,  we  bpg  leave  lo  inaisi  Ibal 
this  was  not  meant  ai  a  general  rerdid,  and 
thnlthe  jury  understood  it  lo  be  a  verdict  of  ac- 
quittal ;  for,  in  a  general  verdict,  they  decida 
upon  Ibe  whole  of  Ihe  case,  tmd  upou  wbal 
they  are  silent,  they  acquit  Ihe  defendant ;  bj 
saying  nolbtug  of  the  paper,  therefore,  the; 
fiod  il  no  libel.  Were  I  lo  admit  Ihe  crimina- 
tily  of  tbe  paper  lo  be  a  question  of  law,  it  it 
surely  such  a  question  as  is  comprised  in  lb* 
issue  which  they  must  necessanly  take  into 
Ibeir  consiileralion  when  ibcy  give  a  general 
verdict.  Whatever  they  have  not  decided  upon, 
tbey  have  certainly  tiee;alived.  Had  ihey  meant 
lu  ease  their  own  minds  as  to  tbe  law,  ihej 
coutd  have  done  it  in  nu  other  way,  Ihan  bj 
finding  specially.  This  is  tbe  tame  case  ai 
thai  of  Elizabeth  CanniDg.f  and  of  Penn  and 
Head. J  Tjiere  thejury  used  the  word  '  guilly,' 
and  yet  excluded  the  crime.§  Let  us  suppose, 
li>r  argument  sake,  that  the  jury  had  Ihnnght, 
there  was  some  degree  of  guilt  in  w]|al  they 
said,  and  yet  negatived  all  the  crime  by  some 
■ubscquenl  word :  the  verilict  would  then  hare 
been  conlradiclory  and  repugnant  lo  itself,  and 
there  must  have  been  a  new  trial.  Printing 
and  publishing  are  not  the  only  ibiogs  gi«en  iu 

charge  to  thejury;  Ihe  cf" ' ■ —  "  '■'■" 

wiae  in  their  charge ;        '  ' 
'  only,'  they  have  e 

The  (Atunsel  for  the  crou  n  have  confounded 
the  easel  of  general  wilh  those  of  spectat  ver • 
diets.  Mackennie's  case  was  a  special  verdict. 
The  conclurou  ilierr,  that  Ibe  blow  was  liHo- 
ni'ihs,  was  apparent  frotu  Ihe  liiclt,  which 
were  (bund.  The  case  of  ihe  King  and  Beare 
was  very  distinguishable  from  the  present ;  nnr 
is  there  uny  case,  wiierc.  iu  a  general  verdict. 


*  Non  tali  Biixilio.     Sjind.  Mui. 

f  See  vol.  19,  p.  669.         J  Vol.  6,  p.  gfi3. 

§  Mee,  also,  Ibe  duke  of  Newcastle's  ver- 
dict in  Ihe  ductless  of  KingMOn'a  Case,  p.  6SS, 
of  tbia  Volume.  In  a  trial  for  forzery  just 
now  bad  bclbre  Itlr.  Baron  Wood,  at  York, 
HJummcr  Assizes  ItllS,  the  jury  at  firvtfirDiigbl 
in  the  verdict  "  Goilty  of  uttering  the  lorged 
n«in,  but  without  knowing  Ibein  lo  be  forg^." 
As  to  "  guilly  of  publishing  only,"  %ec  in  thia 
Culleclioo  llie  great  Case  of  Ibe  dean  of  St. 
Asapb,  at  »alop,  *.b,   1704. 


yil]  lOGIiOKUE  ni. 

Ilie  jury  can  be  suppoited  la  refer  any  mftltere 
to  ihe  Court.  Tliey  Ikts  found,  bs  llieir  ge- 
neral veritict,  ihat  tbe  defendant  is  guilty  of 
nollibg  more  than  of  {irioting  and  publisbing; 
and  by  llie  ivord  ■  only,'  applied  tu  these  acts, 
ihey  bave  qualiflec<  and  re^ti-ained  that  lue  of 
tbe  word 'guilty.'  They  liavf!  fnund  I  lie  de- 
fendant Kuiliy  only  of  a  part  of  the  charge  ; 
and  for  Ine  additiou  or  alteration  which  ire  now 
wanted  lo  be  made  In  ihc  Guiling,  the  case  he- 
coiiies  quite  new  and  singular;  because  there 
is  nn  instance  of  a  verdict  having  been  entered 
contrary  to  the  finding  of  ajury,  excepting  in 
mere  clerical  mistakes.  To  say  that  the  entry 
ought  to  be  guilty  generally,  because,  if  the 

t'liry  had  not  lo  intended,  Ibey  would  have 
raught  in  their  terdict  Not  Guilty,  would  be 
at  beat,  putting  a  sense  upon  doubtful  words, 
which,  il  any  explaualion  was  necessary,  ought 
to  have  been  ex^leineii  at  tbe  lime  ihe  verJir.t 
nan  ^Ten ;  but  it  comes  too  late  to  be  admitted 
pow.  IfaiueenmgrouBibe  put  by  the  Court 
noon  these  words,  tbe  most  ubvioua  one  is  lliftt 
pFacquittal.     If  we  are  to  go  out  of  the  words' 


The  Case  qf  H.  S.  Wood/aU,  t^Mi 

tioo  of  the  inuendoes  is  not  deoiei] ;    only  tl 


pFacquittal. 
fori 


if'tli 


t  to  tlie  affidai 


new  triul.  But  if  ihs  verdict  appears  ever  so 
unmeauing  lo  your  lordships,  you  cannot  now 
aniend  il,  heriause  you  have  nothing  to  amend 
it  by ;  as  has  sometimes  been  done  by  notes 
taken  at  the  trial,  lo  correct  the  misprision  of 
Ihe  clerk.  Nor  can  you  now  give  a  conlra- 
diclion  to  the  Jury,  by  saying  they  meant  lo 
find  the  whole,  when  they  declare  tbey  mean 
somethiog  short  of  il.  If  it  is  a  good  and  suffi- 
cient verdict,  it  need  not  to  be  altered  at  ail ;  if 
there  is  any  thing  more  than  clerical  defects  in 
it,  it  ought  not  to  he  altered.  In  the  one  case 
We  are  entitled  to  an  acquittal ;  in  the  other,  lo 

Lord  Maatjicld.  Tliongh  the  Court  will  not 
yet  determine  iihether  llie  affidavit  of  any  of 
Uiejury  may  be  read  in  this  cause,  yel  I  have 
permilled  one  lo  be  read  a  little  by  way  of 
stating  It;*  and  I  there  find,  that  the  appiica- 

■  This  was  the  affidavit  of  William  Sibley, 
baker.  London,  Mui.  Upon  this  passage  uf 
lord  Mansfield's  judgment,  the  auihorof '  Ano. 
llier  Lietter  to  Mr.  Almon,'  pp,  8i  el  Kq.  ii 
Tery  severe;  and  in  another  place  {\t.  61),  lie 
thus  writes  concern iug  the  atSdavitsof  jury. 

"  The  periniasion  to  a  jury  to  rectify  or  alter 
Iheir  own  finding,  or  to  declare  agsmst  il  by 
affidavit,  ■tUr  Ihey  have  once  been  at  large  and 
mixed  with  ibe  world,  would  be  of  the  most 
J  it  has  rarely  been 
Id  be  granteil :  the  ids 
is  Dovel,  and  conlrury  to  the  fundamenlsl  prin 
oiples  both  of  law  and  pnlicy.  And  a  lal 
Iraosaction  forces  me  to  add  farther  tlie  appli 
cation  to  Jurors,  alter  being  discharged,  to  hear 
privately  and  tzpartt  olher  evidence,  and  tn 
make  Btfidavils  in  consequence  thereof,  eithet 
loallerlhe  whojeor  any  pari  of  their  verdivt| 


been  very  material ;    with  tbe  oilier  11 
nothing  lo  do.     In  that  cose,  there  w 
>  proof  to  them  of  the  papirr,  as  chained 3 
the  information.     But  if  Ihe  jury  find,  that  1^ 


sorrow  for  having  given  it,  is  infamous,  and 
lite  greatest  inlet  tu  iniquity,  corruption,  per- 
jury and  injustice,  (hat  can  be  devised;  ud 
therefore  those  who  make  such  applicaliooa, 
when  discovered,  should  be  prosecuted  at  ttit 
public  expence,  fined  sail  brandi.-d  for  ever. 
Every  practice  of  tliia  sort  tends  to  lessen  tlic 
force  and  effect  of  the  public  judicature  of  |bt 
country,  and  <wuuieracts  the  guanis  itiili 
which  the  law,  for  wise  reasons,  has  ' 
juries,  by  having  T 
after  being  sworn, 
milled  lo  speak  to  them,  lest  same  papular  Hi 
or  external  influence,  some  cLndeatine  biuj||f 
partial  representation,  or  intreaty  should  li'~ 
place.  VVIienever  any  thing  ol  the  kindl 
in  tact  happened,  for  want  of  tbe  baibffiilt 
parties'  constant  observation,  it  has,  if  madeM 
|>ear,  been  deemed  to  contaminate  their  vc 
so  as  lo  set  il  aside.     All  tbe  jurors  s  _ 

that  nothing  bad  paned  relative  to  tbe  csMi  I 
would  not  uphold  it.  Those  nl 
private  examination,  especially  uf  one  side, alter 
a  public  trial  had,  in  order  to  stagger  a  JDiy. 
and  to  render  them  dissatisfied  with  their  ver- 
dict, act  in  the  grossest  definnce  uf  the  lasr, 
and  with  the  most  auilacious  contetDpt  of  th' 
Court  thuy  intend  to  afied  or  influence  by  it- 
It  is  embracery  and  tatnperinu:  wiib  jurors  in 
order  to  defeat  their  own  verdict.  Even  il" 
after  the  jury  be  sworn  and  gone  from  Ihe  bar, 
they  seud  lir  a  witness  tu  repeat  his  evidnire 
that  he  gave  openly  in  court,  who  does  it  ic 
curdingly,  and  this  appear  by  examination  ip 
court,  and  indorsed  upon  the  record,  or  postca, 
it  will  avoid  the  verdict." 

See  as  to  affidavits  of  jurymen  vol.  19,  pp- 
069,  (if  5,684,  <f  Iff. 

In  Ihe  Case  of  Edmund  Thirkell,  Tna- 
b  Geo.  S.  where  Ihe  defendant  had  been  con- 
victed of  a  misdemeanor,  and  aflerwards  ei||li< 
of  ihe  Jury  signeil  a  paper  in  his  favour,  iutj- 
raating  their  disapprobation  of  the  veriM  ] 
which  they  Iheiaiielves  had  given,  lord  SI 
field,  and  VVilmot,  Just,  concurred  in  nprOB*  1 
ing  great  dislike  of  such  represeolauons  m~*' 
by  Jurymen  after  ihe  lime  of  delireril^t  ll 
verdict.  Lord  Mansfield  said,  *■  Ii  aughlil| 
of  very  l»d  consequence  to  listen  lo  aoch  M^ 
sequent  represenlations,  coni 
had  before  found  upon  llieir  o 
might  be  obtained  by  impropci  • 
subsequently  made  to  them."  Aiu 
Wilmot  thought  ihey  ought  U  be  loUH;  ' 
regarded.    3  Burr.  1696. 

For  more  coocerniiig  jurymeii'a  affidlA  I 
see  Ihe  cases  cited  in  the  Note  taHal««.Cs**  | 
1  Strange,  Cl^.  Mr.  Nolan's  editioo. 


rarv  l»wh«l 
oalhs,  and  « 


[914 

they  (iimI  any  fact  of  publication,  they  mast 
find,  not  the  simple  fact  of  publishing  that 
Public  Advertiser,  sold  at  the  defendaot'a 
bouse,  but  that  ?ery  libel  charged  in  the  io- 
formation.  * 
The  Court  will  advise. 


1^13]  on  an  In/brmaiionjbr  publishing  a  LibeL  A.  D.  1770. 

ddefMhrnl  poblished  at  all,  they  find  the  paper, 
as  obarged  in  the  information,  for  that  is  their 
on\j  CBqoiry.     1  take  it  from  the   affidavit, 
vrbicfa  bat  Men  stated,  that  it  does  not  appear, 
vrbether  the  jury  meant  to  say,  that  the  ps|>er 
b  BO  libel ;    if  tney  had  the  least  doubt,  wlie- 
tlier  tiie  innuendoes  were   properly  supplied, 
there  should  be  a  new  trial.     I  did  not  leave  it 
Is  the  jary,  whether  the  paiier  was  innocent  or 
feel.    1  never  do.    1  summed  up  to  them,  as  I 
•Hviys    have    done  in  similar  cases,  that,  if 
Ibey  were  not  satisfied  of  the  fact  of  publica- 
Sm,  or  had  a  doubt  of  the  application  of  any 
of  the  words  in  the  information  to  the  blanks  in 
Ae  letter,  they  must  acquit   the  defendant. 
But  I  told  them  also,  that  whether  the  paper 
1^  oriminal  or  innocent,  was  to  them  a  sub- 
jset  of  indifference ;  because,  if  innocent,  jn(ls>^. 
iMort  would  be  arrested  in  this  court.     Here 
Ae  jury  did  not  mean  to  find  the  mulice  of  the 
Icmlant,  because  it  was  not  within  their  en- 
quiry ;   nor  did  tbey  mean  to  exclude  it,  be  • 
mose  it  was  not  within  their  power  to  exclude  i 
t  Ival  deduction.* 

laere  may  be  something  of  a  distinction  in 
tile  books  about  amending  a  verdict  in  civil 
iBd  in  a  criminal  case.  But  it  is  a  mistake ; 
iMi  there  is  nothing  in  it.  In  the  case  of  Gib- 
isn  for  forgery,  all  the  judt^es  were  of  opinion, 
tint  where  the  officer  had  drawn  up  the  verdict 
Motrary  to  the  finding  of  the  jury,  it  might  be 
WMDded.f  There  is  a  case  of  this  sort  in  the 
Tear  books,  as  early  as  the  3rd  of  Richard  3, 
Ifbrget  tbe  page,  as  1  speak  only  from  the 
iMSDory  of  my  reading.  This  is  the  only  way 
if  atiering  a  verdict  either  in  a  criminal  or  a 
^1  case.  There  is,  indeed,  a  sound  distinc- 
ties,  which  holds  in  the  pleadings ;  for  those 
Ciiroot  be  amended  in  criminal  matters. 
^  Whatever  may  be  the  inclination  of  my  opi- 
ftHM  in  this  case,  it  is  too  late  to  have  any  ef- 
ftets  from  it  in  this  term  :|: ;  therefore  let  it 
Miiid  over  to  the  next. 

A$ion,  Just.  The  jury  are  elected,  tried, 
iad  sworn,  to  determine  concerning  the  mat- 
ttfi  contained  in  the  informations,  therefore  if 


*  '*8uch  kind  of  reasoning  in  an  answer 
Woold,  as  my  lord  Mansfield  knows,  be  called, 
in  the  Court  of  Chancery,  fencing  with  the 
fbestion.  It  it  answering  with  a  reference  to 
iMther  thing  on  the  truth  and  falshood  of 
vbieli  its  own  must  respectively  depend,  and 
ttetefiire  is  deemed  no  answer  at  all."  Ano- 
ther Letter  to  Mr.  Almon,  p.  63. 

f  This  was  a  special  verdict,  and  only  made 
^^eeable  to  the  fact.— Zonrf.  Mut, 

X  This  might  be  so,  if  his  lordship's  opinion 
iraa  against  tbe  defendant ;  not  so,  if  other- 
irise ;  therefore  if  lord  Mansfield  had  not  al- 
••arfy  taiil  enough,  it  were-sufficiently  manifest 
vhat  that  opinion  ist  as  lord  Mansfield  re- 
xired  this  verdict,  he  is  indeed  contending 
i«re  for  his  own  credit  as  a  judflfe. — Lond, 

Kttf. The  opinion  which    lord  Mansfield 

iMdly  delivered  did  not  verify  the  anticipation 
f  this  note. 

VOL.  XX. 


The  following  is  Sir  Jame$  Burrow* $  Report 

iff  this  Case : 

Rex  versus  WooDFALL.f 

This  cause  first  came  before  the  Court,  on 
Friday  SSnd  June,  1770. 

Mr.  Lee  then  moved,  on  behalf  of  tbe  de- 
fendant, to  stay  tbe  entering  up  judgment 
against  him,  upon  the  verdict  found  in  this 
cause. 

A  cross-motion  was  made  at  the  same  tirne, 
by  the  counsel  for  the  crown,  for  the  defendant 
to  sbew  bause  why  the  verdict  should  not  be 
entered  according  to  the  legal  import  of  the 
finding  of  the  jury. 

Jt  was  an  information  against  the  defendant, 
by  the  Attorney  General,  for  printing  and  pub* 
lishing  in  the  Polilic  Advertiser,  a  seditious 
libel  signed  Junius.  Upon  the  trial,  the  jury 
found  him  guilty  of  the  printing  and  publish* 
inir,  only. 

The  Court  granted  rules  to  shew  cause, 
upon  each  ci'  these  two  adver^te  motions  ;  and 
ordered  them  both  to  be  brought  on  upon  the 
same  day. 

Accordingly,  on  Tuesday,  3d  July,  1770, 
cause  was  reciprocally  shewn,  on  each. 

Serjeant  Glynn  and  Mr.  Lee  argued  for  tbe 
defendant:  Mr.  Thurlow,  (solicitor  general,) 
Mr.  Morton,  Mr.  Wallace,  Mr.  Dunnmg,  and 
Mr.  Walker,  for  the  crown. 

On  the  part  of  the  defendant,  it  was  insisted 
that  the  verdkit,  as  found,  did  not  amount  to 
find  Mr.  Woodfall  guilty  of  the  charge  in  the 
information  ;  but  rather  to  acquit  him  of  it. 
For,  he  is  charged  with  printing  and  publish- 
ing this  as  a  libel,  with  a  malicious  and  crimi- 
nal intention :  but  the  jury  find  him  guilty  of 
printing  and  publishing,  only.  Whatever  the 
jury  do  not  find  implies  a  negative :  but  this 
goes  further ;  it  says  expressly^  that  they  find 
this,  and  this  only. 

A  criminal  motive  goes  to  the  construction 
of  the  offence :  a  criminal  intention  is  its  es- 
sence.    And  this  the  jury  have  negatived. 

*  See  in  **  Another  Letter  to  Mr.  Almon,'* 
&c.  p.  100,  some  observations  u|>on  this  opi* 
nion.  The  ''  Card,*'  No.  84,  of  the  miscella- 
neous letters  of  Junius,  inserted  in  Mr.  6. 
Woodfall's  edition,  vol.  3,  p.  308,  seems  to  be 
addressed  to  Mr.  Justice  Aston. 

f  I  have  seen,  in  the  hondwritingof  the  late 
Mr.  Serjeant  Hill,  the  following  note  to  thie 
case  of  Woodfbll :  *'  It  is  well  known  lord 
Mansfield  went  great  lengths  in  support  of  \\\n 
own  opinion  always,  and  in  this  point  particiw 
larly,  and  indeed  all  others  that  lessen  the 
rights  of  juriet.*'— Sec,  also,  pp.  414^445, 

3N 


015J 


10  GEOnGE  III. 


The  Case  ofH.  S.  Woodfali, 


[916 


They  are  jad^fes  of  law  and  fact,  at  far  as 
law  is  in?olved  m  fact.  They  may  take  this 
upon  them :  and  here  they  have  done  so. 
They  meant  to  acquit  him  of  all  criminal  in- 
tention :  and  one  of  the  jurymen  has  made  an 
affidavit,  **  That  he  meant  to  acquit  him  of  all 
criminal  construction :  and  if  he  had  thought 
that  that  could  not  have  been  thns  done,  he 
would  have  acquitted  him."  Therefore  this 
cannot  be  considered  as  a  verdict  of  conviction 
by  twelve  jurymen.  A  verdict  ought  to  be 
found  clearly,  fully,  and  distinctly:  it  cannot 
be  supplied  by  inference;  neither  can  it  be 
amended  by  any  notes  of  the  associate,  in  a 
criminal  case.  1  Salk.  53.  Rex  ? .  Bold.  1 
Salk.  47.     Rex  v.  Reate. 

They  aUo  cited  Cro.  Jac.  310.  Cook  t. 
Laneday  ;  and  Yelverton,  106 ;  and  Drury  ▼. 
Dennis*;  2  ftolle's . Abridgment,  693.  Title, 
'*  Verdict,"  letter  S,  pi.  5,  between  Bau^li  and 
Philips,  referred  to  by  lord  chief  justice 
Vaughan  in  the  case  of  Rowe  ▼.  Huntington, 
Vaughan,  75,  76.  who  there  says,  "That 
finding  the  point  in  issue,  by  way  of  argument, 
in  a  general  verdict,  is  never  permitted  ;.  not 
though  the  argument  be  necessary  and  conclu- 
sive." There  can  be  no  supply  by  intendment, 
in  any  case ;  much  less  in  the  present,  where 
it  is  impossible  to  supply  the  verdict  by  intend- 
ment, because  nobody  can  know  what  the  jury 
did  intend,  or  bv  what  rule,  or  upon  what  prin- 
ciple they  decided  ;  unless  affidavits  from  the 
jurvmen  were  allowed  to  be  read.  Another 
authority  that  they  cited,  was  the  case  of  Shel- 
ley V.  Alsop,  in  Yelverton,  77,  78,  which  was 
a  finding  of  the  assumpsit  by  foreign  implica- 
tion ;  **  which  is  not  good,  (as  it  is  there  said) 
upon  any  general  issue :"  and  it  is  there  laid 
down,  **  that  the  jury  ought  to  give  their  ver- 
dict precisely  according  to  their  charge." 

They  insisted,  that  the  verdict  oui:ht  to  re- 
main in  the  words  of  the  jury  ;  without  ex* 
pun<;ing  any  of  their  words,  or  substituting 
others  in  their  places,  or  controlling  them 
under  any  pretence  of  legal  construction. 
They  ought  to  be  left  as  they  stand  ;  that  the 
defendant  may  have  the  benefit  of  a  writ  of 
error  to  the  House  of  Lords,  if  the  opinion  of 
this  Court  should  be  against  him.  > 

They  hoped,  however,  that  the  present  find- 
ing Mould  be  esteemed  by  the  Court  to  amount 
to  an  acquittal  of  the  defendant. 

But,  if  the  Court  should  not  go  so  far  as  to 
hold  it  tantamount  to  an  acquittal,  there  ought, 
at  least,  to  he  a  Venire  facias  de  novo.  It  cer- 
tainly is  nut  a  conviction  :  and  if  it  be  not  an 
acquittal,  it  can  he  no  more  than  an  imperfect 
verdict.  And  if  a  verdict  be  imperfect,  there 
must  be  a  Venire  facias  de  no\o.  But  we 
hope  for  his  discharge,  as  upon  a  verdict  of  not 
j^uilty. 

On  the  part  of  the  prosecution,  it  was  argued 
that  the  present  verdict  could  not  be  considered 
as  a  verdict  of  not  guilty.  It  positively  and 
explicitly  finds  him  guilty  of  the  printing  and 
publishing :  and  it  does  not  import  any  negation 
•f  bis  guilti  ai  to  the  rest.    Tbs  word  "  only" 


does  not  import  the  exclusion  of  any  thing  bat 
facts :  it  cannot  exclude  conclusion  of  law. 

It  is  certain  that  a  verdict  cannot  be  amended 
in  matters  of  fact :  but  it  may  be  perfected  in 
point  of  form.  The  officer  takes  bis  Dots 
short :  but  the  necessary  finishing  of  the  sen* 
tence  may  be  supplied.  The  substance  and 
matter  of  this  issue  is  sufficiently  found:  tbs 
Court  may  order  it  into  a  proper  form.  Tbt 
hiw,  here  in^klies  the  intention.  The  printwg 
and  publishing  was  all  that  the  jury  were  to 
enquire  about.  This  verdict  is  not  imperfect  ^ 
nor  is  there  any  need  of  supplying  sbt  thiag 
by  intendment.  The  intention  must  be  col- 
lected from  the  libel  itself.  The  intention  is 
the  gist  of  the  oflfence.  The  t erdict  ought  to 
be  entered  according  to  the  true  meaning  and 
intention  of  the  jury.  Something  is  always  to 
be  added  to  every  verdict :  the  entry  is  never 
in  the  very  identical  words  used  by  the  jary ; 
which  are  always  concise,  and  not  full  and 
formal  enough  to  stand  supported  against  t 
writ  of  error. 

Whether  a  jury  may  or  may  not  take  arai 
themselves  to  judge  of  matters  of  law,  they 
must  at  least  do  it  at  their  peril.  But  hen 
they  have  not  done  it  at  all :  they  have  not  de- 
termined, that  this  paper  is  not  libellous.  8s 
that  whether  they  may  at  their  peril  do  it,sr 
whether  they  may  not,  they  have  not  ben 
risked  that  peril.  The  import  of  tht'tr  venlid 
is  a  general  finding  of  the  facts,  without  ex« 
pressing  any  sense  of  their  own  upon  the  law. 

In  the  case  of  the  King  against  Beere,  rs« 
ported  in  12  Mod.  2t8.  2  Salk.  217.  1  Lofd 
Rayro.  414.  Carthew,  407,  and  Holt,  4S9, 
the  jury,  as  to  the  writing  and  collecting  of  tbt 
libels  only,  find  him  guiity,  prout  in  MicU' 
mento  supponitur :  and  as  to  all  other  ihiogi 
charged  in  the  indictment,  prater  scriplionim 
et  collcctionem^  they  find  him  not  guilty.  Tin 
charge  was  for  cumjmsing,  making,  writing, 
and  collecting  several  scandalous,  faUe  and  *^ 
ditious  libels.  The  finding  tvas,  '*  UunaJ 
scriptionem  et  collectionem  libellorum  in  indio' 
tamento  mentionat'  tantuu),quod  defeodeastfst 
culpahilis  ;  et  quoa<l  totum  residuum  in  eodea 
indiclamento  content*,  quod  defendens  non  est 
inde  culpahilis.''  It  was  hoiden,  *' That  ibi 
bare  writing  and  collecting  the  lil>ellous  matter 
was  criminal ;"  and  "  that  the  general  finding 
shall  be  taken  to  be  criminal."  And  Tunoa 
and  Kokeby  cited  some  cases  to  prove,  **  That 
the  writing  of  a  libel,  without  publisbiDg  ^ 
was  punishable  by  indictment.'' 

They  also  cited  Moore,  194.  Dyer,  362. 
Hohart,  54.  Moore,  808.  2  Lev.  Ill,  ai«Ji 
to  prove  that  tlie  word  '*  only"  mifi^bt  be  r^ 
jected,  2  Saunders,  380.     Co.  Lit.  227. 

Serjeant  Glynn  replied ;  enforcing  ^ 
former  argument,  ajid  denying  that  the  cassw 
Beere,  or  other  cases  now  cited,  were  like  tkl 
present  case. 

Lord  Mansfield,  It  is  mocb  too  |ate  in  thji 
term,  for  any  thing  to  be  further  done  u  tki 
cause,  with  any  eBect,  liei  it  stand  over  H 
next  term.  Cut^  Aisi^ 


%  an  Information  far  puhlishing  a  Libel.  A.  D.  1770. 


[918 


Tuaday,  Nov.  SO,  1770. 


nor 


Tbiicomei  before  tlie  Court  upon  tworules: 
IIm  first  nbtajneJ  hy  the  derenilsnt  in  stay 
Ibe  entering  ii|i  jmlgflnem  on  ilie  verdict  in 
Ihi*  cauw.  The  seironJ  iJHsineil  by  the  At- 
torney General,  thai  the  verdict  inly  be  entarnt 
•ecordiogln  the  legal  iniiiort  of  the  HiKting  of 
tbejnry.  Tbelasl  rule  must,  I'roni  the  nalureof 
if,  he  fini  diseuraeil,  because  the  en>uD<l  <>'  Br- 

KtnMit  npnu  the  nther  caonol  he  »eit]ed  till 
■  it  (l>t|Kise(l  uf.     Upon  thU  rule  it  is  iieces- 
nry  to  npori  th«  trial. 

Tbe  proseculinn  is  an  inrurmatinn  aifajnsl 
the  itet'euilant,  for  printing  and  publishing'  a 
Ithetjii  tlie  I'liblic  Arireriiser,  gl^eJ  Junius. 
The  tenor  ul' which  isiet  out  wilh  proper  a*er. 
■nenls  ns  to  the  meaning  ol'  the  libel,  the  aiib- 
jwt  matter,  and  the  peraona  concerning;  which 
■nil  uC  •rhnm  itspeatca,  uith  inueniloei  fithn^ 
up  ail  tile  hiauks  andlhc  usual  epithet*. 

loaupport  of  the  pruiecution,  they  proved 
ly  Nathaniel  Crowder,   that   he  bought  the 

Jiptr  prodiiceil,  anil  Inelie  more,  from  Col- 
eiil,  the  delellilanl's  publi^'her,  in  the  defend- 
■nl'a  putilishiug-ronm,  al  the  corner  of  Ivy- 
line.  TliBl  henneaolien  there,  has  uccaiional'ly 
Keaihe  printing-room,  and  has  hail  papera  in  the 
litinting-riHini.  They  read  the  paper  proilueed, 
iiiJ  Ihf  len"r  agreed  wiib  the  inrurmalion. 

flvorge  Harris,  register  ol  pamphlets  anil 
■ewipapera,  pmverl,  that  the  dereoilant  by  hiin- 
•elr  ami  tervania  paid  the  duty  fur  advcrtise- 
nenti  in  tlie  fnblic  Advertiser ;  tliat  thederenil- 
ani  bad  paid  bimsell',  auil  allihe  pay  menu  were 
inbisaocoant.  That  the  defendant  has  made 
■he  uanal  affidavit,  and  has  been  allowed  the 
tliinii-dulyt'orsuchpn|iersaB  were  unsold.  That 
llie  diiiiet  f»r  adveriikemenls  in  the  |taper  In 
IWdion,  were  paid  by  the  defendaul's  servant, 
■nil  tlie  receipt  given  on  t  he  deleodant'a  account. 
William  Lee,  clerk  to  air  John  Fielding, 
pravpd,  that  be  ntleo  carried  ad  vert  mem  en  la  tiir 
the  Public  Advertiier,  to  tlie  del'enilnnt'a,  at  the 
ciTiieiority-lane.  That  he generally'piid  ready 
>iii>Dcy ;  ibat  he  has  neen  money  paid  to  the  de- 
'riHlinl  Tor  adrertiBcinents,  and  be  had  a  receipt 
'"'III  tbedelendaut  aligned  by  bim  the  &9lh  of 
*>  vriiiber,  for  33/.  lor  printing  adverliiiemenla 
ilii'  Public  Ad lertiser.  Unthe  pari  ol'lbede- 
■  "lunl  iliey  called  no  wit ii esses.  His  ciiuniel 
.1'  iledtosome  urtheiniiendiiev,  butlhev  prio- 
'-'^My  applied  to  the  jury  tURci[uit  the  deiend- 
iiii.  I'rora  the  pai>er  being  ionoueut,  or  not  liable 
1°  tlie  epitbelii  given  it  by  the  iulhrmalion  ;  or 
*Hit  (lie  detendiintV  intent  in  publishing  did  not 
dt>erre  the  epithets  in  ihe^mtormatiun. 

There  was  ou  doubt  but  ihat  the  evidence,  if 
crnbtf'il,  sfnounled  to  proof  uf  phniiu);  and 
)>utibsbinif  ^y  ■'■^  delendanl.  Ther«  any  be 
otfi  where  the  fact  proved  aa  a  publication, 
■"•j  be  juslilied  or  excused. 


*<x>i :  1'uT  a 


naUi 


puilly.(-aj 

consider  w  be 
apfilici 


It  no  question  of  that  kind  aroti 

Therelbre  I  directed  the  jiiry  to 

^r  all  the  iniiendors,  and  alftba 

.  ,  natter  and  persons,  Riadeliy  th« 

inlnrmation,  were,  in  their  Judgment,  the  trus 

meaning  of  the  naper.     It'thev  ihniight  oiher- 


wise,  they  should  t 


the  liefeadau 


but  if 


they  airreed  nith  Ibe  information,  and  believed 
ihe  evidence  as  to  the  publicalion,  they  should 
find  him  piiilty.  If  the  jury  were  obliged  |a 
find  whether  the  paper  was  a  libel,  or  whether 
it  was  a  libtl  tusiich  a  debtee  as  to  deserve  the 
ejrilhets  given  it  by  the  intbnnalion,  or  lo  re- 
ijuire  proof  of  Ibe  express  intent  of  the  de- 
fendant  in  printiiig  and  piihlivhinicff'J  and  uf 
its  being  ii'alicioua  to  such  a  degree  na  to  de- 
serve the  epithets  given  it  by  the  infuriiiation — 
then  this  direction  was  wrong. 

In  supiion  of  it,  I  told  tbein,  as  1  hatefrona 
indispensible  duly  been  obliged  to  tell  everv 
jury,  upon  every  trial  of  this  kind,  to  the  S'oU 
lowing  effect:  tliat  whether  the  paper  {mean- 
ing as  alleged  by  the  inlormatiou)  was  in  law  a 
bbfl,  was  a  question  of  law  (c)  upon  the  face 
of  tlie  record  :  (or  after  conviction,  a  defendanl 
may  move  in  arrest  of  judgment,  if  the  paper 
ia  not  a  libel.  That  all  the  epithets  in  the  in- 
'e  formal  infereuces  of  law  from 


formatiou  n 


to  be  somewhat  obscure. 

,   ,  that  they  might  either  re- 

quire such  proof  of  the  publisher's  intent,  or 
collect  it  by  inference  from  the  mere  fact  of 
inihlicalion,  as  they  should  think  til ;  bul  Ibat 
certainly  ihey  ought  to  find  it. 

(c)  To  theae  words  Mr.  SerJ.  Hill,  in  hia 
copy  uf  Hurroi*,  had  wrilten  the  lollowinenute, 
(See  the  last  edition  published  by  Messrt. 
Clarke.) 

■■  It  is  a  question  of  icurrilitj/ ;  and  bow  can 
that  be  a  question  of  law  ?  By  SI.  Westm.  Id. 
13  Edw.  I,  c,  30.  ■  the  justice*  sholl  not  coro- 

Eel  the  jurors  lo  give  a  general  verdict  in  assize, 
ut.  if  they  voluntarily  wilt,  lei  the  verdict  be 
admitted  lub lao periculo.'  Tliis  statute,  asa|t- 
jiears  In  S  lust.  435,  extends  to  all  aciiuni  and 
all  issues,  and  also  tu  pleas  uf  the  vtown  hi  ibe 
king's  auit. 

"  In  the  Trial  of  the  Heven  Bishops,  thoDgh 
the  Court  was  divided  in  their  opinion,  whether 
the  petition,  for  preNenting  whiirh  the  defend- 
ants were  indicted,  as  fur  making  and  publish- 
ing a  libel,  did  in  law  amount  tu  a  libel,  or  not, 
yet  £qu.  not]  one  of  the  four  judges  of  the 
King's  Bench,  except  the  Chief  Justice,  ex- 
presily  assertpil,  that  Ihiit  point  was  a  matter  of 
law,  and  tlierefore  In  he  determined  by  the 
Court,  and  not  by  the  Jury  ;  and  two  of  lh« 
judges,  VIZ.  Hnlluway  and  Powell,  left  ii  to  the 
jury  as  a  in:itier  to  be  determined  by  them,  and 
declared  to  them  their  reaioni  lor  thinking  it 
nut  a  libel.  8ee  Foster  SOI,  V03,  10  Kt.  Tr. 
App.  [56.]  (qu.  19C,Oweu'»  Case,  see  it  in  ibis 
Colleciion  vol.  IS,  p.  1«U3.)  Holt's  Itep.  (>B3.  i 
Mod.'JU9.  Dyct  SOS.  Lamb.  Just.  hb.  I,c. 
13,  p.  IIT,  17a.  ed.  1583.  SM<xl.t>K.  Cx^, 


15  GEORGE  III.  Trial  <>fMaha  RaJaA  Nundoamar, 


[924 


556.  The  Trial  of  Maha  Rajali  Nundocomar,*  Bahader,  for  For- 
gery. At  Calcutta,  in  the  Province  of  Bengal ;  15  George 
III.  A.  D.  1775.  [Piibhshed  by  Authority  of  the  Supreme 
Court  of  Judicature  in  Bengal.  London:  Printed  for  T.  Ca- 
dell  in  the  Strand,  1776.J 


Junes,  1TT5. 
At  »  Court  of  Oyer  and  Terminer,  and  Gaat 
Delivery,  holilen  in  aod  tor  llie  I'ovrn  of 
Calculia,  and  Facinry  of  Fort  William,  in 
Bengal,  anil  the  iiimilk  ihereor,  anti  the 
Factories  gubonlinate  Iheieunlu,  on  the 
3d  day  o(  June,  1775.— Beliire  the  bon. 
ISrELUAH  Impei,  knt.  Chief  Justice,  Ro- 
bert CuiiiiBERB,  Stephen  C£s*r  Le. 
MiiSTBE,  and  John  HvDe,  trtqn.  JuBlices. 


J  called  to  the  har,  i 


The  Court  desired  Dr.  Aodennn  and  Dr. 
Williams  10  examine  the  priionvr,  nhich  tbej 
did,  and  reported  that  he  cumplained  of  haTior 
been  inil!s|iosed  in  the  nitiht,  but  that  he  bsd 
neither  flux  nor  fever,  aod  was  rery  capable  of 
taking  lijs  trial ;  wbereupoD  he  was  called  I* 

The  Prisoner  being  iofarmed  uf  hii  right  t* 
challenge  when  the  Jury  came  to  be  swan, 
challenged  the  foliuiring  gentlt-foen,  from  a 
paper  held  io  his  hand :  John  Lewis,  l¥illiiH 
Atkinson,  John  Williams,  William  Dicksaa, 
Richard  Johnson,  Joshua  Nixon,  Roherl  Dv- 


Wm.  Han 
der  Macneil,  J 
Philip  Coales. 
The  Counsel  for  tbe  CroffD  cballenged  Si- 


Bird,  Charles  Moore,  Alent- 
amea  Lally,  William  BHggii 


Tke  KiNQ  e.  Hafaa  Rajah  N 

The  Prisoner  being 

arraigned,  and  the  inilj< 

■el  tendered  a  plea  to  the  jurisdiclioii  t\f  the 

Court ;  but  the  Chief  Justice  pointing  out  an 

objection  thereto,  which  neni  both  tu  the  mat.^ 

ter  of  fact  and  the  lair  .contained  Ibereln,  and 

desiring  the  cnunsel  to  consider  if  be  cnuld     muel  Slatham. 

amend  It,  and  lake  lime  for  su  doing,  he,  aflet         ti     r  n  i 

1      .  -.       ,  ,      1  •    .■       .1.    °  1 .  Ihe  lollowmir  Jurv  W8S  sworn ; 

havmgcous.deted  heobj.ctLon,thougbtpro,,e,  I  E,[„.ard  Scott,  *       ^    John  Fergu«», 

tow.lhdraH-lhej,lea;  whereupon  the  pnsoDe.     |t„,,^rt  Macfadin,  Arthur  aX, 

-leaded  NotGuji.y:andl«,nga«ke,lhy,.ho™     Thomas  Smith  J.,hn  cX 

he  would  be  tried  ?  he  answered,  By  God  snil  ,  .-  .  ^,   .  „ii    ■  \j„..       »>  n-   '  t^ 

M_-  rrL    J-,      .  I    .    J  .    I  I   .1         t.ilwaril  £,  lennirton,      aamuel  Tnucnel. 

bis  peers.   The  Court  desired  to  know  whet  lei      i„     i   u  it-    -'i      r  i        ,  i  • 

h.  b'3..,pmiu,l..r.u,,Df.r«,ins.l,,.ord.J71''' """■''*■"''''.  ^'"■'''S..l."l.™ 

Kml  lK.co««»l.n..m.l,il,..i5.pri.om,  I  '°'l'  %1""-™.  .  ..CUrl«  W„|.., 
log  a  mau  of  the  first  dignity  in  this  king- 
dom, ihoughl  be  shouhl  be  died  by  |ien|de  iiF 
equal  rank  with  himself,  agrefahly  to  ilie  law  |  Mr.  Willinm  Cliamliers.  the  principal  iattr' 
ot  England,  which  permits  e»ery  man  to  be  preler,  not  beinij  yd  cume  from  lilsdrss,  inJ 
tried  by  hi«  peers.  The  Court  allied,  «  ho  the  >  the  two  assisiaot  interpreters,  od  eccoiiDl  (T 
Maha  Rajali  considered  as  his  |>eer8i'  |]ii  '  iheir  imperfect  knoii ledi,'^>  of  English,  btivf 
ODunsel  answered,  he  must  leave  that  to  the  |  deemed  insufficient  fur  a  trial  no  luni;  at  ibi) 


Court. 

Chief  Justice.  The  trial  can  only  be  by 
•uch  persons  as  are  by  Ihe  charter  required  to 
form  tlie  jury.  A  peer  of  Ireland  tried  in  Eng- 
land would  be  tried  by  a  common  jury.  The 
clisrler  directs,  that  in  all  criminal  prosecu- 
tions, the  prisoner  shnuhl  be  Iried  by  ihe  inha- 
bitants of  tbe  town  of  Calcutta,  being  British 

It  being  late,  the  Court  adjourned  till  ibe 
■ezt  moruing  at  seven  o'clock. 

Jane  9,   1775. 
Tbe  counsel  for  tbe  prisoner  informed  the 
Court,  that  the  Maha  Itajah  had  been  ill   ' 
tbe  night,  and  bad  now  a  flux  and  feter,  whi 
rendered  him  incapable  ot  taking  his  Irisl. 


*  These  proceedings  am  amply  dlscusspd  in 
the  CasesofifOveruor  Hastings  and  of  Sir  Elijah 
Im)>e^,  and  in  tbe  Parliarueolary  Uebatta  re- 
ajNGtiDg  tboM  Cue*. 


peeled  to  he,  .tlr.  Alexandr 
Hot,  superintendant  of  Ihe  Khalsa  Ittcunls,  a 
gentleman emini'tilly  skilled  in  Ihn  PertiauaoJ 
tlindostau  languages,  and  Mr.  UilliamJidi- 
Bon,  lately  admiited  an  alturney  of  the  cosrl, 
who  speaks  the  Hinilnslan  tongue  flueailj, 
were  reqiie!>te[l  by  the  Court  to  iiuerpiel. 

Tlie  Counsel  fur  Ihe  Prisoner  desired  lhitlb> 
evidence  mii;ht  be  interpreted  to  biro  in  i1>' 
Hindoalan  language,  as  il  nas  roost  genrrsHj 
underwood  by  the  audience,  and  requested  tlii> 
ihe  inrerpreter  of  tile  Court  might  be  eniptojt' 
tur  that  purpose,  and  objected  Io  the  inlerpft- 
lalion  of  Mr.  Elliot,  as  being  connected  wilt 
persons  whom  the  prisoner  cou:iidered  as  bit 
enemies. 

Cltirf  Jiatice.  The  principal  inlerprster  ^ 
the  court  is  absent ;  tbe  gentlemen  of  ibe^i; 
liHve  heard  tbe  inlerprriation  of  the  assiitaal 
interpreters  on  other  occasions.  Uo  you,  gee* 
llemi^n,  ihink  we  shall  be  able  to  go  tbiMfh 
ihiscause,  «iih  the  aasiitauc* of  ihoM  idUn 
prcten  only  ( 


985] 


at  Calcutta^for  Forgery* 


A.  D.  1775. 


[9S0 


Jury.    We  are  aCire  we  shall  not  be«ble. 

Chief  Justice,  It  !S  <i  cruel  iusinuatioD 
•gainst  the  character  of  Mr.  Elliot.  His 
Touth,  just  rising  into  life,  his  family,  his 
known  abilities  and  honour,  should  have  pro- 
tected him  from  it. 

[Mr.  Elliot  desired  he  mi|(;ht  decline  inter- 
preting.] 

Chief  Justice,  We  must  insist  upon  it,  that 
you  interpret:  yon  should  be  above  giving  way 
to  the  imputation  :  your  skill  in  the  languages, 
and  your  candour,  will  show  how  little  ground 
there  is  for  it. 

Mr.  Farrer,  I  hope  Mr.  Elliot  does  not 
think  the  objection  came  from  me ;  it  was  sug- 
gested to  me. 

Chief  Justice,     Who  suggested  it? 

Mr.  Farrer,  J  am  not  authorised  to  Dame 
the  person. 

Chief  Justice,  It  was  improper  to  be  made, 
especially  as  the  person  who  suggested,  does 
not  authorise  you  to  avow  it. 

Juri/,  We  all  desire  that  Mr.  Elliot,  whose 
character  and  abilities  we  all  know,  would  be 
•0  kind  as  to  interpret. 

Mr.  Farrer,  1  desire  on  the  part  of  the 
prisoner,  that  Mr.  Elliot  would  interpret. 

Mr.  Elliot  and  Mr.  Jackson  sworn  to  inter- 
pret. 

The  jury  being  imnannelled,  were  charged 
with  the  prisoner,  and  the  clerk  of  the  crown 
read  the  Indictment  as  follows: 

''TownofCal'\  I.  To  wit.  The  jurors 
cutta^  and  Fac- 1  for  our  lord  the  king,  upon 
tory  of  Fori  IVil' ^  iUeir  oath  present.  That 
liam,  in  Bengal^  1  Maha  Hajah  Nundocomar, 
Bahader,  late  inhabitant  of  tlie  town  of  Cal- 
eotta,  and  a  person  subject  to  the  jurisdiction 
of  the  Supreme  Court  of  Judicature  at  Fort 
William,  in  Bengal,  after  the  29th  day  of  June, 
iotbe  year  of  our  Lord  1729,  to  wit,  on  the 
15th  day  of  January,  1770,  in  the  10th  year 
<^f  tbe  reign  of  otir  sovereign  lord  George  the 
M^  king  of  Great  Britain,  at  the  town  of  Cal- 
cutta aforesaid,  with  force  and  arms,  feloni- 
<Nisly  did  falsely  make,  forge,  and  counterfeit, 
^od  did  cause  and  procure  to  be  falsely  made, 
^rgeil,  and  counterfeited,  a  certain  bond  in  the 
I^eraian  language,  purporting  to  be  sealed  by 
^pe  Bollakey  Doss  with  the  seal  or  chop  of 
^iin  the  said  Bollakey  Doss,  the  tenor  of  which 
W)Q<]  jg  ag  follows  [here  the  bond  is  written  in 
Persian]  with  an  intent  to  defend  the  said 
Bollakey  Doss  of  the  sum  of  48,021  sicca  ru- 
P^^  principal,  and  of  four  annas  on  each  rupee 
^f  the  said  principal  snm,  as  premium  or  pro- 
^t  00  the  said  principal  sum,  against  the  form 
^f  the  statute  in  that  case  made  and  provided, 
%n(J  against  the  peace  of  our  said  lord  the  king, 
ciii  crown  and  tlignity. 

**  Aih\  the  jurors  aforesaid,  upon  their  oath 
tforesaid,  do  further  present,  that  the  aforesaid 
Haha  liajah  Nundocomar,  Bahader,  after- 
wards, to  wit,  on  the  I5th  day  of  January^in 
tbe  year  last  abovesaid,  at  Calcutta  aforesaid,  a 
ctrtaiu  faUe,  forged,  and  counterfeited  bond  io 


the  Persian  language,  purporting  to  have  been 
sealed  by  the  said  Bollakey  Doss,  with  the  seat 
or  chop  of  him  the  said  Bollakey  Doss,  felo- 
niously did  utter  and  publish  as  a  true  bond  ; 
which  said  bond  is  in  the  words,  characters, 
and  figures  following,  [Persian  Bond  again  re- 
cited], with  an  intent  to  defraud  the  said  BoU 
lakey  Doss  of  the  said  sum  of  48,021  sicca 
rupees  principal,  and  of  four  annas  on  each 
rupee  of  tbe  said  principal  sum,  as  premium  or 
profit  on  the  said  principal  sum ;  the  said  Maha 
Rajah  Nundocomar,  Bahader,  at- the  time  of 
publishing  of  the  said  false,  forged,  and  coun- 
terfeited bond  by  him  as  aforesaid,  then  and 
there,  well  knowing  the  said  bond  to  have  been 
false,  forged,  and  counterfeited,  against  tha 
form  of  the  statute  in  such  case  made  and  pro- 
vided, and  agrainst  the  peace  of  bur  said  ior4 
the  king,  his  crown  and  dignity. 

'*  And  the  jurors  for  our  lord  the  king,npoii 
their  oath  do  further  present,  that  Maha  Rajab 
Nundocomar,  Bahader,  late  inhabitant  in  tha 
town  of  Calcutta,  and  a  person  subject  to  the 
jurisdiction  of  the  Supreme  Court  of  Judicature^ 
at  Fort  William  in  Bengal,  on  the  15th  day  of 
January,  in  the  year  last  abovesaid,  with  force 
and  arms,  at  the  town  of  Calcutta  afdresaid^ 
feloniously  did  falsely  make,  forge,  and  coun- 
terfeit, and  did  cause  to  be  falsely  made,  forged, 
and  counterfeited,  a  certain  bond,  written  in 
the  Persian  language,  and  purporting  to  be 
sealed  by  one  Bollakey  Doss  (then  deceased) 
in  his  life  time,  with  the  seal  or  chop  of  him 
the  said  Bollakey  Doss ;  the  tenor  of^  which  ia 
as  follows  [Persian  bond  again  recited]  with 
an  intent  to  defraud  Gungabissen  and  Pudmo- 
hun  Doss,  executors  of  the  last  will  and  testa- 
ment of  the  said  Bollakey  Doss,  of  the  sum  of 
48»021  sicca  rupees  as  principal,  and  of  fotur 
annas  on  each  rupee,  as  a  profit  or  premium 
on  the  said  principal  sum,  against  the  form  of 
the  statute  in  that  case  made  and  provided,  and 
against  the  peace  of  our  sovereign  lord  tha 
king,  his  crown  and  dignity. 

**  And  the  jurors  afoiesaid,  upon  their  oatb 
aforesaid,  do  further  present,  that  the  afore- 
said Maha  Rajah  Nunclocomar,  Bahader,  after* 
wards,  to  wit,  on  the  said  15th  day  of  January, 
in  the  year  last  abovesaid,  at  Calcutta  afore- 
said, a  certain  false,  forged,  and  counterfeited 
bond,  purporting  to  be  sealed  by  the  said  BoU 
lak(*y  Doss  (then  deceased)  in  his  life  tiroey 
with  the  seal  or  chop  of  him  the  said  Bollakey 
Doss,  feloniously  did  utter  and  publish  as  m 
true  bond  ;  which  said  bond  is  in  the  words, 
characters,  and  figures  following,  to  wit,  [Per- 
sian bond  again  recited]  with  an  intent  to  de- 
fraud the  said  Gungabissen  and  PudmohuQ 
Doss  of  the  said  sum  of  43,02 1  sicca  rupees  of 
principal,  and  of  four  annas  on  each  rupee  of 
profit  or  premium  on  the  said  principal  sum  ; 
the  said  Maha  Rajah  Nundocomar,  Bahader, 
at  the  time  of  publishing  the  said  faUe,  forged^ 
and  counterfeited  bond,  by  him  as  aforesaid, 
then  and  there,  well  knowmg  the  said  bond  to 
have  been  false,  forged,  and  counterfeited, 
against  tbe  form  of  the  statute  in  such  oas* 


927] 


IS  GEORGE  til.  Trial  ofMaha  Rajah  Nundocmar,  [998 


mide  and  provided,  and  against  the  peace  of 
our  said  lord  the  kinfir*  bis  crown  and  dignity. 

*<  And  the  jurors  for  our  lord  the  king,  upon 
their  oath  aforesaid,  do  further  present,  that 
on  the  15th  day  of  January,  in  the  year  last 
abovesaid,  Maha  Rajah  Nundocomar,  Bahader, 
late  inhalntant  of  the  town  of  Calcutta,  and  a 
person  subject  to  the  jurisdiction  of  the  Su- 
preme Court  of  Judicature,  at  Fort  William  in 
Bengal,  with  force  and  arms,  at  the  town  of 
Calcutta  aforesaid,  feionioosly  did  falsely  make, 
forge,  and  counterfeit,  and  did  cause  and  pro- 
cure to  be  falsely  made,  forged,  and  counter- 
feited, a  certain  writing  obligatory  in  the  Per- 
sian laofrtiage,  purporting  to  be  sealed  by  the 
said  BoRakey  Doss,  with  the  seal  or  chop  uf 
him  the  said  Bollakey  Doss,  the  tenor  of 
which  writing  obligatory  is  as  follows  [Persian 
bond  aspaiu  recited]  with  an  intent  to  defraud 
the  said  Bollakey  Doss  uf  the  snm  of  48,021 
■icca  rupees  of  principal,  and  of  four  annas  on 
each  rupee  of  pro6t  or  premium  on  the  said 
principal  sum,  against  the  form  of  the  statute 
m  that  case  made  and  profided,  and  against 
the  peace  of  our  said  lord  the  king,  his  crown 
and  dignity. 

**  And  the  jurors  aforesaid,  upon  their  oath 
•foresaid,  do  further  present,  that  the  said 
Maha  Rajah  Nundocomar,  Bahader,  after- 
wards, to  wit,  on  the  said  15th  day  of  January, 
in  the  year  last  abovesaid,  at  Calcutta  afore- 
said, a  certain  false,  forged,  and  counterfeited 
writing  obligatory,  in  the  Persian  language, 

I  purporting  to  have  been  sealed  by  the  said  Bol- 
akey  Doss,  with  the  seal  or  chop  of  him  the 
•aid  Bollakey  Doss,  feloniously  did  utter  and 


publish  as  a  true  writing  obligatory ;   which  I  his  crown  and  dignity. 


lakey  Doss ;  the  tenor  of  which  writing  «Ui« 
gatory  is  as  follows  [Persian  bond  again  re- 
cited] with  an  intent  to  defraud  Gungabissea 
and  PudoMiliun  Doss,  the  executors  of  the  said 
Bollakey  Doss,  of  the  sum  of  48,031  sicca  ni- 
pees  of  princi|ml  sum,  against  the  form  of  tlie 
statOte  in  that  case  made  and  provided,  aod 
against  the  peace  of  our  said  lord  the  king,  bat 
crown  and  dignity. 

''  And  the  jumrs  aforesaid,  npoo  their  oath 
aforesaid    do    further  present,    that  the  said 
Maha  Rsjah   Nundocomar,    Bahader,   afler- 
wards,  to  wit,  on  the  15th  day  of  January,  in 
the  year  last  abovesaid,  at  Calcutta  aforesaid, 
a  certain  false,  forged,  and  couutert'eittNl  writing 
obligatory,  in  the  Persian  language,  pnrpurtiaf 
to  bare  lieen  sealed  by  the  said  Bollakey  Dosi 
(then  deceased)  in  his  life  time,  with  tue  seal 
or  chop  of  him  the  said  Bollakey  Doss,  itk^ 
niously  did  utter  and  publish  as  a  true  writing 
obligatory;  which  said  writing  obligatory  is  is 
the  words,  characters,  and   figures  follow  iog, 
[Persian  bond  again  recited]  with  an  intent  Is 
defraud  the  said  Guugabissen  and  Pudinohai 
Doss,  the  executors  of  the  said  Bollakey  Dusi^ 
of  the  said  sum  of  48,091  sicca  rupees  of  firia- 
cipal,  and  of  four  annas  on  each  rupee  of  proll 
or  premium  on  the  said  principal  sum ;  tbs 
said  Maha  Rajah  Nundocomar,  Bahader,  aC 
the  time  of  publishing  the  said  false,  fiHgc^ 
and  counterfeited  writing  obligatory,  by  hia 
aforesaid,  then  and  there,  well  knowing  tht 
said    writing  obligatory  to    hate    been  falae, 
forged,  and  counterfeited,  against  the  f6m  cf 
the  statute  in  such  case  made  and  pfnviderf, 
and  against  the  peace  of  our  said  lord  the  kng^ 


•aid  writing  obligatory  is  in  the  words,  cha- 
racters, and  figures  tbi lowing,  [Persian  bond 
again  recited]  with  an  intent  to  defraud  the 
•aid  Bollakey  £>oss  of  the  said  sura  of  48,021 
sicca  rupees  of  principal,  and  of  four  annas  on 
each  rupee  of  profit  or  premium  on  the  said 
principal  sum ;  the  said  Maha  Rajah  Nundo- 
comar, Bahader,  at  the  time  of  publishing  the 
said  false,  forged,  and  counterfeited  writing 
obligatory,  by  him  as  aforesaid,  then  and  there, 
well  knowing  the  said  writing  obligatory  to 
have    been    false,    forged,   and  counterfeited. 


'*  And  the  jurors  for  our  lord  the  king,apM 
their  oath  aforesaid,  do  further  present,  thai 
on  the  15th  day  of  January,  in  the  vear  last 
aboresaidfMaha  Rajah  Nundocomar,  Bahader, 
late  inhabitant  of  the  town  of  Cak-utta,  anil  t 
person  subject  to  the  jurisdiction  of  the  Sti- 
preme  Court  of  Judicature,  at  Fort  Uiiiiain, 
m  Bengal,  with  force  and  arms,  at  thi*  xowuvi 
Calcutta  aforesaid,  feloniously  diil  t'aMy 
make,  forge,  and  counterfeit,  and  tlid  cause aiia 
procure  to  be  falsely  made,  forgeil,  and  coun* 
terfeited,  a    promissory  note  for  payment  of 


•gainst  the  form  of  the  statute  in  that  case  |  money,  in  the  i*crsian  language,  purpoi  tiniif  tff 


\ 


made  and  provided,  and  against  the  peace  of 
our  said  lord  the  king,  his  crotvn  and  dignity. 
<*  And  the  jurors  for  our  lord  the  king,  upon 
the  oath  aforesaid,  do  further  present,  that  on 
the  15th  day  of  January,  in  the  3'ear  last 
abovesaid,  Maha  l^jah  Nundocomar, Bahader, 
late  inhabitant  of  the  town  of  Calcutta,  and  a 
person  subject  to  the  jurisdiction  of  the  Supreme 
Court  of  Judicature  at  Fort  William  in  Bengal, 
with  force  and  arms,  at  the  town  of  Calcutta 
aforesaid,  feloniously  did  falsely  make,  forge, 
•od  counterfeit,  and  did  cause  and  procure  to 
be  falsely  made,  forged,  and  counterfeited,  a 
certain  writing  oblii^atory  in  the  Persian  Ian- 
gtjage,  purporting  to  have  been  sealed  by  the 
nid  Bollakey  Dms  (then  deceased)  in  his  life 
time,  with  tb«  aeal  or  chop  of  him  the  said  Bol- 


I 


be  sealed  by  the  said  Bollakey  lloss,  with  the 
seal  or  chop  of  him  the  said  Bollakey  Dom; 
the  tenor  of  which  promissory  note  is  as  fol' 
lows,  [Persian  bond  again  recited]  with  an  io' 
tent  to  defraud  the  said  Bollakey  Doss  of  tb^ 
sura  of  48,021  sicca  rupees  of  principui,  aiido* 
four  annas  on  each  rupee  Kii  protii  or  premiiifD 
on  the  s?4id  principal  sum,  against  the  f»mi  of 
the  statute  in  that  case  made  and  proviiled,aad 
against  tlie  peace  of  our  said  lord  the  king,  bii 
crown  and  dignity. 

*'  And  the  jurors  aforesaid,  upon  their  osdi 
aforesaid,  do  further  present,  that  the  said 
Maha  itajali  Nundocomar,  Bahader,  af^ 
wards,  to  wit,  ou  the  15th  day  of  Januar}*,  ia 
the  year  last  abovesaid,  at  Calcutta  aforesii<lt> 
certain  fiilse,  forged,  aod  counterfeited  proaMt* 

t 


at  Calcutta,  far  Forgery. 


989] 

sory  note,  for  tbe  payment  of  money,  in  tlie 
Persian  lao^iaife,  purpurtini^   to    have  been  i 
sealed  by  the  8ai<l  Bollalcev  Dusa,  witii  tbe  seal  ' 
or  cbop  of  him  tbe  said  Bollakey  Doss,  felo- 
•ifHisly  did  utter  and  publisb  as  a  true  promis- 
sory note ;    which  promissory  note  is  in  tlie 
words,  characters,  and  figures  folio wingf,  [Per- 
pian  bond  a{(ain  recited]  with  an  intent  to  de- 
fraud the  said  fiullakey  Dos»  of  the  said  sum 
•f  48,021  sicca  rupees  of  principal,  and  of  four 
annas  on  each  rnpee  of  profit  or  premium  on 
tbe  said  principal  sum ;    the  said  Maha  Rajah 
Noiidocomar,  Bahader,  at  the  time  of  publish- 
ing the  said  false,  forge<l,  and  counterfeited 
promissory  note,  by  him  as  aforesaid,  then  and 
there,  well  knowing  the  said  promissory  note 
to  have  been  false,  furged,  and  counteneited, 
against  tbe  form  of  the  statute  in  such  case 
made  and  provided,  and  against  the  peace  of 
aor  said  lord  the  king,  his  croivn  and  dignity. 
*'  And  the  jurors  tor  our  lord  the  king,  upon 
tbeir  oath  aforesaid,  do  further  present,  that  on 
the  15tb  day  of  January,  in  the  year  last  above- 
■aid,  Maha  Rajah  Nundocomar,  Bahader,  late 
iBliabitant  of  the  town  of  Calcutta,  and  a  per- 
aoB  sub^t  to  the  juiisdiction  of  the  Supreme 
Court  of  Judicature  at  Fort  William  in  Bengal, 
with  force  and  arms,  at  the  town  of  Calcutta 
aforesaid,  feloniously  did  falsely  make,  forge, 
and  counterfeit,  and  did  cause  and  procure  to 
ba  falsely  made,  forgeil,  and  counterfeited,  a 
promissory  note  for  |>ayment  of  money,  in  the 
Persian  language,  purporting  to  he  sealed  by 
tba  said  Bollakey  Doss,  (then  deceased)  in  bis 
life  time,  with  the  seal  or  chop  of  him  tbe  said 
Bdlakey  Doss;  the  tenor  of  which  promissory 
note  is  rs  follows,  [Persian  bond  again  recited] 
with  an  intent  to  defraud  Gnnt^abissen  and  Pud- 
■lohun  DosH,  the  executors  of  tbe  said  Bolla- 
key Doss,  of  the  sum  of  48,0'<21  sicca  rupees  of 
pnocipal,  and  of  four  annas  on  each  rupee  of 
profit  or  premium  on  the  said  principal  sum, 
againftt  the  form  of  the  statute  in  that  case 
inade  and  provided,  and  against  the  peace  of 
oir  said  lord  the  king,  hi.s  crt»wn  and  dignity. 

'*And  the  jurors  albresaid,  upon  tbeir  oath 
aforesaid,  do  further  present,  that  the  said 
Bkha  Rajah  Nundocomar,  Bahader,  after- 
Wards,  to  wit,  on  the  15th  day  of  January,  in 
the  year  last  above»ai(l,  at  Calcutta  aforesaid, 
A  certain  false,  forged,  and  counterfeited  pro- 
missory note  for  payment  of  money,  in  tbe 
Persian  language,  purporting  to  hare  been 
*nled  by  the  said  liullakcy  Doss  (then  de- 
C^tsed)  in  his  lifV*  time,  with  the  si*al  or  chop 
^him  the  said  Bollakey  Doss,  felouioiisly  did 
^^er  and  pubfiMh  as  a  true  promissory  note ; 
*bich  promissory  note  is  in  the  words, charae- 
^ffs,aod  fiyfures  following,  [Persian  bond  re- 
nted] with  an  intent  to  delraud  the  said  Gqn- 
|*biM4>n  and  Pudmohun  Doss,  the  executors 
^  the  said  Bollakey  Doss,  of  the  said  sum  of 
^lOSI  sicca  rupees  of  priiwipal,  and  of  four 
^Qoiis  on  each  rupee  of  protit  or  premium  on 
Ike  Naid  principal  sum  ;  tiie  said  Maha  Rajah 
Auodocomar,  Bahadefi  at  tbe  time  of  publish' 
?0L.  XX, 


A.  D.  1775. 


[980 


ing  tbe  said  false,  forged,  and  counterfeited 
promisaory  note  by  him  as  aforesaid,  then  and 
there,  well  knowing  the  said  promissory  note 
to  have  been  false,  forged,  and  counterfeited, 
against  the  form  of  the  statute  in  that  case 
made  and  provided,  and  against  tbe  peace  of 
our  said  lord  the  king,  his  crown  and  dignity. 

"  And  the  jurors  for  our  lord  the  king,  upon 
their  oath  aforesaid,  do  further  present,  that  on 
the  15th  day  of  January,  in  the  year  last  abore- 
saiil,  Maha  Rajah  Nundocomar,  Bahader,  late 
inhabitant  of  the  town  of  Calcutta,  and  a  per- 
son subject  to  the  jurisdiction  of  the  Supreme 
Court  of  Judicature  at  Fort  William  in  Bengal, 
with  force  and  arms,  at  tbe  town  of  Calcutta 
aforesaid,  did  falsely  make,  forge,  and  counter- 
feit, and  did  cause  and  procure  to  be  falsely 
made,  forged,  and  counterfeited,  a  certain  writ- 
ing  obligatory  in  tbe  Persian  binguage;  the 
tenor  of  vliich  writing  obligatory  is  as  follows, 

S Persian  bond  again  recite^  with  an  intent  to 
efraud  tbe  said  Bollakey  Doas  of  the  sum  of 
48,021  sicca  rupees  of  principal,  and  four  annaa. 
on  each  rupee  of  profit  or  premium  on  tbe  said 
principal  sum,  against  tlie  form  of  the  statute 
m  that  case  made  and  provided,  and  against  tbe 
peace  of  our  said  k)rd  the  king,  bis  crown  and 
dignity. 

'*  And  tbe  jurors  for  our  lord  tbe  king,  upon 
their  oath  aforesaid,  do  further  present,  that 
the  said  Haha  Rajah  Nundocomar,  Babadert 
afterwards,  to  wit,  on  the  said  15th  day  of 
January,  and  year  last  ahovesaid,  at  Calcutta 
aforesaid,  a  certain  false,  forged,  and  counter^ 
f'eited  writing  obligatory,  in  tbe  Persian  Ian* 
guage,  feloniously  did  utter  and  publish  as  a 
true  writuig  obligatory ;  which  said  writing 
obligatory  b  in  the  words,  characters,  and  fi- 
gures following,  [Persian  bond  again  recited] 
with  an  intent  to  defraud  the  said  Bollakey 
Doss  of  the  said  sum  of  48,021  sicca  rupees  olf 
principal,  and  of  four  annas  on  each  rupee  as 
profit  or  premium  on  the  said  principal  sum  $ 
the  said  Maha  Rajab  Nundocomar,  Bahader^ 
at  the  time  of  nublishiug  the  said  false,  forged, 
and  counterfeited  writing*  obligatory,  by  him 
as  aforesaid,  then  and  there,  well  knowing  tbe 
said  writing  obligatory  to  hare  been  fahM^ 
forged,  and  counterfeited,  against  tbe  fbrm  of 
tbe  statute  in  such  case  made  and  provided,  and . 
against  the  ueace  of  our  said  lord  the  king,  hie 
crown  and  dignity. 

**  And  tbe  jurors  for  our  lord  tbe  king,  apoa 
their  oath  aforesaid,  do  further  present,  that 
on  the  15tli  day  of  January,  in  the  vear  laafc 
ab(»vesaid,  Maha  Rajah  Nundocomar,  Bahader, 
late  inhabitant  of  the  town  of  Calcutta,  and  a 
person  subject  to  the  jurisdiction  of  the  Su- 
preme Court  of  Judicature  at  Fort  William  in 
Bengal,  witn  force  and  arms,  at  the  town  of 
Calcutta  aforesaid,  did  falsely  make,  forge,  and 
counterfeit,  and  did  cause  and  procure  to  be 
falsely  made,  forged,  and  counterfeited,  a  cer- 
tain writing  obligatory  in  the  Persian  language; 
the  tenor  of  which  writing  obligatory  i»i  as  fol- 
lows, [PeraiaQ  bond  again  recited]  with  an  wn^ 

30 


9Sl] 


15  GEORGE  III.  Trial  o/Maha  Rajah  Nundocamar,  [OSt 


tent  to  defraad  Guneabissen  and  Pudroohnii 
Boss,  the  executors  of  the  said  Bollakey  Doss, 
of  the  sam  of  48,CH21  sicca  rupeefi  of  pniicipal, 
and  of  four  annas  on  each  rupee  of  pro6t  or 
premium  on  the  said  principal  sum,  against  the 
peace  of  our  said  lord  the  kiug,  hia  crown  and 
dignity. 

'*  And  the  jurors  for  our  lord  the  king,  upon 
tbeir  oath  aforesaid,  do  further  present,  that 
the  said  Maha  Rajah  Nuadocoinar,  Bahader, 
afterwards,  to  wit,  on  the  said  15th  day  of  Ja- 
nuary, and  year  last  .aboresaid,  at  Calcutta 
afowsaid,  a  certain  fidse,  forged,  and  counter- 
feited writing  oUigatory,  in  the  Persian  lan- 
guage, felonioofiy  did  utter  and  publish  as  a 
true  writing  obligatory;  which  said  writing 
oUigatorv  is  in  the  words,  characters,  and  fi- 
gnres  following,  [Persian  bond  again  recited] 
with  an  intent  to  defraud  Gungabissen,  and 
Pudmohun  Doss,  the  said  executors  of  the  said 
Bollakey  Dosa,  of  the  said  sum  of  48,031  sicca 
rupees  of  principal,  and  of  four  annas  on  each 
rupee,  as  profit  or  premium  on  the  said  princi- 
pal sum  $  the  said  Maha  Rajah  Nondocomar, 
Bahader,  at  the  time  of  publishing  the  said 
fiJse,  forged,  and  counterfeited  writing  obliga- 
teyt  by  him  as  aforesaid,  then  and  there,  well 
knowing  the  said  obligatory  writing  to  hare 
been  false,  forged,  and  counterfeited,  against 
the  form  of  the  statute  in  such  case  made  and 
provided,  and  against  the  peace  of  our  said  lord 
the  king,  his  crown  and  dignity. 

**  And  the  jurors  fpr  our  lora  the  king,  upon 
their  oath  aforesaid,  do  further  present,  that 
llaha  Rigah  Nundocomar,  Bahader,  late  of 
the  town  of  Calcutta,  being  a  person  subject  to 
^e  Supreme  Court  of  Judicature  at  Fort  Wil- 
liam in  Bengal,  on  ^le  15tb  day  of  January,  in 
the  year  arovesaid,  with  force  and  arms,  at 
Calcutta  aforesaid,  feloniously  did  falsely 
make,  ferge  and  counterfeit,  and  did  cause  and 
procure  to  bo  falsely  made,  forged,  and  coun- 
terfeited, a  certain  writing  obligatory  in  the 
Persian  language ;  the  tenor  of  whicn  certain 
writing  obligatory  is  as  follows,  [Persian  bond 
again  recital  with  an  intent  to  defraud  Gun- 
gabissen and  Heogoo  Laul,  the  two  nephews 
and  trustees  named  in  the  last  will  and  tei^ta- 
nent  of  Bollakey  Doss,  deceased,  of  the  sum 
of  48,091  sicca  rupees  of  principal,  and  of  four 
annas  on  each  rupee  of  profit  or  preiniuiri  on 
the  said  principal  sura,  against  the  form  of  the 
■tatute  in  that  case  made  and  pro?ided,  and 
a^nst  the  said  peace  of  our  said  lord  the  king, 
lus  crown  and  dignity. 

'*  And  the  jurors  mr  our  lord  the  king,  upon 
their  oath  aforesaid,  do  further  present,  that 
Maha  Rajah  Nundocomar,  Bahader,  late  of  the 
towa  of  Calcutta,  being  a  person  subject  to  the 
Summe  Court  of  Judicature,  at  Fort  William 
in  Bengal,  on  the  15th  day  of  January,  in  the 
vear  abovesaid,  at  Calcutu  aforesaid,  a  certain 
ndse,  forged,  and  counterfeited  writing  obliga- 
tory, in  the  Persian  language,  feloniously  did 
utter  and  publish  as  a  true  writing  obligatory  ; 
tho  teaor  of  which  writing  obligatory  is  as  fol-^ 
}fw$t  [Pertiaa  bond  again  recited]  with  ao  in- 


tent to  defraud  Gnngabisseo  and  HengooLaol, 
the  two  nephews  and  trustees  nam^  in  the 
last  will  and  testament  of  BolUkey  Doss,  de- 
ceased, of  the  sum  of  48,031  sicca  mpees  of 
principal,  and  of  four  annas  on  osch  rupee  of 
profit  or  premium  on  the  said  principal  smi; 
the  said  Maha  Rajah  Nundocomar,  Bahader, 
at  the  time  of  publishing  the  said  false,  fomd, 
and  counterfeited  writing  obligatory,  by  ana 
as  aforesaid,  then  and  there,  wdl  knowing  tbs 
said  writing  obligatory  to  bare  been  me, 
forged,  ana  counterfeited,  against  tbo  fbrai  of 
the  statute  in  that  case  made  and  provided^  sad 
against  the  peace  of  our  said  lord  the  king,  hii 
crown  and  dignity. 

**  And  the  jurors  for  our  lord  the  king,  apoa 
tbeir  oath  aforesaid,  do  further  present,  tliat  as 
the  15th  day  of  January,  in  the  year  last  abofe- 
said,  Maha  Rajah  Nundocomar,  Bahader,  lt$it 
inhabiUnt  of  the  town  of  Calcutta,  and  a  psms 
subject  to  the  jurisdiction  of  the  Supreme  Co«K 
of  Judicature  at  Fort  William,  in  Bengal,  with 
force  and  arms,  at  the  town  of  Calcutta  albr^ 
said,  feloniously  did  falsely  maJ^e,  forge,  asd 
counterfeit,  aud  did  cauie  and  procure  ts  W 
falsely  made,  forged  and  counterfeited,  a  ce^ 
tain  writing  obligatory,  in  the  Persian  In- 
truage ;  the  tenor  of  which  writing  obligalorf 
is  as  follows,  [Persinn  bond  again  recited]  win 
an  intent  to  defraud  Gnuflrabissen,  the  sormisf 
executor  of  Bollakey  Doss,  deceaaed,  of  tw 
sum  of  48,021  sicca  rnpees,  of  principal,  and  sf 
four  annas  on  each  rupee,  of  profit  or  premiaM 
on  the  aaid  principal  sum,  against  the  fbnn  sf 
the  statute  in  such  case  made  and  proTided,  aarf 
aginst  the  peace  of  our  aaid  lord  the  king,  kit 
crown  and  dignity. 

"  And  the  jurors  for  our  lord  the  kin|r»  ^f^ 
(heir  oath  aforesaid,  do  further  present,  tbattfct 
said  Maha  Rajah  Nundocomar,  Bahader,  af^ 
wards,  to  wit,  on  the  15th  day  of  January  is 
the  year  last  abovesaid,  at  Calcutta  aforesaid,! 
certain  false,  forged,  and  counterfeited  writing 
obligatory,  in  the  Persian  language,  felooMMislj 
did  utter  and  publish  as  a  true  writing  obligt- 
tory  ;  which  said  writing  obligatory  is  in  tbt 
words,  characters,  and  figures  following,  [P^- 
sian  bond  again  recited]  with  an  intent  to  de- 
fraud Gungabissen,  the  surviving  executor  of 
Bullakey  Doss,  deceased,  of  the  said  sum  ^ 
48,021  sicca  rupees  of  principal,  and  of  four 
annas  on  each  rupee,  as  profit  or  premium  oa 
the  said  principal  sum ;  the  said  Maha  Rajah 
Nundocomar,  Bahader,  at  the  lime  of  publisb- 
ing  the  said  false,  forged,  and  counterfeited 
writing  obligatory,  by  him  as  aforeaaid,  tbes 
and  there,  well  knowing  the  said  obligatort 
writing  to  have  been  false,  forged,  and  oonottf' 
felted,  against  the  form  of  the  statute  in  socb 
ca«e  made  and  provided,  and  against  the  peict 
of  our  said  lord  the  king,  his  crown  uai 
dignity.*'  (Signed) 

June  7, 1775.  J  a.  PRrrciuRD, 

Clerk  of  the  Crows. 

(Signed) 

W.  M.  BscKwrrH, 
Clark  of  the  Indictmeat 


a;  Cakulla.for  forgery. 


"  I  olio  xm  BnllBke;  Din. 
Lpetrl  necklace,  a  t willed  liul{rl>Bli<  > 
(rpiche,  tnil  fuur  rings,  tno  ut'whidi 
rubia  tud  iwo  or  dill  nan  ila,  were  de- 
f  Itngonnnl  Roy  Geoo,  on  acvouni  uf 


le  former  Editioa  ii  giien  the  lullokv- 

GLOSSARY. 

nf.    Lileivlly  fignifiet  juilice  ;    liut 

ptil  fur  ft  cODFt  ofjusiice. 

K,  A  represenniion  in  writing,  or  letter 

.  A  particular  ouisnioag  tbe  Ilin- 

L  DifTereiiee  of  inclitnge  upnn  coint. 
^bA.  A  diiirict. 
■mA.  a  householil  stewanl. 
k  A  labourer,  or  [Mirlcr. 
X  A  meiMnger. 
\kofaCutchertr.  Superinlendant  of  a 

r  Eipenca.    Money  given  In  persons 

,   An  Arabic  woril,  exprensiiig  nnity  ; 
■ically  aignifies  a  sliest  of  paper,  con- 

.  A  particular  office  uoder  Ilia 

VoAtr.  Sixteen  riipeci. 
.  Agent. 
;  A  portino  of  lime  cnoUining  aliout 

Literally  a  ijiy  ;  but  cuninincil]' 
II  wlin  runs  on  ineMages,  and  at- 

rt  of  llie  drets  of  ti   native  of 

.  Deliii  lide  of  an  accnunt. 
.  Exchequer. 

\l.    A  dreu  nf  invealilure  giren   to  a 
»a  bl>  numitiatinn  lu  an  olfice. 
Igar.  A  waiting  serrant- 


A    particular 


ir  ibe  turbau. 

:a«l   amopgit    Ibe 


inUe.  A  Mtcretary  or  writer. 

kt.  A  Iracher. 

Mr.   A  pretrol  of  complimeat  made  by 

ior  wben  introduced  lo  a  *u)>e[iur. 

(    A  footroao,  or  person  lo  go  on  mei> 

L  Title  deed. 

Literally  d  friernl ;    but  inean^  alt 
li*  trial   a  bair-tdeud  aiid  lialf-de- 

^  An  ornameDt  fnribe  turbao. 
-  Equipage. 

'  banker,  an  exFlianiier  of  money. 
k  grant  rrijin  ibe  goreroioeiit  or 

.  A  farmer, 
jialtornrjr- 


A.  D.  1775. 
Alalia  Rajnh  Nundocomar,  Bnbader,  io  the 
iDonib  of  Atsar,  in  tlie  Bengal  year  1 165,  witb 
ine,  io  my  liouiie  at  UiiDr«tiei1ab»d,  thai  the 
same  might  be  sohl ;  at  ilic  lime  of  the  delent 
of  tbe  aroiy  of  tbe  Nobnb  Mcer  Mabumed 
Cosaim  Cawn,  the  money  and  eKWclB  uf  the 
boUEe,  logelber  with  ihe  al'iiresniil  juwpIs,  n  ere 
plundered  and  carrieil  away.  In  the  year  IWtf, 
Bengal  siyle,  when  I  arrived  In  Calcnita,  Ibe 
afureaad  Maba  KiijabdemaiKled  llie  belbre-iren> 
lioneddepoRitorjewels ;  I  could  not  produce  the 
depoiil  when  demanded,  and,  on  account  of  ibe 
had  Klate  nf  my  affiiirs,  was  unable  In  imy  the 
Tahie  iliereof ;  I  ilterefore  pnitniK  and  u'lve  it 
iu  writing,  Ibai  wlien  1  ahall  receive  buck  ibe 
sum  of  two  laeka  of  rupees,  and  a  lilile  above, 
which  Is  in  tbe  CoiDpauy'a  cath  at  Dnccn,  ac- 
cording to  the  ^UFtboa  of  reekonmg  nf  tbe 
Company,  I  have  agreed  and  sellled,  that  Ibe 
sura  of  4B,0S  1  »icca  rupees  ia  the  |)i  incipal  nf 
Ibe  amount  of  (he  said  deposit  of  jewels,  which 
is  juaily  due  by  me,  and  over  and  above  ibal,  a 
premium  offouranuas  upnn  every  rupee.  Upon 
the  payment  of  (he  aluresaid  aum  from  the 
Company'*  caab,  I  will  pay  ihal  auoi,  wilhniit 
excube  and  evasion,  lo  the  aforesaid  Malta 
Rajab.  1  have,  for  tbe  above  reasona,  given 
these  reasons  in  the  form  of  a  bnnd  under  my 
sigooture,  that  when  it  is  necessary  U  may  b* 

"  It  ia  wiioessed, 
"  Mebab  Rot; 
"  Scii.AtiBUT,  ibeVukeel  of  Seat  6 

Doss; 
"  Abd^hoo  Co)itM.tUL  Mahomed. 

Alalid,        >'  BoLijtKiv  Doss." 

<<  Written  on   Ihe  7th  day  of  the  in 
Madcwo,  in  the  Bengal  year  1173." 

The  Counsel  tor  ibei'risoiier  desired  that  tb* 
witnesses  might  be  kept  separate. 

Court.  Tbe  great  number  of  witnesses  itt 
this  cause,  iba  ditfereoce  of  their  casts,  aud  ibe 
lenatb  of  time  tbe  trial  ia  likely  lo  lake  up. 
renders  it  atraoit  imposaible  lo  confine  them. 
If  any  method  cai 
incnovenienciea  v 
very  ready  to  grant  tbe  request. 

A  Her  a  abort  debate  it  was  agreed,  that  peona 
ahauld  attend  Ihe  witnesses  lo  keep  them 
separMe,  and  prcrenl  any  perton  having  com - 
municalioa  with  Ibem  ;  and  that  each  witnew, 
immediately  after  baving  giveu  bii  evidence, 
ahoiild  be  kepi  in  Iba  gallery  ;  and  thai  ■  coo- 
sbrifle  ahould  attend  there,  lo  prevent  say  na- 
tives frotn  bsvingBCceaa  to  them.* 

MafiuH  Pfrtaud av/avo an  avoir  dirt. 

Mr.  farrer,  (Adv./or  IhePrit.)  Ila.  Gun. 
gabiscen  made  yon  any  uromise,  in  esse  llie 
prisoner  is  «o»icled  r— -4.  I  am  to  have  ftve 
per  cent,  on  any  money  received. 

CoitI.  Is  it  a  special  prumise  on  this  occa- 

giou)' A.   It  is  a  general  camniisaion  ibat  1  aox 

to  have  upon  al)  the  affaira  of  GuugalriMitu. 

■  !Seevol.B,p.T93,vo).ta,(.9Il.iol.U, 
p.  329,  vol.  19,  p.  3W. 


15  GEORGE  HI.  Trial  oJMaha  Rafah  NUndocomar,  \99t 

Can  you  gire  an  aecooat  how  it  came  fiui 
there  ? — No,  I  cannot  say. 

Was  the  seal  e? er  out  of  your  poaaeasioD  ?— 
I  sent  the  seal  to  Mafaa  ftajafa  Idlhdoqoniar, 
at  MoDgheer. 

When  didvoa  tend  it  ? — At  the  tioie  the  wit 
between  Jamer  Ally  GawD,  and  Coaaim  Ally 
Cawn  subsisted. 

Upon  n  hat  occasion  did  you  send  it  ? — Wbca 
I  was  released  frooi  confincmebt,  Mabm  tUjah 
Nundocomar  desired  a  servant  of  oiine  to  da- 
sire  me  tu  send  my  seal  lu  him — my  serraat 
had  been  l>efbre  that  with  IHaha  Ra^afa  Nonda- 
comar.  The  representation  the  man  imidooilk 
regard  to  sending  the  seal  was  this — 

Court,  Is  that  man  alive f — A.  He  waakiUd 
that  same  evening. 

What  was  his  name? — Eoll  Mahomed^  n/ 
Jeroedar.  He  likewise  dt^sireil  the  servant  it 
request  me  lo  scad  a  nazzer  with  the  seal,  tlul 
he  might,  with  the  seal,  seal  a  peiivifUi  to  Um 
Naboi),  and  present  it  with  the  nazzer.  I  thea 
delivered  to  Sbaik  Cossiui  Ally,  my  Con*nnali| 
one  gold  moheer  and  four  rupees,  as  a  naxacr 
to  Maha  Rajah  Nundocomar,  and  oue  goU 
moheer  and  f<»ur  ru|»ees  as  a  nazzer  lo  tlw 
Nabob  ;  and  likewise  the  seal,  of  which  thiib 
tlie  impression,  [pointing  to  the  seal  on  the 
bond]  in  order  that  he  might  put  them  into  a 
bag,  that  it  mij^ht  be  sent  by  a  messenger  ti 
Maha  Rajah  Nundorumar.  The  bag  was  ac- 
cordingly sent  by  a  messenger. 

Do  you  know  the  name  of  that  raesaengcr? 
— I  do  not  know  what  ttie  CoKsid's  uameii; 
there  are  twelve  hundred  at  that  place.  Itii 
fourtten  or  fifteen  years  ago. 

Do  you  know  if  it  was  ever  received  by  tbe 
prisoner? — I  do;  for  Maha  Rajah  Noada- 
comar  wrote  me  a  letter  in  consequence  of  it 
[The  letter  produred.] 

Counsel  for  Prisoner,  I  admit  the  Mahl 
Kujiih  had  the  leittr. 

Counsel  for  Crown.  Read  the  letter. 

Court.  Go  throu*j^h  with  your  evidence. 

Counsel  for  Croun.  The  letl»^  does  not  BJ 
the  seal  was  received ;  but  it  ackoowltdges  tlie 
receipt  of  the  letter,  and  the  seal  was  inclosed 
in  the  letter. 

Court  to  Prisoner  s  Counsel.  Do  you  see  the 
conseqticiire  ?  Do  vou  mean  to  admit  it? 

Counsel.  I  have  duty  wei^'hed  what  yoor 
lordshi[»  said,  and  therel'ure  will  not  admit  iL 

Witness  read  the  letter,  of  which  the  follow- 
ing is  a  translate,  omitting  unnecessary  compli- 
ments. 

[After  the  customary  compliments.] 

"  1  have  received  your  letter,  with  which  I 
have  made  myself  acquainted,  and  by  which 
I  have  been  rendered  joyful. — Thanks  to  the 
great  God,  you  have  been  released.  Tba 
nazzer  of  congratulation  which  you  rent  to 
me,  has  arrived.  !V1  ly  the  gi'eat  God  rewiH 
vou  with  victories !  In  consequence  of  your 
letter  1  have  (;ot  an  arzee  for  y uu  written  out ; 
have  presented  it,  together  with  the  naxSff 
you  have  sent  for  that  purpose,  la  the  NaM; 
and  havuig  received  an  anawer,  tend  it  dh 


9S5] 

Mr.  Farrer,  Is  it  a  promise  in  writing,  or  by 
word  of  mouth  ?— ^.  It  is  a  written  letter  of  at- 
torney :  orii;inally  it  was  a  letter  of  attorney  to 
me,  hir.  Hamilton,  and  Mr.  Lodge:  the  two 
last  withdrew   upon  the  commitment  of  the 

Srisqner.     I  have  likewise  in  my  possession  a 
fa<rree  letter  of   attorney,    drawn    by    Mr. 
Driver. 

James  Driver  examined. 

To  whom  is  that  Nngree  letter  of  attorney 
teade? — It  was  a  power  of  attorney  made  to 
Muhun  Persand,  and  oue  John  Love.  After- 
wards I  drew  one  in  £ngli8h,  to  Muhun  Per- 
daud  singly. 

The.  counsel  for  the  prisoner  desiring  thai 
the  papera  might  be  produced,  Mohim  Per- 
aand,  together  with  the  clerk  of  Mr.  Janett, 
attorney  for  the  prisoner,  was  sent  to  fetdi 
them :  ut>on  which  the  counsel  for  the  crown 
<}ailed 

Ccmmaul  O  Dein  Cawnt  sworn  upon  a  voir  dire. 

Pritoner^i  Counsel.  Do  you  know  the  pu- 
niahmeut  of  |)erjurv  by  the  English  law? 

Court,  You  had  better  tell  it  him. 

Counsel,  When  the  life  of  a  man  is  at  stake, 
if  you  tell  falsely,  you  will  be  deemed  infa- 
ipoiiSy  put  in  the  pillory,  and  burnt  in  the 
hand. 

[Counsel  for  the  crown  desired  that  the  ques- 
tions might  be  interpreted  to  the  witness  in  the 
Persian  language,  as  the  witneaa  understood 
that  languasre  best.] 

Court,  What  Ung^age  do  you  understand 
best?— ^.  Persian. — [Being  again  interrogat- 
ed, he  said  he  understood  both  equally  well,  and 
could  answer  in  either.] 

Which  can  you  most  easily  explain  yourself 
in  ? — I  will  answer  in  either.  Hindostauee  is 
my  native  language. 

Which  language  wit!  you  be  exantined  in  ? — 
I  think  1  shall  be  best  understood  in  Persian. 

Prisoner's  Counsel,  Have  you  received  any 
money  from  Mohun  Persaud,  or  any  other 
person,  to  give  evidence  on  this  occasion  ? — No : 
defend  me,  good  God !  I  never  do  such  devilish 
things. 

Do  you  expect  any  favour  or  protection,  or 
have  you  had  any  promise  of  money  from  any 
nerson,  for  giving  evidence  on  this  occasion  ? — 
Wo. 

Sworn  in  chief. 

Counsel  for  Crown.  Whose  seal  is  to  that 
bond?  [shev^n  the  bond.] — A.  It  is  my  seal ; 
but  the  uords  signifying  '*  it  is  witnessed,"  are 
not  of  my  signature. 

Whose  name  is  expressed  in  that  seal? — 
OlKlahu  Mahomed  Commaul. 

Is  that  your  name? — That  was  tny  original 
name. 

•  When,  or  upon  what  occasion,  did  you 
chanfi;e  yoiir  name?->At  the  time  oFthe  Nabob 
Nuiclium  a1  Dow  la,  I  got  a  royal  title,  and  I 
am  since  called  Cuuimaul  O  Decn  Ally  Cawn. 

Did  yoaaflix-yotir  seal  to  that  bond  ? — No,  I 
did  not. 


937] 


at  CaIadta,Jbr  Targery. 


A.  D.  1775. 


tdSs 


cl6fed  in  tbii  letter.  Too  will  be  made  ac- 
qiitinted  with  the  contents,  by  inspectine*  it* 
vVith  mpect  to  the  eircnmstance  of  callingf 
you  to  the  army,  about  which  you  bare  written, 
as  the  Victorious  (the  Nabob)  intends  shortly  to 
leave  Moogheer  to  go  to  Patna,  there  is  no  ne- 
cessity for  ymir  making  so  long  and  trouble- 
some a  jouruey  ;  you  bad  better  stay  some  time 
longer  at  your  own  house.  When  God  is  wil- 
ling that  tlie  victorious  army  should  return  to 
Moorshedalmd,  yoo  will  attend  there,  and  make 
Hie  jo^'ful  by  your  company. — Every  thine 
then  will  be  settled  propeiiy,— Rest  content<*d. 
—Remain  certain  that  1  am  your  friend,  and 
write  an  account  of  your  health.  The  cloth 
yon  before  sent  is  arrived. — What  else  shall  1 
write  ?»• 

Directed  to  Shaik  Mahomed  Commanl. 

Dated  ttie  izd  of  Rubbee,  ul  Akher,  in  the 
ibnrth  year  of  the  reign. 

Cross  ixaminatum* 

Q.  Is  it  alwa^scuRtoroarv  to  affix  the  seal  to 
all  arzees  presented  to  the  Nabob? — A.  Yes.— 
An  arzee  is  nevm*  presented  to  the  Nabob  with- 
out a  seal. 

Was  your  seal  ever  returned  ?— No, 

Do  you  know  who  has  got  it? — Maha  Rajah 
Nundocomar. 

How  do  you  know  P— I  sent  it,  and  never  got 
h  back. 

Have  you  ever  applied  for  it?— Yes,  I  have 
several  timfs.  I  have  likewise  complained 
oonremiog  its  not  beiug  delivered. 

Did  yf>u  ever  receive  any  answer  to  those 
complaints? — 1  demanded  the  seal  of  Maha 
Rajah  Nundocomar,  who  said  it  was  not  in  hi& 
possession.  1  told  Coja  Petruse  of  it:  I  in- 
tended to  complain,  but  Munshy  Sudden  o  dein 
advised  me  not. 

When  would  you  have  made  your  com- 

Slaint? — At  the  time  when  Mr.  Palk  confined 
faha  Rajah  Nundocomar ;  it  was  about  three 
years  ago,  then  Munshey  Sudden  o  dien  ad- 
vimmI  me  not  to  complam,  because  the  go- 
temor  ha«l  given  his  son  Rajah  Gourdass  the 
kballat  fur  the  office  of  Dewan  of  the  city  of 
Morshedabad. 

Whom  did  you  mean  to  complain  to? — ^To 
the  governor  and  to  the  AudauleU 

Did  you  want  to  complain  to  any  other  per- 
son ? — No. 

Did  yoQ  ever  bear  of  your  seal  being  put  to 
any  bond  ?— Yes,  Mohun  Persaud  first  told  roe 
that  my  seal  was  to  a  bond,  and  then  the  Maha 
Rajah  himself  told  me  he  had  put  my  seal 
to  a  bond  ;  1  saw  the  bond  once  before  himself. 
[The  bond  stated  in  the  indictment  produced.] 

What  passed  between  Mohun  Persaud  and 
yen  upon  the  time  when  he  toM  yoo  of  the 
seal?— 'First,  be  bid  me  pay  600  rupees,  which 
I  owed  the  estate  of  Bollakey  Doss.  I  said, 
**  I  am  a  poor  man  out  of  employment ;  how 
•hall  I  get  the  money  ?'* 

When  was  this? — It  was  about  two  months 
before  Mr.  Palk  confined  the  Maha  Rajab.  It 
WBs  about  two  months  before  I  got  my  pott, 
wliich  is  three  years  since. 


1 


Cmtri,  Go  on  with  yonr  story  of  what  passed 
between  you  and  Mohun  Persaud. — A,  Mohun 
Persaud  then  aske<l  me  if  1  was  a  witness  on 
behslf  of  Maha  Rajah  to  a  bond  of  Bolfakey 
Doss,  or  if  my  seal  was  affixed  to  it.  I  said  I 
was  a  witness  for  no  man,  and  that  1  knew  no- 
thing with  respect  to  this  matter.  H^  then 
asked  if  my  seal,  with  the  name  of  Abdahti 
Mahomed  Commaul,  was  fixed  to  that  Inmd.  1 
then  said  there  may  l>e  a  great  many  people  of 
the  name  of  Mahomed  Commaul.  I  then  went 
to  Maha  Rajah  Nundocomar,  and  repeated  to 
him  what  Mohun  Persaud  had  said  to  me.  He 
saiti.  It  is  true  ;  having  confidence  in  ^ou  I 
have  fixefl  your  seal,  which  was  in  my  posses- 
sion, to  the  bond  of  Bollakey  Dohs.  Having 
sworn,  you  will  give  evidence  of  this  bf  fore  the 
gentlemen  of  Audaulet.  I  answered,  How 
shall  I  be  able  to  take  a  false  oath  t  He  an- 
swered, 1  had  hopes  in  you.  I  answered,  JHea 
will  give  up  their  lives  for  their  uiastem,  but 
not  their  religion ;  have  no  hopes  of  me.  I 
then  went  and  informed  Cnja  Pcti  use  and  Mun- 
shey Sudden  o  dien  of  what  had  passed. 

Was  Bollakey  Doss  alive  or  dead  at  the  time 
the  seal  was  sent  ? — He  was  alive ;  he  had  ab- 
scondedfrom  Mongheer.  Some  years  after, 
he  came  to  Calcutta. 

After  you  had  told  Coja  Petruse  and  Mun- 
shey Sudden  o  dien,  did  you  tell  it  to  any 
others  ? — No. 

Crou  Examination, 

When  did  you  change  your  name?— Ten  or 
fifteen  days  before  Mahomed  Reza  Cawn  was 
appointed  Naib  Suhah.  1  have  got  a  seal, 
which  was  given  me  at  the  time,  which  has 
got  the  day  and  year  u|>on  it.  I  can  produce 
it. 

Where  is  the  snnnnd  ? — ^Thesunnud  is  dated 
some  years  before  1  took  the  title ;  at  the  time 
the  King  and  colonel  Coote  were  at  Patna  a 
sunnud  was  procured  for  me  by  Shitabroy, 
who  sent  it  to  Maha  Rajah  Nundocomar,  who 
detained  it  some  time  in  his  possession.  In  the 
time  of  the  Nabob  Nutchum  al  Dowlah  1  was 
appointed  to  the  Foujdarry  of  Hldgelee,  from 
which  time  my  title  commenced. 

Where  is  the  sunnud  ? — It  is  at  Hugly,  hot 
the  great  seal  is  with  me. 

[Mr.  Farrer  desired  it  might  be  produced^ 
which  was  agreed  to.] 

What  did  the  dignity  consist  of  ?— I  was  by 
that  means  named  Cawn,  but  received  no  jag- 
hire. 

Is  it  not  customary  for  natives  when  they  re- 
ceive a  title  to  take  it  immettiately  ? — When- 
ever the  Subah  confirms  it  and-  gi«es  him  a 
seal,  it  is  then  customary  to  make  um  of  it. 

At  what  time  did  the  Nabob  confirm  il  ?— 
Maha  Rajah  Nundocomar  was  st  that  time 
Naib  Dewan.  About  ten  or  twenty  days  after 
be  was  dismissed,  and  Mahomed  Reza  Cawn 
was  appointed  in  bis  place. 

Was  Nutchum  al  Dowlab  Nab(»b  at  the  time 
colonel  Coote  and  the  King  were  at  Palna  ?— 
He  was  Nabob  at  the  time  the  title  wa»  i^xrtx. 


93D^ 


15  GEORGE  m.  Trud  o/Maha  RnjA  Nuadoeomar,         [MO 


Interp.  This  word  literally  interpreted  metni 
«*  to  flow ;"  but  what  is  meant  by  it  is,  *^  coa- 
firmed." 

When  did  you  begin  to  use  the  seal  with 
TOur  titles?  —  At  the  time  of  the  Nabob 
Kutchuni  al  Dowlab,  when  two  seals  were 
ffifen  me,  I  was  appointed  Foujdar  of  Hidgel- 
lee,  and  had  two  seals,  one  great  and  one  small 
one,  sent  me  from  the  government. 

When  a  royal  title  is  given  to  a  native,  can 
he  make  use  of  it  without  the  permission  of  the 
Nabob  ? — He  gets  the  sunnud,  and  perhaps  a 
jaghire  from  the  King,  but  cannot  make  use  of 
It  till  a  seal  has  been  given  by  the  Nabob,  and 
he  is  permitted  to  use  it. 

How  came  you  to  apply  to  Maha  Rajah  Nun- 
docomar  to  draw  up  VQur  arzee  ? — As  i  had  no 
connection  with  the  Nabob,  why  should  I  draw 
up  an  arzee  myself?  The  Maha  Rajah  desired 
1  would  send  my  seal  to  put  to  an  arzee,  and  I 
did  so. 

In  executing  any  bonds  or  deeds,  do  you 
make  use  of  your  signature  or  your  seal  ?-* 
When  1  execute  a  bond  on  my  own  account,  I 
write  the  word  **  Oolaubd"  ahe  slave  of  God) 
and  fix  my  seal  under  it.  When  I  witness  any 
paper,  I  write,  "  It  is  witnessed,"  and  fix  my 
teal  under  those  words.<^[ He  produced  a  paper 
iealed  with  the  same  seal,  to  prove  he  had  the 
seal.  The  jury  compared  it  with  the  iuipres- 
■ion  on  the  bond,  and  think  them  the  same ; 
each  of  the  impressions  shewed  a  small  flaw 
which  was  in  the  original  seal.    He  likewise 

8 reduced  the  great  seal,  which  he  had  from  the 
oubah.] 

Were  you  ever  upon  terms  of  friendship  with 
the  Maha  Hajah  ? — He  was  a  friend  of  my  fa- 
ther, and  my  grand-father.  We  were  oflen  in 
friendship,  and  oflen  broke  off.  The  Maha 
Rajah  protected  me  from  ten  years  of  as2:e. 
When  he  was  Dewan  of  Mahomed  Heha  Beg 
Cawn,  I  was  farmer  of  Chouogi.  The  first 
difference,  that  happened  between  me  and 
Maha  Rajah,  was  wiien  I  was  appointed  to 
Hidgelee.  It  was  not  a  dispute,  but  a  differ- 
ence of  two  days. 

Court.  What  was  this  dispute  about? — A.  It 
begun  thus.  First  he  said  be  would  be  my  se- 
curity, and  atVerwards  went  off  from  his  pro- 
mise. 1  got  another  man  to  be  my  security, 
and  afterwards  went  frequently  to  Maha  ila- 
jab*s  house. 

To  what  amount  was  he  to  be  security  ? — 
The  revenue  for  which  he  was  to  be  my  secu- 
rity, was  between  3  and  4  lacks  of  rupees. 

Were  you  so  reconciled  together  as  to  live 
upon  friendly  terms? — Yes. 

Who  were  present  when  the  Maha  Rajah  ac- 
knowledged having  put  his  seal  to  the  bond  ? — 
No  one. 

Is  it  usual  for  the  Maha  Rajah  to  have  no 
attendants  ? — Where  he  is  private,  or  has  busi- 
ness, he  is  certainly  very  often  alone. 

Did  be  make  his  acknowledgment  more  than 
once  ? — No. 

Was  it  before  or  after  you  quarrelled  ?— It 
before,  two  or  three  moDthi, 


Court,  You  say  io  your  enannalMm,  '^  I 
am  witness  to  no  man :"  tbeo  bow  c$m€  yea 
to  produce  papers,  to  shew  how  you  sign  yoor 
name  as  witness?— ii.  I  did  nol  mean  to  no 
person  whatsoever,  but  to  oo  mao  opoathis  oc- 
casion. 

Court  to  Interp.  Woald  you,  from  the  idkan 
of  the  language,  understand  him  to  say,  **  I 
am  no  witness  to  any  man  ?" 

Interp,  His  own  words  are,  *'  to  a  man  a 
witness  I  am  not''— [The  witoeae  said  this  was 
the  idiom  of  the  language,  and  his  commoa 
mode  of  expressions,  and  mentioDed  aome  in- 
stances of  it.] 

Court.  Point  out  the  words,  <*  It  is  witnesi- 
ed,"  which  you  say  are  not  your  baad-writiag. 
[He  points  to  the  words  wrote  oTor  hie  seal  if 
the  bond.]  Do  you  mean  to  say,  that  the  ia- 
pression  of  that  seal  ap^ring  upon  the  hm  of 
this  bond  is  the  imprension  of  your  seal  ?— J.  I 
do  ;  that  is  the  place  in  which  I  osuallj  write 
these  words. 

Court,  Have  you  ever  paid  the  600  nipeails 
the estateof  BoUakey  Does?— J.  1  have.  illMt 
five  or  six  months  atler  I  was  appointed  Is 
Hidgelee  I  paid  that  money.  I  bare  got  lbs 
acquittal. 

Couraelfor  Prisoner.  What  did  yoa  doftra 
seal  io  the  intermediate  time  between  the  turn 
your  seal  was  sent  to  Maha  Rajah  Nandooooiar, 
and  the  time  yoa  had  your  new  one  ?  Wbil 
seal  did  you  make  use  of  f*-^.  I  had  anolbcc 
seal  made  for  me. 

Where  is  that  seal?— When  )  got  my  new 
title,  I  destroyed  that  seal,  I  defaced  it. 

Counsel  for  Crown.  Is  not  that  customaij 
upon  getting  a  tiew  title  ? — A,  It  is  at  the  ap* 
tion  of  the  party.  Some  people  keep  their  aeaia 
some  are  afraid  to  do  it. 

Court.  Have  you  any  papers  with  the  im- 
pression cf  that  seal?— ^.  How  should  I  bars 
any  papers  ?  My  house  was  twice  beset  by  tbe 
servants  of  Mahomed  Reza  Cawn,  and  ail  my 
papers  destroyed. 

Was  the  second  seal  of  tbe  same  siee  and 
characters  as  the  first  ? — I  do  not  remember. 

How  came  it  that  you  kept  the  pa|)ers  you 
produced,  as  you  said  you  lost  all  your  papen? 
— I  lost  most  of  my  papers.  A  Uttle  box 
was  saved,  and  these  three  papers  were  in  tbit 
box. 

[Counsel  for  prisoner  desires  that  these  tbrN 
papers  may  be  depositetl    in  Courts— they 

were.] 

Mr.  Farrer^  counsel  for  the  prisoner,  ob* 
served,  that  in  England  a  prisouer,  from  bis 
knowledge  of  the  language,  had  an  opporUi* 
nity  of  hearing  the  evidence  and  making  bis 
own  defence,  which  Maha  Rajah  Nunooco- 
mar  was  deprived  of :  he  therefore  thought  il 
reasonable  that  his  counsel  should  be  permittsi 
to  make  a  defence  for  him. 

Court.  All  the  evidence  has  been  given  ia 
a  language  the  prisoner  understands.  Aaf 
defence  he  chuses  to  make  wiU  be  intefyMlM. 
to  the  Court 


§41]  ,    ni  Calcutta^  Jbr  Forgergr 

The  coiititel  alfO  obspnred,  that  Commaul  o 
Dien  said  the  Maha  Rajah  hail  confessed  to 
liim  that  he  had  made  use  of  his  seal.  He 
must  therefore  know  that  he  had  put  his  life  in 
his  power ;  was  it  likely  then  that  he  should 
i^uarrel  with  this  man  on  so  trifling  an  occa- 
0IOQ,  as  the  being  his  security  ? 

Coja  Fetruie  examined. 

Id  what  language  do  yon  chuse  to  lie  exa« 
mined  P — In  Peraias,  Hindostanee,  or  Portu- 
guese; but  rather  in  Persian. 

Are  you  acquainted  with  the  last  witness, 
Cum.  o  Dein? — 1  bate  known  him  upwards  of 
to  years. 

Had  YOU  any  particular  contersation  with 
Commal  o  Dein,  respecting  a  seal  ? — It  was 
three  or  four  years  ago. 

Tell  the  particulars  of  that  conTersation. — 
I  will  tell  what  I  remember :  One  day  I  was 
•ittiog  in  my  house,  Cummal  a'din  Cawn  came 
to  me  and  said,  **  My  seal  is  in  the  possession 
of  Maha  Rajah  Nundocomar:  I  wanted.to  get 
it  again,  but  could  not."  I  then  aked,  why 
hif  seal  was  in  the  poesession  of  Maha  Rajah 
Nundocomar?  He  told  me,  '*  When  Jaffier 
Ally  Cawn  was  Nabob,  he  had  deaired  my  seal, 
that  ha  might  put  it  to  a  request,  and  get  me 
MHue  employment.    I  sent  it  to  him  in  conse- 

Joence ;  but  he  does  not  now  return  it  to  me, 
will  go  to  Mr.  Harwell,  and  complain." — 
This  was  the  conversation  that  passed  between 
us  that  day ;  there  was  no  other  oooTemation. 
On  moother  day  there  was,  respecting  the  busi- 
iieas  of  Hidgelee,  where  he  said  that  Maha 
Rajah  Nundocomar  had  agreed  to  stand  his 
Mcurity.  J  said  it  was  very  well.  Some  davs 
afWr,  1  asked  how  that  business  was  settled? 
He  answered,  *'  Maha  Raiah  Nundocomar  is 
Bot  my  security."  I  asked,  how  so  ?  He  said, 
'*  lie  demands  three  things  from  me :  First, 
That  I  should  give  a  writing,  that  I  was  a  wit- 
ness to  the  bond  of  Bollakey  Doss,  to  which 
ny  seal  is  affixed  .-—Second,  That  1  should 
represent  receipts  of  money  [Burramed,  the 
Fersian  word]  against  Mr.  Lushington :  Third, 
That  I  should  represent  another  Burramed 
against  Bussunt  Roy.  1  answered,  I  cannot 
aell  my  religion." 

Were  you  acquainted  with  Bollakey  Doss? 
—Yes,  he  used  to  come  to  my  house. 

Were  yon  acquainted  with  his  circumstances? 
—No ;  I  do  not  know  if  he  was  in  good  or  bad 
circumstances. 

Jury,  Yon  hare  known  Cummal  a'din 
Cawn  twenty  years ;  what  is  his  general  cha- 
raeter  ?— I  never  heard  he  bad  a  Imd  name. 

Has  he  a  good  name? — I  never  knew  any 
thing  bad  of  nim ;  the  world  is  apt  to  give 
g^oodor  bad  names  with  very  little  reason :  some 
•peak  well,  some  speak  ill  of  him ;  I  never 
Jusew  any  barm  of  bim. 

What  IS  his  general  character  ? — Ten  people 

wak  well  of  him,  to  four  who  speak  ill  of  him. 

It  there  not  now,  and  has  there  not  been  for 

mm  time,  a  deelared  enmity  between  you  and 
Maha  Biyah  Noodocpmajr  ?<i*He  may  have  an 


A.  D.  1775. 


enmity  to  me,  but  I  do  not  know  that  he  has ; 
and  I  have  none  to  bim. 

Moonthet  Sudder  o  Dein  sworn. 

Are  you  acquainted  with  Cummal  a  Din 
Cawn  ? — Yes,  I  have  known  him  for  near  20 
years. 

Had  you  at  any  time  any  conversation  about 
his  seal  being  affixed  to  any  bond  ?— 1  had,  in 
the  month  of  Assar,  Bengal  year,  ]  179. 

Do  you  recollect  that  conversation  ?  if  you 
do,  tell  it  as  well  as  you  can. — He  was  con- 
versing with  me  about  the  farm  of  Hedgelee  ; 
the  circumstance  of  the  security  was  men- 
tioned. I  said.  Now  you  are  a  competitor  for 
the  farm  of  Hedgelee,  you  will  undoubtedly  be 
obliged  to  give  security.  You  are  always  go- 
ing backwards  and  forwards  to  the  house  of 
Maha  Rajah  Nundocomar :  if  you  can  get  him 
to  be  your  security,  it  will  be  better.  He  said, 
1  shall  probably  not  be  able  to  get  him  to  be 
my  security,  because  he  has  affixed  a  seal  of 
mme  to  a  bond  of  Bollakey  Doss;  and  he  say  a 
to  me.  It  is  necessary  for  you  to  give  evidence : 
but  I  have  refused  ii,  saying,  I  will  not  give 
up  my  religion.  1  asked  him  ih  what  manner 
the  seal  had  come  into  Maha  Rajah  Nundoco- 
mar's  hands,  and  how  be  had  fixed  it?  He  an- 
swered, **  I  formerly  sent  him  my  seal  to  be 
fixed  to  an  arzee  to  be  presented  by  Maha  Ra- 
jah Nundocomar  to  the  Nabob  Jaffier  Ally 
Cawn,  imd  that  seal  is  with  him  ;  he  now  has 
affixed  that  seal  to  a  paper  of  Bollakey  Doss's 
without  my  knowledge.  1  do  not  therefore 
now  desire  him  to  stand  my  security." 

Did  any  thing  more  pass  that  day  ? — 1  re- 
member no  more  that  day.  He  came  to  me 
upon  another  day,  and  said  that  Oungabissen 
would  be  his  security.  1  then  informed  Mr. 
Harwell,  that  Gungabissen  would  be  his  secu- 
rity ;  but  he  answered  that  security  would  not 
be  approved  of  by  the  council.  Four  or  five 
days  afler,  Commaul  o  Dien  Cawn  came  to  me 
again,  and  said  that  by  intreaty  he  had  per- 
suaded Maha  Rajah  Nundocomar  to  be  his  se- 
curity :  of  this  also  1  informed  Mr.  Barwell, 
who  said  that*  if  he  would  come  and  stand  his 
security,  it  would  do.  Maha  Rajah  Nundo« 
comar  afterwarda  wrote  a  letter  to  council  re 
specting  his  standing  security ;  but  whether  he 
did  or  not,  I  cannot  tell. 

Had  you  any  further  conversation  with  Com* 
maul  o  Dien  r— I  soon  after  went  to  Moor- 
shedabad  and  Dacca :  when  I  returned,  Com- 
maul o  Dien  said  to  me,  **  Maha  Rajah  Nundo- 
comar has  produced  two  papers ;  first,  that  I 
should  give  evidence  about  the  seal  of  the  bond 
of  Bollakey  Doss ;  second,  about  standing  se- 
curity for  Hedgelee,  and  said.  Take  this  and 
sign  this,  pointing  to  the  two  pspcrs.  f  would 
not ;  and  afterwards  got  Lane,  Dutt  and  others^ 
to  be  my  securities." 

MohuH  Pertaud  returned  with  the  papers. 

Counsel  for  Prii,  Have  you  brought  all  the 
letters  of  attorney  uncancelled,  relative  to  the 
estate  of  BoUakey  Don?— >!  hare. 


fi3] 


15  0EOBGE  in. 


B**B  jvt  any  otlMr  inatrammt  !■  mitiaf , 
relUifelulhceaUleorBatlakay  DoM,ban4«i 
tboaeyou  hare  produredF — I  {)•?«  Ua bonka. 

Hare  vnu  any  other  de«d,  relalire  to  Ibe 
•date  orBulUkey  Dsaa,  exMaud  lo  you  by 
Ouigaliiften  F— Bio  other. 

[The Jnint  potrrr  of  atlomvy  lo  Uohnn  Per- 
iBad,'Hr.  HamilluR,  and  Hr.  Lodee,  it  pro- 
daaeiJ.  AoDitxir  to  HoIiud  Pfrvatio  and  Juhn 
l<QTf.  Anoilier  U  Hnliun  Peraaud  ainttly. 
daUilfiihof  Hiiy,  ms,  wbicU  appeared  la  be 
•  (fcneial  pawfTof  altorney  in  Eagliih,  with- 
•at  any  nentioa  of  a  cantmiMon  of  life  per 

Have  yon  tbc  promiM  of  iny  wim  af  Baney, 
incaaeihe  Haha  ftyafa  Nuiiilne>mar  sbaBld 
W  CABvicled  00  thia  Irial  f — None. 

Moktin  Peruud  ezimined  id  chief. 

How  Ions  were  ymi  acquainted  with  Bella- 
key  Doaar— It  ia  Doir  14  yean  hihm  I  flrat 
luiitw  him. 

How  loag.  bai  he  been  deadt— Aboal  « 
yean. 

Where  did  foa  flrat  ktiMr  bin  F— At  Uuxa- 
&»ad. 

When  did  ha  come  lo  CaleolU  f— Tea  yaaii 
■go. 

What  bMiaeM  did  he  (uHow  F— Thai  of  a 
duoft 

Wat  he  eateamed  a  nan  af  prapar^F— Ha 
wai  thought  a  rich  man. 

Had  he  a  honae  at  Benarei?— He  had  a 
correapondeDce  there. 

Did  lie  draw  lor  any  contiilerable  SUIM  apon 
'  that  bouae  ? — For  niaay  soma.  He  drew  one 
bill  Id  lorii  Cllve  for  a  luck  ofnipcea. 

Waa  llie  bill  paiil  ? — Yea,  Ibe  money  waa 
paid  lo  Hr.  Cbamier,   then   reiidenl  at  Be- 

Waa  that  money  ever  repaid  by  lord  Clire  7 
—It  was,  6Te  maalba  afterward*,  to  Bollakey 
Doaa  in  bin  life  lime. 

Waa  there  any  accoant  ooeo  between  Haba 
Rajah  Nundocomar  anil  Bollakey  Doaap— 
There  are  debita  aiid  credita  between  them  ia 
Bollakry  Doaa's  booka  tu  a  great  amount. 

Are  tlie  booki  now  in  beiug? — Tbey  are  in 
■ly  poanewioD. 

What  lani^uHfte  are  the  hooka  wrote  Inf — Id 
the  Nagry  lang'uapce. 

Court.  The  hooka  must  be  produced,  ai 
we  eanDOt  receive  parole  eTideoce  of  their  con- 


Mr.  Durham,  Coutiael  for  the  Crown,  ac- 
quainled  the  Court  that  the  books  were  then  at 
band,  inconsequence  of  a  notice  from  the  de- 
fendant lo  |irnduce  them,  but  added  that,  ai 
they  were  in  the  Naf^ree  character,  he  could 
BOt  point  out  the  entries  to  which  he  meaut  lo 
hare  exaroineil  Mohun  I'eraaud,  end  iherel'orii  .  To  be 
declined  nakin;  any  ute  of  tbem.  To  be 


Ibe  coaoacl  for  tha  orawa  aaU  «|as  %k 
power  afalUmay  ta  HatMU  Anuriai 
nan  Doaa.  ucewad  kw  Bal(ah*r  D~ 
BcsarM,  ofwUmlMft 


•■  The  WvnHS  sT  Bou^vn  Doaa. 

<<  BbowIUb,  bmBBin'  a  Watato  ffhaaUh, 

fbr   wfaicb  reaaoa  daaviag  ■mtf.yjigtd.fc 

StoBenaraa,  I  ban  anaiMMl  JBj.MlNt 
)huB  Panandaad  PHiBahw  fim^  tt- 
loraiaa  to  traaaaet  aj  hMiiliifcjwJ  Ui.iaaaiai 
and  pay,  and  lo  anawtr  and  nakc'aaf  doata^l 
for  ate,  aad  in  payiac  and  ijNHaiut  m^/tmm 
duihar  axpaooea  may  faaiaenrrcd,  f  iWjliyii) 
leraldebla  are  collected  ;  and  jptu^icVMraniMn 
after  the  diibwaMMolp  of  tha  diHfaar  iiiMiiii 
to  ba  Bud  to  whaen  it  nay  hf  due :  ffl  <f 
what  II  due  afWr  that  I  bavawrillan  maffpft 
with  Btjr  owB  band,  wbie^fon  will  pay. 

.^raoaal  arAaMwr  eometnu  JMU. 


HabaR«ahN 

Dooluh  ftam  Twany  aa  aeaaant  af 


0«i  Hnlliek  .    -    -.    . 
On  Ray   Hohnn   SJag'i   I 


Oolab  Doia  Pahria     -    -    ■ 
Ragaoaat  Dad  Bhroft,  oh  hi 


My  own  Factory  at  Hoonhedahad, 

rather  more  or  less      -     .     .     .     looon 
Poog  KJstQu  Don  at  Benarea   -    ~      aooO 

365SBg 

Roy  hu  Persaud's,  what  will  remain  dueU 
him  on  aeltling'  bii  aceounla. 

Meer  CuttDlAlly,  whatever  may  appear. 

'Beaidea  tbeae,  whaterer  imall  dcbu  may  ap- 
pear in  my  papera, 

Aecoutttt,  CrtdiU. 
The  EoKlish  Compsiny  at  the  Dacca  FuMlJ' 
Nabob  jHswrant  Cann  at  Dacca. 
Heer  Amoo  Mail  at  Haugly  houaei. 
One  bouse  at  Calcutta. 
Oua  house  al  Moors hedahad. 
Twu  houses  al  Palua,  moiiragrd  for      35W 
Caja  Wanyaa  principal  in  Cbiiia  con- 


Tbe  books  were  then  ordered  to  be  kept  in 
«Nit,  tor  the  defendant'e  counael  to  avail  tben- 
Mdra  of  UiflH  if  ibiyr  ahoiUil  bt  abla. 


hip,  Goliin  difn  Doss      -      -     .    ".      1509 
DaccaKnodiiatBrnares,  valued  at     -     lOCPH 
Besiilex  this,  as  by  my  papers  may  appear- 
'        -    -ed  flora  Dr.  Fiillerlon 
ed  from  Mr.  Moore 


This  it  wrote  by  gufss;    and,    be&idei   tl>^ 
whatever  may  apiiotr  I'lum  my  papOT  i* 


at  CaiaUta,Jar  Forgehf, 


up«D  it  Mr.  Sparki 
udaulal:  jou  will  ap- 


o»d  of  Ht«r  AAniff  iru  Ml))  to  Mr. 
e  band  of  Ibe  eonrt  of  Cntctaarra, 
th«  ktrraMmah,  or  wrillen  scrM- 
«h  be  pve  in  tfae  name  of  Mofaua 
He  Inak  Ihe  lesl 

■  the  VakMl: 
ipluiMiDlh«.4 

Rawer  about  it.  Upon  •rbtterer 
•DJing  balancei  jou  ahall  recover, 
eceiie  fire  per  cent,  wlialever  cod- 
lences  you  may  flnil  it  atou:miy  to 

€alcurta,  anJ  pipen  you  iball  re- 
nre  appointed  you  my  attorney  for 
;  irhelher  I  remain  here  or  not,  I 
!d  ynu  with  a  power  in  my  atfaira, 
ineni  of  money.    I  am  not  conceni- 

I  nine  iliya  after  the  miiMIe  of  Pooi, 
yeor  loss.  WiineiMd  Ooodttarra 
ad,  Moiikaiii  Bollakey  Doaa.— Wit- 
I  Kluen  JewlD  D<>sa.~\VitneH«l 
lb  Dusk.  Piittick,  Dinrane  Dntt. 
I  KJuseii  Jew  ill  Dnit.— Signed  Bo- 
e  Unas,  Doi«  Jero. — Sisned  KJuen 

■  Dora." 

e  tbis  Inter  of  allDruey, 
uan  Boa  wag  called  la  unI  (wom. 
It  that  paper  your  writing  ? — A,  Ilia 
{  Bud  wiloeuiag,  but  I  did  nut  lee 

ime  Kisien  Juau  Doaa,  attliebot- 
paper,  wriiien  aa  a  witoeM  to  tbe 
'     '*  -.1  written  bv  wav  of  wiloeat. 

4 


me  you  lo  put  your  name  aa  a  wit- 
aper  \ie\.ng  ai^ned  by  Bollakey  Doia, 
QDt  lep  liiin  Bign  it  f—  It  waa  carried 
linn  Diisalo  CbandeniH^re,  aifoed 
laltakcy  Dose,  and  bfouf^ht  to  me ; 
riog  bis  haiid-wriling,  wilncaaed  it. 
1  nllneu  it  aa  Hein);  it  tigned,  or 
;  hia  si gnalti re  ?— Seeing  Bollakey 
lature  tu  it,  I  set  my  name  at  a  wi(- 

&tTi4  Doit  Pullock  iworn. 

know  thia  paper  ?  [aliewn  letter  of 
—  [do;  it  19  apoHcrufattoruey  from 
Doaa. 

1  see  him  ai^  itP— I  wai  preant, 
ollakey  Doaa  aign  hii  name. 

Croif  Eiaminalion. 
waa  Bollakey  Doaa  wlieu  you   aaw 
ia  name  lo  it  ?— At  Calcuttu. 
vaeP— Ilia  own  buuae. 
hour  of  Ibe  day  P— I  iloii'l  know. 
«<it'U  present  nhen  it  wan  executed  f 
Pcraaud,  I'uJmoliun  Uosa,  and  Kis- 
Duai.      [Uueatioii  repeated  by  (be 
Hobun    Pertaud,  Puilmobun  Doo, 

tbre«olbrr  people.  )l  in  uow  two 
lan  ago  ■,  bow  CJin  I  reuwiuber  i 


[DM 


that  KiaoB  Jubd  Doea'a  aignatnre  wat  to  it; 
mi  being  agnin  naked  if  Riaaen  Juan  Dota  wu 
praaMit,  uiawered  be  wai  not.] 

What  dill  you  mean  tb  aay  about  Kineii 
Jaaa  Dou  7— That  hia  aigtutlure  waa  to  it. 

Do  you  know  faia  hand  writing  ? — Yea. 

Did  yoQ  aw  him  ainnitf— Yea. 

Wbttrewaabe?— In  Bollakey Doaa'abmice. 

Waa  it  at  tbe  aame  lime  Bollakey  Doaa 
signed  it  ? — It  ia  aix  yeara  ;  1  do  not  rec(4- 
lect.    I  know  Kitten  Juan  Doaa  rigned  it. 

[Mr.  BHiot  obaerrea  he  signed  it  «nee  when 
b«  wrote  it,  and  once  a>  a  witneaa.] 

Count,  for  Pri*.  Yoo  hart  iwora  that  Kii- 
aen  Juao  Doaa  aigned  it,  then  you  rauat  know 
whenhengned  it. — ^.  KiaaeniuauDiMawrota 
the  patoer,  and  gnre  it  into  tbe  tiaads  af  Bol- 
lakey Ikaa. 

Did  y^  ae*  it?— Bo)l«kej|Daa<  pve  itntfs 
and  deaired  ue  to  aign  it,  which  t  acuontiBglT 
did  in  PeraiBB. 

When  did  Ballakey  Don  a%n  it,  bcfiiic  or 
after  you  did  ^— Bollnkaj  Doaa  baviag  ngnHI 
itjgaTeit  U  me  to  aign. 

Did  yuu  aee  Kiasen  Juao  Doss  sign  tl  F-~[ 
do  not  recoltecl. 

Then  how  do  yon  know  that  he  aigned 
it  M  all  f — I  know  nothing  about  bia  signing  it. 

EiacnJuan  Don  called  again. 

Court.  Wbendidyounrilelhiapaperr — A: 

Harmg  inapecled  the  papera  of  Bollakey  Doaa 

which  were  at  Calcutta,  1  from  them  draw  up 

But  when  7 — It  may  b«  wilbb  two  or  threa 
mnnths  of  six  yeara,  1  cannot  apeak  with  pre- 

By  wboae  directions  and  from  what  matpri^ 
did  you  write  itP — By  the  direcliona  of  I'ud- 
mobun  Dost,  he  ia  my  superior;  bating  both 
of  us  inapacleil  Itollackey  Doaa'a  papera,  we 
drew  op  tliat  paper. 

Did  yuu  lake  what  you. wrote  from  the  books, 
or  from  what  Pudmobnn  Duns  told  youf— 
WJiat  I  wrote  FloDk  from  the  booka. 

If  tbe  books  are  given  you,  can  you  point 
out  the  parts  from  whence  you  drew  these 
papvnr— lean. 

Do  you  recollect  liow  many  boobs  were  in 

four  poascsaion  ?— Two  hooka,  called  lh« 
tuev  Namah,  and  the  Cotta. 

Were  those  all  the  books  f —Our  hooks  are 
draxn  upfrom  year  to  year;  inthosetwobooka 
are  the  contents  nf  this  paper. 

IVerc  lliere  only  tno  buuka  for  each  year  ? — 
When  there  waa  agri>Bt  deal  at'buainetaio  the 
hoDie,  tno  l>ooks  were  filled  up  in  a  year; 
when  not  ao  much,  two  bouka  might  laal  tor 
fODr  years. 

Do  you  recoiled  hot*  many  books  you  exa- 
mined tu  make  up  ibis  account?— I  li«*e  hern 
thirteen  or  finiReen  yean  a  scrrant,  and  during 
that  litu  sis  hooka  haru  beeu  used. 

3P 


WTJ 


15  GEORGE  lU. 


How  many  bookt  did  yoa  •xamine  to  make 
out  that  paper  ?^\%  6  had  three  books  withia 
the  first  five  ^ear»,  one  called  the  Kussara, 
where  every  things  is  entered  fully;  from  thence 
it  is  entered  fairer  ii|to  the  Rdey  N&mah,  and 
.from  the  Roey  Nllmah  to  the  Cotta. 

from  what  partrcular  books  did  yon  take 
this  paperr-«-All  the  books  were  in  my  pos- 
■ession  ;  but  what  is  contained  in  this  paper,  1 
extracted  from  one  book,  the  Cotta.  It  is  the 
<^stom  to  draw  up  papers  from  the  Cotta ;  but 
the  Rdey  Nllmah  and  the  Kussara  bein^  more 
foil,  merchants  frequently  refer  to  them  in 
the  drawing  up  of  papers. 

Are  these  all  the  books  that  contain  Bollackey 
Doss'-s  transactions? — ^There  are  two  books 
more  besides  these  three. 

[The  Court  directed  all  the  books  to  be 
brought.] 

You  said  before  there  were  six  books ; 
how  comes  it  that  there  are  only  fire  now  men- 
tioned ?—- Ope,  a  Kussara,  is  lost ;  but  the  sub- 
stance is  extracted  into  the  Cotta. 

How  came  you  to  sign  this  paper  twice  f — 
One  signing,  which  is  in  the  body  of  the  paper, 
is  because  it  was  wrote  by  me ;  the  other  as 
witnessing,  having  seen  Bollakey  Doss's  signa- 
ture to  it. 

What  is  the  first  date  of  those  three  books? 
—Nine  years  and  something  less  than  two 
months  from  this  time ;  it  in  dated  the  13th  day 
of  Savoon,  Naugree  stile,  18t3.  The  three 
books  depend  upon  each  other,  and  begin  with 
the  same  date. 

What  is  the  last  date  in  the  books?— The 
aecond  of  Maug,  Nagree  stile,  1837. 

Do  the  books  now  produced,  contain  trans- 
actions prior,  or  subsequent  to  these  ? — There 
are  two  oefore. 

[Q.  to^Mr.  Elliot,  How  does  the  Nagree 
and  Ben((al  year  differ? — A,  The  Nagree 
year  begins  the  first  day  of  Ciioit ;  there  are 
750  years  difference  between  the  Nagree  and 
Bengal ;  the  present  year  is  1832  Nagree,  and 
1183  Bengal.] 

Are  these  the  books  from  which  you  made 
out  the  paper  produced  ? — They  are. 

Are  all  the  transactions  between  Bollakey 
Doss  and  Maha  ilajah  Nundocomar  contained 
in  those  books  ? — AH  the  business  transacted 
with  Maha  Rajah  Nundocomar  at  Calcutta  is 
contained  in  those  books,  but  what  was  trans- 
acted before  he  came  to  Calcutta  is  not. 

Do  all  the  six  hooks  you  mentioned,  relate  to 
transactions  at  Calcutta? — ^Two  books  relate  to 
the  transactions  at  the  army  ;  he  was  at  that 
time  with  the  army  at  Mongheer :  what  was 
done  there  was  entered  in  his  books,  those  are 
the  books  not  brought.  Bollakey  Does  re- 
mained with  the  Nabob :  whatever  he  trans* 
acted  there,  is  in  those  books  ;  he  had  houses 
at  Moorshedabad,  and  other  places,  and  at  each 
place  there  was  a  dlflerent  set  of  books :  what- 
ever was  ttausacted  in  those  placet,  waa^  in 
books  therv. 


Trial  ofMahm  Rajah  Nuttioc^mar,  (948 

How  came  this  aooonai  of  the  d^ili  and 
credits  of  Bollakey  Doaa  to  be  drawn  up  firaa 
three  books,  when  he  bad  separate  bsoka  at 
different  places?— What  bad  hia  affuis  else- 
where to  do  with  a  atatement  of  hia  dabu  and 
credita  at  Calcutta? 

Then  this  paper  was  only  a  atatement  of  kit 
debu  and  credits  at  Calcutta  ?— Yea. 


[Upon  inspection  of  the  Persian  bond  in  the 
indictment,  it  appeared  to  bear  date  in  the 
month  of  Badoon,  1182,  Bengal  year,  wUefc 
answers  to  the  Nagree  year,  18Sd.] 

Mr.  Driver  examined. 

Court,  Were  those  the  books  depoaM  io 
the  mayors  court  ? — A.  Yes. 

What  other  books  and  papers  were  defivend 
from  the  Court  ?— 1  have  no  account  af  ths 
books  and  papers  delivered  from  the  Coart. 

[The  Court  ordered  Mr.  8ea1y,  late  register 
of  the  mayor's  court,  and  now  register  on  tbe 
equity  side  of  the  court,  to  attend  with  tbs 
other  books  and  papers  in  his  possession)  be- 
longing to  the  estate  of  Bollakey  Doaa.] 


Saturdaift  June  10, 1775. 
Mohun  Penaud  examined. 

Have  yon  the  two  books  relating  to  BoRi- 
key  Dt>8s's  transactions  with  the  army  ? — I  do 
not  know  where  the  two  books  kept  with  tbs 
ariny  are ;    I  never  saw  them* 

How  came  you  to  select  those  three  boob? 
—I  brought  these  books,  because  they  contsia 
the  Calcutta  acconnts. 

Are  these  all  the  books  and  papers  you  re- 
ceived from  Mr.  Sealy? — ^There  are  msDj 
books  in  the  chests,  i  had  two  chests  of  pi- 
pers from  Mr.  Sealy ;  tliey  may  contain  sc- 
counts :  these  three  books  were  at  my  boose; 
I  have  three  other  books  at  my  own  house, 
which  may  be  brought. 

[The  Court  ordered  them  to  be  brought  iia- 
mediately.] 

Kissen  Juan  Doss  examined. 

Do  you  know  what  are  become  of  the  other 
two  books? — They  are  at  Mohun  Persaoii'i 
house,  he  has  taken  them  out  of  the  chest. 

When  did  he  take  them  out  of  thechest?— 
Fifteen  or  twenty  days,  or  perhaps  a  moDdi 
ago. 

Did  you  see  him  take  them  out  of  the  chest.^ 
— I  took  them  out  of  the  chest,  by  Mohua 
Persaud's  order,  and  carried  them  to  bis  boose. 

Did  he  know  what  they  were  when  be  di- 
rected you  to  take  them  out  ?-*He  did  know. 

At  what  place  did  you  take  them  out  of  tbs 
cheet? — At  Mr.  Driver^s  house. 

Who  were  present  ? — Five  or  six  peiaoii> 
whose  namca  I  do  not  know ;  Mr.  Driver  vif 
not  there. 

How  do  you  know  that  Mohun  Perssnd 
knew  the  contents  of  those  hooka? — He  told 
me  to  taka  out  the  books  of  the  arvyi  and  rf 


ai  CaUulla,fir  Forger*/. 


A.  D.  1775. 


CUevlla,  out  of  the  chetti ;  he  then  took  tliein 

Q.  Who  kepi  the  key  of  the  chest  ?~J.  [by 
J^Diftr.]  I  ihiiik  Moliun  Peniud  ;  itini 
^^^  to  OunffHliBKii,  and  I  behcte  h«  gave  it 

t 


'i  ezaaiHulion  DontinnM]. 


I  BolUhe) 


le  hooki  of  the  army 


SI  the  balance 
took*. 

Doea  thai  balance  contain  a  balance  of  the 
Calcutta  accouDta  na\y,  or  of  the  Calcutta  BDd 
■ccoiinli? — or  all  the  accounts;    when 
eniled,  the  baliuce  wa*  carried  to  the 
rear'ii  iccouots.* 

e  10,  1775. 
Muhun  Ptrtaud  examined, 
did    Bollakey  Dois    dier_In    the 
liof  Aaaar,  Nagree  year,  ltI36,  or  June, 
)7B9. 

I)»l  Bollakey  Doas  make  any  will?— He 
letl  a  poirer  of  Bltorney. 

ft.    Tbe  Pr<^ate  is  the  only  proper  cri- 


c  Probate  of  the  Will,  of  which  the  fol- 
g'aa  Trsnllate,  was  read  : 

e  Mayor'a  Court  al  Calcutis,  at  Part 

William  in  l)eD|;al. 
"  {L-  8.) 
"  Ii.  M*r.  Reg. 
"  Be  it  ktiiiwii  to  all  m»n  by  these  preapnli, 
tliatoDlhreih  day  of  September  lust,  1769,  the 
Will  ul    U-ilUkcy   D«w.   dcceaii,d,    a    copy 
whereof  ia  berennlo  annvxed,  whb  eshibiied 
and  pro'eil  licfure  tbe  court;    and  ndrniiiiiiira- 
ttwi  •■!'  all  and  lingular  the  goods,  rbiilirls,  and 
ereilils  of  tbe  saiil  drci^spd,  in  any  wi%e  be- 
loiii;>i>^',  nan,  and  ii>  liervby  cooiinilled  1<>  Gun- 
pul>i<;t^ii    mie  of  Ihe  executor,  in  ihe  a.id  W.ll 
namprl,  l.-'uiy  lir-l  awurn,  *vll  and  truly  ti 
»ii»i«i«  il.r  K»tnr,  and  to  pay  the  lawful  debt* 
»f  till-  ilei'i'iiio-d,  and  tbe  ■■Kaciva  in  tbe  aaiJ 
Will  cuuinin<-d,  as  far  a*  the  |;nail*,  chailelv. 


*   li  brum  luiir  eleirn  o'clock,  the  Court 
■MeDoailjoummeni,  but  one  ut  Ibejudgra  at 
■  alway*  ra<D«mnt{  in  the  oouri,  or  in  a 
"" "  "  I,  aiul  ftfien  to  tbe  court,  the  jury 

ttier  adjiiininf(  room,  under  ihe 
{e  (fibs  ahetiff'n  uHiom,  tu  take  ivlreah- 
\o  »\rvy.  Tli«  Court  mrl  tbe  next 
It  ri|(hl  m  Ihe  tnoniintr,  and  prorreded 
■in* ;  tbe  like  wua  dune  at  tbe  end  of 
fe  ihy,  and  al  otbirr  limes  lu  the  irial,  when 
nibni«nl  WHiinrt.«u.iry..^— [Mee  ihe  Cane* 
Urdy,  ai-d  nnrne  Touke,  *.  d  17011  ul 
L  4.0. 171)0.]  The  reiNLiioiiofihediK 
Btfw  Origuial. 


and  credila  of  the  said  decenwd  sbill  extend, 
he  law  oblige  ;   and  also  lo  exbiUt  iol» 
court  a  true  and  perfect  iurentory  of  all 
the  said  goods,  chaitels,  and  crediifl,  on  or  b«- 
''"  "  lix  months  from  Ibis  day  ;    and  lo  render 
Ihis  court  a  trite  and  just  account  of  all  tba 
effects  of  tbe  said  deceased,  on  or  before  the 
94th  day  ot'Oolnl>er,  which  will  be  in  tbe  year 
jr  Lord,   1770.      Dated  llie  day,  moDlb, 
year  and  place  above  mentioned. 
"  Signed, 
"  D<viD  Kjllican,  Mayor, 
"  CoRNCLiijs  GooDwLN,  AldermaD." 


What  do  ynu  know  concerning  ibe  transac- 
tions between  Bullnkey  Doss  aod  Mahs  Kajali 
NunducomarP— Ilie  accuunla  af  tbem  are  ia 
the  Cotia,  Nagree  year  1825,  or  1708  Chri». 

What  do  you  know  of  Maht  n<ijab  Nundo- 
coraar's  transaelioni  wilb  Podiiiubun  Ddh, 
and  Maba  Raisb  Nundocoinar's  t*iih  Bollnkey 
Dills  in  hislifeiiraeF — Aboultire  uiuntbs  aller 
tbe  death  of  Bollikey  Dom,  Fudmnliun  Dom 
and  Gungabisseo  ubtaineil  the  Imods  from  tbe 
Company,  on  ibe  acoouni  of  Bollokey  Don, 
and  carried  them  tu  Maba  Ilajnb  Nuiiducotiiar, 
In  tbe  evening  of  that  day,  Tudroohun  Dost 
informed  me  of  ibal  circum stance.  I  then 
shewed  Gungabliseii  tbe  iiuwer  of  atlurney 
granted  lo  me,  and  wbirb  I  b^id  belure  elu-wn 
lo  him,  in  order  In  prove  lo  birn  ihol  10,000 
rupees  only  were  due  to  Haba  Rajah  Nundo- 
L'Oaisr)  and  ihe  ilay  al\erwnrds.  I  weui  U  tba 
housr  of  MaliH  Rfljab  Nunducumar.  He  d»- 
siieil  me  lo  sit  duwu,  and  Mid,  The  Company's 
bonds  arc  received  ;  some  durbar  txpeocei  will 
arise  on  tbem.  I  auswered,  I  um  on  aliornry  ; 
10  whom  ecer  money  la  paid,  Iheir  names  miut 
be  writtaa  down,  and  filed  in  Ihe  audaulel :  to 
which  be  auBwered,  Whiiislhat  to  yoa?  I 
will  do  it.  I  then  went  to  my  oh n  bouse: 
tiiur  or  fire  daya  alter,  I  relurned  tu  Maba 
Btjuh  Naodocomar :  he  asked  uie  if  Pudmo- 
hun  Dnas  bsd  spckeg  any  wurd*  to  me  :  I  an- 
swered, No:  he  iheu  said.  I  and  Pudmobun 
Doas  have  drawn  out  (leekkeeab)  three  papers; 
the  auiouDt  of  one  is  48,031  siu-a  rupreii ;  ilia 
aoiouni  of  tbe  other  two  tog-^hvr  ia  35,000 
srcol  rupees.  1  remained  silent,  and  soma 
little  time  after  went  buine.  Fourteen  or  fif- 
teen davH  after,  Pudmobun  Dusa  *sid  lo  me, 
I  Come  aloo^  wiih  iiie  to  the  bouse  uf  Maha 
Rajah,  and  take  llie  Company's  bands,  wbkh 
I  he  has  received.  I  with  t^utigalNsaeo  aud 
I  Piidinoliuu  Dms  accordiii){ly  went  thiiber :  il 
I  was  iilgbt  time,  tbe  lamps  were  burning,  and 
.  Ihe  Hsba  Haiah  was  sitting  alwve  alaini :  we 
sat  duwQ  by  him,  and  IVInba  Kajsh  called  for 
his  eicrutuie  sod  ojiened  it,  and  took  uui  all  lh« 
psjiers  that  were  conlaiued  in  II,  and  spread 
■hem  >»'l<>re  him :  he  cancelled  (by  tearing  tbe 
(up)  a  Nsgree  bond  Ibr  10,000  rupees  ;  be  alao 
produced  llie  polia  of  tbe  house  anUgBve  the 
rAncelled  huiid  and  the  polla  into  the  hands  of 
tiuDgabwacii;  be  likewise  Urc  tba  baaiU  of 


951j 


15  GEOBGi;  III.  Trifil  ofMaka  Rajah  Numlocamar,  [%3 


three  PenriaB  papers,  and  wM  te  Gungabifmi, 
Do  you  Uke  these. 

[Bond  shewn  him.] 

Is  this  one  of  the  pspers  he  canodled  ? — I 
4\d  not  then  koow  what  the  papers  were,  I 
cannot  read  Persian ;  this  is  one  of  tliem.  f 
have  since  informed  myself  of  the  circum- 
stance :  at  that  time  I  could  not  tell,  I  now 
know  that'll  is  for  certain.  After  having  torn 
the  tops  of  the  papers  lllaba  Rajah  ffundoco- 
mar  offered  them  to  Gunfrthissen,  who  said, 
Give  them  to  Pudmoliun  Boas.  Naha  Rajah 
then  looked  at  nie  sideway  anc^rily^  and  turn- 
ing to  Pudmohun  Doss,  said,  Do  you  take  the 
papers.  Pudmohun  Doss  took  tbem ;  Pod- 
mohuo  Does  and  Maba  Riyah  kept  coontiog 
by  their  memorise  some  sums  of  money  on 
their  fingers,  hut  wrote  nothing  down.  Maha 
Rajah  said,  I  will  take  eig^ht  oonds:  having 
sefiarated  the  other  seven,  he  put  them  into  the 
hands  of  Pudmohun  Doss;  there  were  ori- 
ginally nineteen  honds ;  the  governor  and 
oooncil  took  two,  on  account  of  commission 
due  to  one  Michael ;  the  other  seventeen  were 
given  lo  Maha  Ri^h.  When  be  gave  the 
seven  bonds  to  Pudmohnn  Doss,  he  said.  You 
have  before  taken  two:  be  answered,  I  have. 
Maha  lUiah  said  to  Pudmohun  Doss,  Indorse 
the  eight  bonds  I  have  taken :  Pudmohun  Doss 
nnswered,  I  will  get  them  indoned  by  Kissen 
Jnan  Doss,  the  GomasUh  of  Bolkkey  Doss. 
Maha  Riyah  put  the  eight  bonds  into  tlie  hands 
of  Choiton  Maut  Poddr.  I,  Pudmohun  Dsm, 
Qungabissen,  and  Choiton  Naut,  (into  whose 
hands  the  hoods  were  put)  went  out  together, 
and  sat  down  in  my  bbaita  kbanna  (sitting 
n>om)  Pudmohun  Doss  sent  a  man  lo  call 
Kissen  Juan  Dosa  Kissen  Juan  Doss  arriv- 
ing, indorsed  the  eight  hoods,  and  Pudmohun 
Doss  gave  them  lo  Choiton  Naut  Podar,  who 
carried  them  away. 

Do  you  know  oif  any  receipt  or  acknowledg- 
ment for  those  bonds  ? — I  was  -at  that  time 
confined  in  tlie  court  of  Cutcherry:  he 
never  wrote,  or  signed  any  receipt  before  me. 
Pudmohun  Doss  took  a  receipt  from  him,  but 
i  do  not  know  when  he  got  it.  [Paper  shewn 
to  witness,  marked  F.]  This  is  the  receipt :  I 
hnow  it,  because  I  took  a  copy  out  of  the 
mayor's  court. 

Are  you  sure  tliis  is  the  original  ?— J  do  not 
read  Persian ;  the  Monshy  took  the  copy  by 
nv  directions. 

Do  you  know  of  any  furtlier  transactions? — 
I  know  a  deal  more  of  liollakey  Doss's  busi- 
ness, but  not  of  these  eight  bonds. 

Did  anv  ccmversalioii  pass  between  you  and 
CofiiiiiaulO'Dien  Ally  Cawn  about  this  trans- 
action P — fiSome  money  waa  due  from  Coraroaul 
O'Dien  on  account  of  Boltakey  Doss ;  I  did 
not  know  what  the  amount  was.  Coiiimaul 
O'Dien  sjdd  it  was  about  600  rupees :  I  then 
said,  Pny  it  to  me :  the  demand  was  made  three 
or  four  different  times.  Conimaul  O'Dien  one 
day  came  to  me  at  my  house,  and  said,  I  can- 
Bot  pay  tbii  money,  i  have  none.    I  then 


shewed  him  oopicn  of  the  different  pi^Mn  1  bad 
taken  out  of  the  court,  and  desired  bim  to  leak 
at  them:  he  read  them,  and  having  raid  them, 
said,  This  ia  the  iapreasion  of  my  ecnl ;  when 
this  paper  (hkknt)  was  written  I  do  net  knovi 
the  name  on  the  seal  is  mine;  where,  or  when 
the  paper  was  written  I  do  not  know,  I  am  not 
n  witness  to  it.    About  four,  fit e,  or  aiz  waaHis 
afterwards,  Commaul  O'Dien  eame  to  me  and 
said,  Maha  Rajah  Niindocomar  ia  security  lo 
government  for  me,  for  the  pergunnnh  of  Hid- 
gellee :  he  says  to  me.  Do  three  things,  and  I 
will  be  and  remaio  your  security :  with  respect 
to  the  bond  of  Bollakey  Doss  say  that  yon  am 
a  witness,  aid  having  sworn  before  the  gentle- 
men of  the  adawlut  nve  evidence  of  it :  write 
out  also  an  account  of  receipts  of  money  (Buh 
rftmud)  agaiost  Mr.  Lushmgton :    write  oat 
likewise  a  fiurr^ud  against  Bassent  Roy. 
Commaul  O'Dien  told  me,  he  then  answereo 
that  he  could  not  speak  away  his  religion :  iff 
can  get  any  one  else  to  stand  my  security,  I 
will  give  up  all  thonghts  of  him.     I  at  tbit 
time  sent  for  Mahomed  Allnm,  who  Uvea  three 
doors  from  the  hooee  I  inhabited,  in  a  basse 
belonfifing  to  me :  he  came  te  ose,  and  1  Isli 
him  all  the  Maha  Rsjah  had  said  to  CommasI 
O'Dien,    and    likewise   told    him    CemsMel 
O'Dien's  answer  to  Maha  Rajah  NuodoctflMr} 
I  likewiae  said  te  him 

Court.  W  hat  you  said  to  Mahommed  Alloa 
ia  no  evidence. 

Do  you  know  if  Bollakey  Dosa  could  writs 
Peraian  ?— He  neither  could  read  it  nor  writs 
it,  nor  did  he  nnderatand  it  well. 

Did  you  ever  aee  him  ecxeeute  bonds  or  other 
papers? — I  have  seen  him.  Soroetiines  be 
wrote  the  bonds  himself  in  Nagree,  sometimei 
in  Bengal,  but  always  signed  them  with  bii 
own  hand :  he  did  not  write  the  body  of  the 
bond  wKh  his  own  band,  for  he  could  not  writs 
Bengal. 

How  did  he  execute  bonds  ?— -He  ahvnys  pul 
his  sign  manual  to  a  IhmkI. 

Court  to  Mr.  FMiot.  IVhat  word  does  he 
use  for  bond  ? — hnmasook,  which  is  a  Persian 
word ;  it  is  khut  in  the  Negree  language. 

To  Witness,  Did  he  put  any  thing  besides 
bis  sign  manual  ? — He  put  his  seal  to  letters; 
J  never  heard  a|'  his  |MUIing  hia  seal  to  obliga- 
tory papers^  on  which  money  waa  to  he  rt* 
ceived. 

What  is  tlte  ustuil  manner  of  Nagree  mer- 
chants executing  bonds ;  do  they  put  their  sign 
manual,  or  seal'?— -At  Agrah,  Delhy,  LihoR', 
Guzerat  and  Surat,  it  is  the  oustom  ii'  ShroA 
to  get  the  body  of  the  bond  wrote  by  tbsir 
Gomastahs,  and  they  sign  it  with  their  ona 
hands. 

How  do  Nagree  merchants  and  Shroffs  h 
Calcutta  execute  bonds  ?-~ Shroffs  in  Cakntli 
sign  a  bond,  and  do  not  fix  any  aeal. 

Cross  Exuniination, 

Whece  does  Gongabiisen  now  fire  f— b  BJ 
house. 


WSJ 


^  CakMAyfiKr  ForgefSf. 


A.  D.  I77& 


Uom  iMf  km  he  lived  tkere?r-ll  flMgr  b« 
two  years  ami  a  half,  or  three  yeare. 

WW  aft  is  he,  aad  m  whataUto  ^  heahh  ? 
—1 4o  Milaww  hU  agaexaetly,  he  ia  a  y^iuig 


Has  he  aay  particular  infirnuty  yon  know 
of  ?— He  haa  heen  sick  aomethiog  ahove  two 
T«ara;  be  waa  at  fint Tcry  yi,  Iheo ifot  betler ; 
he  it  BOW  worae. 

How  lang  is  it  since  be  relapae4P — How  eao 
I  tell  whea  he  becaoie  weraeP  He  is  not  a 
fijriog  maa,  but  very  iU. 

How  do  you  kaow  that  be  has  got  worae  ?— 
Beomse  he  is  in  my  house,  I  see  him  e? ery 
4iw. 

•  When  did  be  ipet  better  ?*— I  cannot  ascer- 
tain that  date  so  exactly  to  commit  it  to 
writing. 

1  do  not  ask  the  exact  date ;  will  you  tell  it 
aa  near  as  you  can  ?— Some  days  he  has  lio* 
l«Dt  porgings,  at  other  timea  he  gets  better ; 
it  sometimes  continaes  upon  him  tor  ten  days, 
more  or  less. 

Court.  Gif  e  a  positifo  answer  to  the  qoea 
lioo  f— il.  I  eabnot  tell. 

How  was  he  ysterday,  how  is  he  to-day  P— 
1  do  not  know,  1  was  here  all  day. 

Woold  not  you  have  beard  if  he  bad  been  eo 
yi  aa  not  to  be  able  to  come  out  P— I  beard  no- 
thing of  him  last  night,  he  has  not  for  a  long 
timo  been  in  a  atate  able  to  go  ont  of  the  house  ; 
soose  time  ago  be  went  twice  to  the  court  booae 
to  sign  pepers. 

Can  you  particularize  the  time  P—About  a 
noMb  or  two  months  ago,  I  beliofo ;  I  caniiot 
tsU  exactly. 

Has  be  ever  been  out  since  he  was  last  at 
tha  court  bouse  ?— He  has  never  been  ont  of 
bio  bouse  since  tbe  time  he  came  to  the  cenrt 
boose  to  sign  the  papers. 

Has  lie  since  then  been  so  sick  aa  not  to  be 
aUe  to  go  ont  f — He  is  so  weak  that  he  has 
been  obliged  to  be  held  up  by  people  when  ho 
came  out  of  the  house. 

Can  any  person  that  wanted  to  see  bim  have 
access  since  be  went  to  tbe  court  boose? — Any 
person  having  business  has  accem,  several  have 
seen  him  since. 

Who  has  seen  him? — I  do  not  pot  a  walcb 
orer  him  ;  how  can  I  tell  who  has  seen  bim  ? 

Mention  one  that  has  seen  bim?— Kissen 
J«an  Doss,  Haul  Govin,  Kirib  Dees  Pattuek. 

Do  you  know  any  more  ?-~A  great  many 
people  have  seen  bim  besides ;  any  body  that 
wishes  to  see  him  may. 

Camrt.  Nsbm  some  others  ?—Momc  Chad 
Baboo,  tbe  eon  of  Huzsymoll,  Jsggcmait 
Dugonaut  Duboo. 

The  counsel  for  tbe  prisoner,  suggesting 
that  Gungahissen  was  under  confinement,  and 
not  so  ill  as  alledged  by  the  witness,  the  court 
wquested  Dr.  Williams  and  Dr.  Stark  to  exa- 
mine Gungabissen,  and  report  to  the  court  whe- 
ther he  could  safely  come  out  and  give  evi- 
dence, or  not 

O.  y oa  Md  BoUakey  Doss  drew  a  dnuight 


OB  Benaret  in  favour  of  lord  CKve  for  a  lack 
of  rupees.  Is  that  transaclion  in  those  books  ? 
— iL  his. 

Court.  How  do  you  know  it  waa  paid  P— • 
It  appears  in  the  books,  a  receipt  waa  trana- 
mitted  from  Benares,  and  lord  Clive  paid  tho 
money. 

Can  yoB  find  it  out  ?— I  caa. 

Mohun  Persaud  and  Kissen  Juan  Doss  exa- 
mined the  books,  and  found  tbe  following  entry. 

Kiuen  Juan  Dois,  Tbe  particular  acooont 
of  this  transactMn  ia  in  the  Rosenamnsa. 

Emtrt  reod. 

<*  The  cotia  written  in  the  name  of  the  Dewea 
Nabklssen. 


Its. 
Debit  side,  pagodOS    •    .    •    •      to.OOO 

420    ...     .     100,000 
498     ...     .        7,000 

Making  in  the  whole     .    .    197,000 

0 

0 
0 

0 

Credit  side,  page  447    ....      33,517 

429    ...     .       9S,48S 

8 
8 

197,000 

0 

Cotirf .  Gife  a  translatkm  of  the  Rosenamma, 
page  424. 

"  In  the  BBBM  of  the  Dewan 
Nobktaaeo,  14  Mang,  1829,  (Sa- 
turday 1st  of  August)    ....     90,000    O 

Particulars  u  follows 

Psid  by  Dnkee  Ramaeil  .  .  14,600  O 
10,000  of  which  waa  paid  oo  tbe  9  let  of  Fa- 
gUB,  and  4,600  on  the  94th  day  of  the  same 
■lonth." 

Court,  hook  whether  there  is  aay  mentloB 
of  the  lack  of  rupees  of  Banaris  in  tbia  page.    . 

BIr.  EUiot.  We  are  uot.now  upon  the  fa^k, 
but  upon  tbe  20,000  rupees. 

Dr.  Williams  and  Dr.  Stark  returned  from 
examining  Gungabissen.  and  inform  the  court 
he  was  so  ill  that  he  could  not  pussibfy  attend. 

Xiticn  Jumn  Don  coBtames  nading  from  tho 
Itosenamma. 

«•  P^ge  494.  In  tbe  name  of  the  Dewan 
Nabkisaen,  a  letter  of  credit  (sefanrush)  hat 
been  written  upon  Brid^  Mobsn  Dosa  aadl 
Curbick  Doss,  oo  account  of  lord  Clive,  andl 
paid  10  Mr.  Cbamier  at  Baoaris,  lor  which  a 
reecipt  was  given  on  the  5th  day  of  Cbyte,  obb 
lock  of  sicca  baulee  Banaris  rupees." 

Hlohun  Penaud  cross-examined. 

Whose  properly  was  the  OMraer  in  that  ac- 
count? was  it  beiooging  to  BoUakey  Dosa,  or 
tbe  boose  at  Banaris?— How  shevid  IknowP 
It  will  sppcaria  the  backs. 

Has  any  notice  been  served  upon  you  bw 
Mr.JamtP-^Yes. 

Who  were  tho  witnenca  to  tbe  baad  yoa 


955] 


IS  GEORGE  III.  TriMt  ^Maha  Rajak  Ntmdoeomar,  [968 


•ay  it  a  falie  one? — Mahomed  Gummal  Sela- 
but,  and  Matob  Roy,  1  beMew^ 

Do  you  know  or  can  you  g'lwe  any  account 
ef  Matob  Roy  ? — 1  never  knew,  aaw,  nor  beard 
ef  Matob  Roy  ;  I  may  have  aeen  onany  people 
ef  that  name,  that  I  do  not  know. 

Do  you  know  SeUibbut  f — He  was  of  the 
same  cast  with  me,  I  knew  him  well. 

Where  is  he  P— Dead. 

Yl  here  did  he  die  ? — In  Calcutta,  in  the 
houie  of  Bollakey  Do&s.  Bollakey  Does  was 
then  \mng. 

How  U}ng  before  Bollakey  Dois's  death? — 
Bollakey  Doss  dieil  in  1826,  or  1769.  My 
house  and  the  house  of  Bollakey  Doss  are 
Bear. 

How  longf  before  the  death  of  Bollakey  Doss 
did  Selabut  die? — I  cannot  tell  exactly,  he 
died  some  time  in  the  year  1823  of  Nagree, 
1767. 

What  was  Selabut  ?— He  was  a  Vakeel  of 
Bollakey  D«>Mti's.  I  knew  him  well,  be  came 
to  CaU'uiia  before  Bollakey  D<»Sf) :  he  was  an 
Aiera  Walla;  I  never  eat  rice  with  him,  nor  Me 
with  me ;  he  would  eat  rice  which  my  servants 
dressed. 

Wliat  was  Selabut's  usual  method  of  attest- 
ing: papers  as  a  uitnrsti? — 1  hate  seen  him 
frequently  m  ith  my  (»wn  eyes  take  off  his  seal, 
wet  two  or  three  papers,  and  fix  his  seal  to 
them. 

Was  not  Selabut  bred  to  some  kind  of  busi- 
ness with  Bollakey  Doss  ? — He  was  Vakeel  of 
Bollakey  Doss,  and  executed  whatever  busi- 
ness he  onlered. 

Did  he  write  Nagree? — I  never  saw  him ; 
he  wrote  Persian  in  my  presence:  he  has  also 
fixed  his  Persian  seal  m  my  presence ;  I  have 
DOW  in  my  possession  writings  of  his. 

Were  Bollakey  Do^s  and  Sielahnt  of  the 
same  cast? — They  were  both  Ag^ra  Waliss, 
but  I  do  not  know  if  of  the  same  cast :  by 
Agra,  I  mean  the  place  he  came  from. 

Court,  Was  he  a  Nagree  merchant  or 
shr«)ff  ? — A.  I  do  not  know. 

When  did  you  know,  according  to  }onr  own 
account ;  or  when  did  you  suspect  this  a  false 
bond  ? — After  the  bond  had  been  gircri  by 
Maha  Rajah  Nundocomar  to  Pndmohun  Doss, 
and  I  had  read  it,  then  1  imagined  it  to  be 
forged. 

Was  that  the  first  time  ? — From  the  day  on 
which  Maha  Rajah  Nundocomar  mentioned  to 
me  Durbar  charges,  some  doubts  arose  in  my 
mind. 

When  was  it  that  yon  first  heard  mention  of 
the  bond  ? — I  never  heard  of  it  till  Pudmohun 
Doss  shewed  it  me.  Maha  Rajah  Nundoco- 
mar had  mentioned  a  circumstance  of  three 
papers,  hut  had  not  specified  this  bond. 

Vvbat  were  those  doubts  you  mention?— 
That  the  Durbar  charges  were  not  just  and 
fairly  charged,  because  I  knew  Mr.  Verelst, 
Mr.  Cartier,  and  Mr.  Russel  bad  not  received 


Wss any  mentioD  made  of  tbeir  names? — 
Th^  BMMi  were  jMt  meutioued,  but  Mr. 


Verelst  was  governor^  and  Mr.  Cartier  was  se- 
cond. 

When  did  yoo  flrrt  bear  of  Dinter  ex* 
peoees  ?— When  Pudmobuo  Doss  bad  t«M  im 
of  the  Company's  bonds,  I  went  the  aext  day 
to  Maha  Rajah  Noodooomar,  and  then  heard 
of  the  Durbar  ezpences.  1  heard  it  befcia 
from  Pudmohun  Doss,  who  had  meotioaed 
some  circumstances  oonoemiog  Gocol,  Gosaol, 
and  NobkisaeD  ;  and  he  said,  Yoa  must  prepaia 
a  jewel,  and  then  the  geDtlcmeo  will  pay  yea 
vour  money.  I  do  not  remember  iMviag 
beard  an  v  thing  else  ooooeniing  Duihar  a* 
pences,  before  i  beard  it  from  Blaha  Riyah 
Nundocomar. 

Who  were  present  when  thoae  papers  were 
delivered  ? — I,  Gungabisaeo,  Pudmohun  Deei,, 
and  the  Maha  Rajah.  Choitanaut  came  in  Is 
receive  the  bonds ;  a  person  of  the  name  ef 
Goossud,  by  the  orders  of  Maha  Ra^ah, 
brought  a  little  escmtore.    I  saw  no  one  cfas. 

Can  you  take  upon  yon  to  aay  there  weie  as 
one  else  ?— How  can  I  say  there  waa  no  eai 
else  ?  1  saw  no  one  elae. 

If  there  had  been  any  one  eke,  sbooM  yaa 
have  seen  him  ? — We  sat  in  the  dhalan  (halQ: 
there  uas  no  one  present  bat  those  that  had 
been  mentioned.  When  Ghiosaad  came ia,  wai 
had  delivered  the  escrotore,  Maha  Rajah  seal 
him  away. 

Were  von  three,  Gnngabiasen,  Pudmobm 
Doss,  anif  you,  ever  at  Maha  Rajah  Nimdeca- 
mar*s  house  at  any  other  time  ?— Frequeatlyi 
together  and  separate. 

Mention  the  time. — 1  used  to  go  every  day, 
I  cannot  mention  any  particular  period  whea 
we  were  all  together. 

Can  yoo  tell  me  if  at  any  other  time  papas 
were  produced  ? — I  never  saw  him  at  any  other 
time  take  or  t^ive  papers  relative  to  Bollakey 
Do88*s  estate. 

When  yon  saw  the  papers  at  Maha  Rajah 
Nundocomar's,  you  knew  not  what  they  were; 
how  come  you  now  to  know  the  bond  to  l»e  ooa 
of  them  ? — Maha  Rajah  Nundocomar  put  tbit 
paper  in  tl>e  hand  of  Pudmohun  Docs :  be 
tore  it  at  the  top ;  I  did  not  read  it  at  that 
lime ;  Pudmohun  Doss  afterwards  brought  it 
to  me,  and  explained  it  to  me  as  one  of  tbt 
three  papers. 

Court,  Are  there  any  other  circnroataoces 
by  which  you  know  it  ? — A,  There  is  aha 
this  circumNtance,  that  1  knew  Bollakey  Dom 
did  not  owe  Maha  Rajah  more  than  10,000 
rupees. 

Did  yoo  ever  see  Bollakey  Dosaexecoteasy 
bond  ? — I  never  did  :  was  I  to  see  hia  baa£ 
writinjr,  1  should  know  it. 

[Question  repeated.] — I  saw  him  execnie  a 
bond  for  1,000  rupees. 

Court,  Were  you  intimate  with  Bollakiy 
Does  at  the  time  of  the  wars  between  Jaffitf 
Ally  Cawn,  and  Cossim  Ally  Cawn? — A,  I 
have  been  acquainted  with  uoUakey  Dom  U 
or  15  years :  we  corresponded  then. 

Did  yoo  ever  hear  of  any  jewela  bdoagjae 
to  Maha  Rajah  Nnndocomar,  bcii^  depeilM 


at  CaleiitU,^  Forg^. 


SOT] 

wMb  BoRtkay  Dasif — I  mcvm did.  I  wu  U»- 
Kctber  with  NobkitMn  when  be  inboduceil 
BollaktT  Don  to  lord  CIitb. 

HtTB  yoa  diicwered  any  nuterial  tranne- 
lioB  of  Ballikfjr  DbN,  esc«pt  ihii  boitd,  which 
be  did  Ml  tell  jou  oTf— Bollakey  Dou  uwJ 
Mot  to  iDfi)mi  DM  of  all  be  did. 

Do  you  recollect  beio^  at  Hr.  Driver'a 
booce  aone  tima  ago,  and  takiog  away  tome 
booke  of  Bollakey  DoM'af— 1  took  theai, 
[poindng'  to  Ihe  booka  prodaced  Id  coort.^ 

Who  wai  preteol.  vrhni  ynu  took  IhemF 
— Kiaaeo  Juan  Dom  and  Hr.  Drirer'a  aircir. 

Did  KiMcn  Joan  Dob  toke  them  from  the 
cbeat,  or  did  you  toke  them  f — He  did. 
-  Did  yoa  tell  bim  the  booki  by  name?— I 
daaired  him  to  look  iato  the  booka  reapeclii^ 
as  account  of  RoBoo,  and  alao  into  Ibe  Calcutta 

booka. 

Did  you  a»k  for  any  other  booka  t—l  did 

BOI. 

Did  you  not  aik  foi-  tba  army  booki  T — I  did 
Mt  poHiralarly  mention  the  army  booka,  bat 
deaired  bim  to  look  far  tba  booka  of  Bogoo'a 


Are  ibe  booka  cooceming  Rogoo  Ibe  army 
booki  f — 1  do  not  know  wlwtber  it  wai  entered 
in  the  army  booka  or  no. 

Do  you  now  know,  whether  R^oo'i  ac- 
coanu  iain  the  army  booka  or  ooF— 1  hate 
Ml  looked  into  the  booka. 

Don't  you  know  there  are  booka  oalled  army 
booka  ?— I  do  Dol  know. 

Do  you  know  whether,  among  Bollakey 
Doaa'a  book*,  there  are  any  thaimlato  totraaa- 
Mtioaa  at  ibe  army  P— I  bad  notaeentbe  booka 
before,  when  Kiaaen  Juan  Doaa  brought  them 
to  nay  home,  and  axaouoed  tbem. 
[The  Bond  prodnced.] 

Ceuntti  for  the  Crown,  la  thii  one  of  Ihe 
ibreo  papers  you  law  Haha  Rajah  Nundoeo* 
■Mr  tear,  anddeli'er  into  the  handaof  Fudmo- 
bMDotar— J.  Yea. 

Wia  there  tnooey  paid  on  thia  bond  f— The 
Company*!  bonda  were  Iherenpon  indoraed  to 
Haha  Rajah  Nundocumar. 

Did  Haha  Raj*h  NuDdocomBr,  before  lliii 
tranaaelion,  before  [he  three  met,  when  the 
bond  waa  delivered  op,  arer  mention  to  you  hia 
boring aucb  a  bond? — Msha  Rajah  Nnndooo- 
■ar  told  me,  that  he  and  Podmobiio  Don  had 
rirswB  op  tbeae  three  papen,  one  of  the  papora 
Ar  48,031  rupeca,  and  two  papera  for  Sj,000 
npeea.     GunEabiasen  waa  not  preient 

Court.  Where  waa  the  bond  fouudF— It 
waa  depoaitrd  in  the  mayor'i  ooarl,  a*  part  of 
the  eatale  of  Bollakey  Dnn. 

Wbeo  Haha  Rajab  Nnodooomar  told  yon 

ifaal  he  had  drawn  up  three  paper*,  waa  Gun- 

mt  f— He  waa  noL 


Court.  Look  at  Ihat  paper,  [Bond  (hewn 
bin]  waa  it  among  the  papera  belonging  to 
BriAhojDoM?-!  Itwat. 


J3.-        rm 

WaaJt  torn  Ibaar— ft  wai. 

Are  ^on  enough  acquainted  with  money 
Irantaclion  in  ihia  country, <to  know  wbelber 
that  i«  the  ciwMmary  way  of  cancelling  bonda  T 

ffaa  Ihta  paper  dditered  with  other  papera 
bekmginff  U  iho  calato  7 — I  do  not  know.  I 
waanottnen  Regiaier;  It waaoncoftfan  papera 
that  waa  delirered  to  me  aa  belonging  to  tba 
eetote  of  Birilabey  Don. 

R^ak  NiAkiuen  examioed. 

Do  yon  know  whoae  aeal  thia  ii*    [Paper 

produced.] — The  name  upon  the  seal  la  Maha 

Rajah  Nuudocemar.    It  appearaU  be  hia  leal, 

1  cannot  tell  who  affixed  it 

The  Paper,  of  which  iLefollawingiBm  Ina- 
aUto,  read  by  Hr.  ElUoC 

"  [Nundocomar  Bahader  Maha  Rajah.] 

■■  Formerfj  the  jeweli  belonging  to  me  wo* 

depnaiied  with  Seat  Bollakee  Dmt     In  ib« 

Bengal  year,  lira,  he  gare  roe  a  bond  ai  tba 

Taino  thereof,  for  the  aaro  of  mpeea  48,031, 

I  baring  delirered  o*er  the 


Seat  I  he  paid  all  together  the  aom  of  curreoL 
mpea*  60,030.  in  bonda  of  the  Engtiih  Cam- 
pony,  which  ii  the  amount  of  my  demand, 
at  principoj,  preaiium,  and  batto. 

"  Written  nn  the  4th  of  Haug,  in  the  Ben* 
gal  year,  11T6." 

Cotirt.  la  the  affixing  a  aeal,  the  manner  in 
Ihia  eooutry  ef  authenticating  papera  F—J. 
There  are  tntBe  iorte  i^  cuatotna  in  tbia  conn- 
try.  Firat,  for  money  matUra,  merdianta 
among  Ihemaelrea  aign  and  wilneu,  but  do  not 
leal ;  that  ia,  the  Bengal  and  Calcutta  mrr- 
chauta.  Second.  Among  Mogul  HuaiolntcD, 
who  know  DO  character  but  PerM«u,  tber  writ* 
'  Alaubd,'  and  aet  their  aeali.  Third.  Ooreni- 
irfenl  affiiin  pan  by  aeal,  without  aign  manoal 
oT  any  kind. 

Ii  tbeapalicationof  aaeal  auffident to aocb 
a  paper  aa  iWF  [Shewn  Receipt,  letter  VJ~~ 
Ai  one  might  know  Nagree,  and  the  other  Per* 
*i*n  anil  Baogal,  anoh  a  aeal  might  be  auS- 
dent.  Thii  paper  being  only  a  racdpt,  a  aeal 
ii  auffideot.  Toe  word  '  Alauhd'  ia  not  neetU 
ful  in  thia  eaae. 

Ia  it  neceaaary  that  inch  a  writing  aa  Ihli  b« 
confirmed  by  witneaa?— It  ii  not  neceaaary. 
[Tranalato  of  bood  exiiibit  A.  read.] 

Tiie  Priaoner  dceired  ba  might  ai 
Nobkineo  a  queatioD. 

Court.  Let  him  conanh  hioonuel  beforo 
he  aik  the  queation. 

The  qiieation  being  orer-heardby  NohkiaaeOi 
heaaid,  "  Haha  R^ab  Nundocomar  bad  heller 
not  aak  roe  that  queatioo."  Upon  wnicb  Nua- 
docomardedincil  Biking  thequeition. 

Court  to  Jury.  You  muit  receive  no  pre- 
jwlico  from  thii;  yea  nuat  forget  thn ano^w- 


(  Rajah 


959] 


15  GEORGfi  HI.  Trial  tfMaha  Bofok  Numiocomar,  [060 


tatioD,  and  jud^oolyNby  theevidenoe  at  the 
bar. 

The  jury  said  they  would  only  judge  by  the 
efideoce. 

How  knif  did  yov  know  Bollakey  Dom  be- 
fore bis  death  ?— 1  believe,  three  or  four  yeara, 
wheo  lord  Clive  was  goremor. 

What  was  Bollakey  Doss*8  buflineaB  ?— He 
was  not  then  in  any  business  in  Calcutta. 

Were  you  intimate  with  him  ? — I  was  very 
well  acquainted  with  him. 

What  was  his  general  character  P— A  very 
honest  man. 

Did  yon  know  Pudmohun  Doss  ? — I  did. 

Do  you  know  any  thing  of  Bollakey  Doss's 
ctrcomstanceb  f — f±e  was  reckoned  a  monied 


Are  you  acquaint^  with  Bollakey  Doss's 
manner  of  executing  bonds  ? — I  know  nothing 
abont  it. 

Moonskey  Sudder  O^Dien  examined. 

Did  yon  know  that  seal  ?  [Receipt  exhibit 
F.  produced.]«-The  name  of  Maha  Rajah 
Kondooomar,  Bahader,  is  to  the  seal.  I  fre- 
quently^  when  I  was  Moonshey  to  Mr.  Graham 
^IL  Burdwan,  had  occasion  to  see  the  Rajah's 
seal;  this  appears  to  be  his:  as  an  oath  has 
been  taken,  1  have  only  to  say,  that  it  appears 
to  me  in  my  mind  to  be  the  same :  I  believe  it 
to  be  the  seal  of  Maha  Rajah  Nundocomar. 

.Is  the  application  of  the  seal  alone,  without 
the  word  *  Alaiibd,'  deemed  sufficient  authen- 
tication to  such  a  paper? — It  is  proper  tliat  a 
i^eceipt  should  be  signed. 

Yon  are  asked  if  the  seal  alone  is  suffi- 
cient authentication.  What  is  the  custom  ?  Is 
it  generally  esteemed  sufficient  in  a  country 
court  of  justice? — This  is  what  1  think;  a 
roan  of  rank,  whose  seal  is  well  known  in  the 
country,  and  is  known  to  above  ten  people,  it  is 
a  sufficient  authentication  for  such  a  person 
as  this.  If  the  chief  person  of  the  court  is  nut 
satisfied,  he  can  call  witnesses  and  swear  the 
person  himself. 

Have  you  sat  as  a  judge  in  a  country  court  ? 
—I  was  once  a  Duron^^h  of  a  Cutcberry  at 
Burdwan,  under  Mr.  Graham. 

Would  you,  as  a  judge  of  the  court  of 
Audaolet,  admit  the  authenticity  of  such  a 
paper,  supposing  the  identity  of  the  seal  to  he 
acknowledged,  witbout  the  assurance  of  the 
person,  that  he  bad  sealed  it  himself? — I  would 
call  witnesses  if  it  was  denied ;  1  would  call 
witnesses  and  oaths. 

To  what  purpose  ?— I  would  enter  into  a  re- 
gular trial,  to  prove  if  his  seal  had  not  Iteen 
stolen  by  his  servants,  or  whether  it  was  a 
forged  seal. 

Saboot  Fottack  examined. 

Were  you  acquainted  with  one  Sielabut  ? — 
I  remained  in  the  same  place  with  him,  from 
the  time  1  was  ten  years  old,  till  he  died. 
When  we  were  at  Delbi,  our  houses  were  sepa- 
nied ;  at  Mongheer  and  Cakutia  we  lived  to- 
t 


getber  in  the  same  house :  Sielibal  Ma  Yaluil 
to  BoUakee  Dess,  and  wrote  Persian  for  him. 

Have  you  seen  bim  write  ?— J  always  nosd 
to  see  Um  write. 

Do  you  know  his  hand  writing  f— •F^rfeelly 
weU. 

What  name  is  upon  thia  bond? — That  of 
Sielabut,  Vakeel  to  Bullakee  Does. 

Is  this  the  hand  writing  of  8ielabat  ? — No. 

Can  yon  take  upon  you  positively  te  swear 
it  is  not  bis  hand-writing?— I  can  swear  it. 

On  what  grounds  are  you  so  positive  P— I 
am  well  acquainted  witli  the  form  of  the  letters 
of  the  hand  writinii  in  my  possessien. 

How  did  Sielabut  use  to  attest  Persian  wriU 
ings  ?— He  used  to  witness  and  put  hia  aesl 
nnder  it. 

What  do  yon  mean  by.  that  expresstoo  ?-• 
Writing  the  word  '  witness,'  and  putting  has 
seal  under  it. 

Have  you  seen  bim  attest  any  paper?— *l 
bavei  seen  him  very  often. 

Did  he  write  better  or  worM  than  the  paper 
ahewn  you? — This  is  a  better  baad  writing 
than  Sielabut's. 

Did  be  write  a  good  or  bad  hand  P— He  wnte 
rather  a  bad  hand. 

Whose  hand  writing  is  that?  [A  Paper  pro- 
duced.]—The  hand  writing  of  Sielabut. 

Do  yon  discover  Sielabut's  hand  writisf 
among  these  pa|>ers  ?  If  you  do,  separate  tbeii 
from  the  rest.  [More  papers  produced.'] — ^Thtre 
is  not  any  of  Sielabnt's.  hand  writing  amoqf 
them. 

Is  there  any  of  his  hand- writing  amoef 
these?  [More  papers  produced.]  Thbse  three 
papers  have  hia  hand- writing.  [The  three  ps- 
pers  were  put  aside,  and  marked  G.] 

Have  you  any  more  papers  of  Sielabut's 
hand-  writinc^  ? — '[  have  none. 

When  did  Sielabut  die  ? — Six  years  and  thr«€ 
months  ago. 

Where  did  he  die? — In  an  out-house  nnr 
the  dwellinir. house  of  Bollakey  Doss.  It  wis 
a  Bearer's  house. 

Were  yon  present  when  he  did  ? — I  wss  pre- 
sent. 

Cross  Examination. 

Where  were  you  born  ? — At  Delhi. 

When  did  you  first  leave  Delbi  P—Aboot 
nine  years  ago. 

Where  was  Sielabut  horn  ?— Sielabut  waa  aa 
older  man  than  roe  when  he  died ;  I  canoot  (dl 
where  he  was  horn. 

What  cast  was  Sielabut  ? — He  was  an  Agr> 
Walla,  and  a  Banysn. 

What  cast  are  you  ? — A  Bramtn. 

Are  there  any  Brainins  among  the  A^ 
Wallas? — They  are  hII  Banyans. 

Where  is  Agra  ? — Agra  is  a  village,  or  low»f 
in  the  pergunnah  of  Uussaul. 

When  did  you  first  see  Sielabut?— I  »»* 
him  first  at  Delhi,  but  do  not  recollect  when. 

How  okl  were  you  when  you  firrt  ssw  Sicb- 
but  ?-— Ten  years  old.. 

When  you  fuoii  saw  Sklabut,  upoB  what  ku> 


961] 


at  OdailUtttfor  For^rj/. 


A.  D.  1775. 


[m 


■aaesi  did  he  oome  to  Delhi  ?— He  acted  at  that 
time  as  Vakeel  to  the  Kin^^s  Woiocky,  cavalry. 

Id  whose  serrice  are  jfou  now  ?— I  am  iii.no 
hody's  service.  I  carry  oo  a  little  business  of 
my  own. 

Upon  what  occasion  came  yoo  to  live  with 
Sielabut?— When  Sielabut  sprved  the  Woliaky 
troops,  I  was  a  servant  to  him. 

Vrliat  service  coulil  you  do  him  aKhatag^f 
•"-Persons  of  five  years  of  age  enter  into  the 
service  of  merchants ;  ,  I  m  as  ten  years  of  affe ; 
I  did  whatever  he  bid  me,  assisted  him  in  nis 
trade,  went  of  messages,  and  gave  answed. 

How  long  did  Sielabut  remain  at  Delhi  f— 
Be  left  Ddhi  with  Mynhier  0*Dowlah,  into 
whose  service  he  entered. 

Where  was  that? — I  do  not  exactly  remem- 
ber, it  may  be  about  14  years  ago. 

Did  you  leave  Delhi  with  him  ? — I  did  not 
go  away  with  him :  my  father  did. 
.  What  employ  had  your  father  under  him  ?— 
Be  did  not  serve  Sillabut,  be  was  above  being 
in  his  service,  ^ 

How  came  you  first  to  Calcutta  ?— I  came 
to  Sielabut. 

How  came  your  father  above  serring  Silla- 
but, when  you  did  ?— 1  served  him  in  a  parti- 
cular manner :    he  left  much  business  under 


When  Sielabnt  executed  any  paper  of  his 
own,  did  he  put  his  seal,  or  signature  ? — When 
he  executed  deeds  of  his  own,  he  began,  *'  I 
who  am  Sielabut/'  and  fixed  his  seal  to  the 
deed. 

Did  you  ever  see  Sielabut  sign  or  attest  any 
paper  instrument  ?--  When  1  and  Sielabut  went 
10  Jaggernaut,  Bollakey  Doss  paid  him  some 
money,  for  which  he  gave  a  receipt ;  he  put  a 
ssal  to  it. 
How  old  are  you  now? — Thirty  nine  years. 
How  long  did  you  live  with  Sielahut  at 
Delhi  ?— 1  was  with  him  when  he  was  Vakeel 

^       to  the  royal  cavalry,  to  the  Nabob  Buckah. 

^  At  what  different  places  were  you  with  him  ? 

-^l  was  with  him  at  Delhi,  at  Bnuneeheuvon- 

f  put,  which  is  the  jaghire  of  Naggeer  Polly wb  : 
I  was  with  him  in  the  Nabob  Sujah  al  Dow- 
lali's  army  at  Buxsr.  Sillabut  came  to  Cal- 
cotta  with  Bollakey  Doss,  and  I  went  home : 
he  went  from  Calcutta  to  Jaggernaut,  from 

0  wbeace  he  returned  to  Calcutta,  where  he  died. 

Have  you  been  with  him  at  any  other  places  ? 
Ik     7—1  have  been  at  other  places  with  him  on  a 

1  journey  :  I  have  liveil  with  him  at  the  places  I 
have  mentioned,  but  no  other. 

t  Court,  Were  you  with  him  at  Moogheer  ?— 

-4.  I  was  nut  atMoogheeri  nor  was  he  there, 
^h«t  I  know  of. 

How  came  you  to  know  the  situation  of  this 
house  at  Monifheer  ? — 1  know  nothing  of  his 
hoQse  at  Mongoeer,  nor  have  I  said  any  thing 
*b©utit. 

How  come  you  to  say  you  lived  at  Mong- 
heer?--I  did  not  give  such  evidence,  that  I 
'ivfd  at  Mongheer. 

[Mr.  Jacktion  observed,  that  the  witness 
*^ade  Que  Off  the  word  lutcar  (camp)  and  Cal- 

?0L.  XX.  .      . 


cutta ;  which  Mr.  Elliot  ioterpretedy  Calcutta 
and  Mongheer.3 

Mr.  Elliot.  1  have  frequently  interpreted 
army  and  Mongheer  as  synonymous,  because 
the  army  was  there. 

Haveyou  understood  this  witness  perfectly  f 
—Mr.  JE,  I  have  not  all  through  undcr8too«l 
this  witness  so  easily  as  the  others,  though  by 
a  repetition  of  the  questions  I  perfectly  under- 
stand what  1  interpret.  His  Moors  is  higher 
than  what  I  am  used  to. 

Mr.  Jackson.  1  perfectly  understand  this 
man ;  I  learnt  my  Moors  by  residing  two  years 
high  in  the  country.  I  did  not  so  perfectly 
imderstand  Kerree  Doss  Pottack,  the  father, 
from  whom  I  interpreted  last  night. 

Cour^  (to  Mr.  Jebb.)  We  are  informed  yofl 
say,  that  the  witness  Keree  Doss  Pottack  itid. 
not  understand  the  interpreter,  Mr.  Jackson,— 
A,  Keree  Doss  PottacK  ■  told  me  last  night, 
when  he  went  from  the  bar,  that  he  was  con- 
fused :  T  told  Mr.  Driver,  that  he  did  not  un- 
derstand the  interpreter :  I  collected  this  from 
what  the  witness  told  me,  not  from  my  own 
observation. 

[The  Counsel  for  the  Crown  attempted  to  call 
Keree  Doss  Pottack  to  the  matters  deposed 
by  Subboh  Pottack;  which  wasopposed  by  the 
Counsel  for  the  Prisoner;  and  Mr.  JusticeCham- 
bers  being  of  opinion,  that  the  contradiction 
upon  his  evidence  was  such  that  he  ought  not 
to  be  believed  upon  his  oath,  the  Court  refused 
to  suffer  him  to  be  caileil.] 

Rajah  NobkitMcn  examined. 

Did  you  know  Sillabut? — Yes ;  he  was  a 
Vakeel  and  Uunshy  of  Bollakey  Doss. 

Are  you  acquainted  with  his  hand-writing? 
—I  am  ;  I  have  seen  him  write  many  times. 
[Bond  shewn  him.l 

Is  this  the  hand-writiog  of  Sillabut?— The 
words  *<  Sillabut,  Vakeeluf  Bollakey  Dosm^" 
are  not  of  his  hand- writing;  it  is  not  his  com- 
mon writing :  1  have  seen  several  papers  of  hii 
baud -writing. 

Can  you  take  upon  you  to  swear  it  is  not  his 
hand -writing? — Sillabut  has  wrote  several  let- 
ters to  me  and  lord  Clive,  and  has  wrote  several 
thiii(>^' before  me :  this  is  not  the  kind  of  writ- 
ing I  have  seen  him  write ;  but  God  knows 
whether  it  is  his  hand-writing  or  not. 

What  is  your  opinion  about  it? — ^The  pri- 
soner is  a  Bramin  ;  I  am  a  Coit ;  it  may  hurt 
my  religion :  it  is  not  a  trifling  matter ;  the  life 
of  a  Bramin  is  at  stake. 

Do  you,  or  do  yon  not,  think  this  the  hand- 
writing of  Sillabut  ?  Remember,  you  are  upon 
your  oath,  to  tell  the  truth,  and  the  whole  truth. 
— I  cannot  tell  what  is  upon  my  mind  on  this 
occaKion  about  it. 

Why  not? — ^Tlils  concerns  the  life  of  a 
Bramin.  I  don't  chuse  to  say  what  is  in  my 
mind  about  it. 

Did  Sillabut  write  a  better,  or  worse,  hand 
than  this  ? — ^The  letters  on  this  paper  are  well 
formed  :  those  of  Sillabut  ace  not  badly  formed, 
but  are  not  SO  good  as  these.    [The  pspera  ar% 


^dS/} 


lSGT60ltaQt  m,         TrktefMSa*  Si^lAmthettmr,         fm 


■MM'B  buB  wnktb  iMfo  tiMim  16  ra9  pNiMf 
iritacfiii  for  the  pnrpoM  of  leleoliiif  thboo 
wliicb  were  fke  hand-wrtfiny  of  MMmI  t  he 
utodiediatel  j  ftxm  ott  the  iBraMnnert  b<Me 
proved  to  be  the  hand- writing  of  SnwbalO 

\Wiinm.  Theie  three  Are  the beiid*#riaag of 
Snabut ;  1  een  find  no  other  pepera  of  nia 
'  writing  among  theae. 

Did  jroa  ever  aee  theae  paperi  WtbreP— 
Never  in  mv  lift:  I  neverwaainaiiob  AcMiae: 
I  wonM  rather  loae  a  great  amnefiftoiMrfthiUI 
belnaochaeaoie. 

AraiaMi  AH^  esamined. 

In  wiMiae aerviee  are  joof-^Iam  aaarvaiit 

la  Commanl  (Vdlen  Ally  Cawn. 

.  Bow  hmg  baveyoii  Men  h»  aarvant  f-^Two 

jjaarathhibHlttioie:  I  waa  fbrmerl j  in  hia  aev- 

n0a»  and  qaitted  it,  and  returned  to  him  again. 

While  ^oa  were  in  his  aerviee' did  von  evef 
raeaive  directiooa  to  atod  a  Mi  to  Hana  Ri^ah 
NandooooMurP— I  liad  direetions:  it  waa  the 
aeal  of  Commanl  O'Dien  Cawn :  hot  be  waa 
aotat  thbt  ttoMcalled  C6mmaiilO*0ien  CawD| 
bvt  Mahooicd  Commanl. 

DifLyea  aeod  the  nal  in  eaMaoneBee  of 

MO  meotioBa  f-^I  peeked  the  aeal  m  a  hag. 

Waa  there  any  tbmg  pnt  in  the  bag  beMea 
Hf— I  aewed  np  the  liag  with  my  own  hand : 
in  it  I  put  three  gold  oMmeera  andeightmpeeay 
baaidea  the  aeal;  and  delivered  it  to  Commanl  o 
Bien  Cawn,  who  aaid  he  intended  lo  aeod  It  to 
ilaha  Ri^  Nnndooomar. 

yoQ  aee  the  bag  afherwarda?— Never 


*  Have  yon  aaen  the  aeal  since  P—1  have  not 
Did  yon  aend  it  away,  or  did  Commanl  o 
Dien  CawD  aend  it  f— Cnmmaol  0  dieii  aent  it ; 
I  did  not. 

Crou-Egmmnaium, 

Do  yon  know  Commal  o  Dion's  MnnahyP — 
I  do. 

How  b  he  called  ?— Cordon  Nowaa  Cawn. 

Do  yon  know  of  liis  being  applied  to  to  give 
evidence  in  any  cauaef — Yes;  Cnmmaul  o 
dien  Cawn  applied  to  him  to  ^ve  evidence  in 
the  affair  of  Blaha  Rajah  Nondoo6mar' and 
Mr.  Fowke  about  the  arzee. 

Did  he  use  any  iDdncement  to  peranade 
him ;  and  Ivhat?— I  know  nothing  of  any* 

What  Mssed  on  that  occaaion,  to  your  know- 
ledge f— -I  do  not  know  of  any  thing  that 
paased. 

How  do  you  know  the  Moonshy  waa  ap- 
plied top— I  know  that  he  waa  applied  to.  be- 
cause he  actually  went  to  the  bouae  of  the 
Lord  Chief  Justioe,  to  give  evidence;  I  have 
heard  Ir9m  many  people. 

.  Do  you  know  of  Cnmmaul  o  dien  Cawn*a 
•flfermg  money  to  Cordar  Nowaa,  hia  Monaby, 
to  induce  him  to  give  evidence?—!  do  not 
know  of  aaj  aoch  o&r. 

Do  jon  know  one  Blahomed  WisaeDt  a  seal 
fotterr— Ida* 
,Do  yea  know  of  bb  hmkm  been  ivplbd 
ti  to  |be  ovidaMiM  *  iMtaw  «  hb 


had  cMtt  a  aial,  ef  whM  he 
imptea<an,  and  aaid,  Tdl  flia  tMlh 
inrow  year  inQgiaiimNe  mut  wiMb 
Iknow. 

lii  #bat  ttlttdqr  dkl  yott  inrftf  _ 
DsbCd#«>*-l  naa  hbCdmiiBiiHi. 


WW 


How  kng  did  yoo  aarve  BolbkerrDadif-^ 
ft  b  twelve  or  Wrteaa  }can  atoee  I  went  bii^ 

IflTwhat  rn^Mi^  dM  ydk  wamtMi  f^^Umtl 
myparlicukr  pcovhictflo#iiMitbdn#pM;    . 

Weiiayott  wdl  acduainted  with  MJMMif 
Doaa'a  bosineMf— Bellafccj  Dbaa  bid  mtf 
aervanta,  ef  all  whom  ramohnfe  DMa  nee 
beat  acwDamted  whhbb  aftrihm;  ^eiMattr 
chief.  What  papers  1  trnMey  I  wMi  Mii 
understanding  thciti. 

What  waa  your  partiAibv  InriMm  mim 
Bollake^  Doaaf-^To  write  pipera. 

Did  yoQ  write  hi  the  hooka  f—PMMahli- 
Doaa  add  I  wreie  in  them ;  he  ihv  the  CbbTi 
what  1  wrote  I  understand ;  other  pB>|h  dgb 
wrote  in  tfaciit. 

DU  jroa  read  whdt  waa  writlea  bw  diMT 
dMcaf-^fdid.  '.        < 

Did  yon  eter  know  of  any  dcbia  doe  IMV 
Bdlakey  Does  to  Itaha  Rijah  NmdoeamM 
—1  kn^w  it  ftom  ndmohmi  Doaa  etrfy. 

Did  yoa  ftmw  of  any  botid  to  Malm 
Nqpidooomar  fhnd  Bbllakey  Daas,  df  jfawaui 
knowMgef— I  knew  of  one  fhr  tan  themlpl' 
rnpeea. 

DM  yon  ever  hear  of  any  ieweb  ef  IMt 
R^iah  NondoDaaiar*a  beidglnBdBakef  OaM 
poaaeaskmr-«l  dM  net  bear  it  from  floMMf' 
Does. 

Didyou  write  the  bond  fbr  10,000  rupees  f<* 
No ;  Hobun  Persaad's  brother,  Iwalbtte  Pler- 
aaud,  wrote  it  at  Chanderoagore.  1  have 
the  bond  here. 


Bow  many  books  of  Bolbkey  Doea  have 
ouaeenbereP — Ei^ht,  [eight  hooka  prodileed] 
ve  of  which  are  ofooDseqoence. 

Do  theae  five  contain  all  the  acconnte  bf  bn> 
aineas  which  came  within  your  knowledge  and 
chaige  P— Yea. 

Had  not  Bolbkey  Doaa,  beaides  bb  hnsbesi 
account,  many  of  a  private  nature  which  caits 
inte  theae  books  P — There  were  other  privais 
accounte  contained  in  booka  which  vrere  alsim 
or  deatroved  firom  Bdlakey  Does,  when  wa 
were  at  Bosar  with  the  army.  Thb  wiH  ap* 
pear  by  the  booka  produced ;  you  mmt  asl 
take  it  from  my  mouth :  I  never  aaw  th«s 
booka  that  were  atob  ;  halancea  from  them 
booka  are  entered  m  the  booka  on  the  table. 

He  tuna  to  the  booka  and  raada  thb  calq; 

<«  ne  Jnauna  of  Dean  Chond  RdlliaMr,  IT 
entered  in  the  private  cottah  of  BoQikiyiisafc 

*<  Tear  Jnmma  hi  the  orfvaib 
BUttMDMi    '^ 


«f  Caki/il«,for  Forgery, 

ofBimr;  therefore  ilutionCliuod 

'ing  drawn  oui  your  accounts,  and  listing 

Iracied  your  accouDts  trDm  your  Wtks,  ai:- 

liD^  10  onlcre,  an  entry  i*  made  of  tUem 


A.  D.  1775, 


mtnttt.  Thfwe  b  AD  aceoi 
namma  here  produced,  of  tli 
■be  papers  aod  books  that  were  atoli 

tJune  )1,  177S. 
Hr.  Judice  Le 
(hat  Dr.  WiUiami 
<luof[iihitsco  migtii  be  brought  into  court  on  a 
catt,  lo  ^ire  hii  eviiletice,  and  ibeju'v  b«itie 
*«y  d«airoui  lo  hear  it,  Ibe  Court  JeclarM 
their  opinion,  Ibat  Gun^abissen  having  •  great 
■DtercHl  in  the  eitale  ut  Cullakey  Doss,  whicb 
was  difideil  by  his  will  in  shares  accordingly  lo 
Ibe  coroponeul  pari*  of  a  rupee,  the  Counsel 
for  the  Crowo  would  not  be  entitled  lo  call  him ; 
Uie  (trisuoeT  was  therefore  told  to  adiise  with 
Ilia  couoiel,  and  say  whether  he  wished  lo 
liaie  biiu  called.  The  Court  at  Ibe  same  time 
•cquaioted  the  jury, that  as  Gungabiasen  wasa 
wiuuw  who  would  not  be  calletl  on  the  part  of 
Ihe  crowo,  they  must  receive  no  prejudice  if 
the  priaoner  declined  caUiog  him  ;  because,  if 
culled  by  ibe  crown,  he  would  have  a  right  to 
object  lo  bin),  on  account  of  bis  interest.  The 
prisoner  haiiog  consulted  with  hii  counsel,  re- 
turned for  answer,  tbal  if  he  was  sure  Gunga- 
biitcn  would  speak  to  the  trulh,  be  sbiiuld  be 
dcairous  ti)  baiebim  called;  but  thsthecun- 
•idered  him  as  under  the  inSuence  of  Mohun 
PerMud,  and  iherefore  feared  that  he  might  not 
•peak  the  truth,  and  thai  be  declined  calling 
faim  ;  but  the  jury  shewing  a  strong  desire 
that  he  mtght  be  called,  tlie  prisoner  and  his 
eoansel  consented  thai  his  eiidence  should  be 
received  ;  whereupon  Dr,  Williame  and  Mr. 
SUrk  were  again  aenl,  and  en  their  return 
Mr.  Williamt  was  sworn. 

Court.  How  was  Gungabissen  yesterday? 
—A.  I  went  to  Mobun  Fersaud's  bouse :  I 
found  him  lying  upon  bis  col.  The  firsi  ques- 
li»a  I  uk-Nl  bim  was,  what  bii  name  waa :  be 
•kid,  Giiogabisaen.  1  asked  bim  as  to  his  dla- 
rase:  he  told  me,  he  had  a  severe  flux;  ten, 
twenty,  or  thirty  bioo)s  a  day  ;  a  continual 
Ibinl  ;  and  that  on  drinking,  he  went  lo  stool, 
•nil  it  came  from  bim  immediately.  1  felt  liia 
pulse,  and  found  him  to  have  ■  slow  hectic 
taver  ;  and  I  bcliere  be  baa  a  scirrhous  liver. 

When  ynu  saw  bim  yesterdav,  did  you  Ibink 
he  could  he  bruogbt  into  court* — 1  thought  be 
Hold  nnl  fitb  saTely.  On  my  return,  I  report' 
ed  lo  the  chief  joatice  in  court,  that  I  did  nol 
Ihukk  it  »fe  to  liruig  GnngabiMea  to  ibe  court. 
1  thought  it,  and  repuilod  it.  I  alWwarda  ac- 
quainl^  Mr.  Justice  Le  Maislre,  tbal  if  there 
■raa  ut  ftUnluto  oece«*ilv  for  his  appearance 
Item,  1  ihoughl  be  might  be  bronglit  on  a  col ; 
uul  1  would  attend  him  myaelf.  Mr.  JiNlice 
Lrc  ftUutte  h«ripg  l>elg(c  iiui  laitl,  Uuit  (be 


[966 
gentlemen  in  the  House  of  Commons  ncr« 
sometimes  brought  in  iheir  flannels,  then  1  said 
what  I  mentioned  alioul  ibe  cot.  I  went  to  se« 
Giiogabissen  Ibis  morning,  with  an  inlentinn, 
if  possible,  tu  have  brought  him  here.  I  wai 
the  first  person  ibal  entered  bis  room :  1  found 
him  oS"  his  col :  no  one  wb«  in  the  room  I  saw 
him  in  yesterday :  he  was  not  in  the  room  I 
saw  him  in  yesterday ;  bul  in  a  lillle  room  of 
veranda,  comiguous  to  thai  in  which  be  lay, ' 
supported  by  three  or  four  people,  at  stool,  and 
so  much  eihsusled,  that  he  tumbled  on  lh« 
cot  when  they  brought  him  to  il,  and  it  waa 
some  lime  before  he  could  give  me  bd  answer. 
Atter  recovering  bis  strength,  I  asked  bim 
some  questions  retalive  to  his  disorder ;  he  lold 
me  he  was  worse,  and  that  his  very  bowel* 
were  coming  from  him :  1  told  him  be  must 
^0  with  me  in  a  dooley;  he  said  that  it  wai 
impossible ;  did  not  I  see  what  >  state  he  was 
in  f  and  held  out  his  hand  lo  me.  Be  was 
then  in  a  cool  sweat,  with  a  low  pulse.  I  fur- 
ther proposed  to  him,  ihat  be  should  go  io  his 
col,  and  be  lifted  over  the  veranda  liy  roitei, 
and  be  covered  up.  He  replied,  be  must  die  if 
he  went;  he  could  not  go;  he  roust  die.  I 
then  desisted  from  any  farther  persuasion,  and 
returned. 

What  is  your  opinion  ? — Thai  lliemao  could 
not  be  brought  here,  and  carried  back  again, 
without  imminent  danger  of  expiring  from  fa- 
tigue ;  and  that  he  has  not  ttrengih  to  under- 
go an^  examinoiiun,  after  the  fsiigne  of  bring- 
ing  bim  to  court:  bad  he  not  told  me  that  he 
has  been  eiceediuKly  ill  near  two  years,  I 
should  not  bate  supposed  be  could  live  many 
hour*,  from  the  stale  he  appeared  in  this  mora- 
ing. 

Hasler  Mac  Vtagk,  Keeper  of  the  Records, 
being  called,  produces  three  papers. 

What  papers  are  ihesef — The  original  will 
of  Bollakey  Uoss,  and  a  trenstate  of  it ;  tnge- 
thir  with  AD  acoounl  current  of  Bollakey  Doss's 
esute. 

Prom  whence  had  jou  these  papers  ? — I  re- 
ceired,them  from  Btr,  Scaly,  the  late  Register 
of  the  Mayor's  court 

Mr.  Sealy  eMmtned. 

Did  you  deliver  these  papers  to  Master  Maa 
Veaghf-ldid. 

Where  did  yon  get  ibeiD  from? — 1  took 
llieii)  from  the  recunls ;  ihey  are  pari  ••(  Ihe 
records  of  the  Mayor's  court,  and  were  amuDg 
the  olber  records  and  muuiroents. 

Is  the  accouni  current  in  English  aDOri|;inat 


paper 


-It! 


soTtba 


Are  ihE 
tale  Mayc 

[The  Translate  of  the  Will  of  Bollakey  DofI 
waa  read,  of  which  the  fallowiog  is  a  copy.] 

A  Will  of  IIoLL^KEV  Dom,  in  NBgre«  Laii- 
guage,  translated  mlo  English. 

■'  I,  Bollftkey  Dow  Aufurwall, 


15  GEORGE  IIL  Trial  of  Maha  Rajah  Jfimdoamar,  ^SfiS 

make  a  i^rden  and  well  in  my  name,  to  lie 
given  to  the  Brabmoni,  two  annas,  (3  a.)  .To 
my  wife,  four  annai,  (4  a.)  To  Guni^biaMo 
and  Hingoo,  my  nephews,  four  annas,  (4ff.) 
To  Prodoomone  Doss,  for  bis  trouble  and 
pleasure^  four  annas,  (4  a.)  making  siiteen 
annas. 

*'  I  dp  fortber  declare,  that  I  had  madca 
power  of  attorney,  before  this,  in  the  naoaes  of 
brothers  Mohun  Persaud,  and  Prodoomone 
Doss ;  which  I  leave  to  the  pleasure  of  brother 
Prodoomone  Doss.  I  request,  all  1  owe»  aod 
what  is  owing  to  me,  be  paid  and  reoet? ed,  ac- 
cording to  accounts  of  every  settlement.  This 
is  my  will,  which  I  thought  proper  to  make  hi 
ray  life-time,  and  desire  to  be  executed  in  the 
same  manner  as  aforesaid ;  and  at  the  reqant 
of  my  wife,  I  appoint  Gungabissen  and  Hinges 
Laul,  my  two  nephews,  my  trustees.  And  the 
management  of  all  the  business,  debts,  aad 
dues,  books  and  papers,  1  leave  to  the  care  of 
Prodoomone  Doss. 

'*  Mitty,  or  month  of  June,  Ibnrth  day  of  the 
moon  Sumbet,  or  the  Nagree  year,  l8^6.-» 
Written  by  Rissenjebun  Doss. — Signed  by 
BoLLARET  Doss,  who  approved  of  the  abofs 
writing.— Witness  Dorromchurn,  K*«'8seNiE- 
BUN  Doss,  being  declared  by  Bollakey  Don. 
Bengal  year,  1 176,  June  191h.  [A  true  eopy.] 
— Signed,  Richaed  Mac  Veaoh,  Keeper  of  tke 
Records." 

Court.  This  account  is  properly  do  evi- 
dence ;  it  is  not  delivered  in  by  an  executor; 
and  very  little  would  arise  from  it  if  it  bad  been 
signed  by  the  executor ;  for,  as  the  money  bad 
certainly  been  paid,  whether  properly  or  net, 
the  executor  wonid  have  brought  it  into  hit 
account ;  otherwise  lie  would  have  be<in  him- 
self chargeable  with  it. 

The  Counsel  for  the  Crown  closed  their  efi* 
dence. 

The  Counsel  for  the  Prisoner  objected,  that 
there  was  no  evidence  of  the  forgery  and  pub- 
lishing of  the  bond  produced ;  but  the  Court 
being  unanimously  of  opinion,  that  there  was 
sufficient  evidence  to  put  the  prisoner  upon  hit 
defence, 

The  Counsel  for  the  Defendant  stated  hit 
Defence  as  follows. — That,  first,  he  could  call 
witnesses  present  at  the  time  when  Bollakey 
Doss  executed  the  bond :  tliat  two  witnesses  to 
the  bond,  now  dead,  were  living  when  this 
transAction  came  to  the  knowledge  of  3I(dian 
Persaud :  that  be  would  produce  letters  io 
Bollakey  Doss's  band- writing,  admitting  the 
bond,  nnti  the  circumstances  of  the  jew  eis,  aad 
an  account  sig'ned  by  Mohun  Persaud  and  Pud- 
mobuu  Doss,  in  the  presence  of  GungitbisveB, 


967] 

in  body,  do  make  this  my  will,  as  I  pretend  to 
dispose  of  my  estate  personally,  should  I  live 
lonffer ;  but,  in  case  cf  my  decease,  then  my 
•aid  estat"  to  be  distributed  as  follows :  after 
the  money  due  lo  me  by  the  Company  is  re- 
eeived,  first,  1  reqtiest  my  debts  be  paid,  agree- 
able to  accounts,  and  the  remainder  to  be  di- 
vided into  sixteen  parts,  or  sixteen  annas, 
whereof  to  be  distributed  for  the  divine  service, 
Tic. 

**  To  Sree  Goberdun  Nautjee,  one  anna  (1  a.) 
To  Saut  Mundier,  or  Seven  Pagods,  named 
Sree  Be-tthol  Nautjee,  Sree  Mothnreshjee,  Sree 
Gocul  Nautjee,  Sree  Modun  Mohonejee,  Sree 
Duarrackow  Nautjee,  Sree  Goculchunder  Mo- 
huojee,  Sree  Nownit  Peeawjee,  two  annas, 
(3  a.)  To  Sree  Bridjupauljee,  half  an  anna, 
{6  p.)  To  all  the  Ballokes  of  Gussainjee,  one 
anna,  (1  a.)  To  Sree  Modun  Mohunjee,  and 
Sree  Bhuggnerrutjeer  Boho,  half  a  pic,  or  Eng- 
lish (l|p.)  To  Sree  Govindjee  Tickoytmow, 
lialf  a  pic,  (Up.)  To  Sree  Mohaw  Probhojee, 
half  a  pic,  (lip.)  To  Sree  Gopceul  Nautjee, 
and  Sree  Govindjee,  half  a  pic,  (l}p.)  To 
Poorestum  Khetter,  half  a  pic,  (l|p.)  To  the 
Bustnubs  of  Gooul  and  Brendabun,  a  quarter 
of  an  anna,  (Sp.)  To  all  persons  assisting  in 
the  Sreejeer  Saut  Mundier,  half  an  anna  (6  p.) 
To  Sree  Brajjayr  Mohunt,  Buyraggnies,  and 
Goburden  Tulhatty,  a  quarter  of  an  anna, 
(Sp.)  For  the  making  of  Sree  Nautjee's  gar- 
den, one  anna,  (1  a.)  To  Sree  Bollodebjee,  a 
quarter  of  an  anna,  (dp.)  To  Sree  Gopaul 
liauliee,  at  Banarass,  a  quarter  qf  an  anna, 
(3  p.)  To  Sree  Jomunahjee,  half  a  pic,  (l|p.) 
To  Sree  Baulkiisoojee,  at  Sorat,  half  a  pic, 
(If p.)  Ditto,  one  anna,  (1  a,)  making  in  the 
whole  nine  annas.  The  remainder  seven  annas 
lo  be  distributed  as  follows,  viz. 

**  To  my  wife,  four  annas,  (4  a.)  To  Gun- 
l^abissen,  and  Hingoo,  my  neptiews,  one  uoua, 
<1  a.)  To  my  three  daughters,  named  Sliebun 
Bebee,  Gungaw  Bebee,  and  Moiichun,  three 
garters  of  an  anna,  (9 p.)  or  three  pics  each. 
To  my  brother,  Sam.  Doss,  a  quarter  of  an 
anna,  (3p.)  and  from  the  remainder  one  anna, 
"(]  a.)  To  Kissen  Jcbun  Doss,  five  hundred 
rupees,  (500  r.)  To  Pautuckjee,  ooe  hundred 
rufiees,  (100  r.)  To  Bassjee,  fifty  rupees, 
(50  r.)  nnd  the  remainder  lo  i»tber  persons. 

**  AAer  the  Company's  money  is  received, 
out  of  the  said  mon(;y  ten  per  cent,  to  be  paid 
to  brother  Prodoomone  Doss,  as  1  have  giveu 
liim  a  note ;  and  aAer  my  delits  arc  paid  off, 
the  remainder  and  residue  to  he  distributed  ac- 
cording to  the  particulars  above-mentioned. 

"  1  have  given  Baubo  Dfiorromchuii  a  note 
for  four  tbouMHud  rupees,  (IjOOOr.)  which  are 
io  be  paid  him. 


«*  And  b(  sides  lids,  the  outstanding  debts  at  ;  in  which  the  sum  contained  in  the  hcmd  it  in 


Dacca,  Rungpore,  Deuazpuze,  Purneah, 
Muxadavad,  Hnugbly,  iVJunghir,  and  Patna ; 
to  be  recovered  agreeal)le  t(»  books  and  accounts 
on  those  places,  aod  the  same  to  be  distributed 
as  follows,  viz. 

•*  To  Sreegeer  Duarroy,  Gooroor  Duarroy, 
and  Saui  i>,  Hiudiery  two  aiuiat,  (S  a.)    To 


clufled,  as  also  a  pa|>er  in  the  hand- w riting  of 
Bollakey  Doss,  in  which  the  particulars  oftbs 
transactions  are  statetl :  and  that  entries  were 
made  of  the  same  in  the  htKtks  thut  were  last, 
and  letters  of  corresftondence  between  BtdtekiV 
Doss  and  Maha  liHJoh  Nundocomar,  in  wbicb 
this  tr«Dsaction  was  mentioned. 


069] 


et  Cdteutia,Jor  Forgery,' 


A.  D.  irfs. 


[970 


Tage  Roy  called. 

Have  joa  got  any  nataral  brother  f— I  hare 
one  itrother  only^  called  Maitabroj ;  he  was 
my  elder  brother. 

Is  he  living  or  dead  ? — He  is  dead. 

Where  was  he  during  the  last  eighteen 
months  before  his  death  ?  — Sometimes  at 
Honghly,  and  sometimes  at  Calcutta. 

What  was  his  natire  place  ? — Bareai  Adam- 
pore,  at  Doncacollah,  in  the  cbncklah  of  Burd- 
wan. 

Have  yoQ  ever  seen  your  brother  write  ? — I 
have. 

Can  you  read  Bengal  ? — Yes. 

Is  this  your  brother's  writing?  [A  Letter 
produced  marked  I.] — It  is  not  my  brother's 
writing. 

Who  then  wrote  it? — I  did,  by  my  brother's 
direction,  in  his  presence. 

Look  on  the  cover :  whose  seal  if  that  ?— It 
19  my  brother's  seal. 

Can  yon  read  Persian  ? — I  cannot  read  Per- 
tian,  but  I  know  the  seal. 

Was  the  impression  on  your  brother's  seal 
affixed  by  you  ? — I  set  the  seal. 

How  came  your  brother  not  to  write  ? — My 
brother  %vas  engaged  in  other  basiness,  and  de- 
aired  me  to  write. 

.    To  whom  was  it  directed  ?— Mahomed  Hee- 
amut  Seeraffut  Roopnarain  Chowdrowjee. 

Wlien  did  your  brother  die? — About  two 
years  and  half  ago; 

Was  your  brother  a  person  well  known  in 
Calcutta? — He  was  known  to  rich  and  poor  in 
Calcutta. 

To  whom  ?  mention  some  persons.«-He  was 
a  servant  to  Sam.  Buchy.  who  was  in  the  gaol. 
Baboo  Huzreymull  and  Diachond  Baboo  knew 
him. 

Croif  •  Examination, 

Was  your  brother  a  servant  to  Sam.  Bnchy  ? 
—He  was. 

On  what  account  was  Sam.Bochy  in  gaol? 
— He  was  six  years  in  gaol,  on  a  dispute  about 
the  Company's  salt. 

How  olu  are  you  ? — ^Thirty-three. 

How  old  was  yonr  brother? — ^Three  years 
and  a  half  older  than  1. 

When  did  you  come  to  Calcutta? — Nine 
days  ago. 

From  what  place? — Donyacalla  in  the 
chuckle  of  Burdwan. 

On  what  account  did  yon  come  to  Calcutta  ? 
—A  letter  came  from  BorHwan,  from  the  KnJHh 
of  Burdwan's  house,  calling  me  there :  I  did 
not  goon  that  letter:  afterwards  Roopnarrain 
Cbowdree  wrote  me  a  letter ;  a  peon  came  with 
the  letter. 

Hare  you  gil  that  letter?— The  letter  was 
wrote  to  the  Jannadar:  he  did  not  irive  me 
the  letter :  another  letter  came  to  me  with  a 
peon  and  kittree,  from  Roopnarrain  Cbowdree : 
when  they  arrived  I  was  busy,  and  was  not 
Ibmid  ;  when  1  waa  found,  tney  gave  roe  a 
Ictlari  reqairing  me  to  oome  to  the  pretence. 


What  do  yoti  mean  by  the  presence  ?  do  you 
mean  the  Court?— I  do  not  mean  the  Adawlet: 
they  'did  not  tell  me  plainly  where  I  was  to 
come :  they  told  me  I  must  tell  what  I  knew: 
I  said  I  knew  nothing  but  what  I  knew  from 
my  brother:  I  came  on  that  letter:  I  received 
it  the  third  of  Justin. 

Were  you  ever  in  Calcutta  before  ?— I  came 
to  Calcutta  nine  years  ago. 

Where  did  your  brother  die? — At  Donya- 
colly,  in  his  own  house:  he  was  ill  five 
mouths. 

Were  you  ever  in  Calcutta  when  your  bro* 
ther  was  there  ? — Yes. 

Whom  did  he  live  with  ?— Sometimes  in' the 
boose  of  Mohun  Loll  and  Nundo  Loll :  he  al- 
ways staid  with  Sam.  Buchy,  being  his  aervant. 

When  was  your  brother  acquainted  witli 
Roopnarrain  Cbowdree?— From  the  time  wheii 
he  went  to  Burdwan. 

How  long  ago  is  that?— Ten  or  twelve 
years  ago. 

How  long  did  your  brother  stay  in  Burdwan  F 
-—He  never  staid  long. 

What  do  you  mean  by  the  time  of  yourbro* 
ther's  ffoing  to  Bnrdwan  ?— My  br>ttber  went 
three  diflerent  times  to  Burdwan  upon  bu- 
siness. 

When  did  he  first  go  ?— The  year  Mr.  Sum- 
ner went  Chief  to  B<irdwan :  he  went  with 
Cossenaut  Baboo;  that  was  the  finttime. 

Was  your  brother  ever  in  Burdwan  before 
in  his  lite  ?— Not  in  the  town^f  Bnrdwan. 

Was  he  ever  in  the  province  of  Burdwan  ?— > 
He  was  born  in  a  cbuklah  of  that  provihce. 

Was  your  brother  a  servant  to  Cossenaut 
Baboo  ? — No :  he  went  with  Cossenaut  Baboo, 
who  promised  to  give  him  employment,  as  I 
have  been  informed. 

How  long  did  your  brother  stay  with  Cosse- 
naut?— ^Ten  or  twelve  days. 

Did  your  brother  write  Bengal  ? — Yes. 

Did  your  brother  write  his  letters  himself, 
or  you  fur  him  ? — When  I  was  with  my  bro- 
ther, and  he  desired  me  to  write,  then  1  used  to 
write. 

How  long  is  it  since  you  wrote  that  letter  ? 
— ^Thirty- six  months. 

Where  is  yonr  brother's  seal  now? — With 
me :  I  can  produce  it. 

How  long  have  you  had  it? — Tt  was^in 
my  hoime  after  Uie  death  of  my  brotbeT:  I 
had  it. 

Have  you  sealed  any  letters  with  the  seal 
since  you  had  it?— No:  why  should  I  seal 
with  the  seal  of  a  deceased  person  ? 

Baboo  Huxrey  Mull  examined. 

Were  yon  ever  acquainted  with  a  person  of 
the  name  of  Matheb  Roy  ? — My  house  is  a 
house  of  charity :  a  great  many  people  ooniia 
backwards  and  forwards  to  and  from  my 
bouse :  I  do  not  know  what  Matheb  Roy  yott 
mean. 

Do  yon  know  any  body  of  the  name  of  Ma- 
theb boy  f-*There  waa  qua  l(Lk^kA>^  ^^1>^ 


'§713 


le  GEORGE  in. 


Trial  ofMaha  Rajah  Nundneomar, 


iitree,  here  %  great  while  tgo :  he  cune  from 
the  westward. 

What  sort  of  m  man  was  he?— He  were  a 
clionran  (broad)  lurban :  he  tru*  ralher  eld. 

How  old  might  be  bef — SonielhiJig'  ai>c«e 


fitiy. 


fae  teemed 


I 


I 

I 
I 


llow  manv  yean  ago 
to  ,be  above  &iy  ? — Alioul  Ita  jiears  a^o. 

Was  he  fifty  ten  ycara  ago,  oi  would  he  ap- 
pear to  be  that  age  now  r—T  saw  hiiD  <1ieti  ;  I 
epeak  of  hie  age  u  tbeu  :  1  liare  not  seeo  Liin 

iUmrl.  Haie  you  aeen  him  more  ihao  once  ? 
— A.  I  may  have  seen  biin  two  or  three 
tioiCK:  I  do  not  reculUcI :  it  wm  a  great  while 

^0, 

Have  you  ever  beani  ofany  body  else  of  the 
Saoief — 1  am  much  e(n|i1oyed  in  bu^iiicat:  I 
caiuial  tell  whether  I  hare  aeen  any  other  )>er- 

Did  you  know  any  of  hUcnmiHcliona?  did 
yaw  kiioK  his  relations?— I  did  not. 

Uo  yon  know  whether  he  had  a  lirotber? — 
People  know  these  thrntfa  by  enquiry :   I  do 

Did  you  know  whellier  be  was  a  «errant  to 
Sua.  Bui:by,  or  to  any  man  in  uaol  't — Sam. 
Buchy  was  lurmerly  my  Gomaslah :  at'ter- 
wacds  lie  aet  u|>  boaintvs  for  bimaelf ;  1  eanout 
■ay  whether  he  was  or  was  not  Bervanl  to  Sam. 
Buchy,  as  manv  people  neat  backwards  and 
forwards  to  my  house. 

Do  you  believe  lie  was  a  servant  of  Sam, 
Iluchy'ftf— I  do  Dut  rememhfr. 

Are  you  sure  thai  Matbeb  Roy  ten  years  ago 
appeared  lo  be  alioie  fillv  ? — 1  neicr  enquired 
bis  age :  it  is  only  from  looking  al  him  ;  1  bare 
nieDlionett  that  he  appeared  alwve. 

Areyou  aurc  that  be  waf  more  than  tweoty- 
■it  years? — He  certainly  was  more  than 
Iweuty-tiK  years:   I   before  said  he  woa  fifty 


:  Ic 


>t  tell  U 


Can  you  say  with  certainty,  whether  you 
aent  awaDufthenameofMalbrb  Roy  loBord- 
nan? — 1  do  not  remember:  1  cannot  aay  for 
certain :  Sam.  Buchy  can  best  tell. 

Is  Sam.  Biuhy  alive  or  dead?~He  is 
•live. 

CiUMnnut  Bu^  examined. 

Did  you  ever  know  any  mail  nf  the  name 
of  Mailieb  Roy?— IVhat  Matbeb  Roy  do  you 

Dill  you  ever  keep  any  man  in  your  family 
of  that  name?— There  was  a  person  of  that 
name,  »bo  was  sou  of  Bungno  lioll  Snunuh, 
Kittrae  of  Hurdwao,  who  used  to  come  back- 
wards and  forwards  to  my  house:  be  did  not 
live  in  my  house,  but  eat  and  drank  there: 
Buufoo  Loll  was  a  man  of  conteijiieDce :  he 
was  a  servant  to  the  Nabob. 

How  tong  haTe  you  known  Matheh  Roy  f — 
About  tweoiy-five  years. 

Is  that  aince  you  first  knew  bim?— Yea;  I 
Jtoew  him  well;  he  was  a  man  of  this  country 
«s  well  as  myself. 

What    was    bis   figure?— A   wbilisb   man, 


How  old  would  be  lie  if  alivi 
not  say  ,for  certain  ;  I   imagine  about  fiftn 
alive  DOW. 

Do  you  take  hia  age  from  hia  i^ipearit, 
or  from  your  knowledge  ! — From  seeing  hia 

»  hen  did  you  flrtit  kuow   him  ?~The  liM 
of  the  Maratias  disputes,  when  the  Nabob  fl 
loBallaw,  in  the  year  1U8,  or  49,  1  tirMkoBV  j 
him;  tbirty-lbur  yean  ago, a.  D.  1T4I. 

How  old  was  he  when  you  first  knew  hiuF 
— He  wa«  a  young  man,  frotu  eighteen  lo 
twenty. 

Dow  many  cbildreo  bad  Matheli  Roy  ?— 
Four ;  one cslleil  Ballub Roy,  tbe  sei^ond called 
Matheh  Roy,  the  third  called  Saheb  Roy,  aad 
the  fourlfa  called  Panjeb  Roy.      */^ 

How  many  children  bad  Saheb  Roy? — Om 
son,  I  knew  of  no  more. 

Did  you  ever  know  any  lUalheb  Hoj,  the 
son  of  Sclieb  Roy  ?— Nn  ;  1  am  sure,  1  did 
not  know  a  UaUieb  Roy,  the  sod  «f  Sibeb 
Roi 


Did  a 


any  Haiheb  Roy  go  to  Burdtean  wM 
ihetimeof  Mr.Sumnerf — I  doMMi*- 
member. 

Are  you  positif  ely  sure  that  no  HAlbeb  By 

was  tbe  son  of  Saheb  Roy? — I  did  not  ki 

Malheb  Roy,  the  sou  ot  Saheb  Itoy. 

Was  there  soy  Hatlirb  Roy,  the  son  ( 
beb  Roy,  that  you  promised  to  get  an  empkf 
for? — 1  do  Dot  remember. 

De  you  kuuw  the  son  of  Saheb  Hoy  ?- 
know  the  sonofSabeb  Roy,  tbesun  ef  B<W 
goolull. 

Do  vou  know  his  oatne  ?— Hii  ni 
mau,  I  believe. 
Tajte  Rag  is  called  and  shewn  lo  C 

Is  that  the  son  of  Satidi  Roy  P—Tbia  ild 
son  of  any  Snhcb  Roy,  I  know.  , 

Cuurt.  TrII  this  man   what  Cnssenavl  ll 
said,  and  tell  him  the  consequences  ofsjiei 

Tajec  Rog.  I  am  the  son  of  Sabeb  Roj,  ll 
son  of  Biinguololj. 

How  many  sons  bad  your  falber  ? — One  i 
Coiienaul.  There  is  another   BunguobdtJI 

Ofwbatpei^nnah  was  ibe  last  Bnngc 

—I  do  not  know  where  be  was  born; 

in  service  at  Uancoor,  and  lived  at  Hougly. 
Do  you  know  bis  family  ? — i  do  no 
Ot  what  pergunuab   was  tbe  firsi 

Bungoololl?— Ofthecity  of Burdwui 

Are  you  sure  be  was  not  orDDynacollyf--J 

I  cannot  determine ;  I  knew  him  at  BurdwUh 

and  I  did  not  know  him  at  Doyuacolly. 

Did  you  know  the  other  Bnngnololl? — I  lb 

not  know  tbe  man  uow  here,  lb«  other  Bun- 

gootoll  was  In  service  at  Maucoor. 

Q.toTisieRt><i.  Is  your  father,  Saheb  Bey. 
ive  or  dead  ?—A.  Dea<l. 
Where   did  your  grandfather   BungiNl*ll 
e  ? — At  SaitagoDg,  in  the  disliict  of  Hi    ~''    ~ 
How  many  children  bad  be? — Only  oi 
How  came  you  to  say   that  your  b 

tvciUW  Huuglj'  witb  Coswiuut  ia  Um  (i 


^HfJ  at  CalctiUa,Jor  Forgfry. 

Hr.  Sumner  F — I  in  know  lint  he  went  lo 
nflaely  with  CosNeDnnt ;  if  Cowenalit  does 
rroollect  it,  I  cannot  help   il ;    he  wns  a  p 
mm  ;  I  cm  pTg*«  that  lie  did  go  by  a  liua<tr») 

l.loCottenaiit.  ITany  maoof  that ni 


A.  O.  177* 


[974 


«Jd 


It  with  n 


;  I  cannot  saji  he 


A*  you  knew  the  family  of  the  Bnncrontolli 
of  M>nc<u)r ;  ifone  of  iliem  had  Koiie  wtili  you, 
should  ynu  know  him  ? — 1  bctiGfe  1  slinoTd 
bate  IcDowu  if  any  perann  of  the  name  of  Ma- 
Ihrb  Roy  liad  gone  with  me. 

[aUMiioii  repealed  by  one  of  lire  Jury]  If 
aurJ]  a  man  bail  gone,  1  certainly  would  know 

[Qjieslion  again  rrpeated.]  I  did  not  know 
BuDyooMI  of  Houpty's  family  ;  llierefiire  can- 
not aay  wlieiher  1  gliuiild  haie  known  him. 

Haw  iild  WW  Bungoolull  of  lluugly  P— I 
eaniiol  Irl). 

Uow  lunir  ia  il  aince  you  Eaw  him  f — I  hare 
lakrn  an  oaili  ;  I  cannol  aafely  say. 

Hnir  riianj  people  do  you  giieai  might  follow 

voa   In   IIoukIv,   expecting    emphiymenl? — 

Gml  men  and  liille  men  were  wilh  us :   I  can> 

Mt  uy  exactly,  1  lidieTe  abiiut  500  oi  1,000. 

Tag^c  Roy  enamioed, 

la  ynnr  grandt'alher  alivp  ? — No. 

How    long  if  it  since  he  died  ? — Ponrteen 

Do  yon  know  whether  your  grandHitfaer  was 

in  any  aertice?— He  was  Izardar  at  Hougly. 

Du  you  know  a  place  called   Maucoorf — 

Waa  your  grindfalher  in  service  (here  J*— I 
knowMancunr;  it  was  my  gTaodrather'iifarm, 

Where  wai  the  house  of  your  grandfather  P 
—At  llongly. 

Wa»  il  not  at  Barree  Adam  Pogf?~My 
grandfalher'i  hnnne  was  at  Ilmigly. 

When!  waa  yuur  fstlier'a  house  f— My  fa- 
ther lifed  with  my  grandfather. 

Did  yonr  father  life  in  Ibe  buuse  after  your 
E^and  fa  tiler's  death?— I  wa*  very  young. 

U'here  were  you  born?— AlCbintDrs.atlhe 
lime  of  the  Marslta  ioiaiion. 

Where  wa»  your  brother  bornP — At  Barree 
Adam  l*uorin  bii  node's  house. 

Have  ynu  ever  been  examineil  before,  about 
IliB  Dialler*  you  have  iji'en  in  eridence  to-day  F 
— Wlnietct  I  was  aikeil,  I  answered  truly. 

To  whom  did  yuu  say  that?— To  the  gentle- 
To  what  gentlemen  du  yon  mean  f— That 
gentleman,  [piiialiag  lo  Mr.  Jarret,  alltiTLey 
ri>tjiirt.oncr.] 

wbere  was  thai  r — In  the  house  of  the  gen- 
tleniaii  with  BIr.  Jatrcl,  [pointing  to  Hr.  Far- 
nr,  oonnael  for  the  priaoner.] 

RoopTuiTTaia  Choaidree  twnrti. 
Did  you  knnw  any  peiioa  of  the  name  of 
IUllichltajr~liIul. 
t 


Where  is  that  person  now.'— Dead. 

Do  you  know  ihe  family  of  Milheb  Rny*— . 
He  was  of  one  cast,  and  I  wan  uf  anolher :  1 
do  not  know  hii  ftmily. 

What  was  bis  falher's  name  i*- Saheh  Itoj. 

How  many  brothera  are  there  ?— Taijee  Roj 
nndMathebRoy. 

Utd  ynu  know  his  grandfslher  f — No. 

What  were  the  names  uf  the  brothers  of  the 
Maiheh  Roy  yon  know  ?— Tail ee  Roj  and 
Maiheb  Roy. 

lit  you  mean  two  sons  of  the  father,  or 
tbrpc? — Two  only  used  In  come  to  me. 

Do  you  know  when  Rlatheb  Roy  died  T — la 
the  month  of  Maug,  1179. 

Did  you  remember  any  teller  from  Maiheb 
Roy  before  his  death  ! — Yea,  in  the  month  of 
Baudoo,  1179. 

Joydth  Clioabte  eiamined. 

Did  you  know  the  late  BoIUkey  Doai  Seat  t' 
—I  dirf. 

Did  you  know  of  his  erer  executing  any  bond 
to  Maba  Rajth  Nundncomar?  Tetf  what  yon 
know  about  it.— I  lememher  that  Bullake* 
Dosi  Seal  wr«le  oul  a  bond  in  the  name  of 
Mtiha  Itajah  Nundocomar;  his  writer  wrote  iL 

Did  you  see  bis  writer  write  it '—I  myself 
with  my  own  eyea  saw  the  writer  write  it  in 
Ibe  Per^inn  band. 

Did  you  see  it  aflerwardi  executed .' — I  saw 
Bollakey  put  bis  seal  in  il. 

Who  were  the  wiinemea  toil  7 — Mabnmed 
Commaul  of  MuxadaTad,  Mafheb  Roy,  a  Ket- 
try,  and  Sdlabiil,  the  Vakeel  of  Bollakey  Duat. 

Didyou  seeihem  wimeas  il.^— I  myself  aaw 

nse  three  men  witness  il. 

What  wsa  the  amount  of  the  bond  f — t  do 
not  remember  exactly  :  I  believe  il  wa«  within 
45,000  rupees,  and  something  thore  40,000. 

At  what  time  of  the  year  was  this  ?—l  do  uM 
Ecollret. 

'I>ll  as  near  as  you  can  what  raomh  il  wasP 
-Il  WHS  in  the  rainy  seaiioll. 

Do  Tou  know  the  person  now  called  CoiU' 
laiil  O'Dien  Ally  Cawn  t—l  do  know  him. 

|q  be  the  person  you  saw  witness  tbal  bond 
ou  mention?— No. 

Who  was  the  Mahomed  Cnmmaul  you  Mfr 
'itneas  it  f— A  man  of  Mnxadarad. 

Did  yon  know  bit  father? — I  did  not. 

Ii  that  Mahomed  Commaul  living  ? — lie  is 
dead. 

Do  you  know  him  lo  be  dead,  of  yonr  own 

inwledgef — I  d»  ceruinly  know. 

Hew  long  is  it  since  his  deaih  ?— .\bont  Rr« 

Where  did  he  die  ?— I  went  lo  ihe  honse  of 
Maba  Rajah  ;    I  was  by  when  he  was  carried 
"    he  buried  :  I  enquired  whether  il  was  a  Bra- 
in or  a  MiisKulman  going  lo  be  Ininwl :  lliey 
aDiwered.il  was  Hahomed  Commaul. 

Did  ynu  know  Mutheb  Itoy  P  who  woa  beF 
Maiheb  Roy  was  a  keltry  of  Burilwan  ;    t 
„.iewhim;  he  was  rre.|UUiitly  coming  back* 
wards  mid  forwards  lo  tlie  Maba  Rsjah. 

")w  long  hare  yau  been  acquainted  wiA: 


W5] 


la  GEORGE  HI.  Trial  ofMaha  Rajah  Nundocmar,  [976 


Bollakey  JDon  ? — I  knew  him  when  he  lited 
i^t  If  axadavad,  and  oAeii  saw  hiib  after  be  came 
to  Calcutta. 

What  conoectioD  had  you  with  Bollakey 
Don  f — He  was  a  Banian,  and  I  was  a  Bra- 
into ;  there  is  no  relationship ;  there  was  friend- 
ship between  us  ;  1  knew  him,  and  he  knew  me. 

Had  you  any  connection  in  business  with 
him  p..Tbere  was  no  connection  in  business 
between  us;  he  was  a  ^eat  Shrofl;  I  fre- 
quently went  to  sit  down  in  his  house ;  he  de- 
sired it. 

What  was  your  business  ?-— I  was  formerly  a 
•crraBt  of  Maha  Rajah  Nundocomar:  he  is 
now  without  employment ;  bis  employment  is 
gone,  and  so  is  mine. 

Where  is  the  bond  you  speak  of  executed  ? — 
The  bond  was  executed  in  the  house  of  Baboo 
Huzree  Mull  in  the  Burra  Buzar. 

Who  lived  in  that  house? — ^The  bond  was 
there  written:  people, belonging  to  Huzree 
Mull  lived  in  it ;  thpre  was  a  part  of  it  sepa- 
rated frojn  the  rest,  io  which  Bollakey  Doss 
lived ;  it  was  in  the  separate  bouse  where  Bol- 
lakey Doss  lived. 

Can  you  read  Persian  ? — I  do  not  know  Per- 
sian ;  how  can  I  read  it  ? 

Were  you  there  bv  chance,  or  sent  for  ? — 
Bollakey  Doss  callea  me  and  carried  me  with 
him. 

Did  he  come  to  yonr  house  for  you  ? — He 
came  to  the  house  of  Maha  Rajah  Nundoco* 
mar,  where  I  was  then  sitting.  Maha  Rajah 
Kundocomar  said  to  Bollakey  Doss,  Money 
has  lonir  been  due  from  jrou  to  me  ;  now  pay 
it.  Bollakey  Doss  said  m  answer,  I  have  lost 
every  thing  by  plunder  at  Dacca ;  I  have  not 
now  the  power  of  paying ;  a  great  sum  of 
money  is  due  to  me  from  the  English ;  when 
I  receive  that,  I  will  pay  you  first  of  my  cre- 
ditors. Having  said  this,  he  added,  I  will  now 
write  out  a  bond.  Bollakey  Doss  in  this 
manner  pressed  Maha  Rajah  Nundocomar  a 
good  deal,  and  put  his  hands  together  iu  an 
attitude  of  praying  ;  and  at  last  Maha  Rajah 
consented.  Bollakey  Doss  then  said  to  Maha 
Raja,  Send  Mahomed  Commaul  with  me  to 
my  house;  I  will  there  write  out  the  bond 
immediately.  Having  said  this,  Bollakey 
Doss,  in  company  with  Mahomed  Commaul, 
leA  Maha  Rajah's ;  I  likewise  obtained  dis- 
mission from  Maha  Rajah.  Having  gone 
down  stairs,  Bollnkey  Doss  said,  Come  along 
with  me  to  my  house,  and  I  having  executed 
A  bond  before  you  and  Mahomed  Commaul, 
will  send  it  to  Maha  Rajah.  After  this,  Dol- 
lakey  Doss  and  1  went  to  the  house  ^f  Uaboo 
Huzree  Mull,  in  the  Hurra  Ruzar:  iieinor  ar- 
rived there,  he  sent  for  his  writer.  The  writer 
came,  and  was  ordered  to  write  out  a  bond  in 
the  name  of  the  Maha  Rajuh.  Tli«>  writer 
wrote  out  a  Persian  bond,  and  put  it  in  the 
hands  of  Bollakey  Doss  Seat.  Bollakey  Doss 
Seat,  having  seen  the  bond,  took  the  ring  off 
his  finger,  and  sealed  it,  and  said  to  Mahomed 
Commaul,  Be  you  a  witness  to  it.  Mahomed 
CouMnaai  ai&xed  his  own  seal^  with  his  own 


hand,  as  a  witness ;  he  said  -to  Bf  atheb  Rajf^ 
Be  you  also  a  witness  to  this:  M  atheb  Roy 
sealed  it  with  his  own  hand.  He  said  to  Siel- 
labut.  Be  you  also  a  witness  to  this ;  and  be 
signed  it  with  his  own  hand.  Seillabut  Itaviog 
put  it  into  the  hands  of  Bollakey  Doss  8eat,  be 
put  it  into  the  hands  of  Mahomed  Commaal, 
and  said.  Carry  it  with  Seillabut  to  Maha  R^jah 
Nuudocomar's. 

You  say  Sillabut  signed  the  bond  ;  what 
did  he  write  on  it  ? — He  wrote  his  own  name, 
as  a  witnes!! ;  I  do  not  know  Persaao,  1  ins* 
gined  he  signed  it. 

Did  Bollakey  Doss  read  the  bond  before  be 
signed  it? — The  writer  put  it  into  the  bandi 
of  Bollakey  Doss,  and  he,  having  seen  it,  siga- 
edit. 

Did  he  read  it? — The  writer  read  it  to  bia; 
he  heard  it. 

What  is  that  writer's  name? — I  do  not  r- 
member  it. 

Was  you  acquainted  with  bun  P— I  hsre 
seen  him  with  Bollakey  Doss;  I  was  not  ae- 
quainted  with  him. 

Do  you  remember  what  sort  of  a  man  be 
was? — J  do;  his  cok>ur  was  black;  hewn 
about  forty  years  of  age. 

Do  you  imow Sillabut? — I  did  not  know  Sl- 
labut 

What  was  he?— A  Vakeel  of  Bollakey  Don. 

How  many  years  was  he  with  him  ? — I  do 
not  know. 

How  many  years  did  you  see  him  aboti 
Bollakey  Doss  r — ^Three  or  foor  years. 

Do  you  mean  three  or  fonr  years  httatt 
signing  the  bond? — I  do  not  remenAber  bow 
many  before ;  Sillabut  lived  sometimes  with 
Bollakey  Doss,  and  sometimes  witli  Maha  Ha* 
jab  Nundocomar. 

How  long  afler  sealing  thi^  bond  did  yoa 
know  this  persou  about  Bollakey  Doss?— Tiro 
or  three  years. 

Where  did  he  go  then.^ — He  %vent  witbio 
that  time  to  Jaggernaut,  to  perform  religioiis 
ceremonies  along  with  Mohun  Persaud ;  vrbeo 
he  returned  to  Calcutta  he  died. 

When  did  he  die? — I  do  not  know;  I  wai 
told  he  returned  ;  I  heard  of  his  death. 

Did  any  bo<ly  else  write  upon  the  bond  i*— 
Nobody  else. 

Did  any  body  besides  Sillabut  write  sdj 
thing  at  all  upon  the  bond  ? — Sillabut  wrote 
upon  it :  Mahomed  Commaul  sealed  it :  Ml* 
theh  Roy  sealed  it. 

Did  any  body  else  use  a  pen  ?-^Not  to  oj 
remembrance. 

[The  Chief  Justice,  in  a  low  voice,  tolil  the 
Counsel  to  shew  him  another  bon<]  with  tbni 
seals.] 

Court,  You  have  sworn  positively;  J^ 
must  answer  positively. — A,  1  speak  fromcrt^ 
tainty  what  I  know  :  I  saw  nobody  else  wiiM 
U|>on  the  bond  :  I  do  not  remi  mber  it. 

Do  you  know  Mahomed  Commaul?— I  vH 
acouainted  uith  him. 

Where  were  you  acquainted  with  him?-* 


: 


977] 


at  Calcutta,  for  Forgery, 


A.  D.  1775. 


[978 


He  was  a  lerratit  of  the  father  of  Maha  Rajah 
Nundooomar :  when  his  father  died,  Nahoiiied 
Coromaiil  used  frefiiienUy  to  come  backwanU 
and  forirards  to  Maha  Kajah  Nundocomar's 
borne. 

Were  you  intimate  ?— There  was  no  friendship 
between  us:  I  had  seen  hinn  two  or  three  times 
at  Maha  Rajah's. 

Vhat  Was  his  employment  when  the  bond 
was  signed?—' A  russeck  (dependent)  of  Maha 
Rinah  Nundocomar. 

What  sort  of  a  man  was  Mahomed  Coin- 
maul  ?— A  middlings  sized  man,  of  a  yellow 
colour,  rather  whitish. 

What  was  his  a^e  ? — He  was  near  35. 

1>id  Maiheb  Roy  or  Mahomed  Commaul 
seal  first  ? — Mahomed  Commaul  sealed  first. 

Whosealeil  next? — I  do  not  remember  whe- 
ther Matheb  Roy  8ealf.d  next,  or  Sillabut  signed. 

In  what  part  of  the  bond  did  Bollakey  Doss 
pot  his  seal  ?  Was  it  at  the  top  or  at  the  bot- 
tom ? — It  is  a  ((reat  while  ago :  1  know  no- 
thmg  of  such  a  dispute  to  come :  I  cannot  be 
positive  as  to  such  things. 

What  aise  was  the  paper  ?  Was  it  as  large 
m  this?  [The  indictment,  consisting  of  two 
half  sheets  of  parchment,  doubled,  was  shewn 
bim.l — I  do  nut  remember  if  it  was  large  or 
small. 

Court.   Do  you  remember  if  the  seal  was 

00  the  inside  or  the  outside  of  the  paper  ? — A. 
Bollakey  Doss,  I  remember,  sealed  in  a  place 
like  this,  [pointing  to  a  margin  iu  a  Persian 
paper,  shewn  towards  the  right  hand  corner  at 
top.] 

Arajoa  sure  of  that?— I  remember. 

Where  did  Mahomed  Commaul  seal?-^If  1 
were  to  see  the  bond  I  should  be  able  to  tell. 

Was  it  larger  or  smaller  than  this  pa|'ier  ? 
[A  large  sheet  of  Bengal  paper  shewn  him.]^- 

1  cannot  tell  whether  it  was  larger  or  smaller: 
bow  can  I  speak  to  what  I  do  uot  remember? 

Was  it  as  large  as  this  ?  [A  very  siuall  piece 
tf  paper  shewn  him.]— I  know  not. 

Was  it  Uke  this  ?  [llie  back  of  the  real 
bond  ahewn  him.l— 1  do  not  remember;  but 
if  I  was  to  see  the  real  bond,  I  could  tell  the 
Seal  and  the  aize. 

Could  you  know  the  impressions  of  the  seals, 
if  you  saw  them  ? — If  I  see  the  impressions 
•ftbe  seals  as  they  were,  I  should  know  them. 

Should  vou  know  Bollakey  Doss's  seal  ? — I 
bttow  Bolfakey  Doss's  seal ;  from  seeing  the 
bDpression  of  the  seal,  I  shall  know  it. 

How  came  you  so  well  acquainte«l  with  Bol- 
lakey Do88*s  seal  ?— It  is  a(buddammee)  almond 

■eal. 

Court.  Let  him  describe  the  shape.  [He 
^escribes  an  oral  on  a  paper.] 

Q.  How  can  you  kuow  the  impression  of 
Bollakey  Doss's  seal,  not  understanding  Per- 
aion?— I  frequently  saw  it  upon  his  hand. 

Did  vou  ever  aee  Bdlakee  Doss's  seal  but 
^poD  bui  finger  ? — I  never  saw  hia  seal  in  any 
^Hber  placo  uan  hia  finger. 

Court.  Were  you  to  aee  the  seal  of  Bolla- 
key Doss  upon  t  piper«  should  you  kuow  it 

VOI^  XX.  ^ 


from  any  other? — A.  I  should  know  the  impres« 
sion  of  Bollakey  Doss's  seal  if  I  was  to  see  it ; 
I  have  frequently  seen  it  upon  his  finger. 

Do  you  know  the  imprfs^ion  of  Mahomed 
Commaul's  seal  ? — I  should  know  it ;  1  have 
frequently  seen  it  upon  his  fingi'r. 

Were  you  to  l»e  shewn  a  (mpfr  with  the  im- 
pression 6f  Mahomed  Commaul's  seal  on  it, 
should  you  know  it  ? — I  could  not  read  the  let- 
ters, but  should  be  able  to  judge  from  the 
shape. 

Court.  Should  you  know  the  seal  ?  Many 
seals  are  of  the  same  shape. — A.  1  do  not  read 
Persian  ;  but  I  think  I  should  be  able  to  know 
the  seal. 

Courts  Have  you  oflen  seen  the  seal  on 
Mahomed  Commaul's  finger? — A.  I  have 
often  seen  it  on  his  finger ;  he  used  oflen  to 
come  to  the  house  ot  Maha  Rajah  Nimdoco- 
mar,  and  I  used  to  see  the  aeal  on  his  finger. 

Who  sealed  first  after  Bollakey  Dossf— 
Bollakey  Doss  having  aealed  it,'  put  it  into  the 
hands  of  Mahomed  Commaul,  and  he  sealed  it. 

Where  was  it  wrote  ? — In  the  house  of  Hux- 
ree  Mull,  in  the  Burrs  Bnasar,  in  the  presence 
of  us  all. 

What  room  was  it  in? — ^There  is  a  long 
room  runs  east- west,  the  door  to  the  south :  it 
was  executed  there. 

Who  waa  present  beaides  ?— Shaik  Ear  Ma- 
homed, Choyton  Naut,  LoUah  Doiuanking, 
Matheb  Roy,  Sillabut  Vakeel,  and  the  peraon 
who  wrote  the  bond. 

What  was  his  name? — He  was  not  of  this 
country ;  I  did  not  know  him. 

What  hour  of  the  day  was  it?— -It  was  be- 
fore mid- day. 

Did  any  particular  conversation  pass  at  that 
time  ? — There  was  no  conversation. 

Was  there  not  between  the  rest  of  the  com- 
pany, while  the  bond  was  writing  ?'- 1  remem- 
ber no  conversation :  when  the  bond  was  fi- 
nished, he  put  it  in  the  witnesses'  hand :  we 
said  nothing :  what  should  we  say  ? 

How  long  was  the  writer  wriiuig  the  bond  P 
— One  gurree  (22  minutes.) 

Who  brought  in  the  ink  lor  the  sesis? — Tlie 
ink-stand  waa  near  Bollakey  Doss ;  he  djpt  his 
seal  on  the  cushion,  and  sealed  the  bond. 

Did  he  bring  it  with  him  ?— He  was  a  shmf\ 
of  consequence,  possessed  of  a  sicca  ink-stand : 
it  was  silver. 

Who  brought  it  into  the  room  t — I  first  saw 
it  near  Bollakey  Doss. 

Was  the  ink-stand  in  the  room,  or  brought 
afWwards? — Bollakey  Doss  went  with  his 
sewarry  ^fore  us;  when  we  came  in,  we 
found  nim  sitting,  with  his  ink-stand  before 
him. 

What  conversation  passed  while  you  were 
St  Mttha  Rajah  Nundocomar's  ? — 1  have  al- 
ready related. 

Did  no  more  pasa? — No. 

Was  there  any  conversation  about  what  the 
sum  of  the  bond  was  for,  at  Maha  Rajab'a?— 
There  was  no  conversation  about  the  amouat 
of  the  bond  at  Maha  Rajah's. 

3  R 


979] 


1 5  G  EORG  E  in.  Trial  tfMaha  lUgah  Nuniocamar,  [SBV 


Do  joQ  rempmb«r  any  mention  of  o  prt- 
mium  to  he  i;ivi>ii  ? — No. 

L>«>  you  retiiemiier  the  Bum  ? — 1  do  not. 

|>t(l  you  hear  the  bouil  read  ?— The  writer 
read  it,  but  I  did  not  undervtaud ;  it  was  read 
in  P*  I  siun  :  how  shouhl  I  know  what  the  bond 
was  ? 

How  do  you  know  the  anmf— I  did  not 
know  the  umount  of  the  bond  :  1  heard  that  it 
was  within  50  and  ab<»ve  40,000  rupees. 

When  did  you  hear  that? — It  was  two  or 
three  days  after  the  time. 

Did  Bollakey  Dom  look  at  any  books  before 
he  ordered  th^  bond  to  be  wrote? — I  did  not 
see  him  examine  any  books  before  the  bond 
was  executed ;  wlien  1  came  he  was  sitting 
down,  and  I  did  not  see  him  examine  any 
books. 

How  tonfji;  did  you  come  aAer  him  ? — He 
went  in  his  palanqnin ;  1  followed  him :  it 
mi(|;ht  be  half  a  ^urree,  (11  minutes.) 

Did  you  find  the  other  persons  you  men- 
tioned, sitting  when  you  came  in  ? — Four  of 
us  came  together;  myself,  Mahomed  Com- 
■laal,  Chof  ton .  Nant,  and  Sbaik  Ear  Malio- 
med.  Naiheb  Roy,  Lotta  Demon,  Sin^  8il* 
labut,  and  the  writer,  were  there  when  I 
came  in. 

Had  the  writer  began  in  write  when  yoa 
oame  in  ? — After  we  bad  sat  down,  the  writer 
began  to  write. 

In  what  language  did  Bollakey  Doss  speak 
to  the  writer  ? — He  talked  in  Moors :  he  spoke 
Moors. 

Does  he  understand  Persian?— I  do  not 
know  ;  he  talked  Moors. 

Was  the  bond  read  in  Persian  ? — ^Yes. 

Was  it,  after  being  read  in  Persian,  exphiined 
in  Moors  ?-^-No :  it  was  read  in  Persian,  and 
was  not  explained  in  Moors. 

Did  you  iiear  B(»iiaktfy  Doss  give  any  direc- 
tion as  to  the  snm  i* — Bollakey  Doss  said  no- 
thing in  my  presence  about  the  sum. 

Did  Boildkey  I>ors,  any  time  before,  tell 
him  the  sum  ? — God  knows  whether  he  told 
him  before. 

You  say  you  heard  Bollakey  Doss  give  di- 
rections to  write  the  bond  :  what  were  the  di- 
rections?— He  spoke  these  words:  Write  out 
a  bond  in  the  name  of  Maba  Uajah  Nuudoco- 
mar. 

Did  he  say  any  more  ? — No  ;  he  spoke  no 
other  words. 

Did  Bollakey  Doss  say  *  a  bond,'  or  <  the 
bond  ?' — He  said,  *  a  bond.' 

Did  be  say  any  thing  about  consideration  ? 
-^When  I  went,  he  spoke  the  words  I  said, 
and  no  more. 

Do  you  know  this  paper?  [Bond  produced.] 
—This  seal  of  the  budJamee  (almond,  oval) 
shape,  is  Bollakey  Doss's. 

What  is  this  paper? — This  little  seal  is  Ma- 
homeil  Commaurs. 

Can  you  swear  to  that  positively  ? — 1  do  not 
know  the  words :  the  largest  seal  is  Matheb 
Key's. 

flow  came  you  to  know  the  seal  of  Matheb 


Roy  ? — I  have  seen  bis  seat  od  hit  finger :  I 
saw  him  frequently  at  Mahs  Rajah  Niwdiea* 
mar's  house. 

If  ihe  gentlemen  of  the  adaolel  were  to  ooC 
the  seal  of  Mahoine<l  Commaul  on  aaolMr 
paper,  should  you  know  it  ?— I  ahouM. 

Was  there  any  conversation  of  jewels  it  tht 
Maha  Rajah's?- -No. 

Was  there  any  at  Bollakey  Doas'e  ?— Noi 

• 

[Tlie  seal  of  Commaul  O  Dien  Ally  Cawi^ 
before  produced  to  the  jury,  is  aliewn  iiiiB.] 

Do  you  know  whose  seal  this  ia  P — i  do  ait 

[Joseph  Satcheb,  clerk  to  Mr.  Jarret,  is 
called  to  prove  the  delivering  of  notice  to  Mi- 
bun  Persaud  to  produce  an  ori||^iial  N^^ 
paper,  given  to  him  by  Maha  Rigah  Nundeea* 
mar,  when  he,  Gungabissen,  and  Pudmohoa 
Doss,  were  in  the  Maha  R^ah's  bouse,  m(ptd 
in  the  proper  hand- writing  of  Bollakey  Dsil 
and  to  produce  it  as  evidence  for  the  de^ndaot} 

Q.  to  MohuH  Persaud.  Have  yoo  pradoNl 
any  papers,  in  consequence  of  the  notiee?— A 
1  cannot  produce  it ;  1  have  produced  aH  ibi 
papers  I  have :  I  hare  no  paper  ojader  Mcft 
description. 

Mohun  Dou  called. 

Do  you  know  Gungabissen  ?— I  do. 

Do  you  know  Mohun  Persaud  P — Yea. 

Did  you  know  Pudmohun  DossP — I  did. 

Did  you  know  Botlakrj  Doss  ? — I  dkt. 

Have  you  seen  him  write  ? — 1  have. 

Are  you  acquainted  vvith  his  hand-writiagf 
— I  am. 

Do  you  remember  BIflha  R^ah  Muadoei- 
mar,  Gungabissen,  Pudmohun  Doss,  and  Mt- 
bun  Persaud,  in  conversation  together  P—1  di; 
at  Maha  Rajah  Nundocoraar's  house. 

Did  you,  upon  that  orcnsiou,  see  any  paneilF 
•—Pudmohun  Doss  said  lo  ^I^ha  Hijah  NuB- 
docomar,  Gi\e  inc  pi^ters.  Maha  Rajah  bar* 
ing  got  the  papers.  Iiiil  me  co[)y  them  :  I  ob* 
served  to  (iun<:'abissen,  Muhiiu  Persaud,  as' 
Pudmohun  Doss,  that  Maha  RHJah  had  bid  mt 
copy  the  papers  ;  and  asked  them,  if  I  &houtf 
do  it ;  they  all  answered,  Write  them  ooL 
Having  wrote  them,  I  gave  them  to  Mabi 
Rajah  Nundocomar:  Pudmohuu  Doss  took 
the  original,  and  the  copy  remained  there. 

What  did  Pudmohun  Doss  do  with  them.*— 
The  copy  I  wrote  remained  with  Maha  Rajah 
Nundocomar ;  the  original  remaioed  with  Pad* 
mohun  Doss. 

What  did  Pudmohun  Doss  do  with  the  pi- 
pers?— He  took  them  himself,  and  put  taciB 
up :  whether  he  carried  them  out  of  the  bomt 
I  know  not. 

Have  you  ever  seen  the  papers  since 7«* 
Never. 

[A  paper  shewn  him  :  a  copy  of  the  paptf 
was  oflfereil  to  be  giveu  in  evidence.] 

Court.  You  have  traced  it  into  the  htadi  of 
Pudmohun  Doss,  but  not  into  the  bands  ^ 
Mohun  Persaud.  This  is  not  aaffident  tf  ca* 
title  you  to  give  the  copy  ia  eriieaee. 


at  CakiOkiyJbr  Forgery.  A.  D.  1115.  [962 

"  You  are  my  nMsler  ;  ■(  if  iMcesMry  you 
should  make  enquiriat  about  me  at  this  time. 


£A  t« agree  paper  is  produced.] 
at  signature  the  hana- writing  of  Bolla- 
les  ? — [  Afler  looking  at  it  for  some  time, 
g  great  difficulty  to  make  it  out,  he 
[f  I  see  the  urigiual  paper  from  which  J 

I  ean  read  it. 

the  words  at  the  InHtom  BoHakey  ]>oss*8 
'riling?— Boliakey  Doss's  oame  is  writ- 
be  bottom. 

at  of  bis  haDd-writiiig  ? — There  were 
'e  letters  of  Bollakey  Doss's  uame  on 
•er  I  copied.  I  caanot  tell  whether  this ' 
aud-writiog :  I  do  not  know  :  I  am  not 
aastali.  Kissen  Juan  Doss  knows  Bol- 
Doss's  hand- writing    and    Pudmohun 

KUun  Juan  Dots  examine<l. 

:  at  that  paper ;  [^Negree  paper  shewn 
rhose  signature  is  it  ? — BoflaKey  Doss's 
re ;  it  is  his  hand-writing ;  the  body  is 
d-writiftg  of  Pudmohuu  Doss, 
here  any  words  wrote  by  Bollakey  Dois 
his  name  P — There  are. 

Elliot  delivered  into  court  the  following 
te  of  Nagree  papers,  which  mark  £x- 

iha  Rajah  Dehraje  Nuodeeomar  Geeoo, 
lutta,  with  compliments,  written  from 
ra,  by  Bidlakey  Doss,  with  msn v  obei- 

Nay  GotI  always  grant  him  health, 
ball  he  joyful,  f  myt»elf  am  by  your 
lO  health  ;  you  have  written  a  Pevsian 
rhich  has  arrived ;  by  the  reading  of 
[  have  been  rendered  joj^ful  and  con- 

You  have  written,  that  till  the  gover- 

II  c<»mf*,  }'ou  wish  me  to  stay  at  Chin- 
Acconnts  are  received  that  tiie  gover- 
I  shortly  arrive.  1  have,  according  to 
esire,  remained  here.  The  governor 
;,  as  business  will  quickly  be  done,  you 
:  1  have  hopes  in  yuu. 

u  will  hear  other  circumstances  where 
;  I  am  unjustly  oppressed  ;  you  are 
Iter.  What  else  shall  1  write  ? 
u  have  written  about  Derruinchund  ; 
e  he  and  I  acquittal  have  settle<l,  which 
ow  ;  besides  this,  nothing  respecting 
unknown  to  3'ou  ;  accordingly  you 
Id,  and  what  you  say  I  pay  great  atteii- 
Phe  Com|»any'H  money  being  receive*!, 
.  rupees  two  thousand,  out  of  that  self 
e.  I  am  not  disobedient  to  your  orders, 
this  time  from  the  side  of  expences 
rouble  is ;  therefore  ru|)ees  five  hun- 
u  bestow  U|Min  lue  ;  then  I  will  give  it 
'  rest.  Business  quirkly  will  be  done 
■Mt  wil!  v:iv(\  Brother  Pudinohun  Doss 
f ;  you  will  be  acquainted  with  other 
tances  by  him  ;  you  are  a  master  of 
ling.  At  tluN  lime  yo-.i  have  considered 
ling ;  and  wiio,  except  ynursi  If,  tvill 
^V  hat  other  representation  shall  1  write? 
I  no  more. 
lb«  year  1B36.      In  Jente  the  2Gth 

*  Signature,  Bo^iAKiT  Dosa. 


The  circumstance  above  written,  you  will  make 
yourself  acquainted  with." 

Mr.  Elliot,  In  translating  the  Nagree  paper 
exhibit  L,  I  at  first  wrote,  **  yourself;"  but  as 
the  counsel  for  the  prisoner  desired  1  would 
translate  it  literally,  and  diarged  me  not  to  de- 
viate in  the  smallest  degree  from  the  words 
and  idiom  of  the  original,  I  have  now  written 
"  self,"  the  word  signifying  only  »•  self"  The 
Moonshy  understands  it  as  meaning  the  per- 
son to  whom  it  was  written :  I  fear  the  transla- 
tioo  win  tcaroely  be  understood. 

June  12th,  1775. 
Lutchmun*  Doss  examined. 

Do  you  know  Mohun  Persaud  ? — I  do. 

Did  you  know  Pudmohun  Dow  ?— Pud- 
mohuu Doss  was  my  elder  -brother:  whjr 
should  not  I  know  him  ? 

Mohun  Persaud  examined. 

Is  this  your  hand- writing?— -It  is. 

Is  that  the  signature  of  Pudmohun  Don  ?«^ 
One  of  the  signatures  is  nine :  I  canaot  uHi 
whose  the  other  is  cxaotly. 

Have  you  oAen  seen  him  write?— I  have. 

Are  you  acquainted  with  his  hand* writing? 
—I  have  many  papers  of  his  writing. 

Do  ^ou  believe  this  to  be  his  ? — It  is  my  opi- 
nion it  is  not ;  if  you  will  order  me,  I  will  briog 
another  |>aper  of  Pudmobuo  Doaa'a  baiid- 
writing. 

Luehmun*  Dou  examinadi. 
Do  you  know  the  hand-writing  of  your  brO'* 
ther  Pudmohun  D<Jis  ? — I  do. 

Is  the  signature  his  writing?— It  is. 
Who  wrote  all  the  paper? — It  is  all  hii 
writing. 

[Nagree  paper  fixed  and  marked  exhibit  M. 
of  which  the  following  is  a  translate. 

Accoimrs. 


66.320 


As. 
7 


Amount  of  a  bond. 


50,488 
10,920 


One  time 
One  time 


61.408    7 

4,013 
60,000 

11,362     8 


2,552 
596 


Batta  at  8  Rs. 

One  time   Durbar  and  other 

expences 
A  bond  on  account  of  a  mort- 
gaged house 
Ready  cash  2200  Rs. 
On  account  of  Dearcam  Chmid 

Ghea  Tawn  527  Ri. 


140,804 
3,000 


Paid    by  Chitonaule 
time,  1500 
1500 


at  OM 


145,804 


1 


*  So  in  orig. 


i^MVMM 


«Ha 


9S3] 


Hf.     As.    Tomusook 
73,435  4      bonds       20000,      20000 

13435 
Rhut, 
60,000  Three  notes   20,000,    20,000 

Khdt. 
10,000  One  note  10,000 

■    ■  Tomusook. 


143,435  Bonds  8 

2,369    1    Carrent  rapees  remain  due 


145,604     1 


(Signed)       MouuN  Persaud. 

PUDMOUDN  Doss. 


15  GEORGE  III.  Trial  ofMaha  Rajah  Nundocomar,         [961 

What  was  Mahomed  ComnwnlP-^  Mn- 
sulman. 

What  cloths  had  he  when  lie  wa«  curiei 
out? — ^They  thro#  the  same  cloth  over  a  Mas* 
su)man  as  o? er  a  Bramin. 

Were  you  to  see  a  man  carried  out  la  bt 
buried,  attended  by  Mussulmeo,  ahoald  yoa 
know  whether  he  was  a  Bramin  or  a  Mom- 
nian  ? — I  saw  from  far  he  was  a  MuaauhMi; 
I  should  know  by  Bramins  being  with  hia,  if 
he  was  a  Bramin,  and  because  tbeOealsaii 
about  the  neck  of  a  Bramin. 

rUuestioo  repeated.]  I  abould  know  it  wii 
a  Mussuhnan,  because  the  Jamma  is  ticdsa 
the  rig^ht  side. 

Do  you  mean  the  Jamma  of  the  deoeMed,ir 
of  his  attendants  P — 1  mean  of  the  people. 

Were  you  to  aee  Mussulmen  attendiaf  a 
corpse,  should  you  know  it  to  be  a  Muaankasa? 
— I  should  conceive  it  to  be  a  MuasolMi 
certainly. 

.  What  persons  were  attending  the  body  rf 
Mahomed  Commaulf— I  saw  Uiat  theytsdk 
away  the  body  ;  I  do  not  know  who  atteadri 
him. 

You  say  yon  know  Mussulmen  from  Bn* 
mins  at  a  great  distance :  were  the  persons  St* 
tending  fthihomed  Commanrs  corpse,  Moflri* 
men  or  Bramiaa  ?— Muasnlmen. 

Do  you  mean  when  you  first  saw  the  hdj 
carriedout  ?— I  mean  when  I  first  saw  the  Mf 
carried  out. 

Were  you  sure  they  were  Mnssulmcn?-*! 
can  speak  with  certainty. 

if,  as  soon  as  you  saw  the  body  come  sal, 
you  saw  it  was  attended  by  Mussulmen,  bse 
came  you  to  ask  whether  it  was  a  Bramia  or  a 
Mussulman? — I  never  asked  whether  it  wasi 
Bramin  or  a  Mussulman. 

Wafl  it  because  you  knew  him  to  be  a  Ma^ 
sulman  that  you  did  not  ask  the  question  ?— I 
di<l  not  ask  :  1  heard  Mahomed  Commaul  vif 
dead,  and  I  saw  Mussulmen  attending  tiM 
body. 

Did  you  hear,  at  that  time,  or  before,  that 
he  uas  deaii  ?— 1  heard  before. 

Wiiat  was  the  name  of  the  man  ? — MaboaMi 
Coniiiiaul. 

Are  you  very  sure  ? — Yes. 

Are  you  sure  he  had  not   **  Ally"  to  bii 
i  name? — He  went  hy  the  name  of  Maboflisd 
I  Commaul :  I  never  heard  of  any  other  name  It 
had. 

[Mr.  Elliot  informs  the  Court,  that  thi 
word  *  Obdahu'  on  the  seal  is  no  |iart  of  Ihl' 
name,  but  means  **  the  slave  of  God.'*] 


Kitten  Juan  Dott  examined. 

Have  you  seen  Pudmohun  Doss  write? — 1 
have. 

Do  you  know  his  hand-writing  ? — T  do. 

Look  at  tliis  paper :  is  it  Pudmohun  Doss's 
hand  writing  ?-» It  ia. 

Joy  deb  Chotcbee  examined. 

Court.  Are  you  sure  you  saw  Mahomed 
Commaul  carried  out  of  MahaRaiah  Nundoco- 
mar's  bouse  to  be  buried  ?—A.  I  heard  it  with 
my  own  ears  that  Mahomed  Commaul  waa 
dead,  aud  aaw  them  carrying  him  out  to  be 
buried. 

Are  not  the  customs  of  burying  Mussulmen 
and  Gentoos  ver^  different  ? — ^They  are :  I  who 
am  a  Bramin  will  not  go  near  a  Mussulmsn 
that  is  dead. 

How  do  they  carry  out  a  Bramin  ? — When 
a  Bramin  dies,  they  either  put  him  on  a  cot, 
or  aticks  laid  ia  the  form  of  a  cot :  they  put  a 
cloth  over  his  bod^,  aud  he  is  carried  out  on 
the  shoulders  of  eight  or  ten  men. 

Is  there  any  thing  else  particular  in  the  bu- 
rial of  a  Bramin  ?— When  a  Bramm  dies,  all 
his  relations  and  friends,  and  all  the  other  per- 
sons of  the  village,  go  to  him  :  he  is  carried  on 
the  shoulders  of  ei<rht  men,  and  about  twenty 
other  people  go  with  him  :  they  carry  him  to 
the  river  side,  and  place  him  on  wood,  which 
hiai  son,  if  he  has  any,  sets  fire  to. 

Are  there  any  other  particular  marks  to  dis- 
tinguish the  burial  of  a  Bramin  ? — There  are 
particulars  in  their  dress  according  to  their 
rank :  if  a  rich  man,  he  may  have  very  va- 
luable cloths :  a  poor  man  would  have  a  cloth 
from  five  to  ten  rupees  over  his  shoulders. 

is  there  any  thing  particular  in  the  form  of 
the  drew  of  those  who  attend  them  ?— They 
wear  their  dooty,  and  throw  a  cloth  over  their 
shoulders. 

What  is  their  dooty  ?— The  cloth  which 
common  sircars  tie  round  their  lotos. 

Are  there  any  more  particularities  attending 
their  burial  ?— No. 

in  what  manner  do  they  carry  out  a  Mus- 
sulman to  be  buried? — He  wears  his  own 
cloths :  when  they  carry  a  rich  man,  a  fine 
dresa  is  worn :  the  dress  of  a  poor  man  is  not 
more  than  two  rupees. 

Are  they  always  carried  on  a  cot? — They 
throw  a  cloth  over  his  body :  1  do  not  know 
exactly  the  manqer< 


Chayton  Naut  examined. 

Did  you  know  Bollakey  Doss  ?— T  did. 

Did  you  ever  know  Bollakey  Doss  ex( 
I  any  bond  to  Maha  Rajah  N  undocomar  ?— 1 
did. 

Did  you  see  him  execute  any  bond  ?— I M 
myself,  and  heard  it. 

Who  witnessed  the  bond  yon  aaw  BeOakiy 
Doss  execute  ? — Mahomed  Commaali "  "  '  ^ 
and  Matheb  Roy. 


at  CalcuUa,for  Forgery, 


A,  D.  1775. 


LW 


~-Y*s,  I  di 


n«yes 


tmnunlnrihe  buocl 
Ihia  50,000  ruprcs. 
■  tbe  Maliomed  Cominiinl  you  saw 
K  bond  f — Hia  bnDae  was  at  Muxa- 
Itcii  he  wiiiii-s»n)  tiie  bcnil  he  sUid 
'limr,  intl  afltrwardB  wrai  hnme. 
b  he  now  r— He  is  iion  ilnd. 
J  oiher  penuii  witness  the  bMiJ  ^— 
than  Mihoraeil  CDOiiniul,  Malheb 

know  oue  Cmniuftul  O'Dien  Cftwn  ? 

e  Mine  perion  ihil  wjinnscil  the 

I ;   ihii  is  Cumniaul  O'Dien ;   that 

neil  Commaul. 

Jiowihotpaper?  [EihibilM.]  Yet. 

ilf-~AD  accaiinl. 

nad  it  N-Yea, 

tvad  pvl  or  it.  [Ue  did  n,] 

III  preaeDl  wltea  tlje  accaiinl  vri« 
Vea. 

waa  present  ?— I  waa  preaeot,  bdJ 
Wwtwe,  aud  FiiMudden  Gooptoo. 
prmcut  P — Nohody  else. 
lie  Miani  u  the  time,  beiidtt 
bowbee,  and  Pussudden  Qnnptoo  f— 
fMiid,  OonfptbiEiien,  and  Piiilmobun 

I  aure  nobndy  elae  was  prFsent?— 

lb  Nuodocoiiinr  »ui  also  there. 

'  Nagrfe  wtiliinf  wrote  in  jour  pre- 

tie  M^'natiites  «(  tbe    bonain   were 

ly  preicnce. 

Irrilinit  are  the  aiTnaturei? — ftlobua 

•nd  PuitdHihnn  Dosa'*, 

ihi«  BccDuni  tigncd  ? — At  Uaha 

wiiiu' '«  boute. 

n  Calcutta. 

at  Maba   najth    Nuodacoiaar'a 

ve  the  parlies  canie  there  f — Yea. 
^^u  preaeat    wbeii    tbejr  eatne  ? — 
oiHi  day,  tbo  three  pei«an«  bdbre- 
actlled  the  acoonni  in  couieraation ; 

F  riftv.  1*0  of  them  only  were  at  tbe 

tunJocamar,  and  ligned  tbe  accounl. 
Hvaiiy  CntDpBii.v'a  bonds  at  either 
MS  prodnced  by  Gun^bisien,  Pud- 
M,  aud  Mohun  PerMiid  f~Yes. 
icarae  of  thetuf — Pudinohun  Doss 
bvnd*  la  UnDptbimeD,  and  Guoga- 
I  ibetn  to  Maba  Hajab. 
Tell  what  passed  on  tlie  ooeaiion. — 

VabiMca'a  gi'ing  tlie  buuiU  to  Maha. 

■ha  fUjah  aaid,  Ynu  give  ine  these 

^ymeiil.  Maba  Uajab  told  Ciun- 
I  indorar  the  bands, « and  Turlher 
jah  Nimdocoinsr  said  to  Ganp> 
c  JIM  aatislied  wiib  this  account? 
ch    Oiingaliiasen    rephed.    If    any 

(hi   call   you  ta  an   account    about 

nl,  I -will  wf,  Malta  Hiijab  baa 
tin  with  11.     Then  Guni^biHen  tn 

■b*  anawetahle  to  bis  I'atbrr.  hrnib 
r  any  otber  penoo,  if  ihey  ahuuld 
tbe  accDont:  apoa  which  mgbt 


bonds  were  delivered  lo  Maba  Rajnii  Nundoe»>a 
mar.  and  be  kepi  them :  Gungnbiuen  %  ' '  '' 
waa  lale,  be  would  indorse  ibr  Imadi  ii 
marninu; :  afler  tbey  were  ijonp.  Maha  Rajd 
NundncDtnar  desired  me  in  i-nme  to  him  Mri|A 
in  the  iDDriiinK,  and  take  ibe  bnnds  to  Gtitiga&] 
hiuen  to  eet  tbcni  inil'irted.  Next  morniint  fl 
went  to  Maba  KHJah  Nuudoeiiinar'a,  and  tookfl 
tbe  Ixinds  with  me  to  Moliuii  Pi>ruud'a  hnna  ~ 
where  1  law  Guntfablssen,  Pudmobun  Ooa^^ 
and  Mobim  Peraauil:  I  saiil  to  them,  IndonT^ 
the  bunda ;  on  which  Giingabissen  t 
Kisaeo  JuBO  Doss .  when  he  eame  an  ii 
iiirnl  wftN  wrote,  written  by  Kiasen  Junn  Dom^^ 
and  Guiicshisaen  ai^oed  it  and  delitercd  tjieni 
tome:  1  tbin  Innk  litem  away,  and  delirert^'l 
them  to  Habn  lUJah  Nuodocooiar. 
CVoM-  StaminalUm, 

Who  are  ynu  ? — Choyton  Naut. 

What  is  your  buainewi?— I  am  a  Shroff  of  ^ 
th«  BauyaQ  call. 

How  long  have  you  been  in  Calcutta?-^! 
Ahaut  fifteen  years. 

Where  did  you  come  fromf—E  bad  a  lioiu 
niMuxadavad;  I  baieoDeinCah'uitB, 

Haie  you  always  reiided  in   Cab-iitta?— 
bate  been  to  my  tiwa  liouse,  and  cod 

How  often  P — Three  or  fnnr  times. 
Haw  lonK  have  you  Et.iyed  at  a  lims  at  Mm 
adafad  ? — Hoiueliinea  on 
somelicnea.  liiur  rauntbi. 

You  knew  Bollakey  Doia  :  had  you  any  bi 
aineis  with  liiiu  ?'- 1  bad  aa  evnnections  in  h 
siiien  wiib  him;  1  waa  uetl  acquainled  wilk 
him  ;  Bollakey  Duss  had  a  bniise  at  Muiad^  ,1 

IVben  did  Bollakey  Don  die?— About  nx!l 

How  lont;  bud  he  lifed  in  Calcutta  bdiMi 
IbatP— Ue  came  tn  Calcutta  in  1173. 

Where  did  he  hie  in  Calcutta?— Id  HotA^ 
reyiDUll's  house  in  the  Burrab  Bazar,  when  b 
tint  arrived  ■■    he   afierwai'da  liied  in  sevw 
nilier  bouses. 

How  long  did  he  lire  in  thai  house  P—1  I 
tieve,  two  ur  three  months  ;    I  ctutiot  tell  f 

Do   yon   know  what   bouse  he  allerwi 
weol  to? — To  Boijicy  Conly'a  house,  to  ll 
eastward  of  Mohim  Persaud'n  bouw  iu  the  BoikI 
rah  Buxar  ;  alter  leaving  that  bouse,  ha  lii(4^ 
in  Mohun  Per^aud'shouiie,  with  him. 

Ynu  say  you  were  prearnt  at  the  selllea 
of  aeconnls  between  Maba  Itajab  and  Bollah 
Uo«s ;  at  the  time  of  ibe  first  adjustineol 
any  books  or  accounht  produced  ? — 1  ai 
account*  hronght. 

Were  there  any  the  aecond  tiia«?— Not  d 
Ikaw. 

Were  ynu  present  the  whole  lime  ? — I  waa 

What  was  tbe  balance  settled  ?-~I.S69  r.  ■ 
[Thia  aijreea  will)  tboacmndl  produced.} 

Waa  Ibe  balance  struck  the  first  or  tbe  second 
lime?— Wbtrntbasud  bunds  ware  dehreKd  U 
Maha  &^ab,  tiMii  tbe  balance  waa  ttniefc. 


IS  GEORGE  III.  Tfial  o/Maha  Rajah  Nundoeomar,  [968 

maul,  and  be  saul  to  SeilUbut, "  Do  yo«  m 
along^  with  liim,  and  both  ot'  yoa  deliter  ot 
bood  to  Maha  Rajab  NundooQinar.'*  Hafior 
taken  the  btind,  tbey  boUi  went  avray^  aii4I 
went  to  my  owu  bou«e. 

Do  you  iiiideratand  Peraian  ? — I  can  BcilWr 
read  nor  write  it. 

Were  you  acqnainted  with  Sielabnt?*! 
was :  he  waa  Vakeel  of  Bollakey  Doaa. 

How  lon{f  ? — He  came  aloog  witk  BoUifcij 
Doaa :  from  tliat  time  I  knew  him. 

Where  is  Sielabiitnuw? — I  don*tkDav»hm 
he  ia:  1  henrd  he  w«»ut  with  Mohun  Pemait 
to  Jajfgernaut,  and  that  upon  return  he  died. 

Wh«t  tort  of  a  man  waa  he  ?— .Not  a  nrj 
whitish  man,  nor  a  very  old  man. 

Were  you  acquainted  with  Mahomed  CsM* 
jnani  P — 1  uaeil  to  go  to  Muxadabad :  be  wm 
at  that  time  the  servant  of  the  KeblagaVt* 
father  of  Maha  Kajah  Nundocomar. 

In  wluitca|iacity  did  he  serve  him?— A  !!■• 
aabeb.    [Cum|Miiiion.] 

How  long  ago  is  that  ? — Formerly ;  I  dn^ 
know  bow  long  ago. 

Did  you  know  him  in  Calcutta?— I  M; 
when  Maha  Rajah's  father  died,  h#  caaili 
Maha  Rajah's  io  Calcutta. 

When  did  that  happen? — 1  do  not  reoallsit. 

When  did  he  oume  to  Calcutta  ?— I  da  art 
remember  the  express  period;  It  was  iaife 
Bengal  vear  1178. 

Was  he  a  very  black  man  ? — Not  veiy  VmL 

Was  he  tall  or  short?— Of  a  auddiv 
height,  neither  very  tall  nor  very  KhorL 

Of  what  age  wav  he?— Witliin  36,  tbit  il 
about  C3,  or  34,  when  he  arrived  at  Cakulli. 

Where  is  he  now  ?•— He  died  iu  Calcutia, 

III  what  house?—!  do  luit  know,  I  barf 
that  he  died  in  Calcutta. 

Iluw  long  ago? — It  might  be  fife  ariix 
years  ago. 

Uo  \  ou  rememiier  Matheb  Roy  ? — I  did  si 
know  him. 

Are  you  a  servant  of  the  Maha  Rijab?--J 
%va<9  furmt'Hy  a  servant  of  the  Maha  Itsjah;  I 
am  not  now,  he  is  out  of  euiiiloymeot ;  I  •■ 


Wbo  wrota  the  Bengal  writing  on  that  paper? 
^-Poorsodden  Goopioo. 

Who  is  that  man  ?— He  waa  a  writer  to  the 
Maha  Rajah. 

When  dM  he  write  the  Bengal  account?-^ 
'  Three  or  four  days  after. 

Where  is  the  niiin  ?— In  Calcutta. 
Who  wrote  the  Nagree  writing  oo  the  paper? 
— Pudmohun  Dosa. 

Can  you  read  both  Bengal  and  Nagree  ? — 
No* 

Did  yiM  see  Pudmoben  Does  write  it  ? — I 
did. 

Wliat  sort  d'aman  is  Pudmohan  Goopioo  ? 
•—A  thin  mao,ol:' a  yellow  rolour. 

Yon  say  Kisaen  Juan  Dosa  indorsed  bobm 
bonds:  I)oyoa  know  what  bonds  ?-~-The  Coaftp 
pany's  bonds. 

Were  any  body  else  present  ? — Nobody  else 
was  present. 

You  say  you  were  present  at  executing  a 
bond  by  Bollakey  Duss:    was  it  in  bis  own 
-house,  or  where?— It  was  in  Hndjeery mull's 
house,  then  inhabited  by  BoUake}'  Does. 
■    How  came  you  there  ?-- Shack  eer  Maho- 
med, Mahomed  Cumaul,  and  JoydebChowhee 
iHid  I  were  present  at  Maha  llajali'a:  af\erwards 
Bolfeake?  Dims  came  in,  and  went  to  Maba  Ha- 
jah.     Maha  llajah  demanded  from  Bollakey 
Doss  the  |Niynient  of  his  money ;    Bollakey 
•Dosa  answered,  **  I  have  at  present  no  money,  1 
ieaaoot  nay  it,  I  will  write  out  a  bond."    Maha 
Raiah    Nuudocomar  said,  *<  Very  well,  write 
4mt  a  bond,  fix  youraeal  to  it,  and  having  get 
■it  B'itnessed,  send  it  to  me.''     Bollakey  Uoas 
Ihen  said,    **  Give  nie  l^lahomed   Conimaul, 
that  he  may  go  with  me,  1  will  give  the  bond  to 
Mahomed  Couiaul,  and  one  of  my  own  se^- 
▼ants,  and  send  it  to  you."     Bollakey  Doss 
having  got  disiniti>ion  fiom  Maha  KHJati  Xun- 
dooomar,   went  di>wn    stairs  with    Mahomed 
Coiinnaul:    I   liken iite  tfot  dismissinn,  and  I, 
Joydeb   Chow  bee,  and  Sliaik  eer  Mahoraeij, 
went  down  stairs  together.     Mahomed  Com- 
maul  and  Hidlaki^v  Doss  were  standing  there. 


Bullakey  Doss  liavin>>:  got  into  his  palankeen, 

went  to  liis  own  house ;  and  we  four  men,  half    yet  in  hopes. 

«  eurree  afterwards,  wont  afWr  him.    Bollakey         What  are  your  hopes  ? — That  I  shall  ubuia 

Doss  was  botoiL*  that  sittinrr  in  his  <iwn  houNe  ;    some  employment;    I   was  oucc  the  Naboft'l 

we  went  to  hiui,  and  sat  flown  liy  him.     Four  ,  Ilussanchee,'  [cashkeeper].       1    was  likteiM 

Other  people  Mere  there  ;  Malbeb   Uoy,  Seiila    |  the  Muiiu  RaJHli's  Hiissanchec. 

but,  the   writer,  and  Diuian  Sing.     Bol);»key  {      What  reason  have  yon   to  hope  for  aDflS* 

Dosa  said  to  the  writer,  ''  Write  out  a  ImuuI  in  '  ploymenti' — I  have  lio  reason.     Mnha  R4}il 

the  name  of  Maha  Kajah  Nimdocoinar."     He  |  is  a  (freat  man,  a  man  of  coiisequeuce ;  iMB 

irntte  it  in  Persian.     Having  wrote  ii,   Bulla-  i  iu  hopes  heiiiiiy  gel  me empUi\  inent. 

key  Dos*i  said,  **  ilt>ad  il."     The  writer  having         How  h\v^  have   >ou    had    those   hopes?— 

read  it,  he  Bollakey  Duss  heaid  it.     B'lliakfy     Frum   the  time  the  Slalta  lUjuh  has  beeooit 

Doss  kuid  it  y^Vkh  trooil.     Mahomed  Commaul    of  emp'tymriit ;    I    have  gone  e»erv  lau  SI 

aaid  it  is  uiiod.     Hitlliki*)  Doss  had  a  rini:  upon  .  three  day**  to  his  house  :    he  s.iys,   Verj- aA 

Jiis-tinger  :  he  took  il  oH',  and  M*ali»d  it  ««ith  his  ■  ult«if  I  am  in  employment  1  will  get  souieibiif 

own  lirtod:    lie  iIku  saui   lo  M  illumed  Com-     foryui. 

niHUl,  Di»  yon  afhx  vonr  seal  as  a  inioess:   I.e  I       Uhere  was  Maiheh  Roy  hum,  and  what  ii 

then  said  lo  i\latheh  R'i\,  '•  Do  you  ti\ilieNeal  ■  \i\s  eoiplii\iiirni  .^ — Matheb   U<f\N  was  nM  il 

ofie}ili«iOiiy  toil  :"  he  then  .«aid  lo  Seitlabui,  }  ihedi-mrc  ot   Burdw:in.      I  dn  noi  k<io»  wM 

"  Dii  you  write  tesiimiio]^  ioilii«:''  hi'  wrote,  ,  lii^  i-mp-uvinent  Has:    he  u^vd  iti  citme  oofll 

and  both  itf  ilH*m  siahd.'    B'»tiai.ey  l>(»ss  put  •  in  two  or  Three  days  to  Maha  Hajab  Miudatf* 

the  bond  into  the  banda  of  Muhoiued  Com-    mar *a  house.  ..    .  . 


[ 


1 


»9] 


tf/  CalcuMa^fcT  forgery. 


Ra4  he  much  respect  shewn  him  art  Maba 
Rajah  Nundocomar's  bonse  ? — Not  macb. 

bill  Matbeb  Roy  underataiKl  Persian?^--! 
lon'l  knoir  whether  be  read  PeraWiD  or  net ;  be 
lad  a  Perstaa  ring  ufKin  his  fin|^r. 

What  sort  of  a  seal  was  Natheb  Roy's?— 
Neither  very  large,  nor  small ;  a  foar- cornered 
cat. 

Did  you  ever  see  him  write  Persian?—! 
lever  saw  liim. 

Did  Mahomed  ComanI  nnderttand  Persian  ? 
-T  do  not  know.  He  had  also  a  Persian  seal 
D  bia  fingfer. 

What  shape  was  it? — It  was  also  a  fbnr^sor- 
«red  aeal.  hut  smaller  than  the  other. 

Did  Bolfakey  Doss  wear  a  seal  upon  his  fin- 
der ?— lie  had  one. 

Of  what  shape  was  it  ?— A  Budelamie  seal. 

Of  what  size  ?— Neither  very  larj^e,  nor  vtty 
mall. 

Do  you  know  the  sum  of  the  bond  yon  saw 
xeeoted  f*-lt  was  above  40  and  midcr  50,000 
opvesa 

How  do  you  know  that  ? — When  the  bond 
rss  read  "before  Bolhikey  Doss,  in  the  house 
r  Bollekey  Doss,  1  asked  Bulhik^  Doss,  as  I 
id  not  understand  Persian,  what  was  the 
rooant :  he  tuld  me  between  40  and  50,000 
Biwes. 

Was  it  mentioned  in  the  bonse  of  Bollakey 
loan,  at  the  time  of  executing  tire  bond,  that  it 
raa  for  that  sum  ? — 1  cannot  say,  I  do  not  re- 
lember  well :  H  was  between  40  and  50,000 
BBees. 

-  Waa  it  mentioned  at  that  time  ? — I  do  not  re- 
wnber,  I  don't  know. 

How  come  you  then  to  know  it? — Bollakey 
Nfm  entered  the  writer  to  read  it ;  1  heard  it, 
ad  remember  that. 

Did  the  writer  read  the  whole  bond  ? — He 
Ul  troiA  hepnning  to  end. 

Was  it  only  from  hearin;jr  it  read,  that  you 
new  the  amount? — I  knew  K  from  no  other 
eaeon  ;  I  heard^of  the  bond  nt  Maha  Rajah's 
efore. 

Did  you  hear  tlie  snm  at  that  time  ? — No. 

In  wiiat  language  was  it  read? — In  Persian. 

Was  it  read  more  than  once  ? — I  remember 
<»  more  than  once. 

Was  it  read  in  any  other  language? — I  do 
ot  renember  that  it  was. 

What  is  Persian  for  forty  thousand  ? — How 
hmild  I  say?  1  do  not  understand  Persian. 

If  you  did  not  understand  Persian,  and  only 
1w«r  the  snm  of  the  bond  from  its  bemg'  read 
I  Persian,  then  how  can  yon  tell  the  amount 
r  the  bond  ? — You  have  sworn  me  upon  the 
'kfer  of  the  Oan^ :  how  can  1  tell  more  than 
remember? 

Tlie  Court,  desirous  of  elneidatlnff  every  part 
r  this  witness's  evidence,  asked  Mr.  Elliot,  if 
e  was  certain  that  the  witness  under&toud  him. 
fr.  Elliot  answered,  "  The  witness  seems  to 
iderstand  what  I  have  said  perfectly  well ;  he 
iderstands  Moors  as  well  as  any  person  I 
I're  examined  here  in  that  lan^^uaffe."  N.B. 
^  tntn  had  desired  lo  beezaminea  io  BeDgaf, 


A.  D.  1775.  [990 

did  not  nndentand   Moon 


alleelegr  that  he 
well. 

Messieurs  MlioU  Jackson,  and  Jebb,  swora^ 

Mr.  EliioL  The  man  seems  to  onderstan^  * 
what  I  said  perfectly  well.  I  have  no  iluubt  of 
his  understanding  me  :  he  seems  to  me  to  un-  ' 
defttand  Moors  as  well  as  any  man  1  have  exa- 
mined, and  speaks  it  nnire  grammatically  than 
common  Bengalers  tin :  I  am  sure  he  nnder^ 
8too«l  the  qnestioBs  I  asked  respecting  the  suin. 

Mr.  JtfcArsofi.  When  Mr.  Elliot  began  to 
examine  this  witnesa,  he  desired  me  to  gire 
particular  attention,  durin^f  «he  examination,  to 
the  evidence  he  jpive  with  regard  to  thepre*^- 
ciseness  of  the  interpretation.  I  did  so,  and 
conArm  what  Mr.  Elliot  baa  aaid  in  erery  par- 
ticular. 

Mr.  Jebb,  The  witness  ^erfbetly  imdentoi^ 
Mr.  BIKot ;  he  nBderttamh  Moors  perfectly.     ^ 

Mr.  Westtm^  one  of  tbe  junr,  well  oonw erant 
in  tbe  laiiguoge,    being  asked    whether    ho. 
thought  the  witness  understood  Mr.  EUiot,  a|i- 
swered,  he  certainly  uodenfm»d  bin,  be  mi*. 
d^rstamla  Mpora  perfectly  well,  and  speaki  it. 
bflttar  tban  he  does  Bengally. 

Mr.  Jebb  interpreted  to  him,  in  Bengally,  M 
the  qtiestiona  that  had  keen  pnt  to  him  in 
Moors,  respecting  tbe  sum  of  the  botid,  to  whicli 
be  answered, 

A,  When  tbe  bond  waa-reft^  in  Persmn  by 
Bollakey  Doss,  as  I  did  not  understand  Persian, 
I  asked  the  amount  of  the  bond,  and  Bollakey 
Doss  told  me  it  waa  more  than  40,000  and  noder 
50,000  rupees. 

Did  Bollakey  Doss  do  any  thing  more  than 
pot  his  seal  to  ft  ? — No. 

Did  the  ethers  ? — ^Both  tbe  witnesses,  whose 
seals  are  there,  wrote  something  over  tikeir 
seals. 
-  Dt>  yott  know  what  they  wrote? — ^No. 

Did  they  write  much?— No. 

Have  yon  Bolhikey  Doss's  seal  ? — ^No :  the 
papers  sealed  were  in  the  possession  of  Pud* 
mohuu  Doss. 

Did  Maha  Rajah  readily  agree  to  take  tbe 
bond? — lie  did. 

Was-  he  asked  more  than  once  to  take  it  ? — 
Maha  Rajah  pressed  him  to  give  money;  he 
said,  he  could  not  give  money,  hut  that  he 
would  giwe  a  bond. 

Did  Maha  Rajah,  withont  repetitioOi  or 
pressing,  agree  to  take  it  ?— He  did. 

Did  Bollakey  Doss  put  his  bands  together ' 
in  a  supplicatin^r  posture?— He  pot  hfs  itanda 
thns,  [joining  them],  and  said,  I  cannot  pay 
money,  take  my  bond ;  and  he  agreed  to  it. 

In  what  room  of  Bollakey  Doas's  was  the 
bond  executed  ? — In  the  room  where  he  sits ;  a 
loniif  room. 

Who  produced  the  ink? — Bollakey  Dosa 
went  half  a  gurry  before :  when  we  came,  a 
Sicca  dewal  waa  uy  him ;  nobody  went  for  it. 

What  aort  of  an  iak-etand  ? — A  aitver  octa- 
gon Sicca  dewat;  h  was  neither  large  nor 
email. 


«91] 


15  GEORGE  III. 


Do  yoa  remember  Bbllakey  Does'f  seal  ? — 
if  I  was  to  see  it,  I  shoald  know  it. 

Should  joa  koow  the  impression  ? — I  should. 

ShooUl  you  know  the  impression  of  Maho- 
ned  Commaol's,  if  you  saw  it? — I  should. 

(Should  you  know  t|iat  of  Matbeb  Roy  ?— 1 
nhould. 

By  what  means  should  you  know  Bollakey 
Doss's  seal  ? — 1  took  particular  notice  of  it,  at 
that  time,  and  should  know  it. 

Should  you  know  it  upon  any  paper?— Not 
upon  any  other  paper ;  upon  the  bond  I  should. 

When  the  Mohurir  read  the  Persian  bond, 
was  BoUakey  attentive  ? — He  listened  with  at- 
tention. 

When  be  said,  Veiy  well,  did  he  appear  sa- 
tisfied ?— He  seemed,  I  thought,  pleued  and 
contented. 

What  was  the  sixe  of  the  bond  ?— I  have 
taken  an  oath ;  I  cannot  speak  with  certainty : 
if  I  was  to  see  the  bond,  I  should  know  it. 

Do  not  you  recollect  the  size  ?— I  do  not ;  I 
have  taken  an  oath. 

How  come  yon  to  remember  that  one  of  the 
•eals  was  smaller  than  the  other? — ^Wtth  my 
own  eyes  I  saw  that  the  seal  of  Mahomed 
Commaul  was  smaller  than  that  of  Matheb 
Rov. 

Did  you  not  see  the  bond  with  your  own 
eyes  ?•— I  saw  the  bond ;  I  saw  also  the  seal. 

What  was  the  size  of  it? — How  can  1  re- 
member ?  a  bond  may  be  krge,  or  it  may  be 
•mall. 

[A  bond  shewn  him.] 

Is  this  it  ?— No. 

Was  it  larger  or  smaller  than  that? — Shew 
me  the  bond,  and  I  shall  be  able  to  tell. 

How  can  you  know  that  bond  from  another 
by  the  impression  of  the  seal,  if  yon  do  not 
know  those  seals  upon  another  paper  ? — There 
is  Sielabut's  hand-writing,  and  two  seals  be- 
sides Bollakey  Doss's:  by  these  marks  I 
know  it. 

SAn  impression  shewn  him  of  Matheb  Roy's 
.] 
Do  yon  know  this? — I  do  koow  it. 

fAn  impression   of  the  seal  of  Commaul 
O'Dien  shewn  him.] 
Do  you  know  this  ? — I  do  not  know  it. 

LollauDoman  Sing  sworn. 

Did  you  know  Bollakey  Doss  ? — I  did< 

Did  you  ever  know  Bollakey  Doss  execute 
any  bond  ? — How  can  J  know  any  thing  of 
former  works  ? 

[Question  repeated.] — ^This  I  have  seen. 

[Question  agiin  repeated.]^ Yes,  1  did  see 
him  one  time. 

Do  you  recollect  at  what  time  you  saw  him 
execute  a  bond  ? — 1  do  not  remember  the  ilate. 

Do  you  mean  the  particular  day  or  particular 
time? — It  is  ten  years  ago:  how  should  J  re- 
member the  time  ? 

In  whose  name,  or  for  whom,  was  the  bond 
you  saw  executed  ?— In  mv  presence  be  wrote 
a  bond  in  thoiHUiie  of  Maha  Rajah  Nundo- 
oomar. 


Trial  qfMaka  Rajah  Nuniocomar,  {99f 

Did  yon  see  bim  execute  it  ?— >I  did  with 
my  own  eyes. 

Were  there  any  witneasec  to  the  bond  yen 
saw  executed?— There  were. 

Who  were  they  P-^One  Mahomed  CommanI, 
one  Matheb  Roy,  and  Seilabut. 

Did  you  see  them  witness  it  ?— Yea ;  I  did. 

Do  you  remember  the  amoant  of  the  bond  ? 
— It  is  ten  or  twalve  years  ago,  it  is  impoaaiblt 
to  tell  exactly':  1  can  tell  by  gueaa. 

Tell  by  gueas.— I  think  46  or  48,000  rtmccs. 

Did  you  know  a  person  of  the  name  of  Csoh 
maul  O'Dien  Ally  Caw»?— Yea;  be  ia  here. 

la  Commaul  O'Dien  Ally  Cawn  the  laas 
you  mentioned  by  the  name  of  Mahomed  Csoi- 
maul? — ^Tbat  was  another  man:  I  aawUai 
before  I  saw  this  now. 


Crou-Examinatum. 

What  are  you  ? — 1  am  in  service. 

Whose  service  are  you  in  now  ?— I  es 
through  question  and  answer  with  Roy  Ra» 
churn :  [the  son-in-law  of  Maha  Rajah  Nah 
docomarj  I  am  in  his  service. 

What  do  you  mean  by  goin|f  tbroegfa  wam^ 
tion  and  anawer  with  Roy  Radachumr^I 

S>  through  question  and  anawer  with  Rijik 
ussan  Roy. 

What  do  you  mean  by  going  through  qaei* 
tion  and  answer? — When  Rajah  Buasan  Biij 
sends  letters,  I  deliver  them  to  the  govcraar, 
or  general,  and  get  the  answers. 

[Question  repeated.]--!  can  say  no  mere. 

tourt  to  Mr.  Elliot.  What  do  you  UDde^ 
stand  by  question  and  answer? — A,  Inndv^ 
stand  the  worda  he  makes  use  of  *  jewMb 
sowaul'  to  be  a  conversation :  it  is  commsalv 
used  for  an  examination,  but  is  never  appfaSl 
to  a  correspondence. 

Q.  Who  is  Raja  Bussan  Roy  ? 

[Mr.  Elliot  says  be  was  the  {lerson  nn- 
tioaed  by  Commaul  O'Dien  Cawn,  as  a  reto- 
tion  of  Raranarrain  Roy.] 

How  long  have  you  been  in  the  service  of 
Roy  Radachurn? — Eighteen  or  19  months. 

How  often  have  you  been  in  Calcutta ?—l 
have  often  been  in  Calcutta. 

Where  were  you  born? — At  Patna. 

When  did  you  first  come  to  Calcutta?— Is 
the  year  1172. 

With  whom  did  you  come? — 1  came  alone. 

Whose  servaut  were  you  when  you  fint 
came? — I  was  in  the  service  oMUjah  Derrick 
Narrain. 

Was  Rajah  Derrick  Narrain  in  Calcutta .'-^ 
No ;  he  was  at  Patna. 

Into  whose  service  did  you  enter  whenyos 
came  to  Calcutta  ? — Riyah  Derrick  sent  las 
do«n. 

liow  long  did  you  remain  in  hia  servios?-* 
Two  years  since  he  died. 

Into  whose  service  did  you  enter  at  bii 
death  ? — When  he  died  I  went  to  my  o«i 
house. 

Where  was  thai  ?— At  Patna. 

How  long  did  you  stay  at  Patna  ?—Wh0 
tlie  governor,  Mr.  Hastiogs^  weot  to  BaoaM 


at  CalcKtta,for  Torgtry.  A,  D.  177) 

When  dill  Bollakcy  Doss 


[qu.  BenKrcKj  I  went  willi  .lim  :  I  then  came 
In  Patna,  klmd  lliere  as  laiii;  as  the  Gnveruor 
tlitl,  incl  llien  reliirnetl  la  CalculU:  it  was  a 
uionth  more  lli&n  ln>u  years. 

What  were  ynu  emjiloyeil  in,  all  Ilie  eight 
yeir*  from  your  cotniDi;  toCatoulUf — Iwas 
m  the  serrice  of  Rajuli  Dpirick. 

Bow  were  you  eni|iloy«tl  f — I  returnEi)  to 
PaUiB  ID  117S,in  llieinunlh  ofCgrleckt,  a  |iar~ 
ticriiUr  r^asl  of  the  Uindmis. 

C'aa  ynii  reail  Fersiaiif — I  can. 

In  wliat  month  were  you  heref — 1  ilo  not 
remember  whether  it  was  in  Bysack,  or  in 
Joiw,  it  was  one  of  them :  it  was  iu  the  rainy 

What  businfU  iliil  you  came  to  Cnlciilta 
npon? — I  wag  sent  to  Maba  Itajali  NudiIo- 

What  house  did  you  live  in  alCalrulUF — 
Al  Joorabadun. 

Where  did  you  see  Ibis  bond  execuled  that 
TDu    speali  ofi'— Al  tlie    house  of  Uuzzrey 

Did  Rnz'/rRV  Mall  live  in  the  bouse?— Bol- 
\ikfy  OiisH  lived  lliere, 

Hon  cnmvynu  in  the  linuie? — 1  fcequeotly 
went  bacllKBrda  and  fur n  Urdu  there. 

fVltal  kiud  of  a  uiun  whs  BolUkey  D'mh?— 
Of  a  yellow  colour,  and  old. 

IVhO  were  precNit  at  iIig  exrcuiion  of  llie 
bond? — .MahnmedCuntiuiiul.Jnyilebt^hnwbei^, 
ChoyKii  Naui,  tJhukKer  Maliuiued,  ISeilaliui, 


>yii<ii  ; 
ih«b  R< 


IV,  and  mjsell'. 
ifwdy  else  preset 


IS  many  years  ago: 


-—There  was 

Wb»l  was  hia  name! 

I  liave  ('I'^ifi. 

Old  yuu  pter  Icnnw  it  F — I  iiaie  forgot 
Were  you  ac(|iiainled  wilh  all  the  ppuple  you 

named  t — I   knew  them  all  before,  except  tbe 

Huw  long  did  you  know  Mabomed  Com- 
tnaiil  F— I  did  mit  know   l,iii>  i.efore  I  u>ed  to 
I  ihe   house  of  Maha 


liil  the  writer  belong  to  Bollakey  Doss?- 


■^1 


How  came  you  to  the  hu 
Duw  that  day  i'—I  used  now 
it  liappeiit'd  1  vrenltlieii. 

(I'M]  you  any  particular  r 
spnt  liy  chance :  as  1  used  li 


•t  then 


><  tlier 


when  J 


Ror  aad  tielUh 

iVhst  IJmeof  iheday  v 


BBOII  to  KO? — [ 
go  before,  lo   I 

went?— Halbeh 

? — Before  mid- 


uty  oUier  persrin  in  Ihe  roon 
-Niilindy  but  Malbeb  [toy  ai 
it  near  luid-day  when  you 


ut.'— It 

in    tb« 
-They 

■  n<dlakef  Data  there  when  you  fitsl 

irlhece.'— .No. 


was  there  hefi 

Did  any  on 

Dons  canief— 

Who  came 

alone,  only  hii 


[Of)* 

N-It  misbl 
half,  that  [ 

ire  he  oaine. 

e  come  lo  them  before  fiolialiey 

-No. 

wilh  Bnllakey  Docs?— He  cam* 


kiihii 


I  par.  _ 


with  him?— Nu. 

What 'did  he  do  wheu  be  came?  did  ha 
speuk  to  vou? — lie  did  not  sjieah  to  aoy  body  : 
be  took  litf  his  clothes  and  sat  down. 

When  did  the  writer  some  J— All.  r  Bollahey 
Doss  had  armed,  halfagurree  after  Mahomed 
Commaul  and  the  others  came. 

Did  ihey  i-ome  before  the  writer,  or  after  ? — 
Wlien  Boilakey  Duss  arrived,  he  called  lor  tb« 
writer,  and  the  writer  tiril  arrived.   ■ 

pavti    between    ihe 


passed. 

Do  you  know  that  for  certain  ?— I  tell  it  foe 
cerlaiuly. 

Are  you  very  positive  there  was  no  convena- 
lion  between  It'illsikey  Doss  and  the  HrilT?— 
Tli^re  was  no  question  and  answer  lielivecu 
them  ;  there  was  no  words  lielweeii  them. 

When  Bollskey  Dosa  came  into  Ihe  house, 
did  he  conie  diiectty  into  Ihe  room  where  yon 
were? — lie  came  directly  to  the  plate  where 
be  sat. 

Are  you  sure  he  went  lo  no  other  room  ? — 
I  was  siitiiif;  in  the  place  where  Bidlakey  Dose 
afterwards  tut;  I  saw  him  sit  down. 

Did  you  see  hiui  «Dter  the  doors  nnil  come 
up  alaim?'-'!  was  silting  above  a 


u/Boliakey  DosiF^-No  . 

,  for  certain? — 1  tell  i 


uut  lee  him  colne  up  stairs,  ur  come  iulu  the 
doors  ofibe  hoiite. 

Did  hecotneiua  palaaquia?--!  was  within; 


so  much  uuiiie. 

When  aid  the  wrilercoraelo?— Wheu  BoU 
lakey  Don  come  into  the  hou»e,  he  aal  down, 
Bu<l  ordered  the  wriler  lu  he  cnlled. 

Who  dill  Boilakey  Doaa  tsud  tor  the  writer  F 
—His  kidmult;ar. 

Whatdid  hesay  toliim?— ItisloDgago:  I 
do  niiL  remember. 

How  long  WSJ  ilbefore  the  wriler  came? — I 
do  nol  know  exactly,  it  was  a  little  time. 

Did  (hey  mention  his  name? — I  do  not  le- 
meinber  their  tending  fur 


writer  bv  nam. 
in  the  bouse, 
nut  ot'^the  house  1—A.  f  do  not  know. 

Could  Seilnbut  write  I'ersian  ?— He  could. 

Did  Bollikey  Doss  send  fur  the 
reclly  when  he  came  into  the  mnui 
sal  down  a  lillle,  said  a  lew  words,  auJ  ibi 

How  long?— He  sat  down,  spoke   two 
four   words    to    Seilaliul,    ihen    sent  i" 

What  did  he  say  to  the  writer  ? — A 

arrival  Mahomed  Commaul  auii  the  otb 
sons  beliire  mentioned  vaiiie. 
Did  Bnllakey  Doss  gi' 


di- 


Ihe 


per- 


995] 


15  GEORGE  III.  Trial  tfldOa  Rajah  Nwuloamar,  [W6 


writer  before  they  came  in  P— After  they  came, 
be  ortiered  him  lo  write. 

Did  he  before  P — No  orders  were  given  he- 
fore  they  came. 

What  did  iie  order  him  to  write f—Afler 
they  came,  BoUakey  Doss  gave  directions  to 
the  writer. 

What  directions  did  be  give  P— What  the 
writer  wrote  in  the  bond. 

What  w«s  thatP — I  do  not  remember:  it 
'  may  be  seen  in  the  l>ond. 

Do  you  remember  what  Bollakey  Doss  told 
the  writer?— He  toM  him  the  subject  of  the 
bond  in  the  Moor  language. 

What  was  thatP — 1  do  not  remember  i  it  is 
what  is  in  the  bond :  if  I  remembered  it,  why 
should  1  Iceep  it  with  me  P 

Do  yon  remember  nothing  that  was  in  the 
bond  P— 1  know  nothmg  at  all,  not  a  word. 

How  long  was  the  writer  writing  the  bond  P 
—About  a  gurry. 

Did  Bollakey  Doss  repeat  once  or  twice,  or 
bow  often,  what  was  to  be  wrote  in  the  bond  P 
—As  far  as  I  can  recollect,  he  told  him  to 
write  a  bond,  to  this  particular  purpose ;  and 
then  directed  what  he  was  to  write. 

What  was  the  sum  P — About  47  or  48,000 
rupees. 

Was  any  mention  of  interest,  or  any  thing 
else,  in  the  bond  P — I  do  not  well  remember. 

Do  you  remember  at  all  P — I  do  not. 

After  the  bond  was  wrote,  what  passed  P— 
Having  prepared  and  finished  it,  he  pot  it  in 
the  hands  of  Bollakey  Doss.  Bollakey  Doss 
returned  it  to  him,  and  said.  Do  you  read  it 
over;  he  then  read  it  once  in  rer^an,  and 
gave  it  to  Bollakey  Doss. 

Was  it  read  more  than  once? — It  was  not. 

Are  you  sure  it  was  read  in  Persian  P—  I 
am. 

Did  any  thing  farther  passP — Mahomed 
Commaul  was  sitting  next  to  Bollakey  Doss : 
he  said,  Do  you  witness,  Mahomed  Commaul 

fmt  his  seal :  he  said  to  Matheb  Roy,  Do  you 
ikewise  witness  it;  and  be  sealed  it:  he  tike- 
wise  said  to  Seillabut,  Do  you  likewise  witness 
this  ;  and  he  signed  it. 

Did  any  body  else  write  on  the  bond  P — No- 
body else. 

Did  Bollakey  Doss  seal  the  bond  ? — He  did. 

When  did  he  seal  it?— He  first  put  his  seal 
to  it,  and  then  the  witnesses. 

Who  sealed  the  bond  first  P— Mahomed 
Commaul. 

Are  you  certain  P — I  was  sitting,  and  saw  him. 

Are  you  certain  ? — I  say  so. 

Who  sealed  next  P — Matheb  Roy. 

Do  you  speak  with  certainty  P — I  do  speak 
with  certainty. 

Who  sealed  next  P — Seillabut  then  signed. 

Are  you  certain  P — 1  am ;  1  speak  with  cer- 
tainty. 

Are  you  sure,  that  nobody  else  wrote  after 
Seillabut  P— Nobody  else  wrote  but  Seillabut 
and  the  writer. 

Did  uobody  else  ose  a  pen P— No:  nobody 


What !  nobody  bat Seillobut  and  the  wriltrP 
—No. 

What  plaoe  wet  the  bond  ■ealed  in?— As  is 
customary  in  Persino  bonds. 

What  is  that  costom  P— Thev  write  this 
way  (oUi^ely).  The  right  hand  in  the  fkm 
for  the  seals. 

Show  the.  positkm  of  the  eeala  on  poper.— 
The  bond  was  wrote  obliquely,  from  right  hani 
to  left ;  ihe  seals  in  a  line,  on  the  manrin. 

Whereabouts  did  Seillabot  sign  P— Near  Ma- 
homed Commaurs  seal,  he  signed  it. 

Do  yon  know  Bdhdcey  Doss's  sealP-^I  do. 

How  do  you  know  itP— I  knew  it,heoao« 
he  used  to  write  letters  to  my  former  maMcr 
Roy  Derrick. 

Do  you  know  Mahomed  Commanl's  teal? 
— ]  do :  I  frequently  saw  it  on  his  finger. 

Should  you  know  it,  if  on  any  other  paper 
than  the  Bond  P — I  certainly  should  know  tbt 
impression  of  the  seal  wherever  I  saw  it* 

What  shape  is  itP— A  four-cornered  seal. 

How  often  did  you  see  Mahomed  Connassl 
before  he  ngned  this  deedP— When  I  weatts 
Maha  Rajah*s,  I  sometimea  saw  him,  ad 
sometimes  did  cot. 

How  often  have  yon  seen  him  P— I  caaail 
count  how  often  I  have  seen  him. 

Have  you  seen  him  twice  P— I  cnnnet  s^ 
I  have  seen  him  twice.  Wh^  ahonld  I  aiy 
twice  P  I  have  seen  him  many  times. 

Did  yon  often  see  hia  sealr— I  need  to  m 
it  on  his  fingers. 

Did  you  ever  take  it  off  his  fing^er,  and  en- 
mine  itP-— I  have  seen  the  seal  on  his  finger.  I 
never  took  it  off  to  examine  it  Why  shori4 
I  take  off  the  seal  of  another  man  P 

Then  you  never  did  take  it  off  to  exaaiss 
it  P— I  Jid  not.  Why  should  I  take  the  Msl 
of  another  man  P 

Do  you  mean  that,  if  you  saw  the  impref- 
sion,  you  should  be  able  to  read  the  name;  or 
should  you  know  it  from  any  other  circaoh 
stanceP— -When  I  see  it,  i  will  think  of  it  I 
shall  be  able  to  tell. 

[The  question  was  several  times  repeated,  hni 
no  answer  could  be  procured.] 

Do  you  know  Matheb  Roy's  seal  P-  —I  koow 
it  a  little :  if  I  was  to  see  it  on  the  bond,  1 
should  know  it. 

Should  you  know  it  on  any  other  paper  tbu 
the  bond  P-—i  shall  be  able  to  tell  when  yoi 
try  me. 

Do  you  believe  you  should  P 

Interpreter,  He  does  not  chnse  to  answer 
the  question.  I  can  procure  no  answer  froia 
him. 

Q,  Should  you  know  the  seals  fimn  tbdr 
places  on  the  bond,  or  from  the  seals  tbsoi* 
selves  P — [No  answer  could  be  procured.] 

[Question  repeated.  1— I  before  said,  obcv 
me  the  bond,  and  I  will  tell. 

Will  you  say,  whether  yon  sboald  know  tbs 
seals  from  their  plaoe  on  the  bond,  or  froM  Ai 
seals  themaelvesP— What  t  know  I  say  t  If 
you  shew  me  the  bond«  I  Ihink  I  sbooMlMf 
theseaii* 


§97] 


td  CalcMaffcr  Fcrgniii* 


A.  D.  ITtS. 


[99B 


Whtl  mn  WM  M atbeb  Roy *■  seal  ?  -  •  It  wtt 
lamr  than  the  aeal  of  Mahomed  Commaul. 

Shew  how  large  the  aeal  was.  [A  paper 
gifeo  him  to  describe  on.}— I  am  not  a  setl- 
tetter.  How  should  I  nark  UP  Having  sworn, 
I  will  say  what  I  remember;  I  eannot  say 
what  I  do  not. 

Making  a  mark  is  not  speaking  words. 
[He  is  again  asked  to  make  a  mark.} 

Witneu,  Observe  that  yon  order  woi6  to  make 
a  mark.  fHe  makes  a.  mark  near  the  sice  of 
the  seal.] 

What  waa  the  shape  of  BoUakey  Doas's 
seal  ?— A  buddamee  seal. 

How  large  was  that  seal  ?«— Not  very  large, 
nor  very  small. 

Who  brought  the  inkstand  ? — Hit  kidnnl- 
pur. 

Are  yoo  certain  he  brought  il  in  ?— Very 
certain. 

Was  he  sent  for  it  ?-  -  •The  kidmutgar  bronght 
it. 

Was  it  before  Mahomed  CommanI,  or  the 
witness  came  ?— Before. 

What  was  the  sicca  dewat  made  of  ?— -Silver. 

What  size  P— The  size  they  generally  are. 

What  size  is  that  ?— [He  describes  by  his 
finger  a»  before  described. J 

What  size  is  the  bond  ?— I  remember  there- 
nbnnt  half  a  cubit,  nearly  the  size  of  the  bonil. 

What  M-as  done  with  the  bond  P-— When  the 
bond  was  executed,  he  gave  it  to  Mahomed 
Commaul,  wham  he  sent  with  Seiilabnt,  to 
give  it  to  Malia  Rajah  Nundocomar. 

Where  did  the  witness  go  to  P— A  little  after 
the  departure  of  Mahomed  Commaul,  and 
Seillabut,  8haik  Mahomed,  Chovton  Naot,  and 
Dbowtleb  Chowbee,  having  got  tlieir  admission, 
wtfol  away.  Haifa  gurry  after  that,  I  went 
iway  too. 

Was  there  any  conversation  passed,  whilst 
the  writer  sii^ned  the  bond  P — Before  the 
srriting  of  the  bond  some  conversation  passed 
between  Matheb  Roy,  BoUakey  Ooss,  and 
myaelf. 

"What  was  it  ?— I  will  relate  to  you  what  I 
remember.  BoUakey  Doss  said  to  Seillabut, 
I  have  been  to  Maha  Rajah  Nundocoroar;  and 
sra  have  settled  every  thing  about  the  jewels. 
He  is  my  patron,  and  1  have  done  accordiog 
to  his  pleasure.  For  such  a  businesaastbis,  it 
if  DOt  proper  to  have  any  differenee  with  him. 
I  am  therefore  to  write  out  a  bond.  Seillabut 
and  Matheb  Roy  said.  You  have  done  right. 
He  is  your  patron  ;  it  is  proper  you  should 
not  do  any  thing  contrary  to  what  he  says. 
After  that  they  called  for  the  writer. 

Were  Joy  deb  Chowbee,  and  Mahomed 
Commaul  there  P— No :  they  came  after. 

Hid  you  mention  this  conversation  to  any 
one  before  P— I  never  did. 

Was  there  no  mention  of  these  jewels  in  the 
bond  P— It  may  be ;  but  I  do  not  remember. 

Was  BoUakey  Duss  pleased  when  the  bond 
Wjsa  read  P— He  was  pleaved,  and  satisfied. 

Did  Bollskey  Doss  understand  Persian  P — 
Be  DttMt  have  onderstood  Pershm ;  he  said  it 


I 


was  f  erv  well,  but  he  did  not  write  it ;  and  1 
do  not  know  that  he  could  speak  it :  1  neves 
heard  him. 

Did  you,  by  any  other  means,  know  whether 
he  understood  Persian  or  not  P — I  did  not. 

Did  Mahomed  Commaul  say  any  thing  P—« 
He  saki  nothing. 

Are  yoo  sure  P— He  did  not 

Did  not  Mahomed  ComnMul  say  it  was  very 
well  P — I  do  not  remember. 

[He  proves  a  seal  of  BoUakey  Doss  to  three 
envelopes,  which  had  been  opened,  and  whicb 
the  eovnSel  for  the  prisoner  offered  in  evi- 
dence, but  waa  overruled  by  the  Court,  there 
being  bo  signature  from  BoUakey  Doss  to  the 
papers  inclosed,  nor  any  proof,  whose  hand* 
writing  they  were,  or  that  those  papers  were 
originally  inclosed  in  the  envelopM ;  becaiise^ 
if  they  were  allowed  to  be  given  in  evidence^ 
they  might  impose  what  papers  they  pleased 
on  the  Court,  by  nutting  them  into  the  enve* 
lopes.  The  jury  having  desired  to  look  at  the 
papers,  the  foreman  observed  on  inspecting 
them,  that  it  was  an  insult  to  their  understandiogy 
to  offer  those  papers  in  etidence,  as  papers  of 
the  date  wiiich  tney  pnrportied  to  be  of.  .  . 

The  Counsel  tor  the  Prisoner  speaking  in  a 
warm  and  improper  manner  to  thf  jury, 

Cotir^.  This  is  a  manner  m  which  the  jury 
ought  not,  and  ahall  not  be  spoke  to.  The  pri- 
soner ought  not  to  suffer  from  the  intemper- 
ance of  his  advocate.  You,  gentlemen  of  iho 
jury,  ought  not  to  receive  any  prejudice  to  the 
priaoner  on  that  aoeoont,  nor  rrom  the  papers 
tbemaelves,  which  not  having  been  admitted 
in  evidence,  you  ahoald  not  nave  seen ;  and 
having  seen,  whatever  observation  you  have 
naade,  yeu  should  forget :  it  is  from  what  is 
given  io  evidence  only,  that  you  are  to  de- 
termine. 

Jury.  We  will  receive  no  prejudice  from  it. 
We  shall  consider  it  the  same,  as  if  we  had  not 
seen  it :  we  will  only  determine  by  the  evi« 
deuce  produced.] 

Meer  Ustud  Ally  called. 

Did  you  know  BoUakey  Dots  Seat  P— Yea» 
Meer  Cossim  Ally  Cawa  sent  me  with  treasure 
from  Rotas  to  BoUakey  Doss  Seat.  1  deli- 
vered the  treasure  to  him,  and  took  his  receipt 
for  it. 

Where  was  BoUakey  Doss  at  that  time  P— 
At  a  place  called  Dues  Oauty. 

Where  is  that  place  P— To  the  westward  of 
Sasserum. 

Is  there  any  seal  to  that  receipt  ?— There  wia 
one  seal  of  his  to  it. 

Where  has  that  receipt  been  ever  since  P— 
With  me  ever  aince.  [He  produced  a  paper, 
wrapped  in  a  wax-cloto,  closely  pressed  and 
donbled  into  the  size  of  less  than  an  inch  kouare, 
bound  tightly  down  with  a  string,  which  was 
cut  open,  and  the  paper  carefully  unfolded,  and 
produced  as  the  original  receipt.] 

Did  you  see  Bullakey  Dovs  affix  bis  seal  to 
the  paper  P— if  you  want  to  know,  there  ia  aa« 


999] 


15  GEORGE  IIL  Trial  ofMaha  Rajah  Nuniocomar,         [IQOO 


other  flromastah  of  Bollakey  Does^t  in  court ; 
call  liim. 

[QuestioQ  repeated.]— I  did  see  it  with  mj 
own  eyes. 

How  loofi^  af^o  is  it  P — Look  at  the  paper,  yon 
will  see  the  date  there. 

Court,  You  roust  give  a  positive  answer.^ 
A.  It  is  ten  or  tweWe  years  ago ;  it  was  in  the 
time  of  Cossim  Ally. 

What  are  you  at  this  time  ? — I  am  at  present 
in  no  business :  J  come  to  seek  employment  in 
this  part  uf  the  country. 

How  long  have  you  been  here  ? — About  two 
months. 

From  whence  came  you  last  f— From 
Patna. 

What  were  yon  there  ? — In  service. 

la  what  capacity  ?— With  Sheub  Roy ;  I 
was  Daroga  of  the  Mint. 

What  was  your  business  immediately  before 
your  leaving  Patna  ? — I  was  out  of  employ* 
meet,  and  obliged  to  come  here  to  seek  it. 

How  long  since  you  left  Patna? — About  six 
months  past. 

Wtien  were  yon  last  in  service  ?— Since  I 
left8hetab  Roy^  I  have  entirely  been  oat  of 
service. 

Tu  whom  have  yon  applied  for  employment 
since  you  came  to  Calcutta? — It  is  now  eight 
years  since  I  came  to  Calcutta :  I  had  an  inter- 
view with  Maba  Rajah  Nundocomar,  who  pro- 
mised me  that,  God  willing,  when  he  got  em- 
ployment, I  should. 

What  employment  did  you  want?—!  wanted 
an  appointment  under  Molauck  ul  Dowlah, 
that  1  might  receive  some  monthly  wages. 

When  did  you  first  see  Maha  Rajah  Nun- 
docomar?— When  Major  Munro  brought  me 
to  Calcutta,  I  first  saw  the  Maha  Rajah. 

How  soon  did  you  see  him  after  you  came 
to  Calcutta  ? — Aliout  four  days. 

Are  you  sure  of  that? — Can  there  be  any 
advantage  in  telling  a  lie  on  this  occasion  ? 

In  whose  service  were  you  before  you  served 
Shetab  Roy  ? — I  was  formerly  a  servant  of  the 
king  at  Delhi  when  he  came  to  Ben^^al :  1  was 
afterwards  in  the  service  of  Meer  Cobsim  Ally, 
and  after  that  with  JafBer  Ally. 

When  you  came  from  Patna,  why  did  you 
bring  this  paper  with  you  ? — No  no;  1  was  at 
Muxadavad,  when  hearing  of  this  aflair,  1  told 
to  some  body,  I  had  a  paper  with  Bollakey 
Doss's  seal  to  it. 

Who  did  you  tell  so  ? — 1  said  no  such  thing  ; 
I  never  heard  of  this  affair  at  Muxadavad. 

Did  you  know  any  thing  of  this  affair  when 
you  left  Patna  ?— No. 

How  came  you  to  say  you  know  this  affair  ? 
ivas  it  at  Muxadavad  that  you  told  the  man  you 
had  this  receipt?— I  left  Muxadavad  in  the 
month  of  Maharun. 

Did  you  mention  any  thing  of  this  paper  to 
any  person  ? — No ;  why  should  I  mention  any 
thing  of  a  paper  of  my  old  master's  ? 

Think  well,  and  say  whether  you  ever  men- 
tioned having  this  pa|ier  to  the  Maha  Rajah,  or 
10  ^y  other  person?— Why  should  1  tell  any 


> 


one  I  had  such  a  receipt  f  if  aoj  oaa  en  say 
that  I  did,  1  deserve  punishment :  I  bad  a  re- 
ceipt of  my  old  master's  in  my  poascsaion ;  if 
I  had  given  it  to  any  one,  and  my  cfaildreo  hid 
fallen  into  the  hands  of  my  master,  tbey  would 
have  been  slain. 

Who  desired  you  to  bring  this  reeaipt  here?— 
Maha  Rajah  Nundocomar  asked  if  I  bad  sacb 
a  receipt ;  I  told  him  I  bad,  and  he  desired 
me  to  bring  it  here. 

Are  you  very  sure  yon  never  told  any  per. 
son  of  a  receipt,  that  could  tell  Maha  Rajsk 
Nundocomar? — I  told  no  one  of  the  circiD- 
stances  of  the  receipt. 

How  did  Maha  Rajah  know  yoa  bad  a  te- 
ceipt:*— In  the  course  of  conversation,  he 
mentioned  to  me  the  circnoistancas  of  the  per* 
secution  -  I  told  him  1  had  a  paper  with  a  Pv 
sian  seal  to  it,  and  this  was  the  paper. 

Can  you  shew  in  Bollakey  Boss's  books aiy 
account  of  the  receipt  of  tliis  money  P 

Court,    Look  for  it. 

Witneu,  I  said  I  had  a  receipt  of  BoUakey 
Doss's ;  this  is  the  paper. 

Did  yon,  at  that  time,  tell  the  Maha  Rajak 
any  thmg  more  than  that  you  had  a  Perma 
seal  ? — 1  said  that  I  had  the  impression  sf  the 
seal  of  Bollakey  Doss. 

What  did  you  mean,  when  asked  if  yoa  toM 
Maha  Rajah  Nundocomar,  that  you  said  p«- 
ticnlarly  you  did  not  ?— I  excepted  Maba  Bt- 
jah  Nuntiocomar. 

Court  to  Mr.  Elliot.  Did  be  or  not  ?— /. 
He  did  not. 

Q.  to  Witness.  Why  did  you  bring  tbcrs> 
ceipt  to  Calcutta  ? — A.  I  did  not  bring  it  l» 
Calcutta  ;  1  lef\  it  at  Muxadavad :  when  1  tsli 
Maha  Rajah  1  had  such  a  receipt^  be  desired  I 
would  send  for  it :  1  sent  a  servaot  of  ray  01% 
of  the  name  of  Berzey,  to  Muxaduvad. 
*   Have  you  a  house  at  Muxaduvad  ? — I  hire. 

Why  did  you  say  you  came  from  Patna?— 
I  went  from  Patna  to  Muxadavad. 

How  long  had  you  l>een  at  Muxadavad  be- 
fore you  left  it  the  last  time  ?— I  arrived  it 
Muxadavad  on  the  month  Zeehidjah  ;  1  Idlit 
in  the  month  of  Mahaurrun  this  year. 

When  did  you  come  last  to  Muxadavad?— 
1  arrived  there  on  the  tenth  of  Zeebidjab,  and 
left  it  on  the  22nd  of  Mahaurrun. 

In  whose  possession  did  you  leave  thesetl 
at  Muxadavad  ? — 1  left  a  little  box  with  my 
wife,  in  ^hich  was  this  paper. 

Did  you  send  to  your  wife  for  the  receipt.'— 
Yes. 

Did  yon  send  a  verbal  or  a  written  message r 
—1  wrote  a  note. 

In  what  language  ? — My  own  was  in  Per- 
sian. 

What  countrywoman  is  your  wife.^ — A  Ben- 
gal woman  ;  a  native  of  this  country. 

Does  your  wife  understand  Persian  ? — No; 
how  should  she  ? 

What  did  you  write  to  her  in  the  note?— I 
Wrote  to  her  to  send  the  receipt  in  the  Tavoie 
bauzu. 

What  is  the  meaning  of  Tavuxe  bauaa?— ll 


1001] 


at  Calctttta,Jbr  Forgerjf- 


A.  D.  1775. 


[lOOf 


is  what  it  kept  un^er  the  jamma,  bonnd  rooDd 
the  arn) :  the  receipt  was  abut  up  in  the  Ta- 
vuze  bauzu. 

What  answer  did  your  wife  send  ?-— She  sent 
the  Tavuze  liauzu,  and  a  note  inlorming  me 
•be  bad  sent  it. 

Did  you  read  it  ? — Does  not  a  man  read  a 
note  be  rtrceives  ? 

In  what  language  was  it  written  f— In  Per- 
sian. 

Did  she  write  it  herself?— Do  women  know 
bow  to  write  ? 

Does  any  boily  in  the  hoose  write  Persian  P 
—She  would  probably  send  for  a  Mulla*  to  read 
my  note,  and  t2:et  the  answer  wrote :  I  am  a 
poor  man,  and  have  no  serrant  of  that  sort. 

Were  you  used  to  wear  this  Tavoze  banzu 
mbout  your  arm  ?->-I  formerly  did,  but  since 
my  roaster  was  gone  I  threw  it  into  a  little 
box. 

Why  did  yon  ? — My  master,  to  whom  it  be- 
longed, being*  gone,  1  threw  it  into  the  box : 
why  should  I  keep  it  any  longer  ? 

Did  you  then  consider  it  of  any  further 
▼slue  when  your  master  was  gone  r — When 
my  master  was  gone,  I  was  at  Rotasgur, 
where  my  master  bad  sent  me :  I  kept  il  out 
of  fear. 

Why  did  not  you  gire  It  yonr  master P — I 
did  :  be  said,  K^ep  it  yourself,  and  I  will  take 
it  of  you  hereafter :  it  remained  with  me. 

What  did  the  treasure  consist  of,  you  <&rried 
to  Bollakey  Dossi?— They  were  bags  of  rupees 
which  1  paid  to  Bollakey  Doss. 

How  many  ? — It  is  impossible  to  say  how 
many  bags  in  so  large  a  sum.  There  were 
many  basrs  containing  2,000  rupees;  some 
might  coDtain  more. 

Where  did  you  carry  it  from  ? — Rotasgur. 

To  what  place? — 1  was  carryiocf  it  from 
Rotasgur  to  tlic  Nabob  Cossim  Ally  Cawn  :  he 
ordered  me  to  carry  it  to  Bollakey  Doss. 

Where  was  Bollakey  Doss? — In  a  tent  at 
Do'>rgauty. 

How  far  was  that  from  Rotasgur?— It  is  12 
coss  from  Sassiram,  and  that  is  three  days 
journey  to  Rotascj^ur. 

Who  went  with  you?— My  own  people. 

How  many  ? — 150  horsemen,  and  150 
peons. 

Can  you  produce  one? — I  cannot  tell  where 
to  find  one.  8ome  are  at  Muxadavad,  some  at 
Patoa,  and  some  dead. 

Cannot  you  produce  one  ?— How  should  I  ? 
I  know  of  none. 

Where  is  the  man  that  brought  tlie  receipt 
to  you  from  Muxadavad  ?— lu  town :  I  will 
bring  him  to-morrow. 

What  is  his  name  ? — Buzzoo. 

What  sort  of  a  man  is  he? — A  poor  roan  ; 
young,  not. old,  and  shaves  his  beard;  of  a 
middling  size,  neither  fat  nor  thin. 

Is  he  your  servant,  or  any  other  person's  ? — 
He  is  a  raffeek  of  mine  ;  what  I  get  he  eats 
with  roe. 

*  A  schoolmaster,  or  learnt d  man ;  to  Ara- 
bic term. 


If  he  is  a  raffeek,  why  did  yoa  before  say 
you  sent  your  servant? — He  is  called  servant 
sometimes,  sometimes  a  raffeek,  and  some- 
times a  brother. 

How' many  servants  do  you  keep? — I  have 
likewise  a  slave  boy  ;  he  and  I  eat  rice  toge* 
ther. 

Hare  yon  any  other  servant? — I  have  bo 
power  to  have  servants. 

What  religion  are  you  of  ?— A  Mussulman. 

What  is  Buzzoo  ? — A  8haik  (Mussniroao.) 

Have  yon  ever  had  any  promise  for  coming 
here  P---1  have  not  received  the  smallest  thing 
from  him  ;  [pointing  to  the  prisoner]  he  only 
said  he  would  procure  me  to  be  a  servant  of  tbo 
Nabob's. 

When  were  yon  to  enter  into  your  employ- 
ment at  the  Nabob's?— When  he  (Maha  Ra- 
jaK)  should  be  released  and  sent  to  bis  own 
bouse,  he  would  give  it  me. 

At  whose  expence  have  you  lived  since  yon 
have  been  at  Calcutta  ? — Tlie  circumstance  is 
this ;  I  brought  some  rupees  with  me  to  Cal- 
cutta. 

Yon  have  been  long  out  of  employment ; 
how  have  yon  subsisted  ? — I  had  jewels  -toil 
valuables ;  I  have  sold  them  all,  and  by  that 
means  maintained  myself.  Major  Munro  gave 
me  2,000  rupees. 

Was  Bollakey  Doss  the  usualShroff  of  Cos- 
sim  Ally  Cawn  f — If  he  was  not,  why  should 
he  pay  the  money  to  him  ? 

Did  you  know  of  Cossim  Ally  paying  any 
other  sum  of  money  to  Bollakey  Doss  ?— No ; 
I  was  a  servant,  and  di<l  only  as*  1  was  ordered. 

Did  you  ever  pay  any  money  to  Bollakey 
Doss  for  Cossim  Ally  betbre  ? — I  never  did. 

How  do  yon  know  he  was  a  banker? — I 
had  two  bills  on  hrm  from  Cossim  Ally. 

Whose  province  was  it  to  settle  the  accounts 
with  his  banker? — How  should  I  know?  I 
was  a  poor  man. 

[Question  repeated.]  The  name  of  the  of- 
fice is  Mustoafah  :  his  name  is  Mustowaffee. 

How  could  the  Mustowaffee  settle  the  Na- 
bob's accounts  without  this  receipt  ?— At  that 
time  the  conntry  was  in  i;reat  troubles :  his 
household  was  in  great  disorder,  and  the  Na- 
bob ran  away. 

What  part  of  Calcutta  do  you  live  in  now  ? 
— I  live  on  the  8ubah  Buzar. 

In  yonr  own  house  ? — In  a  religions  hoose, 
in  which  I  live  for  nothing. 

Did  yon,  or  not,  know  of  this  affair  at  Muxa- 
davad ? — No. 

[Mr.  Elliot,  I  cannot  be  positive  that  he  said 
that  be  heard  it  at  Muxadavad  ;  and  that  may 
serve  to  clear  up  the  inconsistency,  in  his  say- 
ing he  had  told  no  one,  as  he  had  not  at  that 
time  told  the  Maha  Rajah. 

Q,  to  Mr.  Elliot.  How  long  is  it  since  the 
date  of  that  receipt  ? — A.  I  l^lieve  ten  years 
and  two  days  ;  hut  1  cannot  be  certain  without 
calculation.] 

Kisien  Juan  Dou  examined. 

Do  yoa  know  toy  thipg  of  this  trtnttclitii  f 
—No. 


1005]  IS  GEORGE  HI.         Trial  ofMaha  Rajah  Nitmiocomar, 

preMnt  when 
knDO  Buy 


[1D« 


Jtfcer  Vuud  Alii.    You  »er 
the  moDey  ww  paid. 

Q.  to  tinea  Juan  Don.     Do  yon 
lhiin{ofU?~J.  I  dn  nnt  remember. 

Hail  ^ou  be^n  [iTeienl  nhrn  m>  Iar4fe  a  sum 
of  maiiey  *•■»  p*id  by  ihe  princa  of  liie  wiun- 
Iry,  fiboulJ  ynii  not  have  kanwii  il  P — 1  don't 
remcrnber:  ifreatmina  of  money  vne  paiil  in 
the  house,  from  35  to  50  lucUs :  I  cau'l  re- 
niemlwr  all. 

Q.  to  Uaud  AIU.  Have  yon  been  al  Paini 
■ince  HlieUb  Roy  difd  ? — J.  No:  I  boTe  been 
to  Calculla,  alau  to  Puroea,  and  other  ptncea, 
ia  aearch  of  employment. 

Q,  la  Kiatn  Juaa  Dnu.  ■*  there  a  sepnraie 
■cooiint of  Cosaim  Ally  Cawn?.—A.    There  is. 

Why  did  you  look  over  ilii*  book,  knowli))^ 
it  ia  the  other? — It  wuiild  likewise  hare  been 
in  Ibii  book :  I  could  ftod  eakier  in  the  other. 


\ 


Junf  13IA,  17T5, 

Mr,  Elliol  examioed. 

Q.  What  is  IliP  Persian  word  for  40,000  ? — 

A.  '  Chekill  baznar:'  in  Mirara  it  m  '  cbaleese 

baiur.' 

Wbat  if  50.(K)0? — It  it  '  pinjaw  haiuar'  in 
Periian.  and  '  pilluhus  huiaar'  ia  Moors. 

Mr.  Wealon,  noe  uf  the  jury,  added,  that  in 

heagtMee  ilietum*  were  the  same  «i«io  Moors. 

Colonel  Goddard  examined. 

Were  you  the  officer  who  took  llotasgur.' — 

What  year  ivaiilr'---I  don't  recollect  the 
vear  Itv  iW  He)(ira :  I  can  tell  by  that  of  our 
Lirilt'it  wiiaia  1764. 

When  did  Casnini  Ally  leave  Rolargnrf- 


I 


Were  you  at  the  battle  of  Muxat*  ? — No. 

When  was  it  fought  7— The  a3nd  or  S3rd  sf 
Oclober.  1784. 

Had  Cciisiin  Ally  then  left  the  provineea?— 
After  taking  Patna,  m  I76S,  Conim  Ally  had 
no  place  of  Birenglfa  left  in  the  prorlncei,  ei- 
cejiiing  Kills  s. 

Can  you  tell  «h«re  be  fled  across  the  Cara- 
manesBa  P —  I  wa§  wounded,  and  kfi  al  Patna  : 
he  paised  the  CarHmanasaa  at  that  time  :  aAnr 
Ihe  teduclion  uf  Palna,  Ibe  army  passed  into 
tbe  Caramanassa,  followiuK  CusMm  Ally. 

When  did  he  return ?--'lle  returned  mlolhe 
pra?incet  in  17€4- 

Mr.  Hunt  examined. 

Hr.  Hiii-U.  We  look  Patna  in  NiiTeinbrr, 
1703:  our  army  niarcbed  Immedinlcly  to  the 
Ciraniani^aa :  L'ossim  Ally  and  the  troops 
with  him  pia^  the  CHramanaasa  at  that  tine : 
•bout  November  nr  December,  1763,  he  re- 
turned to  Ihe  proTinces,  with  Sujah  nl  Dowlah  : 


about  April,  1?W,  nnr  army  rctreeled 
na  :  ihecannunadefrom-Hujah  til  Duwlab  «n 
■  lie  3d  of  May,  1764 :  Cossim  Ally  and  Suiil 
ul  Doulah  retreated  from,  and  Cunti 
never  reiurneil  aj^in  to,  ibe  jirotinceK. 
indeed  is  just  »ilhin  Ihe  prnvinces.  Tlie 
of  Duaar  waa  fongbt  Ibe  i3d  of  October. 

Major  Auckmuli/  eiamioed. 

Court.  Dii  ynu  remember  where  Cottli 
Ally  was  eni.'am|ied,  three  weeta  or  a  fortni  ' 
before  the  batlle  uf  Buxar  ?— i  tllluk  at 

Inffuin^cio  Biixar,  do  you  not  j^  ibi 


Had  CKsi 


odo. 


Ily  any  fixed  eamp  afier  I 
uepariure  iiiim  Patna,  till  ibe  entreudioient  I 
Bu.var? — I  lielieve  he  had  not  auy  caiupi  I 
was  with  Sujah  ul  Dow  lab's  army. 

Ha<l  they  any  camp  at  Doarg<otly  ?— I  ik 
not  know  of  any:  I  Ihink  they  would  neilhi^ 
ol  them  leave  ihe  body  of  the  army.  JasHfi 
ram  \s  intaml.  Buxar  i«  on  ihe  river.  I  cMi.  ' 
not  say  but  he  mi^fbt  bare  had  a  camp  at  Dm^ 
golly. 

Mr.  ELliPt.  I  can  now  ucertain  the  cblerfT 
the  receipt  produced  to  Ihe  Ciiurt  by  Heer  la\ 
aail  Ally.  1  cnii  swear  to  the  dale  by  the  r^ 
cordaof  tbekbalia. 

Have  you  examined  the  reconli  of  ibe  kh»^ 
aa  f.  -1  have ;  lind  Bod  thai  the  I4lh  of 
buiiauee,  in  1176,  Het;ira,  which  lathe 
of  ihe  receipt  now  proiluenl,  auiwers  lo  Itf 
2Slhof  AiGurD,  1174,  Bengal  year;  whwb  i|^ 
exactly  lOyesrs,  8  months,  and  S  dBy«,frgfl>r 
thistlme,(13ih  June,  1775.)  I  mean  calnihr' 
months,  which  briu^  ihe  date  uf  the  receipllij 
tlieSlbofOctohrr.  1764.  [N.  B.  15  dayaki 
lure  tlie  haiile  ofButar] 

Pnim  what  place  iathe  receipt dale<]f—Ili 
not  daled  from  any  plsoe :  Durgully  ia  oM 
lioaedin  the  paper. 


Kititn  Jua 


Da,> 


mined. 


Court.  Have  you  examine'l,  and  ilo  J9 
find  these  and  the  hooks  produced  Uhi  nisbtl 
be  all  Ihe  liooks  In  whicb  Cnasim  Allj^  t» 
counts  with  Biillakey  Daa«  are  containMlT- 
A.  They  are  all,  and  I  have  eiaoiioed  llw«{ 
f  did  not  look  ovei  the  hooka  yesterday  Mi 
lully :  oue  book  coulaina  all  Ihe  accauni*  bii 
twe.;n  Bollakey  Ouss  and  Coisim  Ally. 

Dues  thai  huok  contain  the  whole  oftbe  U- 
counts  Wlween  Cussim  Ally  aud  Bolltk^j 
DuMi*— It  does. 

What  are  the  periods  when  Ihe  acootiDlsM 
these  houkii  begin,  and  when  ibey  end  7 — T^^ 
hegiu  iu  Babuztnee,  1 175,  and  eud  in  ll 
month  ufSauhem  Najtree,  1801. 

It  there  any  nieuiiao  of  lucb  an  aeeouali 
Ihii  mentioned  in  the  receipt  f — There  ia  i 
such  entry  :  it  if  certainly  not  in  thebookit 
cannot  ascertain  when  Ihe  banks  cloie. 

la  Ihe  dale  uf  the  beginning  of  lb»  Mm 
Id  ihe  books  rEgularly  enlticd  thercF' 


at  Catcutta^Jbr  Forgery. 


Cfiptkii 


I 

^Rere  jno  wilh  llie  army  in  lT(i4?--I  wm. 

riw  *%'•  Klreitin^r  froni  P«ln«  ill  llitit  yen  ? 
—  Their  Brmy  »8«ilereatwl  Wore  (he  n-alliul 
faiita :  3d  May,  1764,  lliey  relresud  lu  Baua- 
rat.  anil  cnnliiiUFd  tlierr. 

Haw  Tar  ia  Rutarfpir  from  D'lorgolly  1 — 1 
bvliete  Uooritolly  is  a  town  on  the  lianki  nl' 
(be  Saime :  ibere  in  more  Ibsn  one  place  of 
UiKl  Dime, 

(»  iliere  >  riier  calleil  Doorgntly  f — There 
k :  I  i[i|>reheiid  you  cross  It  in  ^ing  from 
JoWKTSm  ID  Buxar.     Ii  I'M*  inlo  tbe  Soiun. 

\law  lar  is  Jacferam  Iroiii  Uolasgiir  p — It  is 
MIeetned  1  i  con. 

Did  you  ever  IraTtI  itf — I  ba»*. 

Id  how  many  houra  f — I  set  out  early  in  ILp 
NMninir,  and  breakfuled  there,  I  appreliMid, 
about  10  o'oiock.  I  mde  very  hard :  liiey  are 
bog  cmarB,  and  through  a  hilly  country  :  il 
«as  in  IhecobI  wcalher. 

Can  yno  ii^li  wliere  tbe  army  of  Kujah  Dow- 
lab  and  Ciigaiin  Ally  were,  14  days  before  tbe 
twtlle  of  BuxBrP— I   believe,    ■acampcd    at 

Kiuen  Juan  Dou  re-emmined. 

What  islbe  last  dale  mentioned  in  Ibe books? 
—The  hit  date  irienliiiried  in  tbe  buoka  is  lak«n 
fnitn  ■  leep,  or  promissory  note  :  1  entered  n 
long  afler  the  lUte  of  the  rectijit ;  I  entered  it 
atCalcuitt.  It  was  after  tbe  iviiirD  of  Bulla- 
key  DoM  from  ibe  army. 

Were  you   with   Buliukey   Dou  willi    Ibe 

Do  you  know  the  ritf  r  Doorifolly  ?— 1  do. 

Was  Biitlohpy  Dut^  in  a  leu t  near  that  riier, 
about  tbe  Uih  of  I  tab  ubb  nee,  1178  N-Ue  nas 
wilh  the  army ;  I  knnw  nul  when. 

Was  Bollakey  Dosx  wilh  the  Uidy  of  Cnscim 
Ally's  army,  a  liitle  befure  the  battle  of  Buxar  ? 
—He  was. 

Where  was  Ibe  army  14  days  before  tbe 
batllef~A  muiitb  befnre  thut  batlle  they  were 
in  canlonmeoK  III  Hv^ 


A..D.  1775. 


r  DmiigoUy  run  near  Buxar  T — 
once  neat  the  river  Doorgutty  ; 
eiicaniped  at  Buxar. 


Did  tbe 
The  army 
but  not  when  th«y 

Captain  Carmuc  exs mined. 

Do  you  know  BuXAr  ?—]  do. 

How  far  is  the  riier  Duorgolly  from  it? — I 
<o  not  know. 

Kiaen  Juan  Don  re'eximined. 

When  tbe  anny  was  near  Doorgotty,  do  you 
■^member  a  man  coaling  with  ireatjures,  en- 
e«rled  by  SOO  men  on  account  of  Coasim  Ally? 
*^l  do  Dot  Temeinber  any  thing  of  il. 

If  Bucb  a  Iranuctiou  bad  happeneil,  must  it 
bol appear  ID  Cnssiin  Ally's  account? — Such 
■baitert  were  always  minuted  in  the  Persian 
*>ffice:  wlieo  any  treasure  was  brnugbt,  it  was 
^Lepl  in  this  book ;  but  no  account  al  Ur^  wa« 
^^  at  Puna. 


[1006 

Wu  the  teep  ynu  rererred  to  in  (he  book, 
pair]  inCatcmla.or  only  entered  there  alter  Ihs 
iraDsaoliun  .''' -Tlieenlry  wasmadeby  BnlUkey 
Dusq  :  I  can  give  no  more  [larliciilar  aucounl. 

Mr.  Elliot .  I  iiiiderstsnd  that  tbeiebooka 
end  in  I17C,  Hei;ira. 

Do  ynu  spprehendihat  any  part  of  Ibe  army 
wilh  which  Uollakry  Dom  might  be,  would  be 
detached  lo  ibe  river  Duor«oity,  within  a  month 
of  the  bHtlleuf  Buxar?— I  kuuw  of  nosucb  de- 
tach meni. 

Doyoii  remember  when  Ihebody  of  tbearmj 
was  there  ? — Tbe  army  was  frequpntly  in  mu- 
tion.  I  can  give  no  nccounl  of  ilie  timt  of  Ih 
being  there.  When  the  army  waa  io  the  field, 
il  WHS  ex|>ected  the  rain  would  come  on  :  ilie 
army  went  lo  the  canloninenls  »l  Buxar. 

Was  the  army  at  Buiar  bdbre  tbe  rains  ?— I 
cannot  speak  to  tbe  motions  of  tbe  army. 

^Vere  tbe  raiua  set  in  when  the  army  went 
lo  Ilie  canton ments  at  BuXar? — I  cau't  tell 
whether  il  rained  auy  one  day. 

Was  il,  or  was  it  not,  before  the  raiiiB,  that 
tbe  army  cum e  there  ?--Teii  or  twelve  days 
after  our  arrival,  I  n^nember  il  rainf  d. 

Had  the  rainy  season  srt  in  ? — I  don't  mean 
to  say  that  tbe  rainy  season  began  10  days  be- 
fore, or  10  duys  afler  our  arrival. 
Mr.  Hurst  examined, 

Abnut  what  lime  does  ibe  rainy  season  act  in 
at  Buxurf— It  generally  sets  in'the  latter  end 
of  June,  or  beginning  of  July. 

Does  il  holil  up  lO  or  1!  days,  during  ibe 

When  does  llie  rainy  season  end  there? — 
The  rainy  season  geuera%  ends  in  Ihe  montb 
id  September,  or  io  the  beginning  of  Oulober. 
Kiaen  Juan  Dow  re- examine'' , 

Were  you  al  the  liallle  of  Buxar  ?—  I  was.  | 
have  reason  to  remember  ii.  I  was,  after  tha 
battle,  Sung  inlo  confinement. 

Did  the  army,  or  any  part  uf  it,  after  ils  first 
going  iuto  caulonnieulH,  move  towards  Door- 
gutty  } — I  Biu  not  ivell  acquainted  viith  Ihe  oir- 
cumslances.  1  was  confined  before  the  battle. 
All  Cossim  Ally's  people  were  confined  hy  Su- 
juh  Dowlah. 

Was  Bollakey  Dossalsocoofineil? — He  was. 

Mow  long  before  the  batlle  waj  Biillakey 
Onss  confined  ? — I  believe  above  a  monib,  per- 
haps in  weeks. 

Did  Bollakey  Doss  act  as  ■  shroH  for  Cossim 
Ally  dn ring  bis  confinement? — What  kind  of 
question  is  that?  Cosstin  Ally  himself  waa  in 
con  fin  em  en  I.  Where  should  he  have  money  ta 
send  lo  his  shrofl  ? 

What  kind  of  OODfloement  was  Cossim  Ally 
in  P — in  a  lent  near  Sujah  Dowlah:  hixown 
alteodant*  were   removed,  and  chokies*   put 

What  confinement  was  Bollakey  Don 
nader? — I  have  taken  an  oalh,  and  1  ivill  tell 
the  truth.  Tbe  Nabob,  8tyah  Dowlah,  wanted 
in  gel  money  from    Bollakey  Duss.    in  con- 


■  Guard*  ot  nalchmsa. 


1007] 


15  GEORGE  III.  Trial  ofMaha  Rajah  Nundocamar^         [1008 


fioingr  him  first,  before  the  rest  of  Cobsim  ADv's 
servants  The  treasurer  of  Sujah  Dowfah 
(Collie  Joqu)  desired  the  Nabob  to  put  Bollakey 
Doss  under  his  cbar^ ;  and  promised  to  ^t 
money  from  him.  Sujah  Dowlah  likewise 
plundered  all  the  goods  and  effects  of  Cossim 
Ally :  he  even  infringed  the  rit^htii  of  his  ze- 
nana. It  was  not  till  af\er  the  battle  of  Buxar, 
Cossim  Ally  obtained  his  lil»erty  :  they  did  ool 
think  it  ot  consequence  enough  to  confine  me 
at  first  with  my  master.  1  was  confined  14  or  15 
days  after  the  confinement  of  Bollakey  Doss. 

How  mauy  days  were  you  confined  P— 
Twenty-one  days. 

Did  you  ever,  to  the  best  of  your  recollection, 
see  51eer  Ilussud  Alii  before  yesterday?— I 
have  often  seen  him  lately  going  about  iu  Cal- 
cutta ;  hut  never  before. 

Have  you  seen  him  with  the  array  ?*— f  have 
seen  many  thousands  whom  1  do  not  recollect : 
I  know  nothing  of  him. 

Did  you  see  Cossim  Ally's  principal  ser- 
vants P— I  did  not  know  them.  1  sat  in  my 
tent. 

In  case  sny  treasures  had  come  to  Cossim 
Alley,  or  Bollakey  Doss,  during  their  confine- 
ment, what  would  become  of  itP — When  a  maa 
is  in  confinement,  he  who  confines  him  will 
take  it :  whatever  Bollakey  Doss  had.  Collie 
Joqu  took  from  him. 

Did  Collie  Joqu  give  a  receipt  for  the  money 
Ve  plundered  ? — 1  don't  understand  such  con- 
versation. 

If  any  treasures  had  come  to  Bollakey 
Doss,  which  Collie  Joqu  had  taken,  would 
Bollakey  Doss  have  given  a  receipt  for  it? — 
Why  should  I  suppose  treasure  would  come 
at  that  time,  or  why  should  he  give  a  receipt 
for  it? 

Can  you  take  upon  you  to  swear  that  no  such 
treasure  arrived? — From  the  time  that  I  was 
in  confinement,  I  can  take  upon  me  to  swear 
tiiat  110  treasure  was  hroug:lit. 

Was  Cossim  Ally  Cuwii,  and  Bollakey  Doss 
in  the  same  army  together  ?— Bollakey  Doss 
was  in  the  same  army  with  him. 

Mr.  William$  examined. 

Do  you  know  the  river  Doorpjotty  ? — I  «!o 
not  know  the  names  of  the  rivers  in  tliut  coun- 


try. 
'l)o  you  know 


at  what  time  the  army  of 


Sujah  Dowluh  entered  their  cuntoumeiits  at 
Buxar? — Tliey  cannonaded  Patna  in  May:  I 
can  only  answer  for  the  nin:ions  of  our  own 
army.  'The  battle  of  Buxar  was  the  *2Jid  of 
October. 

Kiisen  Juan  Doss  re-e.vamiued. 

Jury,     For  how  lony  a  time  hive  >oij  seen 
Mevr*Kus«!ud   Alii  aliout  Calcuiia  i' — Ten  or! 
fifteen  days  from  ihistime. 

Ilow   often  have   you  seen   him  ? — About 
twice. 

Did  you  talk  with  him  ? — No. 

How  came  you  to  know  him  ? — I  saw  him 
once  OQ  horseback.    Ue  said  1  kuow  you,  yon 


were  Bollakey  Doss's  servant;  I  moswered* 
Very  probably :  there  was  a  aervaat  of  nine 
with  me. 

What  is  his  name  P— I  do  Bot  know. 

Had  you  ever  seen  bim  before P— Once:  n^ 
thing  then  passed  between  us. 

How  came  you  to  know  bit  otDie?— I  did 
not  know  his  name  when  I  saw  him  in  court. 

Did  you  go  to  the  bouse  of  Maba  Rajah 
Nundocomar  ?— 1  never  went  near  him.  1  like 
to  sit  in  my  own  bouse. 

Was  there  more  than  one  body  of  the  amy 
at  Buxar  P — The  two  armies  were  aeparale: 
there  might  be  a  coss  or  a  coss  and  a  half  be- 
twixt. Cossim  Alljf  carried  equal  armv  fnm 
hence ;  but  at  the  time  of  tbe  battle,  1  belicn 
Cossim  Ally  bad  not  more  than  from  500  H 
2,000  men  belonging  to  him. 

Was  Cossim  Ally  close  confined  mr  tbe  dty 
of  the  battle  P— He  was ;  and  at  the  end  of  km 
confinement,  he  could  not  be  said  to  have  aiy 
army  at  all ;  several  were  gone,  and  he  bsi 
given  dismission  to  others :  he  had  disraind 
Sumroo :  Cossim  Ally  was  not  released  till  after 
tbe  battle. 


Shaik  Ear  Mahomed  examined. 

Do  you  know  Mahomed  Commaul  ?— T  did. 

Do  you  know  more  than  one  of  that  nanef 

[The  question  was  repeate<l  several  tinoy 
but  no  answer  could  be  produced.] 

Mr.  Elliot.  It  is  impossible  he  can  mistthB 
me :  be  will  give  no  answer. 

At  last  the  witness  said,  I  did  not  know  uj 
other  Mahomed  Commaul. 

Do  you  know  Commaul  O'Dien  Ally  CawB? 
—I  did. 

Is  the  Mahomed  Commaul  you  speak  sC 
and  Commaul  0*Dien  the  same  person  ?— Tbey 
were  different. 

Is  the  Mahomed  Commaul  you  speak  tf 
alive  or  dcail? — Dead. 

How  ilo  you  know  ? — I  buried  him. 

When  (lid  he  die  ? — Five  or  six  years  ag[o:  i 
do  not  reinr mher  exactly. 

Where  did  he  die  ?---He  died  in  the  hoose«f 
Mnha  Raj^jh  Nundocomar,  in  Caif'iUta. 

Where  did  he  usually  reside  while  li%in^?— 
In  a  Httle  place  separate  from  the  hoiKf  > 
.'Maha  Uijah  :  when  he  came  from  Muxiii* 
vad,  jiuha  Uujuh  put  him  ihero. 

Do  yon  know  wiiether  it-.at  IMnliometl^* 
wiih«;SiO'l  anv  bond  to   Maha  ItiiMh   Nund^ 

•  •  • 

corjnr  ?--•!  ^•a•A'  him  iviin»^«s  it  with  mjf  oSl 
e\"»{:    I  shiv  hiiii  j'.ul  hi^J  s*  al  ;o  it. 
*  Who  ira\e  tti»'  i»ond  to  Maha  it;ijah  Nufld^ 

cougar?--- JJoIlaUey  D(ks. 

Di>  \oii  k.iow  wi.o  Were  the  other  witnfsi* 
---j\J;«'t:iol»  K»y,  a  kitiree,  antl  Si  el  abut  tH 
vak*.  1-1  of  BolUiki  y  Ooss  :  ilio«<»  three. 

Do  you  ncoilrrt  far  what  som  of  m««e*y* 
was  ?---l  refueuiber  it  was  for  48,021  wccti*' 
pees. 

Crofs-  Examination, 

Whose  servant  were  you  ?-  -J  am  not  si** 
vaot ;  1  used,  a  long  time  ago,  to  trade  \bpI^ 


(a 
If 

U 


at  Calcvlttt,Jor  Furgtry. 

'f  Hr*ant;  I  gobnck  ami  furwarils 
k  Rajah :  niy  (inide  liu  a  hnuti-  tt 
'  e  Baie  carried  cm  bitKini^ss 

f  HpMBof  Itme:  my  uncle  oieil  tre- 
I  to  Hahs  Rajali'ii :  whrii  I  wu 
■I  go  witb  bini  :  I  buve  now  born 
n  yearn  in  Calculla,  and  always 

'  WMe  you  ID  K(?  the  bond  executed  ?--- 
ri  L'nmoiaul,  J'>yrieb  Cbowbee,  Cboy- 
.iHnil  myM>ll  wim  illlioi;  in  ibe  linow 
iDlciSeal,  lllihe  BnrralxKiDali  with 
Bollakry  Don  likcwiK  came 
ia  by  (U  :  Maba  Rijtb  Nundu- 
I  i«  ihatbuaie:  hatinfjf  aat  ibiirn, 
jail  Niinilucnmar  saiil  lo  Bollikey 
ne  Inr  a  long  (iise  had  my  rooDey  ; 
I  rcinaiii  no  loncer  h  iib  yuu ;  now  pay  it 
Iwa  BDllakey  pun  inawerpd  Nuixlocu- 
Hy  nwnay,  wliich  wm  in  the  house  nf 
lusd  andDtCca,  has  been  iilundered  ;  I 
■owlbe  puwM'<it*pByiDgthe  money  ; 
lUBi  of  money  ia  due  Id  mo  Itoiu  (he 
rCnmpany  :  h»*ing  received  ibal  mo- 
pill  pay  you  tint,  and  after  lliat  will 
''— ;  I  wiJI  now  gite  you  >  bond  Ibr  tlint 
■o  yiMi  take  it  Irom  me.  He  then 
Hana  Rajili  very  much,  wilh  bra 
*"  '  W  take  the  Iwnd.  Malta  Itajali 
Mid,  Very  well,  ivril*  a  bond; 
ite  me  Mahomed  CummanI  wilh 
1*1  hating  %<me  lo  my  own  Imiiae,  will 
its  bond,  aeal  il,  and  get  proper  wit- 
id  tend  it  back  by  Mahomed  Com- 
I  Rajah  Nundacomar  said,  Very 
MUkey  Don,  Itkin^  Mahomeil  Cum- 
Il  fainl,  obtained  uiiniiasion :  Maha 
■  gut  up,  and  we  thi«e  likewise  look 
i;  when  we  went  iolo  ao  outer  house, 
■■key  Ud^i  taiil  lo  me,  Do  ynii  like- 
~K  aMiig  with  me  ;  and  I  hating  gotten 
ritten  QUI  and  Kuled,  yon  will  see  it 
W  having  aaid  Ibis,  I  agreed  ;  he  llaviog 
"  ■  *l  palmxiuin  went  away,  w«  thiir 
veil  him,  be  having  gone  nilli  liii 
^  half  a  gurry  alter  we  foltowad  hint. 
n*o  arrived  at  his  home.  We  «uw 
■|>ata  ailiia;;,  and  along  » ith  him  Ua- 
SilhUial  Lallo  Uomin  Min^,  and  a 
it  down.  Dollakay  Dua«  laii) 
ite  out  D  bond  for  48,081  tioca 
Btiie  of  Maha  Ilajth  N.indo- 
e  out  a  bond  in  l'i>r^ian,  anil 
r  baruig  read  it,  Ballakny  Don 
l^and  look  il  inio  bia  lianrte,  aud  having 
■  \ut  bBn4a,  be  took  olT  a  ring,  wbli:h 
liAager,  aud  when  be  had  taken  il  off, 
\\t  in  a  tioca  dewal  (ink  Mood)  which 
I  bafor*  him,  nod  atBied  the  wal  in 
which  wai  lying  before  bim,  and 
I,  he  tiid  :>  HahotncdCam- 
ftyoil  likewtae  be  a  wilneaa  lo  it,  and 
%OBd  iBle  bi*  band*.  Ha  hating  liko- 
B  hw  aval  off  bis  floger,  afBxed  it  to 
•  aa  a  witum.  Itnllakey  Uoia  then 
hibab  tUy,  Uahoo  Maiheb  Itoy,  Do 
u  it  t  Matheb  Uoy  likewue. 


A,  D.  1775. 


no« 


havJDB:  taken  hia  aral  from  his  finger,  affixed 
il,  anJ  wiB  a  wilncM.     He  then  suiil  lo  Seila- 
but.  Ilia  vakeel,  Do  you  likewise  be  a  witness  lu 
Ibis  bond  ;  who  having  lakcn  llie  ink-itand  in 
Ills  hand,  wrote  his  iiaiue  in  PeraioD,  aa  a  x 
ness  ;  BolUkey  Dust  ihen  took  ihe  bond  in 
band  :  llien  BnllaLe)'  D'isa  pot  the  bond  J 
the  bauds  of  AUIiomed  Commaol,  and  tsij 
ifcillabut,  Do  you  lik-'iriu'  accompany  illatia- 
med  Commaul,  and  deliver  this  honil  lo  Maha 
Kajah  MunJucomar.    Maliomed  Cora  maul  and 
Seillabut  having  taken  the  bond,  went  lu  Ihe 
bouse  of  Mnha  Rxjali  Nuodncomar :  I  likewise 
went  10  my  awn  bouse.     Of  ihe  bond  heiu^ 
sealed  and  exeeulnl,  1  know  ibia. 

Maha  Rtiiali 
II.!— He  bad 
peon*  and  kidmiitgara;  1  oould 
ibeiD :  one  kiilmuigar  weot  u)>  for  lib  shi 

How  roaay  ?— 1  cannot  ti "' 

Were  any  on  boiaebackf 

Weretbere  fiveofaitr— 1  caimot  tell  tlrdr' 
number. 

What  did   Maha  Rnjah   Nundocomnr  nay, 
when   firBl  he  came  lo  liit  house?-    " 
what  1  have  given  in  evidence. 

What  did  be  flrsi  say  !*— Il  ha*  already 

I  Queition  repeated,]     I  have  related  eft 
tbinff,  from  Ihe  lime  he  came,  to  Ihe  end, 

[aueelion  avaiu  rejiealed.]     If  I   lieirja 
llie  beginning,  I   cau  Icll,  I  cannot  begi 
midille. 

Court.  Let  bim  begin  again. 

A.  Jovdeh  Chowlieei  (JlinylOu  Navl,  Ma- 
homed Oummaul,  aud  myMlf  were  sitting  in 
the  house  of  LuckycaunI  Heal,  iviih  Maba 
Rajah,  Seat  BolUbey  Uoas  likewiie  cam*.  h« 
likewise  ani  down  liy  Maba  Kajah:  Maha 
Rajah  said  to  Bollakey  Doa«,  There  has  been 
money  of  mine  a  long  iime  wilh  you  ;  it  ihnll 
not  remain  longer  ;  you  now  pay  il  me  :  Itnl- 
lakey  Boss  auawereif.  My  bouse  at  Muxadavail 
and  Decca  have  been  plundered ;  I  have  nut 
now  Ihe  i>ower  of  paying  il,  ihere  is  a  great 
sum  of  money  due  lo  me  by  ihe  English  com- 
pany ;  when  I  have  received  thai  money.  I 
will  liay  you  first,  and  will  after  pay  nihera : 
I  will  uuw  write  oul  a  bond  for  you,  do  you 
lake  it ;  and  he  pressed  him  very  much  M 
lake  it.  Maha  Itiijah  eonsenled  r  Bullakey 
Doaalhenaaid  to  Maba  Rajah,  Give  nie  Altt 
homed  Commaul  along  with  me,  and  bavii 
gone  lo  my  own  bouie,  and  having  w 
out  a  hood,  ami  having  got  it  sealed  anil 
perly  wilneased,  I  will  send  il  lo  you  by 
homed  Commaul.  Having  slid  Ibis,  hi 
tained  dismission. 

[QatttUm  In  Mr.  Elliot.    Does  be  rei>ral 
the  same  words? 

A.  The  (laragraiih  is  repealed 

Wtlnen.  Moha  Rnjnh  likewise  got  up ; 
we   likewiae  loo  taok  leave.      Having  gone 
an  onl-house,  Bullakey  UoHsaaid  liime,  Dnyou 
hkewiav  roinenlong  wlihmelomy  buuir^  he 
having  got  I Dlo   bis  palaoiiuin,  he  went  brtiire 


le  bad  ^^ 


i 


r  IH^  and  tlxi 
.ifaabuKlolMi 
Lhi  yon  likewise 
il  Cnmmiiul, 
I  jtf  tiM  seal  from 
_    __    M,*  Jcoal ;  aud  affixal 
,  _^     Ttew   Ballalff  Dosa  luiid 
^h  Hi*  *w  Itiewise  a  witiit 
.Jk   'wi>4i^  aflixeil  liis  iral 
:l>r  ttJuiwisc  then  lalil  U  hi* 
>u  i-HilikcwiMrbea t 
,   MWu  ibe  iDb-itand 
.,•«  4  tSiriiaa  ;  ami 
.«.    IiinJUkit  then  pul    the 
,..>  ui~  Bvltakeji  Don.    Bol- 
Ji'  koiiil  into  the  hanria  ol 
...>it;  anil    taiil    10  S«illabut, 
.   it\kk  Mahomei]  Coromaul, 
^   d  Mall*   Uajab   Nuniloco- 
<i<,  MkbuiutNl  Cummaul  bav- 
;  and  I  likewise 


Tbu  is 


*liat  1  koow 


Willi;  executnl.  He  iited 
>d  htrwanla  to  the  Maha 
,      1  likewise  went  haek- 

TKaatuTMaha  Rajah  Nuodo- 
'  ■  L>tf«  Kvrvaul  of  nlaha  Rajah 
II  >Jtir«n  the  servant  or  Maha 
.  ^  w«al  baukward*  and  fur- 
:  r  i*h** .  lie  remained  soiue- 
tf  four  iiiuDibs  alUrwanls 
Muxadabad. 
i<iu«  back? — About  Tauror 

L  ',..1  liitn  not  repeat  so  otlea  ; 

.till  hf  may  he  sure.] 
>l<i\*ilabiiil  lour  or  li>e  years.* 
>  vuinr  lire  yvars  slier  siffn- 
M<l  tbto  i  saw  biin  at  Uaha 


MttM^ofHahanijah'sN-Iknon 
I  vtmrn  kaokwards  and  I'orwatds ; 

liwt«  )rhai*ater*ant. 
t  k»h*»t-  When  he  returned  from 
Maha  Hijalt  Nundocomar  {are 

MM  kit  nwD  boiue  lo  lire  ijj. 


I  ^'Mn/ia  Rajah  Nandoeomtr, 

Vita  be  long  ill  bernre  bis  aleath  7.-<Be 
•  'II  fur  three  or  lour  months:  arm  that 
'•j^sick;  and  tlieu  hedied. 

VVhal  was  the  siliiatinn  of  the  place 
gi'cti  him  ?--ll  wut  within  the  Ibui 
oI'MuIm  Hajah's  house,  and  belonged 

What  sort  ors  place  was  it  f~ll  ia 
Calcuila.     I  can  shew  ii  il  you  will  go. 

In ibe  mean  lime,  doyixi  dewrilie  it. 
raised  upon  a  lerraw,  [ubimd.]  There 
Chiibbuckin  under  il ;  there  were  three  t 
in^rs:  one  to  ihesoiiihward  ;  ooe  l»  iIm  i 
ward,  which  Maha  Kajah  NuniIo<y)niar  an 
to  be  filled  up  wiib  luals;  and  left  the  ( 
opeoioK  Tor  the  door. 

Was  the  third  ajwaiog  to  the  oonh,  or  b 
ea>t?-..To  the  east. 

How  large  was  Ibe  plicef-  — I  muboI 
how  many  cubits  it  is.    That  plkce  j« 

Who  tires  in  tbal  place  now  P--Maba  Ri^ 
Nuodocomar's  peona,  kidmatgaro,  dec.  ( 
ia  not  np|ioinleri  for  Ibe  use  uf  any  uattiei 
persons,  as  in  Blabonaed  Commaul's  time. 

Are  the  kidmulgars,  #ic.  of  ih«  KlabaB 
jah's,  ftlussnlmeii  or  Uiodooaf — Thay  I 
liotboneuiid  iha  other.  • 

Do  any  of  Ihein  sleep  thereF — Bow«h 
tell  whether  Ihey  sleep  there  ?  I  see  Ummi 
in  the  day  time. 

How    came  you  then  to  know,  thai  II 
homed  Cooimaiit  slept  there,  and  the  arlL 
gifeti  abont  iiF---l  aaw  Maha  Ki^uh  arilkH 
own  eyes,  order  (he  home  lobe  filteit  oat 
him  ;  aud  he  lited  there. 

Did  you  use  to  yu  backwards  and  fbrwM 
at  that  time  and  place  ? — As  I  went  lo  Hi 
Rajah's  durbar,  I  nsed  tu  (lass  by  tbe  fill 
aud  made  uy  salsm  lo  him. 

Did  you  see  hliii  whiru  he  was  aick  i — |  i 
I  saw  Ibat  physic  from  Maha  Rajah  tmi 

What  year  did  he  die?--- 1  do  not  koewl 
month  or  year ;  it  was  in  the  raioy  uttaam. 
Who  was  at  his  butjalf — I  carried  bHB< 
lo  he  buried :  other  people  hkewise  wcMmi 
Who  else  WM  iberef — Mauypeopk.SI 
Mahomed,  Chawn  abb  Chubdar,  KuxA  H 
Cawu  Jemut,  Jummiatt  Cawn,  ilui  tiM 
CaWD  blabomed,  andliieor  ais  coolies  {] 
body  else. 

kVere  tbese  all  who  were  there? — . 
the  caoliea,  there  was  no  one  eUe.  ] 
with  certainty. 

*^M  you  ever  attend  the  burial  of  anv  bi 
-~ltis  a-custom  amuim  us  MuasiifcMi 
It  with  the  bodies  of  any  ofourfnefidti 
ons,  when  they  die.  .'Siucc  1  came  M 
rtnalurily,  1  belieft:  I  have  attended  lOOl 
300  of  ibem. 
Criuri.  TelllheinmeaolMroe.— A  I  «m 
It  nitb  )4hau  Mahomed,  Cawn  abb  ChtlUM 
iillah  Cawn.  Need  I  atenlioa  aoy  tnoref  ' 
Who  were  tbe  other  |)erBuns  that  aitendtdf 
Mussulmen  ol'ihe  Maha  Rajah's  I'auiily. 
Uon  came  you  to  rtmember  thetr  oama  n 


J 


Ml 


at  Cakiifta,  fur  Forgfrif. 


A.  D.  1775. 


matOiy  f~Th«  mominit  ifler  ihe  ni^liI  uf  liia 
*le*lli,  Miiliii  Kiijili  wu  infbrmnl  aS  H;  iht 
burifll  M»  iiind^,  anil  I  r*riueinl«r  ibne  (leuple. 

[Tlie  oitrwu  hiving  twen  prnsetl  uilli  this 
•lOFtliDO  ovrr  and  met  BKain,  Illr.  Etliot  Mill,  I 
CAimol  get  him  to  giv*  miy  renson.] 

Did  ynu  BFe  any  of  yaiir  anqiiainMnce  llial 
Binriiinij;  ?~Ni< :  il  raiiml  Tery  hartl. 

Uuw  long  hiTe  yoit  lieen  aLtjiiaiulcil  witti 
Choyloa  Nam  F — Ten  or  eleven  _>  ean. 

How  tUB)[  liave  yoa  twen  ■eqnDinlnl  wiih 
Juyileb  Cliowbeef — At  long  aa  I  knaw  Cbuy- 
lon  Nkut. 

Were  you  first  ftrquainled  wifli  them  bnlh  in 
(lie  nme  plii*? — I  »ns:  they  used  to  come 
backnanis  and  Jurwird;  Id  Maiia  IlKJiih'B. 

Dill  ynu  «ee  Jovdeb  Chniifbeelhe  day  of  Ihe 
fuDcnl  f — They  both  iited  to  came  to  Malia 
B^ali'a  Ourliar :  I  do  out  recolleci,  with  re- 
aped to  thai  ilay  io  partinilHr. 

Hoi*  long  hare  you  beenatteodiuEBtlhe  Ma- 
iM  Rajah's  ?— I  hare  before  »id,  I  came  la 
CttcutlB  twelve  or  ihjrleen  yean  ai;o. 

Did  Jnydeb  Cliowbee  and  Ctioyiim  Naiil 
Mine  to  Muhk  Ruth's  toother  ? — I  ihdnoi  say 
itini:    I  taid,  when  1  came  tu  Malia  Rajiih  I 

\Vliat  cnnverinliin  paued  ot  (lie  hniise  uf 
iti'llakcy  DosuSealf — I  have  LepI  no  accouul 
ot  il,     lie  spoke  what  1  lald  to  the  Itlahunr. 

Hail  thai  Miihurir  any  papers  or  accuunts 
with  hiinN~Nn  :  he  wm  silling  wiilioiit  aoy. 

Do  you  understaoJ  Persian  ?—l  do  iiniler- 
:t3n<lillilile,  but  do  uoi  write  il  well. 

Werv  you  asked  to  wiliietin  ihe  lioud  ?'--He 
.<  Mreil  nubudy,  bill  who  are  already  itniiu-d. 

\\  heu  tlie  writer  read  the  bond  to  Hullukiy 
.  XluM.  what  did  be,  Bollakpy  Uwi,  my  i — No' 
"'ill  tXceM  well,  orsoineauch  word. 


-He  did. 

I  yoa  know  BolUkey  Urns  Seal  ?  Was 
well  acquainted  with  him  f — I  knew  bim 
well. 

I  Bollakey  Doss  give  that  vcder  in  Per- 
'J»,  in  Moors. 

B«peitlhal  order,     [tletepeali  the 
Bpewuin.l 

r.  EUiM.  1  eismioe  l.im  In  Moon,  lie 
I  rvpeau  the  words  of  ihe  sum  in  I'er- 
rliicb  isooDlrary  to  the  usual  manner  of 
ing  I  li>r  those  wITu  siieak  in  Persjao, 
k  iMy  c«ttie  to  sums,  almovt  alwaya  inen- 
'      lb  Moori.      He  now  repeats  it  in 

w^ou  always  tii  mctilion  that  sum 

1,  which  Bullsk«^  Dnia  itave  orders  I'ur 

"—I   apoke  it  lor  ynur  inromation. 

K  himsclt  to  Mr.  Elliot.] 

.  r.  KiUol.  If  you  did  that  Ibr  my  infurma- 

nkjoM  every  g*n  of  your  etideiicv  in 


Pcrsiai 


*(  T  am  to  interpret  ihe  nbole  hi  A* 
■A.  1  happened  to  say  it:  1  did  not 
r  your  information] 
eame  von  Io  do  to  three  limes  otsr  ? — 
r  Infnrmition.  [To  Mr.  Ellioi.] 
.  Was  it,  or  was  il  not,  liir  thr  infor- 
maiiiin  of  the  interpreter  i' — A.  There  was  no 
particular  reason. 

flow  came  you  In  lie  so  particular  in  yaur 
account  of  the  sum  ? — I  rememl>er  il  from  the 
long  dispute  there  has  been  flLiout  the  bond. 

When  did  you  first  bear  ot  ihe  di'pme  about 
111*  bond  ? — I  do  not  mean  in  particular  the 
hood.  Ibnowil;  because  Mnliun  i'ersaiid  and 
Gungabiasen  proceeded  sgainsi  Ma  ha  Rajah, 
in  the  court  of  Cutchrrry,  in  the  time  of  Mr. 
Palk,  and  also  in  Hlr.  Rous'a  Cutcherry. 

For  what  sum  was  that  complaial? — They 
com  plained  for  119|000  rupees,  on  account  of  a 
depMiL 

Why  do  you  give  thai  as  a  reason  for  know- 
ing the  Imdo  was  for  48,031  lupeesi' — I  never 
gave  that  reavnu  for  rememliermg  il.  I  kuow 
It  from  the  nioiilh  of  BuUakey  Doss  Sent. 
[Question  repeated,] — A.  I  neversaidso. 
IMt.  Elliot  aod  Mr,  Jackaou  both  depose, 
that  he  did  give  that  reaiion.  Mr.  Weston, 
(a  gentleman  uf  the  jury,)  also  taya  that  ha 

f  Question  again  repeated,]— yl.  I  neveraaid 
Ihat  Mnhun  I'eraand  and  tiungabiasen  sued 
Maba  Ritjsh  Nuuducomar  fur  411,021  rupees,  iu 
ibe  Cutcherry. 

How  long  ago  was  this  suit  in  Ibe  Cnt- 
cherry  J — About  three  yenrx  ngo. 

io  which  did  it  commence  P  Whosecourtr 
— Mr.  PalkV 

Do  you  know  any  dispute  io  the  msyor'a 
court,  about  ibis  matter  ?'- 1  do  nol  kuowofaDT. 

Did  you  give  eTidcnce  in  that  cause  J — In 
the  time  of  Mr.  Rous  I  did  gife  evidence. 

Inyiiuretidence,  did  you  rovntioo  the  aum 
nf  4I<,021  ruiiees? — No  meution  waamade  of  il. 

if  ave  you  ever,  from  the  liuie  of  executing 
tlie  bond  to  this  time,  roeniioaed  the  sum  of 
that  bond  to  any  body  f — Nobody  ever  men- 
tioned lliat  sum  10  me,  nor  did  I  mention  11. 

What,  never  since  Mahn  K»jah  liaa  b«en 
confined  f  Nol  to  any  body  ?— I  do  UM  r». 
inemlier  telling  la  any  boily. 

Dill  you  never  tell  ihe  sum  to  Mr.  Jarrrl.  nor 
any  body  concfrned  for  Maha  Rajah  7 — Wheu 
Mr.  Jarrel  asked  me  about  this  buniuessi,  I  told 
I  gave  accouul  of  It,  and  Mr.  Jarret 


lU  it  to  this  genlleii 


uF 


il  dnwi 


Never.  I  never  did?  [Mr.  Farrert 
what  he  aaid.]  When  Maha  iiajah  was  put 
into  conlinemeni,  he  deaired  me  ti>  go  lo  Mr. 
Jirret,  and  give  him  what  inl'nrwaiiun  1  cngld. 
Nobody  else  asked  me  about  ii. 

Did  you  tell  Maha  Rajah  himseltV— 1  did 

How  came  vnu  lo  meulioii  «<i  exarttly  tlia 
iumf~l  lieartlit  fromlbamoutliofiieat  Uol- 
lahey  Dosi. 


WIBJ 

Did  Bolhkey  Dom  Seat  mention  it  in  Per- 
rim?— N'l:  \a  HindofUo. 

Hare  you  never  lioce  heard  it  from  may 
Other  i>er8oa  ?--WbeD  MktiR  Rniah  «m  first 
llirotrn  into  cnnfinemenl,  he  lolJ  me,  it  wu 
on  account  of  a  fnrged  trand,  irhich  I  had  l»een 
preteot  at  the  execiitiun  nf.  I  hare  not  heard 
orjtfroiuChe  time  I  beard  it  of  Bollaicey  Don 
till  now.  I  told  him  thai  the  complaint  wai 
an  unjuil  one,  u  I  wm  pKienl  at  tne  execn- 
tion  of  the  bond  ;  and  that  the  gentlemen  of 
the  Audawlel  would  do  him  jufltice. 

Were  you  at  the  eseeunoti  of  any  other 
boDdf---Nii.-  I  hail  not  much  bmiaeu  with 
Bollakry  Uoss  Seat.  I  oc*er  nai  at  the  exe- 
cution ot'any  other. 

Or  of  any  other  peraoa'a  bond  ? — Yea ; 
nany. 

Do  you  mean  to  Haha  Rajah  Nnndocomarf 
-••No:  I  bare  aeen  bonda  ol  bis  ;  bntnotfecD 


persons. 

Court.  Name  ibe  name  of  any  person  you 
kit  saw  execute  a  bond  ? — A.  I  bare  saeo 
peraona  si^  and  aeal  bonds ;  bnt  do  not  recol- 
lect whom  or  wbcD. 

Hare  you,  aioce  this  bond  naa  executed  f 
Bay  to  wliom;  and  who  were  wiineases?--- 
Ym;  I  certainly  have;  but  bow  liiould  1 
know  who  the  witnesses  were,  or  whom  in 
ftfonr  off 


jou  cannot  remember  any  thini;  conecming 
the  others  you  have  been  present  atf---In  my 


15  GEORGE  III.  Trial  ^Moha  Rajah  Ntauhemiuir,  IVHR 

fore  his  fiee :  on  my  annrering,  Tea,  he  (wt 
tbe  answer  aboTC  reneatM*).] 

Court.  Hare  you  seen  any  olber  boods 
executed  since  this  of  Bnllalcey  Doaaf  tisv 
vou  uaderstand  the  qoNliaB  :  anawer  'n^—A. 
I  do  not  recollect  to  fiaTe  been  prcMnI  at  lbs 
executing  of  any  bond.  1  know  tiw  cusiov  of 
executiog  bonila. 

[Question  repeated.]--!  thooght  yon  aiU 
what  tbe  custom  of  tha  country  wM,  u  is 
eieculiog  bonds  from  my  own  knowledge,  lal 
baring  seen  them. 

Do  you  know  the  custom  T  What  is  itf— t 
know  the  custnni  of  eseculins  bonds :  one  p* 
a  seal  here,  another  there.  1  have  been  f» 
sent. 

Unw  should  you  know  the  cnitom  of  it 
country,  if  yon   have  never  aeen  bonds  as- 

Mr.  Elliot.    He  will  not  give  «d  aaawcr. 

[Question  again  reputed.]-  —  !  batebecail 
trade  for  many  yean,  and  have  seen  anj 
bunds  ngned  and  executed  to  myadf. 

When  was  tbe  laitf"-I  am  speaking af  IS 
or  30  years  ago ;   or  when  !  waa  IS  or  |D 

Have  you  nerer  seen  any  bonds  exeesld, 
but  the  bond  in  question,  and  thoae  to  yonnril? 
---[  do  not  reoiembcT  ;  !  cannot  remembcii  I 
cannot  pretend  to  say. 

You  say  that  you'baTe  seen  bonds  execolsl; 
bnt  do  not  Temember  to  whom,  and  to  ahMi 
bvouT.  How  came  you  not  to  remember  ikM 
IB  yourself? 

FNo  precise  answer  could  be  obtained. 

^       ■    "  -      iduodr 

H«  dossM 
appear  the  least  inlimidaied. 

Jury.  He  certainly  is  not  intimidated,  ft 
understands  the  question. 

Mr.  F.lhot.  tie  saiil  that  he  bad  seenboa* 
executed  since  lliis ;  but  could  nut  remenbt 
the  persons  uhn  were  present  at  the  eseculiW' 
t  asked  liim  if  he  knew  any  of  the  prrsoD>*t> 
Here  preteut  at  the  execuliun.  he  hariiy  nil 
that  he  had  seen  many  since.] 

How  came  you  to  ren>1leci  the  preMC  Mi 
(if  Jtnlbkt-y  Dusa'a  bnnd?— In  my  pimfM 
Hoilakey  Dosm  ordered  the  Mohurlr  to  ostt 
uut  a  blind  f<ir  lliat  amount. 

How  came  you  to  remember  tha  exact  MS 
of  a  bond  executed  so  Inn);  ago  ? — Whai  it  s 
my  lemerobranre,  1  remember.  What  I  ba* 
fori^ot,  I  have  forgot. 

Why  do  not  you  Ihen  remember  Ibesuissii 
olhei-s  ^-Thi•l  one  1  remember.  Why  da  wt 
you  ask  me  why  I  Imte  iiol  forgot  it  f 

Why  tiBve  you  out  l'urg..t  it  f— If  1  f«t«ll 
tiling,  1   muitbeconleui  wiih  it.      This  I » 


mxed  their  seals  to  them 
■ioce  that  of  Bollakey  Doss's. 

Nunie  the  nimes  of  those  witnesses. — !  did 
not  mean  I  saw  bonds  executed  :  I  spoke  of 
the  custom  of  the  country.  1  ihouglit  you 
asked  me  as  to  the  custom  nf  the  country, 
from  my  having  seen  bonds  executed. 

Have  yiiu,  or  have  you  not,  been  prcient  at 
the  execuiiuii  of  any  Mud,  since  that  of  Bolla- 
key DoNi'ji  ?  If  you  do  nut  give  a  plain  anawer 
to  a  plain  quFstioo,  you  wilf  be  committed.-  — 
You  are  my  masters ;  yoii  may  puoisfa  me  as 
you  please. 

[Mr.  Elliot  being  called  upon,  declares :  his 
words  were,  "  in  my  presence,  bonds  have 
been  frequently  signed,  and  wilne^ts  have 
affiled  tlieir  stwls  to  them,  since  the  bond 
which  we  have  been  xpeakiug  uf."  He  now 
aayH,  that  he  ansivpred  without  uuderslandint; 
what  was  said  lo  him  ;  and  that  he  Ihonglit  I 
asked  him  as  lo  the  custom  uf  the  country  ; 
but  ibis  pretence  ciinnot  be  true,  because  he 
first  gnve  me  a  reUtioo  of  ibe  custom  with  re- 
spect in  sealing  bunds,  I  itnpped  him,  and 
told  liim,  1  did  not  ask  bim  lo  the  cuatom ;  but 
whether  betiire  his  face  any  bond  bad  been 
sealed  and  signed  r  Be  aahed  ma,  whetber  I 
■neaot  to  know,  if  lie  bad  leea  uj  vM  ket 


mei II lier  perfectly  well:    what  aaa 
give  to.  Why  1  haienotlorgetr 

What  reason  have  yeu  for  rriadulaitaf  **' 
— I  remember  it,  befiise  1  naMAW  ■! 
What  I  have  Ibrgol,  I  Ibrgtt. 

Hate  yon,  erb^  jmmH,  UjrnHM* 


Eal  Catcutla./or  Forgery. 
bniog  It? — I  remMnber:    tlierefor^  I 
liA*e  laid  you  I  hafp  bo  reawn. 

Do  you  rMnllecl  tny  smn  nf  monej  you 
tfttt  saw  a  bond  Kiwa  ior,  since  that  lime  ?-'- 1 
remcinber   uue    Mr.    Murrinm  lakiog  15,000 
rU|WM  rrom   Malia  Itajali    NiiDdocomor,  anil 
giving  hia  bond  for  it- 
Were  yon  a  »itae«a  to  il  ?— No. 
When  wBi  ill' — I   only  f«Ri«uibfr  the  aumi 
I  do  not  re>i>etnb«r  ilie  dalf. 
Was  il  since  tbii bond  >~Yea. 
Hair  long  tgo  waa  it  ?-~Hamelliiog  above 


Were  yuu  present  at  Ihe 
Miirn*un'»  bond? — I  uw  1 
Rajah  acDl  ni«  for  it. 

Who    were    llie   trli 
1  do  D 


I  Engliih  ? — Yea,  il  wai  early 
Enorning;  nubody  was  there:  he  giii 
it'wai,  and  ligneH  il:  be  laid  uie  he  • 
^  oiii  a  boDd  to  Maba  Itajnb.  and  m 
u  Uke  il. 
vhai  langnage  did  yon  lellilbim?- 


•   till 
I  8al>eb   (te 


.    Mr.   Mor 


onP— He    • 
ink)   ni  Mui 


e  was  the  bond  irivea?~-Al  CbIcdiIb. 
Higbt  th«  nnme  nf  ihe  nenon  you 
Horriunn   be  Madiluon? — 1    kaow    doI: 
|[^call«l  liioi  Mnrriimn. 

»nrt  nf  a  man  was  he  ? — A  liltle  short 

From  tbc  KimilaHiy  of  the  (oandc. 

iMcripiiuii  ui'  the  perBau,  il  is  eviiteni 

■«•  niuat  mean  Mr.  Maddisuo. 

_  >a  i-TeT  tee  any  other  bond  expcuted  } 

ner  did  see  any  other  bond  exrcuie-l : 

inembniiice:    what  ahall   I    tell 

you  know  B'dlikcy  Dosi  ray  well?— 

I   Itollakey  Dnss   wear  ear-riogs  in  hie 
■»■  nw  DO  ear-rings  in  hicean:  whe- 
Fiie  TDne  them  or  nul  I  cannot  Irit ;  but  I 
Tnol  >ee  them. 

T)<>  yon  buuw  big  Real  P — I   hale  aeen  three 

lour  letien  of  Bollakey  Don,  thai  came 

'  I  Xiha  RajabNundocofiMr'*,  wiihaeali;  and 

.  c^omj-ariag  ibem  with  Ihe  bond,  I  aball  be 

1^  to  tell. 

{luwcame  yon  to 
:;41nkvy  l>OMRroit 
.N  i.ri>liicnraar  Trnm  Ubinaura,  I  was  there,  aui] 
aaw  tbe  Kal.  nud  one^mnre  leal  of  a  letter  of 
BolUkry  Uon,  which'  Maba  Rnjab  lont  to 
Mr,  Jarr^. 

'  yait  to  >ee  that  letter  thai  wax 

o  Mr.  Jarrrl?— Joyiirb  Uhnwbeu  carried 

t  Kljili's  to  Mr.  Jarrel:    I   waa 

^1  Mr.  Jaml'a  hnuao,  «nd  law  it  in  ibe 

»  oT  J<»yd»b  ChD»h«t.     I  MW  il  in  hjf 

"^    Mil  nakej,  what  lH(«r  wu  that  ?    lie 

«IUbey  Unn't.     I  looked  at  the  leal, 

-  =■  — «  BoUakoy  DoM'i. 


A.  D.  1775. 
How  came  you  to  r 


[ 
aeair^*:! 

biillakey  Dots  wrote 
from  Chinaura :  I  remembei'  llial,  and  (Ming 
thai  in  Joydeb  ClKiwbee'i  hand,  I  iiw  ihey 
were  both  alike.  I  saw  him  put  iitoibatboDd: 
I  bare  secD  him  put  it  la  sereral  ulher  paper*, 
at  ■  dialanoe. 

Whal  do  you  mean  by  a  riislance,  and  what 
dinaace? — It  was  at  ihe  distance  of  fireoraix 
cubits,  (or  hauls). 

What  paper  have  yon  seen  D<illakey  Dou 
put  bii  seal  to,  besides  that  bund  f — 1  haia 
■een  it  only  upon  theie  two  letlers  and  that 

What  are  Ibe  papers  which  you  hare  setfa 
him  put  bis  seal  la  at  Ihe  distance  DfliieoraiK 
cubits? — I  baveaeen  his  seal  nnly  three  tinica : 
once  to  Ihe  bond ;  I  was  then  at  the  diatanire 
of  file  or  sixcubiu(or  hauls):  the  second  lime 
I  saw  it,  was  thiil  on  the  letter  wrote  from 
Chiiisnrahi  the  olber  was  that  1  saw  at  Mr. 
Jarrel's,  that  Joydeh  Chowbee  carried. 

Iliiw  many  uiher  luipers  have  you,  with 
your  own  ry>«.  aern  hitu  pul  his  leal  to?-~-l 
neter  saw  UulUkey  Doss,  with  roj  own  eyei. 
put  his  si-al  to  anv  uiher  papt-r  thun  tbe  bwid : 
ihe  a[>p«aranceof  Ibe  seni  and  thai  of  the  two 
letters  agree. 


examine  Ihe  seal  ?- 
gate  il  into  ibr  hands  u 


Miih 


:l..llakey  Unsa 


led  C"U 


laul; 


Hahamcd  Com- 


'hen  he  gave  il  into  ihe  hands  i>l  Malhrit  Riiy, 
and  luld  him  lo  wiinest  it.  I  hkrwitesaw  it 
when  tie  gave  il  into  Nedlabui's  hands,  I  like- 
wiae  Mw  il  when  I  did  not  take  ihe  bond  into 
my  hanila. 

V\  hat  distance  were  you  from  il  when  il  vraa 

fut  into  Ihe  bands  of  Slahomed  CtimmuulF— 
I  may  heal  Ihe  distance  of  three  or  four  bauda 

What    distance  werf  voo  when  il  was  pal 
iniuthe  hands  of  Mallie'b  Rny  ?-    * 
Iher  nearer  to  hiiu  than   to   Hah 

At  what  distance  was  vou  when  it  was  put 
into  the  bands  nf  Seillabut'— 1  was  near  SeU- 
labui  -.   I  cannot  be  exact  as  In  the  distance. 

Whieli  were  you  nearer  to,  Malheb  Boy  « 
Beillahut.^ — Malheb  Kuy  was  near. 

Court.  Tell  iis  the  pmiliun  in  which  they 
were?-^,  Mallieh  It-iy.  Ueitlahul,  Doman 
Sing,  were  all  with  Iheir  facoa  to  ibe  south- 
ward ;  Sriliahut  in  the  middle,  Malheb  Uov  «n 
Ihe  right,  Dotnan  Sing  on  iba  left:  wo  feur, 
Mahomed  Cuoimaul,  Juydeb  ChowWe,  Cbvw- 
(on  Naut,  and  I,  had  our  fscu  lo  ibc  HtUi  : 
Bullskey  Doss  with  his  face  to  the  wcat,  tmA 
back  to  the  east. 

Who  was  on  the  right  hand  vf  IMMwv 
Doss?— Doniaci  Mnf  was  on  the  right  hsaJ, 
and  Mnhomed  Cummanl  ea  dw  Mt. 

What  was 


At  what  time  of  tbe  day  wm  it,  wbca  iht 
first  conversation  paaaed  mt  tbe  Maha  Rajah'af 
—About  nooo. 

Was  the  bond  read  so  low  that  Toa  could  bsI 
hear  it  P— I  ooald  not  hear  it  well. 

Did  not  yoQ  hear  one  word  f-*-ir  1  did  aot 
hear,  how  can  I  say  I  did  hear  P 

Did  you  hear  nothing  of  the  eootciits  ?•— I 
beard  nothing  of  the  contenta. 

What,  not  a  word  P— What  elae  shall  I  say, 
1  did  not  hear  a  word. 

Were  you  deaf,  or  had  vou  any  disease  ia 
your  ear  r— I  was  neither  deaf,  nor  had  I  aay 
disease  in  my  ears. 

How  then  came  yon  not  to  hear  a  word  ?— 
I  did  not  pay  so  stnct  attention,  nor  did  faeical 
it  in  so  high  a  voice,  that  I  should  hear  it. 

Did  any  body  else  hear  it  bat  Bollakey  Dssif 
— -I  cannot  tell. 

Did  you  know  the  Mohurir?— 1  saw  hii 
fiice  then :  he  was  no  friend  of  mine. 

How  came  you  to  go  to  Bollakey  Dssi^ 
bouse  then  ?— I  went  that  time,  and  now  sai 
then  went  at  other  times. 

Did  you  ever  see  the  Mohurir  before  or  sinstf 
—Neither  before  nor  since  have  I  seen  bin:  f 
ouly  saw  him  that  time. 


1019]  15  GEORCjE  UL  Trial  o/Maha  Rajah  Nundocamar,         [100 

reason  to  remember  that :  I  am  positive  to  the 
situstion  of  tbe  persons  :  they  certainly  sat  in 
that  position. 

Jury.  If  you  were  to  see  the  bond  at  the 
distsnce  of  three  or  four  cubits,  would  you 
know  it  P — I  should  not  possibly  know  it,  for 
this  reason :  1  was  not  a  witness  to  the  bond : 
if  I  was  to  put  my  own  seal,  or  write  my  own 
name,  and  if  I  had  read  the  bond,  on  seeing  it 
again  I  should  know  it. 

Do  yon  mean  to  say,  that  if  this  bond  was 
pot  into  your  hands,  you  should  immediately 
know  it  to  be  that  bond  ? — By  the  appearance 
of  the  seal,  and  the  signsture  of  the  witnesses, 
I  should  be  able  to  guess ;  but  would  not  posi- 
tively say,  that  was  the  bond. 

Did  you  ever  put  your  nsme  as  a  witness  to 
a  bondP— Ivery  well  remember  I  never  put 
my  nshne  or  seal,  as  a  witness,  to  any  bond 
vnoe  the  time  of  the  above :  whether  1  did  be- 
fore or  not,  1  cannot  tell. 

Court.  Take  a  pen,  and  write  tlie  name  of 
the  Company. 

[He  writes  a  very  bad  hsnd,  not  like  thst  of 
the  bond.] 

You  say  you  know  Mahomed  Comroaurs 
aeal :  would  youlcnow  it  again,  if  you  was  to 
see  it  ? —  I  have  not  sworn  that  I  should  know 
Mahomed  Gommaul's  seal. 

Do  you  remember  any  other  circumstances 
of  the  bond  sndthesum? — I  do  not:  what 
Bollakey  Doss  said,  I  remember. 

Was  It  a  simple  bond  for  the  payment  of 
money  ? — What  I  heard  from  Bollakey  Doss 
1  know :  1  know  nothing  else  that  the  bond 
was  about :  it  might  be  as  well  one  thing  as 
another. 

Do  you  know  any  particular  circumstance 
being  mentioned  in  the  bond,  when  you  heard 
it  reaid  ? — 1  did  not  say  that  I  heard  it  read  : 
his  writer  went  close  to  him,  and  read  it  gently 
to  him :  I  was  at  a  distance,  and  did  not 
hear  it. 

Did  Seillabut  read  it  ? — He  might  have  read 
it  to  himself:  I  did  not  hear  him :  he  did  not 
read  it  aloud. 

Did  any  body  write  any  thing  ivith  a  pen 
on  the  bond,  except  Seillabut  ? — I  saw  with 
my  own  eyes  Bollakey  Doss,  Mahomed  Com- 
maul,  and  Matheb  lioy,  put  their  seals  ;  and 
Seillabut  wrote  bis  name. 

Did  any  other  person  make  use  of  a  pen  ? 
^No. 

Are  you  sure? — I  heard  it  with  my  ears, 
and  saw  it  with  my  eyes. 

Are  you  very  sure  f — Very  sure.  1  am  cer- 
tain. 

AfUr  Seillabut  signed  it,  what  was  done  with 
it  immediately  P— ^llabut  gave  it  to  Bollakey 
Doss:  Bollakey  Doss  gave  it  to  Mahomed 
Commaul,  &c.  as  before. 

You  say,  the  writer  read  the  bond  low: 
was  it  so  low  that  you  could  not  hear  what  was 
said?— When  the  Mohurir  had  wrote  the  bond, 
and  carried  it  to  Bollakey  Doss,  he  gave  to 
Bollakey  Doss,  to  hear  it  in  tbe  customary 
.way. 


June  14M,  1775. 
Kisten  Juan  Don  examined. 

Do  yon  know  Bollakey  Doss?— I  was  his 
chief  gomasUh :  I  used  to  superintend  hii 
other  gfomastahs,  and  sometimes  write  mysdf. 

Do  you  know  of  all  the  accounts  that  hare 
ever  passed  between  Bollakey  Doss  and  BIsba 
Raja  Nundocomar  ?— 1  know  all  the  aecoaHi 
that  were  entered  in  the  books  at  Calcutta.  1 
likewise  am  acquainted  with  the  accounts  of 
Pudmohun  Duss. 

Do  you  know  of  any  accounts  respecting 
jewels*?— -I  do  not  know  any  thing  of  jeweh 
between  Bollakey  Doss  and  Maha  Rajah  Nua- 
docomar. 

Did  you  see,  in  the  hands  of  Bollakey  Don, 
any  papers  concerning  his  accounts  with  Mabs 
Rnjah  Nundocomar?-— When  I  drew  up  the 
accounts  of  the  Roze  Nama,  there  was  st  that 
time  no  account  of  any  jewels  of  the  Malis 
Rajah's.  I  asked  Pudmohun  Doss,  Where 
is  the  account  of  the  jewels  for  which  we  are 
now  paying  a  bond?  make  my  mind  easy. 
Pudmohun  Doss  then  said  to  me.  When  Mabs 
Rajah  Nundocomar  gave  the  jewels  to  Bollakey 
Doss,  you  was  not  his  servant. 

Court.    This  is  no  evidence. 

Did  Pudmohun  Dom  then  shew  you  soy 
papers  ?— -He  did  shew  roe  a  canatama,  wrote 
by  Pudmohun  Doss,  and  signed  by  BoUakcy 
Doss. 

Are  you  sure  Bollakey  Doss's  hand  wsi 
aigned  to  it  ?-— I  saw  with  my  own  eyes,  that 
the  hand-writing  of  Bollakey  boss  waa  to  it. 

Was  his  name  signed  to  it  ?— These  are  tba 
words  written  in  the  hand- writing  of  fioUafc^ 
Do8i:  <'  It  is  written  by  BoUakigr  9m* 


HPl]  1'  CafeuHa,/or  Forgery. 

-wfilwn  aboye  by  Pudmohun  Dmh,  the  apace 
of  (ix  nmothB." 

Hate  VDU  e*er  iccn  tbal  paper  to  any  tiody's 
limnil*.'---AIW  liavin^  uritleD  I'rnm  tliit  ^nper 
myself,  1  have  not  leen  it  iu  Ihe  hanila  q1  any 
body. 

lluiv  long  ago  is  rt  since  you  saw  ilf  —  About 
four }  rara ;  I  apeak  from  giie<«. 

HoM  Ions  lias  PuJmaliun  Dim  been  Jeai] } 
--•Three  yearaanil  aeven  mootha. 

ArelliEre  any  enirips  inaJeol'  iliia  Irariaac- 
tiou  in  Ihe  \nmk»  of  Bullakey  Doaa,  taken  l>um 
JheCDOleiilaot'  llist  paperP'-'Yea;  Ibere  wua 

^■Etbe  Corn  Nama  is  ibere  aDV  meotinn  of  a 
hoMi,  or  only  of  Jewell? — I  «ill  inform  you 
of  wbal  I  knavr.  If  ia  firat  wrilteo,  that  a  aum 
of  i»on«y,  Ibe  amount  of  wliicli  I  do  not  re- 
CoUecl,  was  1o  be  paid  to  tbe  Governor  and  Mr. 

KKiti ;  3,500  rupees  uii  account  of  leepa ; 
ion  of  a  bond  on  account  of  jewels  la 
I,  in  which  it  is  specified  tbat  do  interest 
hop.i,!. 
urt.  Repent  what  you  before  said  about 
(Merest?— -To  which  I  can  pny  noiDtere8l,and 
tbervfore  pay  it  without  (lewawy.) 

Mr.  Jackiun,  Tbe  meaning- of  ■  sewawy'  is, 
'*'"'  It  thai  time  he  could  Dot  pay  inletesl :  be 


A.  D.  1775. 


[loss 


X 


^ta  pay  lour  ai 

■f oft ht Jury.  By  '; 
I  he  could  paynoini 
la  pay  an  addilioual  quarter  rupee. 
reman,  t  underatand  the  word  'aenawy' 
Mi  to  be,  "  I  can  (lay  no  interest  now,  but 
aty  a  fourth  more,  •«  a  premium  for  lend- 
M  maney,  at  it  wouhl  be  a  long  space  of 
^froin  lti<j  date  of  Ibe  bond  belbre  it  would 

iliol  «ays,  Tbat  when  a  bonil  is  ti\ycn, 

rxpecled  la  he  so  lung  a  lime  befnre  il 

B  lo  double    ihe  sum,  it    i*  sellled 

_  /  to  pay  a  ijuaiter  more  as  a  pre- 

t,  iiialead  of  iiiterral. 

Hyou,  f'ron)  the  date  of  ihat  paper,  make 

— y  in  ihe  buoka  ?— Yes. 

Mkf  pToihicetJ,  and  ibe  following  entry 

L^     "  tn  the  privilc  account  of  Bollakey 

]^lheauu)  of  139.630  :  7  is  the  jammab 

f  the  account  of  Maha  Itojah  Nundo- 

'  Ore :  tbe  iiirlicnUra  of  wliicli  are  on 

mIII  aide  of  Ibc  accaimt  given  on  inspect- 

pdoUataize:  the  receipt  ii  takcu,  and  it  is 

n  on  Ihe  credit,  '  Maha  K^ab  Nuado- 

^a  accouut  with  you.'  " 
■•  the  entry  made  aller  the  dealb  of  Dol- 
r  Don?— It  was. 

D  be  entered  in  the  accoonis 
*tib  yuu?"  [Meaning  Bollakey  Doaa  oDer 
<lralh.]  I  bad  aeen  Ibul  Corranauia;  and 
^  1  Doai  hating  toll)  me  Ihe  nccoiinu 
nnner,  I  made  it  after  hia 

the  dale  of  Ibe  entry  f— There  is 
Kt  tlM  partieular  eDiry. 


were  sBtlled  ii 
^^ptaKttlMI 


What  ia  die  ilate  of  tbe  tranaaction  before  or 
afler  it.'---Tbe  Ibittieih  of  Choil,  isar.  iaihc 
dale  of  the  one  before  tbe  account :  tbe  last 
entry  is  taken  from  the  date  uf  a  note  nt'  haiul : 
there  is  no  date  after :  it  is  not  Ibe  dale  of  tb« 
transaclion  -,  it  is  only  tbe  date  of  the  note. 
WhM  is  ibe  dale  oeiLt  preceding  the  notef 
" "       d  is  Ihe  dal« 


after  tbe  note?>— 

nlered  afier  tbe  deatli 
una  jou  to  say  "  willi 
fBolUkeyDoss; 


Tbat  which   I 
next  preceding. 
Were  Ibete  any 

Ab  ihe  account  was 
of  Itollukey  Doas,  how 
youf"---Tbeyarelhel 
It  is  cuslomary 

tVhal!  after  their  death  r— Yes. 

Is  there  any  other  account  enl<rr«d  in  the 
book  after  the  death  of  Itotlakey  Doss,  whera 
il  is  said  "no  account  with  youf"  [Tbe 
books  were  inspected,  and  it  appeared  there 
wu.] 

These  are  ihe  parllculara  on  ihe  credit  side. 

"  Thejamaiubof  Habah  Iteiah,  6B,630:7, 
the  bond  of  whicli  Bullakey  Dosa  wrote  Iha 
partKulars,  18,0'Jl  rupees,  a  bond  bearing  data 
7lh  August,  ];G5,  in  Engliab  words,  but  Nagrea 
chsraclers:  the  dale  of  the  bond  is  ihe  7lb 
Uaudon,  1179,  Bengal  atyle ;  1,305:4;  Hie 
account  of  interest  sewawy  has  been  setiled : 
which  sums  cast  up,  make  60,0^6  :  li — 
0,(i01  ;  3  :  16  per  cent,  on  account  of  sicca 
rupees  aildeil  lo  that,  mskea  09,630  :  7  ;  tbera 
is  an  end  of  the  account." 

Was  this  entry  made  before  or  afler  Ihe  bond 
was  paid  i — It  was  made  long  after :  1  did  oat 
know  when  ibe  bond  was  paid  :  when  the 
papers  were  colled  for  by  tbe  Aiidnwlet,  I  en- 
tered it. 

Did  ynu  make  the  entry  from  the  inspeclion 
oflbe  duitavaiae  immediately  after,  or  from  an 
aci'oual  in  ihe  adawlut?---!  saw  it  Ihe  same 
day  I  saw  the  dustaraiie. 

tVbat  did  you  loean  by  ihe  eipression  "  for 
which  we  ore  now  paying  ihe  hond?"-— 1  only 
meant  "  for  which  a  bond  has  been  paid." 

[Mr.   EUiiit  says  one  word  makes  the  dif- 
ference i    Ibe    dilfere 
'  dlkil*  and  dioil. 


aniy   as  between 


I'he  entry  nughi  to  be  mede 
"  when  the  bond  was  paid."] 

VVbv,  insiead  of  describing  the  bond,  by 
>■  the  bond  of  which  Bollakey  Doss  bad  wrote 
Ibe  parlicniars,"  yon  did  nni  describe  it  by  Ibe 
name  of  the  Persian  hnaA,  which  bating  been 
paid,  must  be  in  Ibeir  possession  f — They  did 
not  shew  me  ibe  Iruud  :  I  was  dependant  upon 
Ihem :  they  did  not  shew  me  tbe  original  bond, 
bul  only  Ihe  com  nama :  I  obeved  iheir  orders. 

tVho  rlo  you  mean  by  ihey  r — Mobun  Per- 
aaitd,  Pudmohuu  Doss,  and  Uungabissen. 

Were  Ibcy  all  there ^" No,  Mobun  I'eraaud 
was  not  ptFtenI :  1  wenl  lo  ask  him :  be  said, 
I'udtuohun  DoHi  is  Ihe  brad  man.  go  lo  him. 

Do  you  know  ifMubun  Peraaod  and  r.aua*- 
biuen  were  ever  acquainted  with  this  tiaa 


1083] 


15  GEORGE  m.         Trial  o/Maka  Rajah  Nundocamar^         [IQBI 


tioB  at  the  time  of  the  entry  ?— I  cannot  say 
IbcT  knew  of  it  at  the  time  of  the  entry. 

0id  they  erer  after  ?-^They  knevr  after- 
Farda. 

How  aoon  after wardu? — How  can  I  tell 
when  they  knew  of  it  first  f  they  moat  have 
known  it  by  the  paper  in  the  dewanny  adaw- 
let. 

Do  you  know  whether  Gang^biaKn,  or  Mo- 
hnn  Pieraaad,  ever  saw  this  entry  in  the  ac- 
csounts  P — 1  do  not  know  :- 1  can  tell  I  wrote  it ; 
that  is  a  fact  to  which  1  can  speak ;  hot  I  can- 
not say  whetlier  thev  reail  it  or  no. 

Did  you  ever  tell  them,  or  either  of  them, 
about  the  entry?-— I  did  inf«>rm  them  of  it: 
Pudmohun  Doss  was  privy  to  all  accounts  and 

fapers  of  the  deceased :  Gunfpibissen  and  Mo-  ; 
un  Persaud  were  not  acquainted  with  the  ac- 
counts. 

Do  you  mean  you  said  both,  or  either,  and 
whom  r—  Why  should  not  1  have  told  them  7 
thev  said  the  papers  were  wanted  in  adawlet,  j 
and  told  me  to  draw  them  up.  I 

What  did  you  say  in  psrticular?---!  went  j 
and  infonned  them  I  had  entered  the  accounts 
as  they  desired,  and  that  they  were  ready  fjr 
the  adawlet.  When  Bollakey  Doss  died,  Mo- 
hun  Persaud  and  Pudmoliun  Doss  transacted 
all  the  business:  Gunffabissen  is  in  reality 
roaster:  Mohuu  Persaud  and  Pudmohun  Doss 
at  first  aij^reed  on  the  accounts  that  were  to  be 
aent  to  the  Adawlet  Afterwards  Mohun  Per- 
saud would  not  sgree.  Pudmohun  signed  it 
alone,  and  it  was  sent  into  the  Adawlet 

Do  you  know  of  their  signing  more  than  one 
account  P— Yesterday,  when  I  looked  over  the 
papers,  1  saw  a  paper  signed  by  them  both ; 
thererore  there  must  lisve  been  two. 

In  the  account  you  saw  the  other  day,  was 
there  any  mention  of  these  accounts?- --There 
is  no  account  in  that  paper  of  the  bond. 

»  hat  did  they  say  when  you  told  them  of 
the  entries?--- When  I  first  informed  Mohun 
Persaud  and  Gungabissen  of  enteriu(^  these  ac- 
counts, they  said  nothing :  after  that,  Nohun 
Persaml  settled  the  accounts  of  Gossein,  and 
they  jointly  gave  a  promissory  note  in  the  ac- 
count so  settled,  and  paid  him  the  ivhole  but  16 
or  16.000  rupees,  and  told  him  tliey  would  pay 
him  the  balance  :  after  Muliun  rcrsaud  told  '] 
Gossein  to  receive  the  money  from  Pudmohun 
Doss  :  the  amount  of  the  was  sbout 

36  or  S8,000  rupees  ;  hut  afterwards,  Pudmo- 
hun Doss  said  to  him,  1  have  not  money,  but 
out- standing  balances  which  I  hare  not  receiv- 
ed, due  to  the  estate,  which  I  shall  receive : 
for  the  sums  which  have  already  been  paid  to 
ditfereui  people,  you  will  demand  receipts  :  if 
you  will  stay,  1  will  pay  you  whatever  sum  the 
balance  amounts  to  :  Pudmohun  Doss,  Mohun 
Persaud,  and  Gungabinsen  separated,  and  God  | 
knows  what  they  said  after ;  Mohun  Persaud 
and  Guogabissen  compLuned  ugaiust  Pudmo- 
hun Doss,  and  then  all  the  pa|»ers  were  brought 
to  the  Adawlet :  these  three  people,  Gossein, 
Gungaliisscn,  and  Mohun  Persaud,  joined  to- 
gether in  coudnI  to  oomplaiu ;  but  ouly  Gos- 


sein complained :  Gosaein's  name  it  Bridjsa 
Ibishes  Gee :  I  do  not  say  exactly  wbe  oan- 
plained  with  Adawlet;  that  will  appear  by  the 
proceed  in^s* 

What  distance  of  time,  as  near  aa  jou  can  r^ 
collect,  b«*tween  making  entries  in  Bollakey 
Doss's  books  and  the  com|ilaint  in  the  Adawlet? 
-—I  made  tbe  entries  ab^mt  four  y««ra  and  a 
half  ago,  aa  nearly  as  I  can  renneuiber. 

[Mr.  lc<rrer  prod ucea  an  office  copy  of  tba 
esecdtors  acrounta,  delivtred  in  by  Pudmobna, 
filedthelstufacti»ber,  1774.] 

Can  vou  be  ceruin  that  it  is  about  four  yesn 
and  a  half  ago?— -I  believe  it  is,  but  cannot 
speak  precisely. 

Can  you  speak  to  half  a  yearP^.T  believe  it 
was  four  veara  ago,  but  will  not  swear  tos 
paper  that  baa  no  date  to  it:  there  ii  no  date  ti 
tlie  entry,  I  cannot  be  any  ways  certain. 

Will  you  swear  it  was  more  than  three  ycaisf 
—If  I  thought  I  should  be  questioned  by  sodi 
gentlemen  as  you,  1  would  have  wrote  dova 
what  J  was  to  say :  I  can  swear  to  thia.  Thai  I 
firat  entered  this  account  a  little  time  after  th« 
accounts  came  into  the  Adawlet :  by  a  little 
time,  I  mean  two  or  three  months,  or  aoj 
thing  under  a  twelvemonth. 

Are  there  any  articles  without  P— -Yes,  I  am 
show  you  fifty. 

Do  yon  know  of  any  objection  made  b?  Ma* 
hun  Persaud  and  Gungobissen,  at  the  tine  if 
your  writing  the  accounts,  to  the  time  tbcy 
were  delivered  in?- -I  do  not  know  wbetbs 
they  were  displeased  or  no ;  I  know  they  wsn 
in  counsel  with  Gossein,  who  afterwards  eo» 

e lined ;  but  what  their  coonael  waa  I  do  ml 
ow. 

Were  you  ever  with  Bollakey  DaoB  at  tb 
army?— -i  was. 

Ilow  long  ago  ?-- -About  ten  years  ago. 

When  you  were  with  him,  do  you  koowasj 
thing  of  bis  being  plundered?---!  havebcftic 
said  that  he  was  plundered  at  Duzar  of  etery 
thing. 

Tell  as  near  as  you  can  the  particulars  rf 
what  he  lost  ?— -A  little  trunk  of  private  papsrti 
which  he  never  showed  to  any  body :  how  en 
I  remember  what  was  taken  from  him  ?  hii 
tents  were  taken  ;  nothing  was  left  him  bothii 
jsmma. 

Do  you  know  of  his  having  jewels  at  ihil 
time?- --He  was  not  plundered  ofany  ieweliil 
Buxar :  I  have  heard  that  at  Muxadavad  ht 
lost  a  small  quantity  of  jewels  mortgaged  10 
him :  I  was  not  there  myself. 

How  long  since  did  you  hear  it,  and  fron 
whom  ?—  -The  Gomastah  who  had  abacoodd 
from  Muxadavad  during  tbe  troubles, -caBC 
in  to  Bollakey  Doss,  and  informed  him  of  it:  I 
was  present  If  hen  the  Gomaatahaaid  they  wcff 
plandered. 

What  quantity  did  he  sa^r,  and  whose  pi** 
perty  ?---A  very  small  qoantity,  notabore  S« 
3,000  rufiees  worth.  A  Shroff  at  Mnzadavid 
ha«l  taken  a  small  quantity  of  money  htm 
Bollakey  Doss,  and  pleilged  theee  jewels. 

Do  you  know  ol  B^Ukey  Dom's  hifMT 


1025} 


ai  CalcuilOf  Jbr  Forgery, 


A.  D.  177S. 


[1036 


been  plundered  of  any  J^^^^  *t  any  other 
line  P— -I  ba? e  beard  of  no  otber  jewels :  I 
bare  told  yon  all  I  know  about  iewels :  1  never 
beard  any  word  of  his  beings  plundered  of  any 
»th«r  jewels. 

Do  you  know  of  anv  nioney  beings  recovered 
by  means  of  Maha  llajab  Nundocomar  from 
the  Company  for  any  person  ?— Pud  mob  nn 
E>os8  used  always  to  attend  at  Mr.  Verelst's 
iritb  Maha  Rajah  Nundocnmar:  when  the  f|;o- 
rernor  was  goings  to  £uroi>e,  he  was  at  Bel- 
ridere :  Pudmohun  Doss  went  with  Maha  Ra- 
fah  Nundoromar  to  wait  upon  him,  and  occa- 
•ioned  the  Company's  bonds  to  be  paid  to  Gun- 
^iasen. 

When  Maha  Rajah  Nnndocoroar's  accounts 
irere  settled,  do  ^ou  know  of  the  balances 
bavinfr  been  paid  him?— I  do  not  know  if  the 
balance  ever  was  paid  him  or  not. 

Were  you  present  at  Belvidere  with  these 
persons  snd  Mr.  Verelst  ?— I  was  not :  I  knew 
vf  their  nfoing^  there  for  the  purpose  of  getting 
the  bonds :  1  saw  them  set  out,  and  saw  them 
return. 

Court.  Gire  evidence  of  nothing  but  what 
f  ou  know  of  your  own  knowledge.—^.  This  1 
know,  that  a  man  was  sent  to  call  Gungabissen 
snd  Pudmohun  Doss :  one  went  in  a  palanquin  : 
the  other  in  a  carriai^e :  they  broui^htCom- 
pany'v  Iwmds ;  they  told  me  they  were  going 
to  Belvidere,  that  Slaba  Rajah  called  them  to 
go  along  with  him. 

When  tliey  set  off,  do  you  know  where  they 
l^ere  gointr?-— They  told  me  they  were  going 
there :  Maha  Rajah  sent  for  them. 

Do  you  know  the  papers  for  which  they 
irer«  going?- -The  pavmeut  of  the  money 
bad  been  daily  expertedf :  they  went  to  get  the 
Company's  bomlK :  Pu«imohun  Doss  snd  Gun- 

Rbuiaen  said  the  governor  was  going  in  a  few 
ys,  snd  they  ciTtainly  should  get  the  Com- 
pany's bonds.  Upon  their  return,  they  brought 
the  h«>nds  Hod  Ciirried  them  to  the  widow  of 
Dollskey  Doss :  a  few  days  after  the  governor 
iventaway. 

Do  you  know  of  any  of  these  bonds  being 
paid  to  Maha  Rajah  Nundocomar,  for  a  debt 
liie  to  him  hy  BolUkey  Doss  P— The  widow 
^Bottakey  Do«t,  when  the  bonds  werebrought, 
Icsired  that  they  might  be  carried  to  Maha 
Rajah  Nundocomar;  because,  she  said,  they 
bad  l>een  obtained  l»y  his  means:  I  was  pre- 
icnt:  I  heard  her  with  my  own  ears :  she  said 
be  had  lieen  very  generous  to  her,  and  had 
ihewn  great  attention :  she  adde«l  having  Grst 
Icftled  ^nth  him,  she  would  afterwards  settle 
llie  other  accounts  of  the  house.  Pudmohun 
Dons  delivered  an  account  to  Gun£^abissen : 
ENidmohnn  Doss  sitting  down,  ordered  me  to 
iTrilr  out  the  ucronnt  of  Maha  Rnjah  Nundo- 
^mar  with  the  deceased  :  this  was  in  the  pre- 
l«Bce  of  the  widow :  they  gave  the  accounts 
^  the  %vidow  of  -lloilakey  Doss ;  a  person  of 
Ale  name  of  Durhamchnrn,  desired  her  to 
^Mke  bersflf  mistress  of  the  business  of  those 
NMuuoti:  Durbamchtirotoidmeso, 

¥0U  XX. 


Court.  You  must  not  mentk>D  what  Durw 
hamchum  told  you. 

Did  you  seethe  widow P— I  did  see  her. 

Did  she  seem  pleased  or  displeased  with  the 
accounts  P—1  cannot  tell  whether  she  was 
pleased  or  no. 

Did  she  read  the  accounts  herself?- --She 
cuuld  not  read:  Pudmohun  Doss  might  have 
eirplained  it  to  her. 

VVhere  is  the  widow  now  ?*--She  is  at  Be- 
nares. 

How  long  has  shebeen  at  Benares?— About 
a  month  or  two  after  receiving  the  Company's 
bunds,  she  went  there :  Pudmohun  Dosa  ac* 
oompanied  her  part  of  the  way. 

Is  Benares  within  the  jurisdiction  of  the 
Court?— -No. 

[The  Counsel  for  the  Prisoner  insisted  upon 
giving  parole  evidence  of  the  contents  ^f  the 
account  given  to  her.— Mr.  Justice  Lemaitre 
objected,  that  such  evidence  could  not  l>e  ad* 
miUed,  as  no  proof  was  produced,  to  shew  that 
any  andeavonrs  were  made  for  the  attendance 
of  the  widow,  or  the  original  papers  in  her 
po«8ession ;  to  which  objection  the  Court  ac- 
ceded, but  allowed  the  evidence  in  favoui:  of  the 
Prisoner.] 

Was  there  any  mention  in  that  account  of 
the  bond?— -There  was  no  mention  made  of 
this  bond  in  that  )iaper :  it  was  only  a  gross  sum. 

What  wss  it  an  account  of  ?— It  was  not 
an  account,  it  was  only  a  fird,  containing  an 
account  of  money  received  from  the  Company, 
which  was  obtained  by  means  of  Maha  Rajali 
Nundocomar:  there  is  an  account  of  the  dif- 
ferent sums  due  to  the  creditors,  and  a  balance 
of  60,000  rupees. 

Was  it  after  paying  Maha  Rsjah  his  demand  ? 
—After  paying  all  the  creditors,  that  balance 
remained  due. 

Do  you  mean  that  Maha  Rajah's  accoant 
was  included  in  it  ?— -Yes. 

Do  you  know  of  Bollakey  Doss's  being  con- 
fined in  prison  ?---He  was  confined  in  the 
Coort  of  Cutcherry  one  niglit  and  one  day : 
when  the  snmmons  was  issued  against  him,  ne 
went  to  Cbanilemagore. 

Do  yoo  know  any  thing  of  the  death  of 
Bollakejr  Doss?— -He  arrived  the  1st  day  of 
Assen,  six  or  seven  years  ago;  Bollakey  Doss 
was  then  very  sick :  Maha  Rajah  came  to  bis 
house  to  see  nim  about  three  or  four  days  after 
his  arrival :  Bollakey  Dohs's  wife  and  datigbter, 
Pudmohun  Doss,  and  many  other  people ;  and 
I  likewise  was  there.  BoUakey  Doss  said  to 
Maha  Rajah,  **  Here  is  my  wife  and  daiigbtert 
and  Pudmohun  Doss ;  1  recommend  tliem  to 
your  care,  and  I  wish  yoti  to  behave  to  them 
as  you  have  behaved  to  me ;  Pudmohun  Doss 
has  the  management  of  all  my  business  of 
whatever  nature,  f  recommend  him  to  you.*'  I 
then  went  away  to  my  owu  house  to  eat. 

When  did  Bollakey  Duss  die?— lie  died  on 
the  IJtb  of  Assen. 

Did  Bollakey  Doss  understand  Persian?— • 
He  could  neither  read  noc  vit\Va  Sx\  \»it  ^<c^  V 

SU 


1027J  15  GEORGE  III.  Trial  ofMaha  Rajah  Nundocomar, 

know  whether  he  understood  it:  he  went  to 
the  Durbar  ;  what  he  spoke  there  I  know  not. 
Had  Bollakev'Doss  a  Persian  seal?— He 
bad  one ;  but  I  do  not  know  that  i  should  be 
able  to  know  it  if  I  saw  it. 

Crou-Examination, 

In  what  lang^uage  did  Bollakey  Doss  gene- 
rally do  his  btisiness?-— Bollakey  Doss  never 
executed  any  Persian  bonds  in  my  presence  : 
he  had  Persian  writers;  whatever  ne  did  in 
that  way,  must  have  Jieen  with  them :  I  can 
Unswer  to  any  of  his  Na^^ree  business. 

Were  you  with  Bollakey  Doss  in  1172? 
[Bengal  y ear. ]«— When  he  first  arrived  here,  I 
went  to  Benares  to  a  marriage :  1  came  to  Cal- 
cutta with  Bollakey  Doss :  some  months  after 
1  went  to  Benares,  1  staid  there  a  year,  and 
then  came  back. 

Were  you  at  Calcutta  the  year  in  which  the 
bond  was  executed  ?-«I  do  not  know  whether 
I  was,  or  was  not ;  I  can  find  oat  by  the  books, 
when  I  came,  [looked  at  books]  1  arrived  the 
1st  of  Srawon,  1822.  [Nagree  srra.] 

How  long  did  you  stay  in  Calcutta  before 
you  went  to  Benares  ?-— Four  or  five  months. 

Had  Bollakey  Doss  any  Munshy?— He 
bad  a  Munshy  called  Balkopen ;  be  had  also 
a  Vakeel  called  Seillabut. 

Do  you  know  what  is  become  of  Balkopen  ? 
—  f  nnderstootl  he  died  at  Jaggemaut. 

Where  did  Seillabut  die  P—lln  Calcutta. 

Where  did  Bollakey  Doss  live  in  Calcutta? 
•'—Baboo  Hazzreymull  gave  him  his  house  ia 
the  Burra  Buzar :  be  lived  there. 

Had  Bollakey  Doss  another  house  ?— Bol- 
lakey Doss  had  a  bouse  at  Muxadabad; 
when  he  was  a  little  man,  he  was  in  business 
with  Dorrarochund,  and  Kissenchund,  the 
father  of  Diacboud :  the  business  was  carried 
on  in  that  house ;  it  was  a  great  while  a^o  ; 
it  was  before  any  thing  you  have  heard ;  when 
be  became  a  great  man,  and  had  the  business 
of  Cossiin  Ally,  he  bought  a  house  at  Muxa- 
dabad, of  Durramchnnd,  where  he  settled  the 
accounts  with  Kissenchund  and  Durramchund  ; 
the  house  was  not  his  own  before  he  settled 
with  them. 

Was  it  a  house  of  much  business?- --All 
the  world,  at  that  time,  knew  that  to  be  a  house 
of  Bollakey  Dosses :  it  was  a  house  of  much 
business. 

Do  you  know  whether  he  kept  jewels,  or 
other  valuable  efiects  there?---I  only  know  of 
his  having  some  money,  and  those  jewels  i 
nieiuioned  :  I  know  of  no  others. 

Do  you  know  Roy  Jaggernaut  Jew  ?--I  do 
not. 

Where  are  the  accounts  of  that  house  ?•--! 
know  nothing  of  the  accounts  of  that  house. 

Do  you  believe  that  jewels  to  a  very  great 
amount  could  have  been  taken  from  that  house 
without  your  hearing  of  it?---I  must  have 
known  of  it,  in  case  any  jewels  to  a  great 
amount  bad  been  plundered ;  a  thousand  people 
must  have  known  it.  , 

J>id  you  ever  tee  Bollakey  Dots  put  a  chop 


[loss 

or  seal  to  any  bond  ? — If  be  executed  aay  pa* 
per  of  this  kind,  bis  Munshy  would  have 
Known  it. 

Have  you  any  paper  of  Bollakey  Doss's 
writing  ? — 1  have  not. 

Do  you  know  any  person  in  Calcutta  that  is 
acquainted  with  the  band>writiDg  of  bit 
Munshy  ? — I  do  not. 

How  long  did  he  live  with  bina  P-— f  caa 
shew  how  long  he  lived  with  him  by  my  books. 

Have  you  any  paper  of  bis  writing  ?-^No. 

Do  you  know  any  body  that  has  P— No,  1  do 
not  understand  Persian,  and  therefore  did  ool 
trouble  myself  with  his  hand-writiog. 

Do  you  know  whether  there  are  any  of  thai 
Munshy 's  writing  among  the  papers? — No. 

Did  you  ever  know  Bollakey  Dots  ^ve  • 
Persian  bond  ? — When  Bollakey  Doss,  m  tbt 
course  of  business,  gave  any  bonda,  be  ordered 
a  writer  to  write  them  in  iJagree,  and  Kgocd 
them  with  his  own  hand. 

Do  you  remember,  in  the  whole  oouneof 
his  busmess,  his  ever  giving  a  Persian  bond  ?— 
I  do  not  remember  ;  if  any  thing  of  that  sort 
passed  in  Persian,  it  must  have  b^n  in  the  Per- 
sian office :  I  never  was  present  when  be  exe- 
cuted any  Persian  bond. 

If  any  bond  had  been  given  in  Persian,  mul 
not  von  have  known  it,  to  have  entered  it  in  tlM 
books? — ^The  accounts  were  regularly  kept; 
but  if  a  bond  was  given,  1  do  not  know  wne- 
ther  it  was  particularly  specified :  but  if  tht 
bond  came  to  be  paid,  it  would  be  paid  if  rega* 
larly  executed. 

Was  ever  a  Persian  bond  brought  you  to  bt 

f»aid  ? — I  never  saw  any  Persian  bond  of  Bol« 
akey  Doss's. 

How  came  you  not  to  mention  the  bond  in  tbi 
account? — If  my  master  received  any  money, 
and  gave  a  bond,  I  entered  the  receipt  of  th« 
money,  but  did  not  enter  the  bond  into  tht 
bo(»k  till  it  was  paid. 

Do  you  believe,  that  if  a  bond  for  so  larse  i 
sum  had  been  p^iven  by  Bollakey  Doss,  abost 
ei^ht  or  nine  days  after  he  came  from  Beoarei, 
3'on  should  not  have  known  it  ? — When  1  first 
came  to  Calcutta,  I  roved  about  the  town  to 
see  t^very  thing  1  could  see.    1  do  not  know. 

How  could  the  accounts  be  regularly  kept, 
or  Bollakey  Doss  know  what  he  was  worth,  if 
only  the  money  received,  and  not  the  bond,  was 
entered? — He  may,  or  may  not  mention  tbc 
bond,  without  being  irregular. 

Suppose  a  Persian  bond  is  brought  to  yoff 
master  to  be  paid ;  he  orders  you  to  pay  it: 
how  would  you  enter  that  in  the  books ?-^ 
Accordinc^  to  the  orders  of  my  master:  if 
he  simply  bid  me  pay  1,000  rupees,  1  should: 
if  he  ordered  me  to  take  notice  of  it^  1  should: 
I  should  search  the  debit  side  of  my  master*! 
account,  and  see  if  1  could  find  such  an  ac- 
count. 

If  money  is  paid  in,  and  a  bond  given,  doyM 
make  no  memorandum  of  the  bond  ? — 1  makt 
no  memorandum ;  if  money  is  first  paid  io,aad 
afterwards  asked  for  ;  if  it  is  desired  to  be  ktfW 
and  tlie  answer  is,  that  then  U  moat  be  a|Mi 


iOS9] 


€tt  CaicutlOfJor  Forgery. 


A.  D.  1775. 


[1030 


tnUrest,  aod  a  bond  given  ;  1  should  not  enter 
tbat  last  transaction. 

Do  not  Nai^ree  merchants  enter  bonds  in 
their  books  P— ^nne  do,  and  sonoe  not. 

Do  Nafiiree  merchants  e?er  gi?e  Persian 
bonds  ? — Nagree  merchants  of  rank  may  give 
Persian  bonds. 

[Bond  shewn  him.]  Can  you  tell  whicli  is 
Bultakey  Doss's  seal  ?— i  cannot  tell  which  is 
the  seal ;  1  see  seals  I  do  not  know. 

Did  you  know  Bollakey  Doss's  seal  ? — f  see 
•eals  1  do  not  know ;  it  was  round  silver  set  in 
gold :  all  1  know  of  it  is,  it  was  round  silver  set 
io  fifold. 

Do  you  know  if  it  is  either  of  those  on  the 
bond  ? — 1  know  it  is  not  one  of  the  square 
ones ;  the  other  it  may  be. 

Where  did  Bollakey  Doss  keep  the  seal  ? — 
liVhen  Bollakey  Doss  was  with  the  Nabob,  he 
wore  the  seal  on  his  finder :  when  he  came  to 
Calcutta,  he  kept  it  in  his  ink  stand. 

Have  you  often  seen  the  seal  of  Bollakey 
Dow  on  his  finger  ? — 1  have  often  seen  it,  but 
I  should  not  know  it. 

Did  not  you  frequently  see  him  put  it  to  the 
outside  of  letters  ?— When  he  used  to  write  to 
the  Nabob,  and  great  people,  he  used  to  put  his 
seal  to  the  letter:  I  have  seen  him. 

You  hear  that  there  are  several  witnesses, 
that  have  seen  the  seal  of  other  (leople  two  or 
three  times  upon  their  fingers,  that  are  able  to 
•wear  to  the  impressions ;  cannot  you  recollect, 
tbat  have  seen  it  so  much  ot'tener  ?— They 
bmve  excellent  tnemories;  1  am  not  blessed 
with  such  a  one. 

Was  Pudmohun  Doss  any  natural  relation 
of  Bollakey  Doss  ? — No :  nor  was  he  of  the 
•ame  cast ;  but  he  had  a  very  great  liking  to 
hioi ;  if  he  pleased,  he  might  make  use  of  a 
lack  of  rupees :  Pudmohun  Doss  was  another 
Bollakey  Doss. 

Was  he  his  adopted  son? — De  called  hrm 
Lis  son,  but  he  was  not  his  adopted  son. 

£Sheer  UUa  Cawn,  and  Nuzzer  o  Dien,  two 
Muushies,  being  called  upon  by  the  Court  to 
compare  accurately  the  original  bond  with 
the  bond  laid  in  the  indictment,  having  com* 
pared  the  same,  are  aworo.] 

Nuzzer  o  Dien  examined. 
Did  you  read  the  original  bond,  word  by 
word,  while  Sheer  UUa  Cawn  read  the  several 

rirts  of  the  indictmtfnt  wherein  it  is  recited  ? — 
did. 

Is  the  bond  the  same  in  all  respects,  and  in 
every  part  as  that  laid  in  the  indictment  ? — 
There  is  some  variance. 

Sheer  UUa  Cawn  examined. 

Did  you  read  what  was  in  the  record  acctt- 
tmtely  f— I  did. 

Is  there  any  variance  ? — On  the  record  there 
mre  two  marina  under  the  word  *^  nittan  wadis- 
taer:"    in    the  original,   there   are  no  such 

narks* 

Mr.  Elliot  examined. 
What  are  those  a&arkt  P— They  are  merely 
4fl<h  ci^lM  llOGhkU^ 


Are  those  dots  material  ? — I  take  it  they  are 
not.  Persian  papers  are  wrote  sometimes  with 
them,  and  sometimes  without  them :  if  the 
omission  or  insertion  of  those  dots  was  to  be 
deemed  a  mistake,  there  would  always  be  at 
least  20  mistakes  in  every  10  lines  of  Persian. 

Are  they  understood  to  be  material  ? — They 
never  are  so  understood  :  nor  is  the  Persian 
language  ever  wrote  with  that  accuracy. 

Don't  the  insertion  of  the  nochkts,  make  the 
distinction  of  smgular  and  plural  in  this  cise  ? 
—They  do. 

Is  it  the  custom  in  Persian  to  speak  of  every 
body,  even  yourself,  in  the  plural  number  ?-  -I 
think  it  is :  I  must  correct  myself  as  to  speak- 
ing of  one's  self ;  I  am  not  so  clear  as  to  that. 

Does  this  variance  run  through  all  the 
counts  ? — No. 

To  which  count  does  it  apply  P—To  the  fifth 
only. 

What  is  the  fifth  count  for? — For  forging^ 
with  an  intent  to  defraud  Bollakey  Doss. 

To  Munthy,  Is  there  any  other  variance?* 
— il.  The  words,  ''  nocklie  tamasook**  (i.  e. 
copy  of  bond)  are  wrote  in  Persian,  on  thetop^ 
in  every  coout. 

[The  Counsel  for  the  Prisoner  insisted  on 
this  lieio^  a  material  variapce ;  but  the  Court 
over-ruled  the  objection,  thinking  it  to  be  no 
more  than  a  repetition  in  PersiaH,  that  it  was 
the  tenor  of  the  bond,  and  not  meant  to  be  laid 
as  any  part  of  the  bond.] 

Mr.  Driver  examined. 

Whom  were  the  bonds  and  other  papers  be- 
longing to  Bollakey  Dosses  estate  delivered  toP 
— To  Uungabissen. 

Mr.  Sealjff  late  Register  of  the  Mayoi  's  Coort^ 

examined. 

Do  you  know  of  any  application,  either  to 
this  court  or  to  the  mayor's  court,  to  get  the 
papers  out  of  the  Register's  hands? — There 
was  an  application  made  to  the  Mayor's  court 
by  Mr.  Driver  for  these  papers,  and  rejected. 

The  Foreman  of  the  Grand  Jury,  who  had 
been  one  of  the  aldermen,  and  served  the  oflice 
of  mayor,  desired  that  the  records  of  the 
mayor's  court  might  be  produced ;  they  were 
produced  accordingly  by  Mr.  M'Veagb,  the. 
keeper  of  the  records  of  this  court,  and  the  se-  . 
veral  extracts,  herein  after  mentioned,  were 
had  at  his  desire,  for  the  purpose  of  proving, 
tbat  Gungabisseu  had  ever  been  treated  io  the 
proceedings  of  the  mayor's  court  as  a  weak 
man,  incapable  of  transacting  his  own  business* 

**  On  the  8lh  of  November,  1760,  a  motion 
was  made  and  agreed  to,  that  the  will  of  Bol- 
lakey Doss  should  be  deposited  in  the  court. 

«*  ISth  November,  1770.  A  citatioD  issued, 
for  the  executors  to  bring  tn  their  accounts,  to« 
getber  with  the  balance  of  the  estate,  and  to  de- 
posit the  same  in  the  Companjf 's  cash. 

«*  1st  Octoher,  177 1.  It  being  suggested  to 
the  court,  that  Pudmohun  Doss  had  cuDve^^ 
away  seienl  hooks  end  papers  belonging  to  tk«-' 


J031J 


15  GEORGE  III. 


Trial  of  Maha  Rajah  liundocomar. 


Xe  ni'  BolUliej  Dobs  ;  ihe  court  ordered, 
Ibal  PudmnliuD  f>im  bIiuuM  ilvtiver,  or  deposit 
:lie  retrlBlry  ol  ilie  court,  all  such  bunk*, 
papeni,  anil  Tiiuclien,  loucliing,  or  anv  way 
KlauitKlu  llieaccnunli  of  tlie estate  nr'ltnlla- 
firy  Duss,  deCFBHCiJ ;  auU  tliai  ilie  said  Fud- 
muliun  Uai*  aliall  be  iiermilled  to  attend  his 
WD  afrnirv,  under  the  cuHtody  or  pruper 
lierlfT'x  peuns,  until  the  said  accouDlsure  care- 
fully txniiiiiieil. 

"  14tli  J.^nuury,  1773,     Gboaaiiie  by  liw  at- 

'nrv,  William  Mugee,  informed    (he  cuiiil, 

)l  ('uilmohun  Duss,  one  of  Ilie  execulom  ot' 

i  liHi  will  and  trslBTnent  of  Bullakey  Uoks^ 

.   IS  lately  dead,  and  that  Guogabijtseo  and  his 

Ikrother  Hingou  Lultan,  who  ii  at  PatnB,  are 

remutninB  executors ;    and  that  Gunitalis- 

U  iucapaTile  of  iKtioe  charge  of  the  affaira 

oflbe»i<l  HulUkey  Dusb.    Onlered.tbat Wil- 

Kam  31a^F,  n-gisler  ol'tUis  omrt,  shall  forth. 

'with  tiike  charge  iif  the  books  and  pajierBof  ibe 

Alale  of  the  said  BolUkey  Doss,  deceased,  and 

■etile  the  tjime,  and  report  to  this  court  a  true 

■ritleincal  Lhertof. 

"  Januury  Slsl,  1773.  Ordered, ihala  cita- 
tion sliall  is«iie  against  Bridjoo  ftitoon  Dusa, 
Keliolrnni  Puuda,  and  Guugabom,  re(|uiriu;; 
Iheni  to  be,  and  appear  betbie  the  court,  od 
Tuesdiiy  next,  lo  slieir  cause,  if  ibey  hare  any, 
by  they  »hfiuld  not  delirtr  over  unt^  flfr. 
F'illiain  Mngee,  register  of  ibis  coiir',  Ibe 
Iitooks,  papers  of  accounis  and  olbera,  beloug- 
,  ing  lo  Ihe  estate  oi'  Bollakey  Doss,  deceued, 
ooiiformable  to  tlie  order  of  this  court  of  tbe 
14lbiusiun(. 

"  January  tbe  2(llh.  1773,  The  sbcrilTa 
officers  returned  the  citation  against  Dridjoo 
Roloo[i  Ooss,  Kebolram  Ponda  and  Gouga 
Boae  eipftiied. 

'  WliereasPudmnhunDoss,  nnenf  ibeexe- 
CDlorsor  Irusl^eaot'lIulUkey  Doss,  deceased, 
«D  Ibe  Isl  day  of  October  last,  was  ordered  lo 
deposit  in  the  registry  of  thia  court,  all  tbe 
bwiks,  anil  papers  of  accminls  belonging  lo  tbe 
cilale  of  Ilie  luid  Bollakey  Dobs,  deceased ;  m 
consequence  whereof,  ibe  said  books  and  pa- 
pers were  depoailtd  in  a  room  of  the  house  of 
ibe  said  Pudmnhaii  Doss,  in  order  lo  be  perus- 
ed aud  examioed,  wbicb  room  was  secured 
vith  two  locks;  tbe  Lev  of  one  of  wbich  locks 
was  in  the  posseHsion  orUalLioviu,  and  ihe  other 
in  tbe  caic  of  ibe  said  PudinnbuM  Doss's  peo- 
■  pie.  Bllgovio  this  day  ajipearing  in  court 
upon  oalb,  declared,  thai  uoe  day,  when  be 
went  up  to  the  said  room,  he  found  tbe  door 
bad  been  opened,  and  ibat  hit  lock,  logelber 
vith  a  knot  hehad  tied  upon  it,  bad  been  open- 
ed, and  on  going  into  the  ruoin,  he  found  that 
tlie  greaie'!!  pari  of'  ihe  papers  were  taken 
■way,  Ifnjelher  with  some  cilbertbiugvof  value. 
That  u|init  making  an  exclamutiou,  and 
threalenii>e  to  come  lo  court  to  complain, 
one  Kthoiraai  Ponda,  then  in  the  bouie.  re- 
qncsled  liim  lu  be  quiet,  and  not  to  go  lo  oom- 
piain  Id  the  court,  but  go  and  speak  In  Ibe 
W;  and  soon  aRer  MobuD  Persuud  cunie 
vheahe  aud  tbe  said  Kebaliaoi  Poada  neat 


near  Ibe  widow,  and  spoke  to  ber  aomeltiiafvl 
wbicb  he  tbii  depooeot  cuuld  not  h«--    --■--■ 
stood  at  some  distance  from  them  ; 
alter  Muhun  PeriHud,   and  tbe  said  Kebolrai 
Puuda  caiue  lo  the  place  where  be  wai 
be^ed  him  doI  to  expose  ber,  and  Ibi 
would  deliver  up  all  sucb  papers  aa  ran 
in  ber  pouession,  and  accoidiugly  tbe  said  K 
bolraiu  Pouda  went  and  dug  tbe  ground  in  I 
conipound,  and  got  some  books  and  paperaoul 
of  it,  and  delivered  the  same  to  this  deponent, 
wbicb  he  put  into  a  cbrll,  and  locked  up  :  and 
whereas  the    said    Pudinohuu    Dow    liaviog 
lately  deparled  this  life  ioieslate,  ami  iiu  no* 
having  yet  petitioned  ihiscouii  lor  iHleiBofad- 
mioislraliou  of  iIib  estate  of  the  said  Pudmtibw 
Dost,  ileceased ; 

"  Ordpreil,  Ihai  public  notice*  be  •ffixxl,  it 
public  places  ul  this  to  wo,  nolilyins,  ibat,  if 
some  periuu  or  peisooa  dii  not  within  14  days 
from  this  day,  |ietiii<>n  the  conn  tor  Irtlen  it 
admioislration  of  Ihe  said  Pudmuhuo  Dmi^ 
deceased,  Ihe  Court  shall  ap^ioint  a  proper  p«r> 
con  lo  take  charge  theri'of. 

■'July  3nd  1771.  It  was  ordered,  that  ihe 
papers  of  Pudmolmn  Doss  should  be  avparaUd 
Irom thuseuf  Bollakey  Dobh. 

"  This  order  was  unl  carried  into  execillio% 
till  IbeSTih  April,  1773. 

"  asili  March,  1174.  Mr.  Drirtr.  altofM; 
for  GungabiGKen,  read  a  petiiioii  Iruin  bi*) 
slating,  that  b^  the  order  of  the  ciiiirl  all  ibe 
papers  belonging  to  ihe  eslaie  of  Bullsk*}  ' 
Doss,  were  (lejiosited  in  the  court,  tmnof 
wbich  were  28  bonds,  receipts,  and  *anchcnf 
that  be  bad  comtnenced  suits  in  the  Dewonnaa 
Adawlel ;  and  wanted  the  said  bonds,  re«apti| 
and  other  voucbera,  in  order  to  establiib  tb< 
aame :  and  praying,  that  Ihey  may  be  delivend 
lo  him,  giving  the  uaual  receipt  tor  tbe  aaaie. 

"  Tbe  court  deferred  the  consideraliOD  oflht 
said  petition  lill  tiexi  couri  day. 

"Ordered,  Ihat  an  officer  of  tbe  said  Dewia- 
nee  Adawlet  be  permitted  lo  aileud  at  the  regit- 
ter'tt  office,  to  inspect  the  books,  papers,  ani 
vfiuchen  aforesaid. 

"  aith  day  of  January,  1T75-  Mr.  Farrsr, 
advocate  liir  Guogabisaen,  surviving  executor 
of  Bidlakey  Doss,  deceased,  moves,  that  two 
chests,  containing  papers,  accounts,  and  vouob> 
ers,  relative  lo  tbe  accounts  of  the  eaUie  of  lb*. 
Bsid  Bollakey  Doss,  deceased  ;    and  also  S8 


bonds  and   receipts,   belonging  to  the  said  <■ 

'        lited  in   the  registry  of 

ihe  instance  of  Wil- 


;   depnaitr 


the  late  mayor's 

liam  Msgee,  who  was  consliluted  attorney  of 
Bridjoo  SpcrGushaln,  a  legatee  named  in  llie 
will  of  the  said  deceased,  may  be  delivered  to 
tbe  said  GungabrBsen. 

"  Ordered,  thai  the  rei;isler  do  took  into  the 
proceedings  of  tbe  late  mayor'*  court  relative  to 
ibe  aboFe  pnptrs,  no^ounis  and  vouchers  ;  and 
inform  Ihe  court  ihereuf,  on  Monday  next  ihs 
SUth  instant. 

"  January  30,  I77S.  Mr.  Furrtr,  advocate 
for  Guogabisien,  surviving  eiecuior  of  B«l- 
lakey  Duss,  deceived,  moves,  Tbu  imcbfsm 


at  Calcutta, for  Forgery. 

Bpapcn,  aecnunls  and  Touclieni,  re- 
e  HGCuunU  of  Llie  rstnle  of  llie  nid 
r  Dms,  decreed,  aod  also  twenty- 
•)!■  and  (ecei|il«  Iwleoi^iiig  lo  ihe  laiil 
kioh  were  ilrpusiwd  in  the  registry  of 
mtiyor't  uuiirt,  >ii  raeotianed  to  this 
I  llie  f  Mil  inslaol,  may  be  delltered  lo 
limijaliisieii. 
Brir,  adiocale  fi>r  SerJinaut  DnRS  and 
a  UiiM,  admin itiualnr*  of  I'udmoliun 
EMe-),  wlio  WHS  one  of  llie  executor* 
id  Bullakey  Oom,  deceued,  ubjecu 

'u  orderril,  Thtt  Ibe  Renter  da,  in 
ind  wiib  the  assiiittice  of  Hiizzere- 
Mi,  and  Cnuennut  Baboo,  IhiiIi  of 
.  exaiuiiie  Ihe  suid  papers,  accounts, 
ber»,  buuds  and  receipbi ;  and  BeiinrBle 

B[iear  lo  belong  to  ihe  estate  of  the 
f  y  Duss,  deceased,  from  those  which 
tH-lsng  \n  Ihe  etiale  of  the  B>id  Pud- 
o«t,  deceased  ;  aud  that  he  do  deliver 
r  uni4  the  said  GunirBliissn),  and  tbe 
t  the  taid  Seeboaut  D-ms. 
rch  34,  1175.     Mr.  Forrer,  adrocate 
ingabiaien,  turriTing  eieciitor  of  BdIII' 
loaa,  deceased,  mnirs,  That  two  chests 
nint(  [wperK,  accounts  and  vonuhers,  re- 
10  Ihe  HCCxuniB  of  the  estate  uf  ihe  said 
DiHW,  deceased;  and  also  ^8  bonds 
pto  beluTi(rJDe  to  the  said  estate,  which 
Msiii'd    ill   ihe    registry  of  Ihe   late 
—    -■,    may  be  delitcred  to  the  said 
they  not  having  yet  hero  pxa- 
■ntuant  in  the  order  uf  tliis  Court,  of 
■tay  ofJanuirv  last,  owing  to  Cossi- 
*■  -■       It  aitenilinir.       . 

Ill* ocare  <or  Srehnant  Doss  and 


A.  D.  1775. 


[lOS 


r  Pu.1ri 


eretnplorily  ordered.  That  the  Re- 
I  pmeuce,  and  with  ihe  a^sislance 
laul  Baboo,  and  the  aaid  C'nssrnaiit 
caae  lliey  both  attend,  or  if  oue  iif 
Bite  nils,  then 


the< 


lU,  and  TODcberK,  bonds  aod  re- 
nd separate  aiich  as  Kpuear  to  be- 
Ihe  euale  of  the  said  Bollakey  Dnss, 
\  from  those  which  appear  to  belong 
of  the  said  I'udmuhuu  Dots, 
;  aad  that  be  do  deliver  Ihe  former 
I  aaJd  Gun£;abissen ;  aad  the  tatler, 
•aid  Seebnaut  Doas  and  Lancbinon 
r  Ibe  said  Pudmuhuii 
rated,  wilbin  one  miinth  from  this 
B  neitlier  of  iliem.  the  caid 
■ttl  Uaboo,  and  Cossenaut  Babou, 
,  that  the  Hegister  do  examine,  and 
■cm  in  ihe  liest  mauner  he  can,  and 
Kb  of  iheiD  to  the  «aid  (lanies  re- 
as  he  sluill  tliink  ri^ht,  within  tbe 

Mr.  Staty  examiQed. 
la  couequcitGe  of  Iba  laal  order  of 


the  Court,  examine  aud  uparate  tbe  papen 
—  I  did,  after  having  examined  them  with  anJ 
wiihout  Coesiaaut  and  Huzzermaul,  by  liie 
sgreemriil  i>f  the  pariirs. 

When  did  you  ilaliier  tbe  bonds,  and  1 
olhrr  inigwrs,  relaling  to  Biillakey  D«i 
estate,  to  Oungabiuen  r— About  a7ib  April  U 


.  Don  examined. 

Itoilalfey   Duss?— I   knew 
young. 


Did  you   kr 
olULey  Doss 

Did  you  stay  with  Bollakey  Dossf— Yi 
How  many  years? — One  y "" 


Tvf 


n  him  sign  and  seal  n 


iV ere  you  his  servant? — I  wi 

Have  you  seen  htm  sigo  any  papers  Ta 
used  loi«e  him  sign  Nagree  pafiers,  and  « 
Persian.     1  baresten  him  uitli  my  own  e 

Have  vuu  ever  had  a  brolber? — I  bail  ii 

Was  Pudinuhun  Doss  jour  brotlier?-- 

Were  yon   his  administrator  f — His  a 
and  effeclE  are  in  my  hands. 

Have  you  oUlainrd  au  order  of  Court  to  | 
bis  adminialrslor? — I  have. 

Where  i.  ii?~Mr.  Jarrel  ha 
ofadruinislratiou  proiluced  to  bim  and  OGebn 
Dnss,  his  t'slher.j 

[Mr.  Jarret  proves  service  of  noiii-e  on  the 
witness,  to  )>roduce  a  Nai^ree  pajier  given  lo 
PiidfiiMhun  Do*"  by  Maba  Rajali  Niiudncomar, 
when  Mohun  Persaiiil,  Oungabissen,  mil  Pud-^ 
luuhun  Dnsi,  were  at  his  hnuse,  lu  Bidlak^ 
Dn«s'8  own  writing,  dated  ahnul  ihe 
Pn<H4e.     He  likewiBC  proves  the  saute 
on  Setbnaul  Oosb.  ] 

Seebnaul  Dois  examined. 

Have  you  any  paper  belonging  lo  yoor  lole 

son  PiiiJmiihun  D<issP--l  wataiPutua,  when 

he  died.     I  hare  oever  had  any  ul'  his  papen^v 

Luuchmon  Dois  examined.  ^ 

Htve  you  any  papers  bplontcrng  lo  PuJi||o>   . 
buD  Doss? — Buiti  Piiilmnhun  Duas's  private 


papers,  and  those  of  li'illakey  Doaa  were  in  lh« 
cuurt.  Gungabisscn  bus  taken  a»  sy  Bollakey 
Doss's  nspt-ra.  PudniidiUD  Duss's  icmain 
there.  I  ariived  here  ei|^bl  mnuilis  afier  ibjl, 
death  of  Pudmohun  Du».  That  psper  ~'~~ 
not  in  my  posseniun. 

Have  you  looked  over  llie  papers 


Kitten  Juan  Dou  ei 


lined. 


When  ynu  went  wiih  Mr.  HmWy.  wh. 
pers  (lid  vou  limk   l-irP— 1  Imknf  lor  a 
wmte  in  Bullake*  U'wsV  hand,  a>giird  by 
maliiin  Dom,     ft  was  a  paper,  in  which  all 
the  Kureeiiienl  was  Jrawn. 

Did  you  Inok  oter  every  paper  f — I  lonkeil 
over  everyone  paper,   and 
not  among  them. 

Jury.   "Would   not   Ibe   Curra   Nami 
bcoi  fiJta  up,  on  a  bond  giv«u  lo  i^bHi 


tOSq  15  GBOBGB  IIL 

t-^A.  It  M  the 


7 


•MiBg  It  1  ifall  ksMT  wbctfa«r  h  it  ioeh  M  hft 
«m4;  but  1  do  wk  oodoHaad  FenHUi.  I 
fltwold  kaoir  wbetbcr  the  Mtl  WM  like  it  IhNB 
Ibeiiuipe. 

Did  Botbkffir  Dmi  eifl;!!,  wiieB  he  eeiled 
PciMO  pepmf— He  did  set* 

Whet  pert  ef  the  peper  did  hm  ml  oof— I 
have  MM  hifli  eeel  umbv  pepen*'  fle  need  te 
pot  Im  ecal  10  Iclicn  MM  pepen. 

Wbetoerfeot  were  joaf — I  Med  to  write 
litleri.    I  had  cheige  of  the  tffceterr. 

J«fy.  Did  yoo  ever  iee  Bollakey  Dees 
write  or  ocalf— He  iiae  tigned  hie  OAffle  on 
If  aflree,  end  pot  hie  ocal  en  Penien  papen^ 

How  near  were  jottt  when  yea  aaw  Ilia  aeal  F 
*-l  liave  aaen  hit  acal  on  hb  noger  rerv  near. 
If  hen  the  Sepoya  ^sed  to  bring  oralVa  for  their 
par  from  4he  Nabob,  Bolbk^  Do«  need  to 
taJEe  from  the  Sepoya  the  drafk,  and  gif  e  them 
ft  paper  in  Pcniao,  on  which  he  pnt  bb  aeal.. 

Did  yoo  efcr  ace  him  pot  it  tonbondf— I 
ncferiAL 


Mr.Stakjf 

Wen  yen  prcacnt  with  Kimen  Joan  Doaa, 
when  lie  loolMd  over  the  paperaf— Yea. 

Did  he  hwk  at  all  the  pepemf— No.  He 
wentd  not  look  at  aome,  becaoae  of  theindorae* 
sent,  and  aome  becaoae  they  were  old,  and 
eome  beeauae  he  tied  them  ap  himaelf.  I  ap-t 
mehcnd  the  papera  conid  not  be  ezamittcd  in 
leaa  than  three  daya. 

Kisten  Juan  Doa  examined. 

Did  you  examine  e?ery  bundle  ?— There 
were  aet eral  large  bundles  of  papers  of  old 
accounts,  that  1  did  not  examine,  thinking 
them  of  00  use. 

Court,  Tbb  will  not  entitle  yoa  to  read  any 
paper,  or  make  what  Kissep  Juan  Dosa  spija, 
etidence.    But  though  it  is  not  strictly  so,  I 
will  nevertheless  leave  it  to  the  jury. 

Monohur  Munshy  examined. 

Do  yoii  know  Mobun  Persaud  ? — I  do. 

Has  be  ever  sent  for  you  lately  ? — He  has. 
.  Did  he  shew  you  some  papers  P — He  did. 

In  what  language  ? — In  Persian. 

Tell  the  Court  truly  what  passed  on  that 
occaaion?— He  called  me  three  daya  before 
Maba  Rajah  was  put  in  gaol :  it  w.as  about  aix 
gurree  or  the  day  when  he  aent  for  me  (balf 
past  nine) :  he  sent  a  man  with  bb  a#lam,  who 
deaired  me  to  come  to  Mobuo  Peraaod,  for  he 
had  agreat  deal  to  aay  to  me.  I  aaid,  I  could 
not  come  now ;  I  had  busmeaa :  1  will  go  at 
noon.  At  noon  1  weot  to  hb  hooae ;  he  waa 
very  glad  to  aee  me.  When  1  arriTed  at  hb 
honaa,  he  hid  me  ah  down  by  him :  we  two  aat 
down  tq(ether :  there  waa  nobody  elie.,  Afiier 


heseid^lhete 
writing,    laid, 
leekatthcM.    1 


aaid,  Tenwefehdbrea 
jah;   I  hate  bcnid  they 
writing:  1  asid,  Thef  an 
writing;  irth^wcn,l«a 
that  Im  taok  enfc  a  hand  IbnsMoek 
kaf  e  alao  hcnrd  tfab  wna  wear  hi 
hiokatit.    I  looked  at  it,  Md  rend  it. 
Neither  b  thb  of  aay  hnd 


I 

I 


aaid,  1  beard 

b  a  friendship  between  yen 
not  yo«  tell  nhentlhbr  Isnin 
not  my  hand'Writing.  Mennn 
If  yon  will  eay  they  are  ef  year  imnd-anilbfi 
Maba  B^  will  he  n  great  Mar,  and  wiU  matt 
with  gnat  pniMBhnMnt.  I  do  Ml  want  yen  w 
tell  for  nothing;  I  will  gin  yea  4  or  S^M 
rapeet.  I  aaSi,  I  eannot  teli  aneh  wenb  h 
thcae;  it  b  net  my  hand- writing:  howcani 
tellUbf  He  then  adSd,  WeUTtf  yon  will  Ml 
aay  it  byonr  hand- writiafTf find  out nasanth^ 
Will  aay  It  ia  hb  hand* writing:  whnieter  blilB 
givenl  wil  gin  bun;  1  wUI  likewbe  mifet 
you  joyful.  ffohnnPeraandaaidyBnqninftr 
anchaaaan:  I  anawered,  J  eannot  do  Ihb:  I 
aaid  that  he  waa  adfising  me  to  do  n  nrjbd 
hnaineaa,  and  I  wentfrom  thenoe. 

Did  yon  relate  thb  to  any  one,  upon  yaar 
getting  homef — ^Itbansontbandtenorama 
daya  ago,  ahiee.tbb  happened:  how  mmf 
men  have  asked  me  abont  thb  1  know  nai^itn 
so  loi^  ago:  as  I  mentioned,  nsany  fiknii 
and  rebtiona  have  asked :  how  can  1  tell  inf 
one  in  particular  ? 

Have  you  told  it  to  any  body  P-*I  mentioaci 
it  to  nobody  innraediatel y. 

Did  yoo  tell  any  body  that  day  ? — I  did  aoL 

Did  you  the  next  day  ? — 1  do  not  knoir :  [b 
recollects]  upon  the  evening  of  that  day  i 
mentioned  it  to  Permanund  Mokerjee. 

Crosi'Examnatwn, 

Who  was  at  Mobun  Persaud^s  house  wbia 
you  went  there? — I  saw  Kisseo  Juan  Dees; 
he  also  aaw  me ;  but  in  the  room  into  whicb  I 
was  carried,  there  was  nobody  but  Mobun  Pn^ 
saud  and  myself. 

Were  none  of  Mobun  Persatid's  pcofh 
there? — I  went  up  stairs :  1  saw  Kissen  Jaa 
Dots  sitting  there :  I  saw  no  one  else. 

When  Moliun  Persaud  spoke  to  you,  did  ysa 
understand  that  he  wanted  you  to  tell  whetacr 
you  had  ^rote  it  or  not,  or  to  say  that  yoa  bad 
absolutely  wrote  it  if  you  had  not? — Howcai 
I  tell  what  passed  in  bis  heart:  1  tell  nbst 
happened :  1  have  taken  an  oath  :  you  have 
put  questions  to  me :   what  I  know  I  told  yaa. 

What  did  be  sav  to  you?— '« If  yoo  da^ 
it,  Ma'ia  Rajah  will  be  proved  a  Uai^  and  ml, 
have  great  punishment.  Y^n  will  not  «y  h 
^rmming}  youwiUban4dr5y000nftjiir 


1037] 


at  Calcutta,  Jbr  Forgery. 


A.  D.  1775. 


ClOSi 


Did  Nobun  Persaud  mean  to  get  the  man 
that  wrote  it,  or  one  who  did  not,  but  wonid 
swear  be  did  ? — He  said,  <*  If  it  is  not  )^our 
hand- writing,  find  out  such  a  man  for  me,  who 
will  say.  These  are  my  letters :  what  is  proper 
to  give  I  will  gi?e  ;  and  i  will  render  you  joy- 
ful." 

Where  does  Permanund  Blokerjee  live  ? — In 
tbe  same  compound  with  me. 

What  is  bis  employment  f — He  is  in  no  em- 
ployment. 

Did  Permanund  Mokerjee  ask  you,  or  did 
you  tell  bim  ? — He  asked  me. 

How  came  he  to  ask  you  ? — Because  be  sitw 
the  peon  come,  be  asked  me  why  Mobun  Per- 
saud sent  for  me  ? 

What  was  the  peon's  name  ? — 1  asked  bis 
name :  I  do  not  well  remember ;  bnt  I  believe 
U  was  Cawota :  be  said  he  was  Mohan  Per- 
saad's  man. 

Did  tbe  peon  go  with  you  to  Mobun  Per- 
iaud's  ? — He  did  not. 

When  did  he  call  you  ?— At  seven  gurrees : 
I  went  after  mid-day. 

Had  you  ever  been  at  Mobun  Persaud's  be- 
fore ?— 1  have,  because  I  owed  bim  73  rupees : 
1  never  was  in  that  room  before. 

Did  you  tell  any  body  else  that  day  ? — I 
ODly  told  Permanund  that  day. 

Did  you  tell  any  one  tbe  next  day  ? — I  did 
not  that  day  :  after  that  day  it  got  wmd,  and  a 
great  many  people  asked  me :  1  told  them. 

Did  Moiiun  Persaud  bid  you  keep  it  a  se- 
orel  ? — No ;  but  there  was  a  great  friendship 
between  us. 

Whom  did  you  tell  it  to  next,  after  yon  told 
it  to  Permanund  ? — I  cannot  remember :  many 
people  aske<l  me,  and  I  told  them. 

Whom  did  you  tell  it  to  besides  ?— I  told  it 
Mr.  Durham. 

How  came  yon  to  tell  Mr.  Durham  ? — Mr. 
Durham  asked  me,  who  was  my  master  f 

Did  yon  tell  any  other  Englishman  ? — No : 
what  have  1  to  do  with  Englishmen  ? 

Did  you  never  tell  it  to  Mr.  Jarret  ?— He 
uked  me  in  this  court :  1  did  not  tell  all. 

To  how  many  black  people  did  you  tell  it  ? 
x— I  do  not  remember. 

Did  you  ever  tell  it  to  Kissen  Juan  Doss? — 
[  did  not :  I  do  not  remember  any  other  black 
BMin  I  told  it  to. 

Do  yon  remember  any  other  person  that 
isked  you  about  it? — 1  do  not  remember  one 
hat  asked  me :  there  were  a  great  many,  but 
[  iio  not  remember  them. 

As  many  witnesses  remember  accurately  for 
14  or  15  years,  cannot  you  remember  for  a 
ooothf — I  am  a  Company's  servant:  why 
hoald  I  take  such  pains  about  it  ? 

Whom  do  you  keep  company  with  P— Mr. 
>iirham. 

Can't  you  remember  any  one  that  has  asked 
r#ii  f-*r  cannot  remember  one. 

l>o  you  go  to  make  salams  to  Maba  Ra- 
■h  ?— Since  be  has  been  .confined  in  gaol  1 
laire  not  paid  salams :  I  used  before. 
Jkn  jFoa  fute  yoo  have  not  viaited  him  tiace 


he  has  been  in  gaol  ?— I  do  not  remember  that 
I  have  visited  bim  in  gaol. 

[duestion  repeated.]— il.  Tbe  gaol  is  tbe 
same  street  with  the  Cutcherry :  I  went  to  tbe 
gaol  one  day.  i  heard  Rajah  Nobkissen  and 
several  persons  of  rank  had  been  to  pay  salams: 
I  likewise  went  to  pay  salam :  1  did  not  see 
bim:  I  never  went  but  that  time. 

Yeandelf  (Gaoler)  Sworn. 

Did  you  ever  see  this  man  at  the  gaol  T I 

think  1  have  seen  him  about  the  gaol. 

Did  yon  ever  see  him  more  than  once  ? — I 
cannot  say  with  precision :  I  think  I  have  seea 
him  once,  and  remember  bim  well. 

Monohur  Metre  examined* 

Did  any  body  else  shew  you  these  Persian 
papers  ? — Yes,  Mr.  Durham  also  shewed  me 
the  teeps:  I  do  not  remember  whether  he 
shewed  tbe  bond  :  be  asked  me  if  they  were  in 
my  band  writing  ? 

Was  Mobun  Persaud  present  ? — Yes. 

Was  this  before  or  after  what  passed  at  Mo- 
bun Persaud's  bouse  P — It  was  after. 

Did  Mr.  Durham  shew  you  tbe  bondP — I 
remember  tbe  teeps :  I  do  not  remember  tbe 
other.  Mobun  Persaud  shewed  me  three 
papers. 

How  ]on^  after  tbe  conversation  at  Mobun 
Persaud's  did  Mr.  Durham  shew  them  to  yooP 
— It  was  one  or  two  days  after  Mobun  Persaud 
had  shewn  tbem  to  me. 

Did  you  tell  Mr.  Durham  any  thing  of  Mo« 
bun  Persaud's  offer  P — No. 

Relate  what  passed  at  Mr.  Durham's. — Mr. 
Durham  looked  at  those  papers,  and  asked  me 
if  they  were  of  my  band- writing:  he  desired 
me  to  be  certain,  and  speak  the  truth.  1  told 
him  1  would  shew  him  my  hand-writing  in  tbe 
hook  of  tbe  Cutcherry  :  when  they  were  com- 
pared they  were  found  not  to  agree. 

Who  were  present  beside  Mr.  Durham  ?— 
Mobun  Persaud  and  Jaggutcbund,  tbe  son-in- 
law  of  Maba  Rajah. 

Did  yon  then  say  that  Mobun  Persaud  had 
asked  you  the  same  questions  before? — No: 
why  should  I  do  more  than  answer  bis  ques- 
tions P 

Did  you  any  other  time  tell  Mr.  Durham  of 
tbe  ofler  made  you  by  Mobun  Persaud  P — Ano- 
ther time  Mr.  Durham  sent  to  me,  and  asked 
if  Mohun  Persaud  had  offered  me  any  money  : 
1  told  bim  what  1  have  before  related. 

How  long  is  it  since  Mr.  Durham  sent  for 
you  ?-*It  was  before  tbe  grand  jury  met. 

How  long  before?— 'About  four  or  five  days: 
I  can't  tell  with  certainty. 

Did  you  come  when  Mr.  Durham  sent  for 
you  first  ? — A  man  came  to  me  about  mid-day : 
,  1  said  I  was  sick,  I  would  come  tbe  next  day. 

Were  you  really  sick  P— I  was  fererisb,  and 
had  a  purge. 

What  conversation  passed  between  you  and 
Mr.  Durham  P — He  asked  me  if  Mobun  Per- 
saud bad  offered  me  money ;  L  •ak»l'ii^^>^ 


1089]  UOBOBGSnL 

whatmaMMr;  uid  told  him  wlMi  I  hafibefbre 
falmed. 

Mr*  Durhm  swoiii* 


dMgy  BigBrfi  gfa— Misfit  I  loi 
WImi  WM fSmmnrnmOm f— It 
9t  tni  flioMtiii  Mnmi  gttV8 


I  Wit  tMild  by  my  drew,  abonl  three  da  v«  alte 
the  eommitmeal  of  Meha  Rigah,  that  the  man 
that  wrote  the  bond  waa  the  MuDshy  9f  the 
Cotcberry,  aod  that  he  had  beee  at  fimt  time 
Monsby  to  Maba  Rajah.  I  ahewed  him  the 
bond,  aad  aikcd  him,  in  the  preaeoce  of  Jaff- 

Ktcbond  aod  Mobun  Permnd:  he  took  the 
id  and  read  it;  looked  §t  it kmg  aod  aeeo- 
rateiy :  I  gave  ldi|i  all  tmee ;  I  do  not  know 
which  first  He  looked  aeenrately  at  the  fint, 
end  tben  said  it  waa  not  hit  hand.  I  dcaired 
him  to  be  exact,  to  recollect  himaelf,  and  if  he 
had  wrote  it  to  tell :  he  ttill  said  it  was  not  hia 
.hand.  I  then  bid  him  bring  me  the  Cittehmy, 
which  he  bfonght  immedimy :  from  my  idea 
of  Persian  1  did  not  think  them  the  aamelband. 
Mehon  Pertaod  insisted  they  were,  from  his* 
idea  of  Persiao.  He  knew  as  little  of  Persian 
aa  I  did  myaelf.  Not  a  word  passed  of  any  effw 
from  Mobon  Permnd,  or  his  having  seen  the 
paperajbefore :  every  day  afier  that  he  was  at 
inv  hoiiae ;  he  never  mentioned  a  word  of  any 
onrfnim  Mohan  Permnd:  oneoftheMolla- 
vees  of  tlM  Goteherry  told  me  heipaa  toaay  so. 
I  sent  for  Monohnr,  aod  he  tokl  me  just  what 
be  has  now  rekted. 

[Ifemorandam.  Twoofthewitnessm,Ram- 
Daut  end  Bolgovind,  tliat  were  on  the  baek  of 
the  indietment,  not  having  been  oalled  by  the 
prosecotor,  and  it  having  been  oiiesnred  br  the 
Coort,  and  the  oonnsd  for  the  priioaer  odng 
told  that  they  might  call  for  them,  the  connsa 
for  the  prisoner  mid,  he  was  well  aeqoainted 
with,  and  oenld  give  tbe  reasons  wbv  tneooun« 
eel  for  tbe  prosecution  had  not  called  them,  and 
that  he  should  immediately  call  them.] 

Ramnaut  examined. 

Do  you  know  Mobun  Persaod  ?-*-!  do. 

Were  you  present  when  Moha  Rajah  was 
examined  for  the  forgery  before  the  judges  ?— 1 
was  examined  that  day. 

When  was  it  ?— It  was  on  Saturday  :  it  was 
upwards  of  a  montli  ago. 

What  day  of  the  month  was  itP— 1  do  not 
know. 

What  induced  you  to  go  there  tben  P— There 
vras  formerlv  a  great  frieiidsbip  between  Maha 
Rajah  aod  Mobun  Persaud :  they  both  took  a 
great  deal  of  notice  of  me  about  that  time  they 
quarrelled,  and  1  went  equally  to  both  when 
toey  were  separated. 

At  what  time  was  this?— I  remember  tbe 
time,  when  Maha  Rajah  one  day  said  to  me. 
You  koow  1  like  no  one  better  than  Mobun 
POreand,  except  my  son :  now  he  wishes  to 
min  OM  in  this  affair  of  BoHakey  Doss ;  he  is 
only  an  attorney  in  this  afiair :  tell  him  he 
caanet  get  more  than  5,  7,  or  10,000  rupees, 
by  sneeeeding  in  this  affair ;  tell  him,  if  he 
wsasm,!  will  ghra  him  15  or  ao,000  to  deaist 
mm  thiapieascntien ;  I  told  Mobun  Persand, 
ani  MMmii  Fnaad  aaid,  1  hafe  teM  a  great 


efAli 
aflbhr  hefbm  the  jraidfsa.  ThaeaMi 
that  tiaM,  m  the  DewaMMO  Aiawtartk 
Fsrsaod  having  hsaad  what  I 
Maha  Ri^  NmMtoeoasar,  asked 
ssmI  desired  me  to  eease,  awd  ghm 
it  oo  the  water  of  the  Chmgea. 
Do  yew  noderstand  BngMif>-lia,  I  damt 
When  did  Mohan  P^rsayd  tot  hesr  wfc^ 
yeqhavemhif— Ihatehelbiwaaid,!!  wsaim 
or  ten  montha,  before  I  gave  evidence  hsfcesfc 
jn^ges :  he  desirsd  ae  la  m%  < 

month  of  Assen. 

When  r^Whcn  tiiia  aibir  was 
the  Adawlnt  (this  Cemrt.)  he  eahl.  Yew 
her  what  passed  between  yea  and  Maha  R^| 
yon  moat  give  evidence  wit. 

Hew  kMg  was  tbhi  before  yaw  gm'  M* 
deneeP--%-Aboat  ten  ortwdvemonlliebtfhwl 
gave evmenee*  abflfeareaoeooatSy.paymMii^ 
and  reeeipta  between  as. 

Did  tlua  eon versatkm  peas  at  this  time  F— I 
went  one  day  ta  bk  honae;  and  helhemdi- 
sired  me  to  give  evidence  of  what  pasBai-l»« 
tweeb  me  and  the  Maha  Raiab. 

Who  was  preeentN-Thm  b  God^  AdswH* 
mail  will  tcit  no  lies.  I  went  gpoo  iariwdilii 
his  house,  and  nobody  waa  praasat. 

At  what  tune  of  the  dav  waa  Itf— Abf* 
three  or  four  gnrrieaef  the  day  remsined 

In  what  room  of  Mobun  P^rsnod'i  ' 


was  itP— On  a  tenoss,  up  staira,  there  is  m 
upper  room,  where  OongsMSsealivce:  eatti 
ootside  of  that,  there  ia  agoiya,  wlMfe  we  ml; 

Were  yea  aittmg  at  that  tinmf-«-We  ami 
silting. 

Who  got  up  first  P— I  got  up  first;  and|il 
my  dismission  and  went  away. 

How  long  was  he  there  P— Three  gurries  if 
the  day  remained,  when  I  went  there;  sal 
when  1  went  away  tbe  lamp  was  ligfatei 
Gongabissen  was  aueep  upon  nw  oott ;  thcw 
were  two  or  three  servants  there. 

Where  did  yon  eee  these  servants  P—1i 
Gnngabissen*8  room.  I  went  out  of  the  rosai^ 
th^  were  there. 

Be  particular  io  telling  Mohan  Ptormaii 
answer.— When  I  deii?eretl  tbe  lueesage  fisw 
Maha  Rajab,  he  said,  1  have  toM  a  great  tamf 
Enffiish  gentlemen  of  this  affair,  and  caaatf 
desist. 

Did  he  say  any  thing  else  to  him  P— Bi 
said,  I  have  told  many  Englfath  grntlenMa; 
think  within  yourself,  how  can  I  desist 

Did  not  Mohon  Persaud  say,  if  I  had  fcoivt 
this  sooner,  it  might  have  heen  doneP— Bi 
said  no  more :  be  said  be  had  toM  asaay  fta* 
tieroen :  think  within  yourself,  how  ean  I  d^ 
sistP 

Did  Mohun  Persaod  say,  if  thia  affaw  bi 
been  mentioned  before,  it  would  have  baanfm* 
sible  to  have  done  it. 

[He  gives  the  aame  anawwy  uAwnlt/f^ 


at  Calcutta, far  Forgery. 
Mohun  Prrsaud  spolci 


A.  D.  1775. 


[lOiS 


couli)  be  oblained ;  being 
ijrnent,  he  said,  T1ips>? 


■'•re  the  wonls. 
hare  related. 

[Mo  f  jrlber 
threatened  wll 

are  tbe  words  Mobun  PersauJ 
mire  sboul  J  be  say  ?] 

Whs  llie  lafn|i  lighted  before  jou  went  away 
from  Mohim  Persaud'sf-  — Yea:  llie  lamp  naa 
lighted  before  I  weol  away. 

Hoirloiiff?---!  went  at  the  lime  the  lamp 
was  lighted,  or  about  a  miuuie  or  Iwo  el\er- 

Who  bgbted  the  larap?---Tbere  »»<  do 
lamp  where  we  were :  the  lamp  was  in  Gun- 
gabissen'sroom. 

What  kiiidoraday?  was  il  fair  or  iiol?— 
It  was  a  rainy  day  :  I  tveul  with  my  tXvivi  on  : 
1  walkeil  Ibtre. 

Was  not  this  15  da^s  before  Maba  Rajah 
WUtakru  up? — I  said  il  was  10  or  lU  days. 

Had  you  erer  afteruardB  any  conTersallon 
vriih  Hohuii  Persaud  nn  this  subject?-'-!  UKed 
almost  every  day  to  go  to  Mnhun  Persaud's. 
I  went  ufier  that  od  my  otvD  buKineM ;  there 
waa  no  other  cuoTcrsaiiou  on  this  subject,  till  1 
came  here.  I  have  myself  i  auit  in  ibis  court, 
and  come  almost  every  day.  lie  tnld  me  the 
roornint;  of  the  day  1  gave  evidence,  In  come 
here.  I  came  here  in  the  morDing- ;  tbe  first 
light  I  bad  of  him,  was  in  the  Adawlet. 

Do  you  mean  the  first  or  second  time  you 
were  examined  ?--•!  was  examined  heftire  those 
freDtlemfu  the  first  day.  [Pointing  to  Mr. 
Xicmaistre  and  Mr.  Hyde.] 

Where  did  you  see  Hubun  PerRNuiI,  afler 

{oa   gate  the  e*ideDce^--''''he,  first  sight  1 
•d  of  him  was  here. 
Whom  do  you  come  to  at  the  Adntvlel?— I 
always  come  lo  that  geDilemao. —  [PuintJag  to 
the  Uodtr  Sheriif.] 

When  did  you  see  MobuD  Persand,  aAer 
you  gave  your  eiidence  the  first  lime? — I 
uaed  to  see  lilm  every  dny. 

When  did  he  tell  you  to  come  hereP—He 
told  me,  the  day  I  conversed  with  him  on  tbe 
Mbjecl,  that  1  was  to  gire  e* ideoce  here.  He 
•aid,  1  must  be  there  on  Saturday  se'nDighl. 
How  should  I  have  knowu  when  to  come,  if 
Mohun  PersBud  had  not  lold  me? 

Wlien  he  told  you  so,  uasii  the  first  lime  be 
WBsexamioed?-"ll  was  the  lint  time  be  was 

Did  Mohun  Persaud  nfier  Id  give  you  any 
money  bej ore  the  judges? — Why  should  be 
pve  me  rup/.a  in  such  a  case?  W by  should 
you  ask  me  such  a  question  ?  1  am  not  worthy 
such  suspicion,  as  tbe  gentlemen  of  the  coun- 
cil, and  all  the  principal  people  ia  Calcutta, 
well  know.  1  am  much  eng^ed  in  business 
«*ilh  Mnhun  Persaud,  13,000  rupees  is  due 
lo  me.  I  gave  Mohun  Persaud  a  writing,  that 
when  I  received  it,  I  would  give  Mohun  Per- 
■aiid  four  annas  in  the  rupee ;  Ibis  was,  if  Mo- 
hun  Persaud  would  give  me  500  rupees,  in 
ready  money.  I  have  uot  received  all  the 
money. 

Did  Mohun  Perssud  Derer  nuke  you  any 
VOL.  liX. 


Do  you  I 
Had  you 


promise,  in  canseqiience  of  giving  your  evi-    ' 
tlence?"-fle  never  did. 

Do  you  know  Gopenaut  Doss  ?---l   do  not.    i 

Do  you  know  Hada  Cunt  Itoy  i---\  do  not. 
know  Cuogadar  ?- — 1  do  tioL 
1  ever  any  cnnverealion  with  Gope< 
Doss,  at  the  time  you  examined  befora  I 
the  Grand  Jury,  or  before  Mr.  Justice  Le- 
muistre,  or  Mr.  Justioe  Hyde  ?- .- 1  dn  not  know 
bim.  1  do  not  recollect  having  a oy  cuu vena- 
tion with  such  a  person. 

Have  you  any  relation  of  thenamenf  Gope- 
liaut  Doss?— My  boui^e  is  at  Mabla.  I  do 
not  know  1  have  any  relation  in  Calnitta  of 
thai  name.  There  is  a  Gopcnaut  Doss  at 
Malda,*  who  is  a  relation  of  loiae.  He  is  of 
my  cast. 

[A  man  is  produced  ;  and  the  wiloessis  ask- 
ed, if  be  knows  bim.]— 1  do  :  bis  name  is 
Go[ienauI  Naizer. 

[The  man  being  sworn,  is  asked  bis  name.;i 
A,  My  name  is  Gopcnaut  Doss. 

Ramnaut'i  Eiamiuation  cnnlinued. 

Ramnaut.  Every  body  calls  him  Gopeosat 
Nazzer.  He  one  day  asked  me,  if  I  would 
enter  into  friendship  with  him.  He  asked  mft 
if  I  would  have  a  (arm ;  and  said,  Come  to 
my  b'luie,  if  you  will  do  these  things,  it  will 
he  belter  for  you.  I  answered,  1  do  not  kooir 
your  house.  Oa  another  day  he  sen!  a  man  ta 
me:  T  then  sent  an  Adawlat  Penn  with  him,  la 
see  where  his  bouse  was.  1  did  uot  want  any 
thing  with  him  :   1  did  not  go  lo  his  house. 

" "     He  said.  Will 

to  my  house  f 
whose  business  it  is  to 


Wliai  did  hi 
'au  have  alarm 


:   1  did  n 

n?  Willv' 


What  was  his  reaton  for  coming  lo  ilia 
Iiouse?---He  put  bis  palanquin  down  at  roy 
door.     I  don't  know  bis  reason. 

Wlinididhesay  tDyouP'-lIetold  me  what 
1  have  said  ;  if  1  have  told  you  wrong  you 
punish  me.     1  know  of  the  sUle  of  this  man. 

Why  dill  he  offer  lhefarin?---l  never  ki.eir 
the  map  :  I  had  no  riHivet^ation  with  him ;  I 
wondered  \n  should  offer  me  the  farm.  I  be- 
lieve he  is  a  farmer,  a  native,  collector,  and  a 

Whose  nazzer  is  be?— I  have  heard  him 
called  Go  pel  Mexer.  1  don't  know  whose  naz- 
zerheis. 

Is  he  any  relation  of  yours  !'---Me  ia  no 
relation    of    mine:     a  great  many  things  of 


this  s 


I  will   c 


:  out.     1  was  si 


tbe  door  of  Mr.  Killican :  Sheck  Mahomed 
Gcllamey  began  to  say  lo  me,  Maba  Itajali 
is  a  Dnibmin,  be  wilt  now  be  ruined.  Do 
yoti  save  him  ;  you  owe  Maha  Itajih  money. 
That  be  will  excuse  you. 

[Tbe  Court  here  interruiits  him  ;  sayiD^ 
he  mu&t  not  tell  what  anullier  man  bad  safil  to 
him,  and  telhng  Ibajury  lo  take  no  notice  of  it.] 

When  was  the  offer  uf  the  farm?— It  waa 
afler  Maba  Itajah  wi 


1043] 


15  GEORGE  III.  Trial  ofMaha  Rajah  Nundoeomar, 


[1044 


Do  joo  know  of  Growanoy  Chan  Nag  ?— 
No. 

Do  you  know  Ram  Gopaal  Goas  ?-- -No. 

Do  you  know  Hurrikiasen  Muckeijee? — I 
Icnow  him :  I  believe  be  ia  the  brother  of  Harry 
Cunt  Muckeijee. 

Did  you  make  bim  write  any  paper  ? — I  did 
occasion  bim  to  write  a  paper ;  but  if  you  can 
prove  that  i  offered  or  gave  money  to  any  one 
to  swear,  let  me  bo  punished:  they  oeca- 
jiioned  Muckeijee  to  write  it.  I  went  to  the 
houseof  Mr.  Driver;  flurrykisaen  Mockerjee 
was  there.  1  said  to  the  three  men,  two  of 
them  were  my  men,  that  were  witnesses  in  the 
affair  of  Mahomed  Gnllamee.  I  said  to  them, 
lYhatever  you  know  about  this  affair,  give  me 
in  writing.  They  said  to  Hurrykisseu,  Write 
.to  me.  The  paper  had  been  wrote.  They 
two.  Covin  Sinff,  and  Gundaram  Roy,  ai^ned 
it.  I  aaid  to  Hurrykissen,  These  men  baye 
git^  me  a  paper,  witness  it :  he  said,  1  will 
not  be  a  witness  to  the  paper :  I  shall  be  called 
into  the  Adawlet,  if  1  am.  There  was  another 
■ircar  there ;  and  that  paper  being  torn,  the  sir- 
car wrote  out  another. 

Gorpe  Naut  Dts  examined. 

Do  you  know  Ramnaut  ?— 1  know  him. 

How  long  have  you  known  him  ?— I  have 
seen  him  in  Calcutta  four  or  five  years.    I  saw 
him  when  Mr.  Hastings  first  came  to  the  go- , 
Ternmcnt. 

Had  you  any  conversation  with  him  about 
any  evidence  against  Maha  Rajah  Nundoeo- 
mar?*—1  had. 

Relate  it— -On  the  9ih  day  of  Choite,  I  was 
^ing  to  tLe  house  of  Mr.  Cottrell :  I  saw  him 
Co  the  south  of  this  house ;  he  made  a  salam : 
I  asked  him  where  he  was  going ;  be  said,  1 
have  taken  a  buzar  in  farm.  He  was  on  horse- 
back, and  I  was  in  my  palanquin  ;  we  kept 
company  on  the  road.  I  asked  him  what  be- 
came of  the  evidence  he  gave  in  Maha  Rajah's 
affairs :  he  said  to  me,  Mohun  Persaud  has  paid 
the  expence  of  my  house,  and  given  me  300 
rupees  to  give  evidence.  I  said,  if  you  have 
done  this,  you  have  done  a  bad  affair ;  no  words 
are  secret  m  the  Adawlet.  He  went  one  way, 
and  I  went  another. 

Ramnaut,  He  says  he  was  in  a  palanquin, 
and  I  was  on  horseback :  is  it  likely  such  a 
jconversation  should  pass? 

Attaram  Bote  examined. 

Do  you  know  Mohun  Persaud  ?— -I  do. 

How  long  have  you  known  him?— Fifteen 
^r  twenty  years. 

What  is  bis  character  ?— I  know  nothing  of 
bis  character. 

What  do  people  say  of  bim?— Nobody 
ipeaks  well  of  him. 

Do  they  speak  ill  of  him? 

Court,  You  should  ask,  whether  he  is  to 
^  believed  upon  his  oath  or  not. 

Nemo  Dots  examined. 
How  long  have  you  known  Mohan  Per* 
Mud  ?«^Tweoty  or  twenty-five  youn. 


What  do  people  say  of  him  ? — They  ifeak 
ill  of  him. 

Is  he  to  be  believed  opon  his  oath  ?— -I  cta- 
not  say  he  is  not  to  be  believed  upon  his  oath. 

Mohun  Persaud  exAmmed. 

[Shewn  exhibit  marked  M.]  [For  a  oopf 
of  this,  vide  p.  982.] 

Ou  what  occasion  was  this  paper  drawoonl? 
— ^To  shew  to  Bollakey  Doss's  wife. 

Were  the  papers  shewn  to  Maha  Riyah 
Nundoeomar?— r^o:  never. 

Was  it,  when  drawn  out,  represented  to  Bol- 
lakey  Doss's  wife?-— Pudmohun  Dota  akwt   ^ 
signed  it,  and  carried  it  >way. 

When  did  you  yourself  sign  itf — When 
there  was  a  dispute  between  ^llakej  Dosi't 
widow,  and  Pudmohun  Doss,  1  signed  it 

Was  this  after  you  settled  Maha  Riyah  NoB- 
docomar's  account  ?—  -Long  after. 

How  long?— Eighteen  or  twenty  days  ate    - 
Maha  Rajah  received  the  bond. 

With  what  view  did  you  sign  it?-— WWi  | 
Bollakey  Doss's  widow  called  me  to  her,  she 
observed  my  signature  was  not  to  it:  apsa 
which  Pudmoluin  Doss  observed,  that  tk 
widow  of  Bollakey  Doss  had  taken  notice  sf 
my  signature  not  being  to  it.  He  said,  **Hcit 
is  no  name,  no  teeps,  no  account;  only  pM 
your  name  to  this.  Whjr  do  you  make  mf 
doubt  about  it?  only  sign  it,  and  I  will  give  tf 
you  back." 

Is  this  Maha  Rajah  Nundocomar'a  accotnt, 
or  not  ?— -Look  if  you  can  find  his  name  toil. 

Is  it  his  account  or  not  ?--It  is  not  his  le* 
count. 

Do  you  mean  that  this  paper  doea  not  coo- 
tain  the  account  of  Maha  Rajah  Nundoeo- 
mar?-—No;  the  name  uf  Maha  Rajah  Nod- 
documar  is  not  in  it,  nor  was  it  delivered  to 
him. 

Does  any  part  of  this  paper  constitute  Mtht 
Rajah's  account? — It  is  Malia  Rajah's  account: 
the  Durbar  Karrutch  is  there ;  he  took  tbe 
bond  for  1€9,000  rupees,  and  obtained  60,OQO 
rupees  for  Durbar  expences. 

Will  you  swear  positivefy  that  this  accotuit 
was  settled  at  the  Maha  Rajah's  house,  in  tht 
presence  of  Choyton  Naut  and  others?— N<S 
It  was  not. 

Was  it  never  settled,  either  in  writing  orvc^ 
bally,  at  the  Maha  Rajah's  house,  when  jot 
was  present? — It  was  never  settled  wheal 
was  at  the  Maha  Rajah's  house. 

You  have  mentioned  the  Durbar  chargci: 
are  the  other  articles  right  and  true  ?— I  ban 
not  said  the  60,000  rupees  were  either  right  or 
wrong. 

What  do  you  say  now,  were  they  right  fr 
wrong?— There  was  not  a  cowrie  expended  is 
Durbar  expences. 

How  can  you  possibly  know,  that  the  Maki 
Rajah  never  paid  any  Durbar  changes?-;* 
He  may  upon  nis  own  account ;  not  upon  tbia 

When  was  it  you  first  suspeoted  this  at* 
couDtf— When  Maha  Rig%h  fini  matoit 


1045] 


at  Calculla,Jbr  Torgery. 


A.  D.  1775. 


[1046 


to  me,  that  some  Durbar  expences  would  arise, 
I  from  that  time  had  doubts. 

When  did  you  Orst  suspect  the  bond  to  be 
forged? --Four  daj^s  after,  Maha  Rajah  Nun- 
documar  himself  said  to  me,  We  ha?e  prepar- 
ed three  papers. 

Was  not  tliat  at  the  time  the  bonds  were 
paid  ?— Re  had  the  money  in  his  posses^iion. 
The  bonds  were  with  Maha  Rajah,  when  Pud- 
mob  un  Doss  said,  Let  us  ^et  the  bonds. 

When  did  Pudmohun  Doss  ffrst  inform  you 
of  it?— -When  the  bonds  were  put  into  the  pos- 
session of  Maha  Rajab. 

Why  did  you  not  beg^in  this  prosecution 
sooner  then?  — I  had  very  little  power  in  the 
business  of  the  deceased.  Pudmohun  Doss 
was  the  master. 

When  did  you  begin  to  have  the  manage- 
ment of  the  business?— -Upon  the  death  of 
Pudmohun  Doss. 

When^  was  that?— Id  the  month  of  Cafltick^ 
18^,  [Nagree  year.]  about  four  years  ago. 

Did  you  ever  mention  your  apprehensions  of 
iorgery  to  Pudmohun  Doss,  and  advise  him  to 
prosecute?— -When  Pudmohun  Doss  brought 
the  bond  from  Maha  Rajah  Nundocomar  in  the 
sight,  and  read  it  to  me:  1  asked  him  the  fol- 
lowing morning  if  he  had  brought  all  the  bonds. 
tie  shewed  me  the  three  papers,  and  had  the 
Persian  read  to  me :  1  said,  nothing  was  due 
on  those  papers :  what  did  they  mean  ?  Pud- 
mohun Doss  said,  Remain  quiet,  and  I  will  in- 
form \ou  of  the  circumstances  of  it.  After 
that,  the  widow  of  Bollakey  Doss  complained  to 
Mr.  Russet  through  Cossinaut :  Gosbein  like- 
wise complained  in  the  adawlet  (i.  t.  M ayor^s 
cotirt,  and  made  Mr.  Magee  one  attorney,  and 
Mr.  Sealy  his  law  attorney. 

Did  Pudmohun  Doss  ever  after  give  yoa  sa-» 
tisfactory  accounts  of  these  bonds? — No :  he  al- 
ways put  me  off,  by  saying  he  would  inform 
me  of^the  circumsuinces. 

Did  you  apply  often  to  him  for  that  purpose? 
— -I  did  not  press  him  much :  Gosbein  did : 
and  Pudmohun  Doss,  in  consequence,  was 
thrown  into  confinement. 

If  you  suspected  forgery,  why  did  yon  not 
press  him  ? — He  used  always  to  pot  me  off,  by 
saying  he  would  tell  me  the  circumstances. 

You  ought  to  have  pressed  him  much ; 
why  did  you  not? — I  and  Bollakey  Doss's 
widow,  Gosbein,  Gungabissen,  and  Ballgovin, 
used  always  to  be  pressing  Pudmohun  Doss 
to  settle  the  accounts,  and  deliver  them  over. 

Did  you  ever  mention  yoar  suspicions  to  the 
widow? — 1  did  not  with  my  own  mouth,  be- 
cause 1  was  not  with  her,  but  by  the  means 
of  Durhamcburn  I  did.  • 

Did  you  ever  by  those  means  inform  her, 
that  you  thought  it  a  forged  bond?— What  I 
told  ner  through  Durhamchund  was,  that  the 
Durbar  expences  charged  in  the  account  were 
niyust. 

Tell  at  what  time  you  first  suspected  forgery 
of  the  hood ;  and  that  the  seal  of  Bollakey  Doss 
was  improperly  made  use  of.— Maha  Rajah 
msnttoaed  to  me  the  bond,  sad  then  I  suspected. 


How  soon  ? — ^The  morning  after  the  night 
the  bond  was  sent. 

What  did  you  see  to  make  yon  suspect  it  ?-^ 
"l  had  before  reason  to  suspect  if,  because  Bol- 
lakey Doss  kept  regular  accounts,  and  that  no 
mention  had  been  made  of  it  in  bis  accounts : 
I  had  never  heard  it  from  Bollakey  Doss :  I 
had  seen  the  letter  of  attorney,  in  which  10,000 
rupees  were  mentioned  as  a  balance. 

Did  you  see  upon  the  face  of  the  bond  any 
thing  to  make  you  sus[>ect  it? — It  was  not  ' 
signed  by  Bollakey  Doss,  and  I  knew    that 
Seillabut  was  dead  a  year  and  a  half  before. 

Before  what? — A  year  or  two  betbre  Bol- 
lakey Doss  died. 

What  objection  eonld  his  death  be  to  the 
witnessing  a  bond  in  seventy -two?  [Bengal 
year.]-!— A  man  may  write  a  bond  and  antedate 
it. 

When  were  you  so  far  certain  as  to  tirose- 
CQte  ? — When  I  saw  the  account  of  jewels,  tbo 
name  of  Rogonaut,  and  the  mention  of  plooder, 
I  knew  it  was  forged,  and  from  the  nature  of 
the  bond,  which  is  not  regular  in  itself,  being 
conditional :  bonds  are  not  commonly  UMW 
out  to  when  money  is  received. 

Was  it  from  the  sight  of  the  seals  or  signa- 
ture, or  the  contents  of  the  bonds,  that  made 
you  first  suspect  ? — All  these  circumstanoes  to- 
gether; I  mentioned  it  often  to  Mahomed* 
CommauK 

Are  not  the  eight  bonds  on  the  Nagree  ac- 
count, chained  by  you  and  Pudmohun  Doss  to- 
Bollakey  Doss's  estate? — L  wrote  nothing; 
Pudmohun  Doss  wrote  every  thing  forcibly 
himself. 

Are  they  not  charged  to  Bollakey  Doss's* 
estate?'— llie  books  were  in  Pudmohun  Doss's 
bands,  he  might  enter  what  lie  pleased. 

Were,  or  were  not,  the  bonds  charged  to  the 
estate  ?— Pudmohun  Doss  and  1  never  acted  v^ 
comottction  io  such  a  business. 

Then  we  are  to  understand- that  yon  did  not 
charge  it  to  the  estate  ?— I  was  not  permitted 
to  see  any  thing. 

What  IS  the  amount  of  those  eight  bonds  ?-« 
One  lack,  43,*485  rupees. 

Who  brought  the  bond  to  your  house  the 
morning  you  first  suspected.' — Pudmohun 
Doss  brooglit  it. 

Were  you  present,  when  Maha  Rajah  gave 
it  to  Pudmohun  Doss?— I  was,  and  so  was 
Gungabissen. 

\Vere  any  other  bonds  or  teeps  cancelled  be- 
sides ? — There  were  three  papers  cancelled,  the 
bond  and  two  teens;  two  were  for  35,000 
rupees,  the  other  tor  48,0S1  sicca  rupees,  be- 
sides batta. 

When  did  you  first  see  this  account  [M]? — 
When  it  was  signed,  and  afterwards  in  the 
Dewanny  Adawlet,  only  those  two  times. 

Where  did  you  sign  it? — At  the  house 
where  I  now  live. 

Are  the  other  articles  besides  Durbar  ehaiyes 
true? — It  is  no  account  at  all :  it  is  not  re- 
guUr. 

Do  yen  kttow  of  any  of  the  iiuns  in  it  ?— le 


1017]  15  GEORGE  m. 

•BV  OM  Article  riehtf-— Bow  cau  I  tdl  ifil  it 
ngbtf 

Why  Umo  did  yoQ  tign  it  F— To  Mlisfy  Pad- 
inohttD  0OIW  ood  Ihe  indow. 

fld  yoa  kaow  Cboyloa  NootF— 1  do. 

WIm  it  be  r — A  terrtnt  of  Maba  Riyth't. 

Look  tithe teoowitv  tnd  toy  in  whtt  nipeet 
HitP—Ititiiottpeafied. 

Look  at  the  Itik  line  but  one.— It  it  onrrent 
npeet. 

J>o  yoa  know  ef  ta  entry  in  the  boekt  of 
1S9,690  mpett  f  «»No»  I  do  not. 

.  Do  yon  know,  of  on  article  in  the  Com 
Nana  of  69,630  mpeet,  written  by  Podnohan 
Dott,  and  tifned  by  BoUtker  IKittN- No. 

JOe  jfoo  know  Monobur  Jmintby  f—- 1  do* 

Had  yoo  etcr  .any  confcrtation  with  lii 
abovl  any  Of  klenee  be  wet  to  gif  e  io  tbit  caote» 
nrafaoat.tb#boad,aBdwhtt  patted  on  that  oe- 
catitn  f — 1  thewed  the  bond  flrtt  to  Jogfat- 
fihnnd :  I  thewed  it  tito  to  Cija  Petmte;  hit 
Mnnthy  rtnd  it:  I  then  thewed  it  to  Mr. 
Dorbtm,  to  thewit  taMohonnr;  hetcoord- 
kttly  didoo. 

MM  yoo  thew  it  to  Moaohar  before  Mr. 
Dnrbam  thewed  it  himP-—It  wet  not  in  my 
pttttttionbelbre}  I  eoukl  not  thew  it  liim ;  I 
■fcowtd  bin  a  cigf^  which  I  alto  thewed  to 
mtayptople. 

Did  yon  not  thew  lum  the  ongint|«.tbe  day 
befbrayon  thewed  it  bitt,  throSgb  Mr.  Dor- 
iMunN— I  ctn  take  tty  otib  I  nerer  thewed 
Ud  the  original,  heme  I  thewed  liitt  the 

rrbere  did  yoogetthfoopy  P— I  took  it  oat 
eCtboMtyer'teOart. 

t  Did  yoo  eter  ttnd  fbr-Monohnr  to  yoor 
lioote  on  tbit  oocnMonP-He  owet  me  100 
mpeet.  1  bare  tent  for  liim  often  on  that  ac- 
count. 

Did  you  e?er  tend  to  faim  about  the  bond, 
and  ask  htm  if  be  wrote  it  P— I  neTer  aeot  to 
him  purpotely  to  shew  bim  the  copy, 

Did  yon  send  to  him,  and  did  yon  abew  him 
tlie  copy  P—lt  it  two  yeart  tince  I  thewed  liim 
the  copy. 

Hare  you  not  shewn  the  bond  or  copy,  with- 
in these  three  months  P— No. 

Did  you  e?er  shew  any  teept  to  Monobur  P 
•—Yes,  in  the  house  of  Mr.  Durham. 
. .  Did  you  not  shew  him  the  teept  about  three 
davs  l>efore  Maba  Rajah  was  in  confinement  P 

•  Did  yon  ne? er  thew  them  to  bim,  except  at 
Mr.  Durbam't  P— No. 

•  Did  you  erer  desire  Monobur  to  say  he  wrote 
the  bond  P^No. 

•  Did  you  ever  ask  him  if  he  had  written  the 
Jmnd  or  teeps  P— Yes,  a  great  while  ago ;  not 
lately ;  two  years,  or  two  years  and  a  half 

What  answer  did  he  make  P— That  it  was  a 
mod  while  ago:  he  coold  not  recollect,  who- 
-tber  he  had  or  bad  not;  but  when  he  should 
aee  them  he  might  tell. 

*.  Aid  heaaartay  any  thing  of  finding  another 
p«»on  whii  bad  wrote  tbm?^  Yet,  1  toW  him  J 


if  he  knew  the  penon  wImI  imta  AooLl 
witbtdhewopUibnng|iia»:  ha  oiid  that  Aha' 
,Riyah  tddom  wrote  diflerent  p^^pan  with  tba 
tame  Mnntbt,  and  thsit  tt  Iliad  not  Aa  ariri* 
nal  bond  to  shew,  he  tboold  not  baaUaiottl 
out  the  penont  who  wrolt  then. 

Did  yoa  make  Um  anv  pronito,  m  eniie'  ha. 
podaccd  the  man  ?— >Idad  tay,  that  if  be  wisell 
nring  the  man  that  really  wrtta  the  bond,  I 
would  giTo  blm  a  tarn:  ha  thid  la  me,  hi 
thowfat  the  Mantby  wha  wiala  it  wat  tnriHd 
off  mm  Maba  Biuab,  and  gone  la  Mate- 
abedtbtd. 

Dkl  yoa  atk  the  aama  of  that  Mnadhy  f^ 
No:  I  did  not  atk. 

Why  not,  If  yon  wanted  to  pvaeoia  him?-J! 
did  not,  lieoaosaMoasAiarjpiwnited  tafiadedf 
the  man  when  ha  came  btdE,  and  1  Buight  thiv 
him  the  bond :  a  men  of  the  nama  of  BaW 
Cawdy  fint  dirttted  me  la  Monobar,  in  can*' 
ttaoence  of  which.  I  tpoke  to  blm. 

How  hmg  agor— Aboat  two  yama  aU  i 
half. 

Were  TOO  not  tcqoaroted  wiUi  Manelnpr  to- 
fiweP— Yet;  hmg  ago:  he  wata  aenriMli 
Maba  Riijtb't.  .  ^ 

Ware  not  yoh  and  Maba  Ki^b  onea  optii 
goodtermt  together? — Yet;  Qjpoo  tenat  m 
ttrictfnendthip:  betofedmeashittoo. 

Wat  KItttn  Joan  Dottatyoor  houte^  whii 
yoa  thewed  the  copy  to  Monobur  f— It  wat  i 
year,  or  a  year  and  a  half  ago :  I  ciw*t  itH 
meniber. 

Has  KitMn  Juan  Dott  been  at  yoor 
a  few  dayt  before  tbo  commitment  of 
Biyah ;  and  wat  Monobur  there  at  the 
time  P-- Kissen  Juan  Dose,  before  ] 
Rf^'t  confinement  alway t  tkpt  in  Godgb* 
bitten*s  room ;  but  since  that  time  be  has  ntt: 
a  great  many  people  come  to  Gungabissta, 
whom  I  do  not  see:  I  did  not  see  him  at  the 
time  you  meotjon. 

How  came  you  to  quarrel  with  Maba  Ra> 
jab  P — About  this  business. 

Did  you  see  Monobur  at  your  bonse,  any 
time  within  a  week,  before  the  commitment  oi 
Maba  Rajah  P — I  nerer  did. 

Jfittieii  Jtiea  Dost  examined. 

Do  yon  remember  being  at  Mohon  Persand^ 
and  seeing  Monobur,  and  when  P— On  the 
other  side  of  ten  or  twelve  days  of  Maba  Ka» 
jab's  confinement,  about  noon,  or  two  in  the 
afternoon.  One  day  1  was  walking  tiefore  tba 
door  of  Mobun  Persaud't  boute.  Mouobnr  ^ 
was  at  the  door,  and  made  hb  talam :  I  went 
and  sat  with  Gungabissen :  afterwards  Mohan 
Persaud  and  Monobur  came  into  the  boasa; 
two  or  three  gurries  after  that,  Monobur  went 
away. 

Did  you  see  any  papers  produced  to  Mont- 
bur  P— I  did  not  see  any  papers :  they  were  It 
another  room. 

AfoaoAtir  examined. 
Was  there  any  wax  seal  to  tlia 
y^P-«*11iera  wat  no  waxttal: 


TCalciittaiJor  Forgert/. 


A.  D.  1775. 


Are  jou  tare  i1  t*Bi  three  Uiys  before  llie 
CUM  I  mi  till  (•nl  ol'  Malia  llajab  Nuadocomar  ?-- 
I  am  vpry  v\eir  U  was  tLree  d«T*. 

Mr.  Durham,  I  hml  itie  boDch  in  my  pataa- 
■ion,  three  days  before  the  commliuieDt  ut' 
Mnba  lUjab. 

Jane  15,  UTS. 

Mr.  Fairer  offer*  In  read  a  paper,  as  a  copy 

of  I  he  original  paper,  which  the  represeotatijes 

n(  Pudmcihon  Dou  liad  been  serred  with  DOlic^ 

Court.  Vuu  must  prove  lerfice  of  notii: 
GlJP|fBbi*^le1l :  Mohun  Persaud  said  all 
liapera  of  Gungabsisen  were  in  llie  lianda  of 
ihe  rrgiiter:  if  any  paper  was  delivered  to 
Maha  Uajah  Nuiidocouiar,  it  was  not  ia  bis 
prcwnce. 

Mohun  Dou  examined. 

Da  you  kiiniv  GuDifahiSBen  ? — Yes. 

Da  you  knoiT  Maha  lUJah  Nundocomar  ? — 

Did  you  know  Bollakey  Doss  ? — Yes. 
Did  you  eieraee   Bollakey  Doss  write  7— 
No :    I  never  saw  hiiu  write  on  any  paper 
trhataneyer. 

Did  yaii  copy  any  paper  in  Ihe  presence  of 
Muhtm  Pernud,  Gnnc^biGsen,  and  Pudmnhun 
Duns?— Yes,  I  did,  by  order  of  Maha  Kajah. 
[A  paper  i«  produced.] 

Is  thill  your  liand-writins  ?— It  is. 
n'aitlii^  original,  of  which  this  is  a  copy,  de- 
livered 11  any  one^'--Maba  Kajah  delivered  a 
eopy  lu  Pudmnhuit  Doss. 

Waa  any  objectioa  made  to  Bignin?  the  ori. 
etna!  papeni,  when  dehvered  lo  Pudmohun 
DonN  — He  said  iii)lhiu|;;  hesigned,  and  1 
gave  Ihe  (!ojiy  lo  Maha  Rajah. 

Who  are  yuu  ?  whit  is  your  businesaF--- 
1  an  ID  trade. 

M'berc  do  you  lifeF— -1  have  a  lioaae  at 
'Coninlbiizar:  I  bare  been  there  Ibese  two 
J«an;  I  have  beeo  going  backwards  and 
forward*,  from  Hugly  and  Cbiusura  to  Cal- 
CDlta,  for  30  year«  past. 

IIow  canitr  you  al  Maba  Bajab's?---!  used 
So  go  backwarili  and  forwards  to  Maha  Itajab's: 
a>t  Iliat  lime  I  wetil  in  pay  salam. 

Is  ibe  whole  paper  your  band-writing? — 
%■•  body  cf  the  paper  is  my  band-nriling,  and 
■ny  mtiueisiuit. 

Wbattiecameoflhe  original  .'---Maha  Ra- 
Inh  iiavv  It  10  Pudmohun  Dost,  and  kept  tbe 
"|iv  htuiielf. 

(I'lw  long  have  you  had  a  house  at  Cossim- 

,'.11 1*. .-All  my  family  are  there:  I   went  lo 

'     i-.Minbuxar  at  the  lime  of  the  disputes  bc- 

iVMfn  Miijr  JalBerand  Si^uh  ul  Duwiab:  I 

IPvindpally  reaide  lierr. 

Have  you  a  house  al  Chinsura? — Yes,  in 
>l>e  Ophiuni  Bmar. 

Hive  j-nu  a  houie  any  where  el»e?-.-l  prln- 
'     .'illy  reside  nl  Calt'iitin  :   I  Ibrmerly  rented  a 
'n  Calcutta,  which  I  have  bought  I'ut  5U 
'  to  pay  seven  rupees  per  mantb  : 
mraelf,  I  hid  betlar  buy  it. 


Do  you  pay  n  rent  for  your  bouse  U  Cal- 
cutta?—  It  is  my  own  properly. 

Is  Ihe  house  al  Chiasura  your  properly  ?— 
It  is  my  own  property. 

What  is  your  trade  1 — 1  trade  iu  every  iMni; : 
1  trade  in  long  chtlh,  lead,  and  every  tiling 
else:  I  am  a  merchani;  lor  30  years  the  place 
of  my  habitation  has  been  in  Chjnsura. 

You  say,  you  trade  in  so  unny  arliclee,  and 
have  different  bouses:  do  you  carry  your  cotti- 
inodilies  nilb  you  ?■■■!  go  backward*  and  for- 
wards, once  ia  two  years :  1  send  my  Gomaa- 
tah  to  ihose  places. 

Who  is  jour  GnmastabF-  — KisscDchnnd  was 
my  Gomastah ;   I  have  no  Gomaslah  now. 

What  servants  do  you  keep  .'—I  keep  ser* 
vants  in  proporiion  to  my  income. 

Is  yourijicoinelarge?---Myinoome  is  1,000 
ropees:  or  else  how- could  I  pay  allmyservanU; 

Describe  wliereyour  huiite  is  in  (^alculla  F — 
Tbe  place  I  have  lu  Ctlciilla  is  Uuzreymull'a, 
but  I  pay  liim  a  quit  rent :  roy  house  ii  la 
Calcutta,inHuzreymnirs garden,  in  iheBuzar 

Whom  did  you  buy  il  of  f— I  bouglU  it  from  * 
beetle  merohaol. 

What  is  bis  name? — Rampursaiide. 

Have  you  got  ibe  polta  ?— No :  1  get  a  chil 
from  Hu/reymult. 

Hoiv  much  do  you  pay  Hiizreymull  F — One 
rupee  per  month. 

WhatoccaHion  have  yon  for  so  many  houses? 
— I  lice  here  now :  I  ^o  sometimes  lo  Chio- 
sura  ;  I  do  not  tike  to  hire  one:  al  Cosaimbuzat 
toy  family  live. 

Wliy  do  not  you  live  with  your  family  P— . 
Women  don't  like  travelling:  ihry  hveat  Co»> 
sirobuxar,   where    Ibey    get    Ibeir    hvelihood 

How  many  wives  hare  you  ? — For  a  good 
man,  one  is  enough. 

What  are  you  P— A  Banian  Nagree  Wallali. 

What  was  your  business,  ihe  d»j  yon  wrolo 
Iba  copy  at  Maba  Rajah's  ? — I  did  nul  go  par- 
ticularly that  day  :  I  uied  to  go  backwurds  and 
liirwards  frequently  lo  make  salani. 

Do  you  go  In  make  aalam  loany  other  great 


I,  besides  Maha  Rajah, 
other  greal  man :  I  a 


0  oUiei 


the  lownF — I  g 
I  acquainted  with 


Are  you  in  any  intimacy  with  Maha  Rajah  F 
— There  is  a  IHemlship  beiween  us. 

[Mr.  Elliot.  The  word  he  u<es  does  not 
convey  ao  strong  an  idea  aa  IrieDdahip,  hut 
means  soroetbing  beyond  an  ac(|iraintanee.] 

Were  you  ever  a  servant  of  Maha  Kajah's  ? 
—No:  i  am  a  merchant. 

Do  you  know  whether  Maha  Rajah  kept 
any  Nagree  writer? — I  do  nul  know:  there  are 
a  thonsand  people  under  him. 

Did  you,  at  any  nibcr  time,  wrile  any  paper 
for  Maha  Kajah,  when  you  called  in  f — 1  never 
wrote  any  ulber  paper  lor  him. 

Were  you  ever  in  Ibe  roain  before,  wheo 
Maha  Kujah  transacted  any  private  hiuinessF 
—  I  never  was  present,  when  Ueta&.WlliAvn 
private  UuncUau. 


1051] 


15  GEORGE  IlL  Trial  o/Maha  RajA  Nundoeomar,         [105t 


How  looff  Bgo  was  it  rince  joo  wrote  Chis 
ptper  ? — A  boot  six  yemrs. 

What  time  of  the  year  was  it  ?— Before  the 
rabf. 

Was  it  momiog  or  night  ? — ^Three  or  four 
gnrries  of  the  day  were  remaining. 

How  lonir  were  yoo  writing  that  paper  ? — | 
or  i  a  gurrey. 

Are  you  sare  it  was  so  moch  ? — It  was  {  of 
a  gorry. 

Are  yoo  snre  it  was  quite  a  quarter  of  a  garry  f 
—Try  me. 

Did  you  bring  the  pen  with  yoo  ?— No :  it 
was  m  tlie  house. 

Was  the  ink-sUnd  there?— Yes;  Maha 
RaMh  was  sitting  in  the  hall. 

Did  you  write  in  the  same  room?— Yes. 

Who  brought  yon  to  Maha  Rajah  to  write 
Ibat  paper  ?-*Nooody  called  me. 

Had  you  ever  wrote  in  the  same  room  where 
Maha  Rajah  waa  before  ? — No. 

How  came  Maha  Rajah  to  ask  you  to  write  ? 
—I  am  a  merchant ;  e? ery  body  knows  I  can 

write. 

Who  was  present  besides  Maha  Rajah,  Gon- 
gabisseo,  andMobun  Persaud,  when  you  wrote 
the  paper  ? — Choyton  Naut,  and  another  per- 
4K>n,  a  Bramin. 

Was  any  one  else  ?---No  one  else. 

Who  was  the  other  person  ? — I  do  not  know. 

What  was  his  name  ?— I  do  not  enquire  the 
names  of  every  body  I  see :  I  have  heard  his 
name  is  Sangoo  Loll. '  He  knows  himself:  I 
do  not  know. 

Did  Sangoo  Loll  come  about  business,  or  to 
pay  salam  ? — I  do  not  know ;  he  came. 

Was  Sangoo  Loll  a  servant  of  Maha  Rajah's  ? 
•—I  do  not  know. 

Were  the  whole  company  sitting,  or  stand- 
ing?—All  sitliog  together. 

Did  you  ever  sit  in  Maha  Rajah^s  presence 
l>eibre  this  time  ?•--!  always  sit  in  his  presence. 

Did  any  one  write  on  the  paper  besides?— - 
I  wrote :  they  all  siprned  it. 

Who  is  *  all'  ?- •-Choyton  Naut  and  Sangoo 
Loll. 

Who  wrote  first  ?—  -Sangoo  Loll  first,  after  I 
bad  signed  it. 

Who  desired  Sangoo  Loll  to  sign  it? — All 
three  of  them  desired  of  him  ;  Gungabissen, 
Mohun  Persaud,  and  Pudmohun  Doss. 

Who  desired  Choyton  Naut  to  sign  ?•— The 
three  men  before  mentioned. 

Did  Maha  Rajah  say  any  thing?— -Yes: 
be  desired  them  to  witness  the  paper. 

Did  Maha  Rajah  desire  any  of  them  to-sign 
it?---Maha  Ilajah  said  it  was  necessary  to 
witness  it  to  make  it  pukka  ;  and  they  said  so 
too,  and  then  signed  it. 

Did  Maha  Rajah  desire  Pudmohun  Doss  to 
sign  it?— No:  he  did  not  ask  Gungabissen, 
Pudmohun  Doss,  or  Mohun  Persaud :  he  only 
desired  it  to  be  witnessed. 

Do  you  ever  pay  any  customs  in  the  course 
of  your  trade  ?•— I  never  paid  any  in  Calcutta. 

How  came  you  not  to  pay  customs  in  Cal- 
mitu  for  loDg  cloth,  lead,  6cc.  ?— I  bring  lead 


and  long  cloth  into  Calcutta,  and  tend  thctt 
out  of  Calcutte. 

Name  a  person  to  whom  yon  have  sold  oooa- 
modities  in  CalcntU?— Ten  or  twelve  years 
ago  I  bought  a  quantity  of  ckiths  from  J  ogal 
I^tty. 

riave  jou  had  any  doth  since  that  time?— 
No. 

Jugal  Laity  examined. 

Do  you  know  Mohnn  Does  ? — I  do. 

What  is  he  ?— He  is  in  busioess ;  1  remen- 
her  he  bought  some  cloths  from  roe  when  1 
was  servant  to  Mr.  Senior :  be  told  me  he  bad 
got  some  salt  about  a  year  and  a  half  smce. 

Is  be  at  present  a  pnncipal  merchant?— I 
know  btm  very  well :  he  and  bis  brother  wers 
formerly  deeply  concerned. 

Couns.for  Prii.  Do  yon  think  btm  a  sua 
of  credit,  when  upoo  oath  ?•— il.  I  donotknoir 
what  passes  in  bis  mind. 

Is  be  a  man  of  credit  ? — He  formerly  was. 

Was  his  name  hurt,  or  not  ? 

[No  answer  could  be  procured.] 

Do  you  know  any  thing  of  him  ?-— He  isof 
a  good  cast :  f  know  his  brother  is  a  good  mas. 

Sango  Loll  examined. 

Did  you  ever  .attest  a  copy  of  any  paper  it 
Maha  Rajah  Nundocomar's  ?— I  did  attest  i 
copy  of  a  curra  nama. 

Who  were  present  ?— Mohun  Persaad, 
Gungabissen,  Pudmohun  Doss,  Choyton  Nsst, 
and  Mohun  Doss. 

What  do  you  know  of  the  paper? — WWt 
should  I  know  of  the  paper  ?  I  know  it  is  ny 
name  at  the  bottom.  Maha  Rajah  told  Hebai 
Doss  to  teke  a  copy  of  a  paper ;  when  Mobn 
Doss  had  taken  a  copy,  be  desired  me  to  bet 
witness.  J  asked  Pudmohun  Doss  wbetber 
Bollakey  Doss's  name  was  to  it :  he  said  it 
was,  and  then  witnesseil  it. 

Who  witnessed  the  paper  besides  Moba 
Doss?— Choyton  Naut, 

What  became  of  the  original  aAer  it  wif 
copied? — I  know  nothing  of  the  original:  I 
know  we  three  were  witnesses  to  the  copy: 
what  do  I  know  of  the  original  ? 

Did  you  compare  the  copy  with  the  origio*I>' 
—No,  I  did  not. 

Did  you  read  the  one  or  the  other?— No, I 
did  not:  Pudmohun  Doss  said  they  weretk 
same. 

Q.  to  Mohun  Dos$.  Did  you  compare  tbt 
original  with  the  cupy  after  you  wrote  it ?-^ 
A.  What  words  I  did  not  understand,  Pudn^ 
hun  Doss  explaine<l :  after  making  the  cop)  I 
read  it,  and  the  words  that  were  wrong  I  tif 
tered. 

Sani;o  Loll  cross-examined. 

Did  not  you  read  the  words  over  your  use* 
which  are,  **  I,  Sango  Loll,  have  exaiuincil  tk 
original,  and  attested  this  copy  ?*' — I  couM  i^ 
read  it :  1  did  not  read  it :  I  could  not  conpt* 
the  paper :  1  cannot  read  it. 

CoiUd  you  read  it  at  that  time  ?  Coidd  J0* 


1053] 


mt  Calcutta, Jbr  Forgarjf. 


A.  D.  1113. 


[1094 


read  the  origiDal  paperf— I<;aniiot  read  others 
haDd-wriiin^,  tbougb  I  can  read  my  own.  1 
could  tiot  read  the  orif^inal. 

What  time  of  the  day  was  it  ?— There  were 
four  gurries  remainio^  when  he  beg^o  to  write ; 
aod  it  was  eveniDg  wnen  he  bad  done. 

Was  be  four  gurries  in  writing  it?— 1  can- 
not say  whether  it  was  four  gurries,  or  4^  gur- 
ries ;  he  began  a  ? ery  little  tiaae  to  write  afier  I 
arrived. 

Was  he  four  gurries  writing  it  ?— I  do  not 
know  how  many  gurries  of  the  dav  it  was  when 
1  went :  four  gurries  remained  when  he  began 
to  write :  it  was  tiie  ereniug  before  he  finished. 
Did  you  see  him  write  the  whole  ?— Yes. 
Did  all  the  people  who  were  present  when  he 
he  began,  sit  by  him  till  he  finished  ? — £? ery 
body. 

Who  are  you?— I  am  a  Bramin  and  a  mer- 
chant. 

How  long  have  you  been  a  merchant  ?— I 
bare  been  ten  years  in  this  town. 

Where  do  you  life? — In  the  BurraBuzar. 
What  trade  do  you  carry  on  ? — 1  am  a  shop- 
keeper,  and  sell  goods. 

How  long  baye  you  known  Maha  Rajah  ?— 
Ten  years. 

Are  you  well  acquainted  with  him  ? — Very 
iXfll. 
Do  you  go  often  to  yisit  him  ?— I  do. 
How  came  you  to  be  there  at  that  time  ?— I. 
went  to  pay  salam. 

Did  Mobun  Doss  copy  it  from  the  paper  be- 
fore him  7— Mobuu  Doss  copied  it  from  seeing 
the  original,  but  when  he  did  not  understand, 
1m  asked  Pudmohun  Dost. 

What  thinp  do  you  deal  in?— I  sell  China 
govds,  soroeumes  fruit,  and  what  I  can  get  two 
rupees  by. 

Is  your  shop  full  of  goods? — Yes. 
What  is  the  value  of  them?— They  may  be 
worth  about  5  or  600  rupees. 

Were  you  erer  in  any  other  way  of  business? 
why  do  you  call  yourself  a  ^merchant? — I 
never  have  been  a  merchant ;  I  never  made  any 
great  sam  in  Calcutta,  to  be  called  a  merchant. 
Can  you  write? — I  can  a  little  in  my  own 
business. 

Did  you  ever  attest  any  other  paper  at  Ma- 
ba  Rajah's  ?— No. 

Do  you  know  Choyton  Naut  ?— Yes. 
Has  he  been  exammed  in  this  cause  ?— Yet. 
What  is  his  business  ?— He  is  a  'servant  of 
Haha  Rajah. 

Do  you  know  where  he  came  from  ?—! 
know  he  lives  in  Calcutta  now. 


Did  he  sign  his  name  in  Nagrte  or  Bengal  f 
— In  Bengal. 

Did  you  go  to  fetch  Mohun  Doss,  or  Mohnn 
Doss  go  to  fetch  you?— -Mohun  Doss  did nol 
call  me ;  I  went  to  make  salam. 

Choyton  Naut  examined. 

[The  last  witness  says  that  this  is  the  man.*] 

Were  you  a  witness  to  a  paper  with  thb 
man?  [pointing  to  the  last  witness.]— I  was. 

In  what  characters  did  you  sign  your  naoie  ? 
-—In  Bengal. 

Do  you  understand  Nagree?-— No. 

Do  you  talk  Hindostan  ?-— Yes. 

Did  you  hear  the  Nagree  paper,  that  yoa 
are  a  witness  to,  read?— -Yes. 

Who  explained  it  to  you  in  Bebgally?— 
Pudmohun  Doss. 

Kisun  Juan  Vou  examined. 

[An  account  marked  Q.  is  shewn  him,  found 
by  him  among  the  papers  deposited  in  ihe 
court.] 

Do  you  know  that  paper?— This  account 
was  written  by  me,  and  ii  signed  by  Pudmo- 
bun  Doss  and  Mobun  Persaud. 

What  does  that  accouot  contain  ?— This  ac- 
count is  not  entered  in  the  book,  but  was  drawn 
out  in  a  hurry  to  be  delivered  to  the  Adawlet. 

What  Adawlet?— The  former  Adawlet,  not 
this. 

Was  there  any  account  previous  to  this  de- 
livered into  the  Mayor's  court?— There  was 
an  account  given  into  the  Mayor's  court,  of 
which  this  is  a  continuation. 

Is  the  balance  of  that  former  account  car- 
ried into  this  ? — ^The  balance  that  remained  due 
in  the  former  account,  is  brought  over  into  this. 

Who  wrote  the  former  Nagree  account?—! 
did.  " 

What  is  the  reason  Mohun  Persaud  returned 
to  sign  the  account  delivered  into  the  Mayor's 
court?— After  the  confinement  of  Pudmohun 
Doss  and  Gungabissen,  Pudmohun  Doss  set 
about  drawing  accounts  preceding.  This  was 
at  that  time  drawn  out :  after  that,  when  Gun- 
gabissen was  released,  Gungabissen,  Pudmo- 
hun Doss,  and  Mobuu  Persaud,  ma  at  the 
house  of  the  late  BoUakey  Doss ;  and  they 
jointly  wrote  out  this  account.  Pudmohua 
Doss  desired  Mohun  Persaud  to  sign  it.  Mo- 
bun Persaud,  in  answer,  desired  Pudmohun 
Doss  first,  and  then  Mohun  Persaud. 

Mohun  Dot$  delivered  in  the  Nagree  paper 
[exhibit  M.]  which  he  had  been  copying,  and 
it  appeared  that  he  had  been  one  hour  and  a 
half  in  copying  it. 


Dr. 

93,tl7    S 


Exhibit  Qt, 

Balance  of  precedent  account.         d8,b54  10  3 
7,500  Two  bonds,  by  Baboo. 
Mobun  Persaud. 
5,500  one  bond  Mr.  Loose, 
writer. 

3,000  Mr.  Hare. 
14,992  11   S  Bamboo  Mobun 
Persaud. 
1,924    9   1  Pudmohun  Doit. 

S9;817    I 


Cr. 

Paid  to  different  people  as  per 
following  particulars,  current 
rupees. 

5,800  paid  to  Mohun  Per- 
saud, balance  of  11,262  8, 
which  was  to  be  paid  as  fol- 
lows, 10,862  8,  C.  R.  bv  or* 
der  of  Bollakey  Doss,  and  400 
at  different  titnea  ia  \!i\«  >^«^ 
t\me  of  i^.\>.  iS^ia  ^^oi^  «»a'i^ 


)RGE  III.  Trial  tfMaha  Rajah  Nimdocmar 


I 


>rrotred  from  Coja  Pe- 
'liicb  a  bonil  nas  wrii- 
rili  May  Enijlisli,  and 
Ibe  fulloiviug  UiiDga 
nl. 

I  ileeds  of  house,  tn'o 
Mr.    Culver,   one  for 
ic  for  5,000. 
t  of  Mttgal  Calustry, 

lluinchuod  Cullry,  for 
■  bnnci  wat  wriiteD, 
Jay  Eoglisb,  for  cur- 

hai^il  by  Mr.  Gulrer, 

visCaluairy,  the  ba- 
"iiees. 

.40  .ape.  ■our  pieces 

It      rui35  rups. 

tt.  rups.  sale  of  sloop. 
1  Balla  oDlbe  140  arc. 


[1053 
Cr. 


34    e       Duty 


oul  of  which  10,8C9  t 
5,469   3,  was  paid   in  Ibe  life- 
time uf  B.  D. 

Account  Eilee  of  allura  be< 
longiD];  lo  Mohun  PerMud, 
brougbt  to  bis  credit  on  ibe 
liouse  nt  Moortbedabail,  aod 
paid  hiiD  here. 
I  Paiil  to  Lewis  Cillustry,  attor- 
ney lo  Mr.  Sparka,  the  atlontty 
agreeable  lo  a  decree  of  tbe 
Mayor's  court. 
31,850  Principal, 

6,059     8     1  loleresl.  . 

1,224  10    I  Exps.  Budawltt.    i 


39,164     3     3 


iD  the  sloop  at 
Custom-house 
66a  13    1     at  6  4  per  cent. 
Ud  account  will. 
1,400  Baboo  GungsbiaseD  gee 
513  Sawon  gee. 

1,913 
159  6  S    The    supponeJ    amount  salea  of 
things  from  tbe  house  at  Patna. 
40  Malta,  two  strings. 

14  8     S  Brsst  pot,  in  weight 

9p.  llc(.  at  14  per 

104  14       SiWer  bullion. 

159    6    2 
910  3  1     On  account,  outstanding;  balanca 

95  a  bills  for  sic.  rps. 

100  account  sundries  cl.  rps. 

15  3  1  Banaon  95  sic.  rps.  at 

310  3  1 
111  Oni-«UDding  balance   at   Patna, 
paid  by  Oge*  Sein  Gomaslafa. 


376  11    1  Paid  KissenchDDil, 
goniaatBh  at  Paiat, 
acco.  his  wat^ea 
176  11  1  atPatH. 
100      at  CalcaU- 

S7e  11  1 
1,550  Paid  M^r  Abdul  RopOoL 
1,160  Principal. 
390  Int.  and  expenecL 

1,550 
t  13    3   PaidPoltuckGe«aML 
Bill  55  sicca  nipeo. 


500  Gurrceb  Doss  Pottnck. 
400  Mnutychund,  hy  the  haniU 
ofRutluoChiiud. 
1,000  Kissen  Juau  Does. 

1,900 

563  13  3Bahoo  Gungrabiuec, 
31   IS  3Mootychund,  by  tii« 

bands  of  Rutlua- 

3,484  10  2      chund. 

Guodun  Doss  accl.  sloop  expenOM 

from  IT  May,to3d  of  Baadooo. 


309    5  3  Audawlet 
4,665     1   1  Porlheexpi 
van  Is,  tec. 

600  11  1  Accl.   prolil  and  lass, 
■ tat  iu  the  boobs. 


of  house,  Mr- 
bjPK- 


7,500 
1,936 


ice  as  follows. 

Two  bunds,  Moboa 

3  BsIhii)  Mohnn  Ptt" 

SHud. 

Pudmiihun  Don. 


10S7]  at  CalaUtityfor  Forgerg. 

Mokua  Peruud  ihoim  Exhibit  Q. 

Do  jnti  know  that  ■ccount?— It  is  an  bc- 
munt  KtUeO ;  it  ii  bd  accuiipt  paid  lo  Jjfierent 
crnliton. 

IVhj'  did  ytta  gj^n  it? — 1  Binned  it,  leCBUit 
the  muaiM  Here  rvBlly  paid  In  ihe  differeat 
credilora.  1  il<i  not  know  wbctJier  the  Tornier 
Bccouiil  was  ri^lil. 

Ur.  John  Steaart  Mlint  in,  lo  prodace  the 
tinuk*  of  the  Council. 


Ha*e  ynii  bmu|rht  the  hooka  you  were  re- 
quired lo  lirinir? — [  hate  no  ■ulJiurily  lo  carrj 
booki  out  of  thp  nSiL-e,  or  to  produce  them 
without  order.  I  ari|iiaiiiled  (he  hoard  with 
the  Buli|iu-na:  iliu  lioaril  desired  me  Id  unjiiaint 
the  Court  in  llieir  nanie,  (hat  \Wy  concrive  it 
to  be  lidldc  to  many  iniroDTeaieatei  idiI  ill 
fniuenci'n  to  exbihit  the  proceeding*  or  tlie 
Gount'il  in  au  open  cnurl  ol'  justice,  especially 
a>  they  may  someliines  cimlain  secrpts  of  the 
litmus:  irn|i'irlancc  lo  the  interest,  aod  e«eii  to 
the  aatety  iif  thi^  slate,  and  as  they  cooFtrive 
that  if  it  II  as  ailowabte  in  one  iuatiuce,  it  nould 


[i  all. 


Cour 


In  this,  as  wetl  as  in  every  other  io- 
tlBDce,  ite  fhoulil  ronsiili  the  ioterrst  and  coo- 
Tcnience  uf  ibe  Cnmpany  as  mncb  as  possible. 
We  are  mil  surprised  tliat  the  s^UTernor  (feoeral 
mml  cnuocii  ahouhl  be  dcsiroiis  to  preTPiii  their 
books  beinf;  vxsujiiied,  which  miKht  tend  to 
Ihe  conseqiiencrs  they  mention :  it  « Quid  be 
highly  inipmier  that  their  hooks  should  be 
wmiodIv  subjected  to  curious  and  impertineiit 
eyea ;  but,  at  the  same  lime,  it  ia  a  mailer  of 
juitice,  that  if  they  contain  evidence  naaterial 
M  the  parties  in  civil  sui't,  that  they  may  have 
an  opportunity  nf  Brailini;  themsdves  nf  it. 
Humanity  requires  it  should  beproduced,  when 
in  favour  of  a  criminal,  justice  when  igaiost 
him.  The  pspers  and  records  of  all  the  public 
compaoiea  in  bn^cland,  of  the  Bank,  South  8ca 
Hoiiw.Bnd  the  Eiut  India  House,  ireliaUe  to  be 
called  fiir,  nhere  jnaticeshallrequirecopiesof 
the  recorcis  and  proceeding,  from  the  hi^ett 
cnurl  of  judicature,  iloita  to  the  court  of  Pie- 
Powder,  and  contioually  ([iven  in  evidence. 
When  il  is  necessary  they  should  be  produced, 
the  Court  will  tnke  care  they  are  nut  made  an 
itti|iroper  use  of.  To  wiih  t)ie  cnuncil  lo  be 
put  to  llie  least  inconveoieDce  poMiblr,  we  wish 
they  wiiuld  considn-  whelher  ibev  Ihiok  the 
■uconvenieuce  of  the  producliiin  of  their  books 
md  proceeihnjp,  or  the  tcrantinif  copies  of  such 
parts  as  may  be  required  to  he  ^ircn  in  evi- 
dence, may  he  the  least  liable  to  objectiun. 
The  bnu|;iiiK  the  books  and  papers  may  subject 
tbem  to  ihenszard  of  beinc  lost,  and  may  im- 
pede the  business.  On  the  other  lisnd,  if  cu- 
pie<  are  (^nted,  the  Court  cannot  hold  so 
■trict  a  hand  over  impertinent  curiosity  as  they 
can,  if  the  hooka  and  papers  are  produced  in 
theO|ieii  court:  ifcapies  ure  laken  not  relevant 
to  the  cause,  the  Court  would  most  cerluiuly 
eensure  the  pa-ty  oHeiiding  therein ;  but  the 
nii'Kiliief  mi^ht  be  dime  by  bnving  taken  llie 
VOL.  XX. 


A. D.  1775.  [1058 

copies.  If  they  are  produced  in  court,  the 
Court  will  oblige  the  party  to  inform  the  Court 
of  the  matter  proposed  to  be  read,  aud  will  not 
allow  it,  excein  they  see  that  it  is  applicable  lo 
the  cauae.  1  wiah  ynu  to  inform  the  ^veruor 
general  and  council  nf  what  ig  now  laid,  nnil 
let  tbem  know  that  we  wish  to  accoaitoadala 
our  practice  as  far  bb  possible  to  the  convetii- 
ence  of  the  Eaat  India  Company  ;  we  ivisU 
likewise  tliat  jou  woiilil  remind  the  {^nvernor 
general  and  council,  hnw  anxious  we  are  tliat 
they  should  tnake  application  to  the  Court  tu 
have  such  of  their  officers  excused  from  serting 
on  juries,  whose  attendances  in  their  several 
office*  cannot  be  dispensed  with,  without  detri' 
ment  to  the  affairs  of  the  Company.  At  the 
time  of  the  application  to  us  frDiii  the  different 
•ervaiits  to  be  excused  from  serving  on  juries, 
WB  mentioned  how  iTDpoiuible  il  was  for  us  lu 
jmlge  whom  it  miitht  be  DeerBaary  to  excuse, 
and  whom  not.  That  we  might  err  on  the 
right  side,  and  not  prrjuilice  the  affairs  of  the 
Company,  we  were  oblic;ed  to  he  fibersl  in  aU 
lowing  tha  excute*  made ;  but  we  bare  stocs 
fouml  that  aeveml  of  the  |iersons  excuricd  have 
since  owned,  that  there  was  little  or  no  eicuso 
lor  them,  and  tliat  they  did  not  ex|«ct  it,  hut 
thought,  when  they  saw  others  excused,  Ihejr 
might  put  in  their  claim :  we  cannot  do  this  in 
future,  and  tlieiefure  are  very  solicitous  tu  ba 
informed  by  the  governor  general  and  council, 
what  servants  they  wish  to  hate  exempted 
from  serving  on  juries,  that  neither  the  hiisinesa 
of  the  Court,  uor  that  of  the  Company,  may 
suffer.  The  purpose  fur  which  tlie  books  were 
desired  10  be  produced  wu  lo  discrcilit  Shaik 
Ear  Mahomed,  who,  as  ibe  counsel  fur  the 
crown  slated,  had  been  i^ilty  of  perjury  before 
the  cnuncil,  aud  hail  been  by  them  censured 
for  the  same.  The  Court  was  ofopinion,  that 
the  evidence  was  not  admissible,  il  being  a  par- 
ticular ^t,  and  not  to  general  reputaliou  ;  aud 
ihal  no  perjury*  cuuld  be  committed,  in  aweat- 


law,  leeiDetfa  to 
.    ^  who  being  law- 

Futly  required  to  depote  ihe  tmtli  in  any  pro- 
ceeding in  a  course  of  jnatiee,  swears  abMlntely 

a  matter  of  some  coosrqnence  to  Ibe  point 

qoestion,  whether  he  be  believed  or  not. 

"  It  teema  to  be  clearly  agreed,  that  all  such 
hise  oaths,  as  are  uken  belbre  thoie  who 
are  any  ways  inlrusied  with  tha  adminialraiion 
of  publiejuitice,  in  relation  to  any  nnatler  he- 
lore  them  in  rffbnie,  are  properly  perjuries; 
■nd  it  sccma  In  have  been  hiilden  by  some,  that 
all  such  fdltc  03lhs  as  are  taken  before  per«ont 
authorised  by  tbe  king  lo  examine  witnesiies  in 
relution  to  nny  matter  whatsoever,  wherein  hi^ 
honour  or  interest  are  conccrued,  arc  also 
ltd  penuries.  And  surely  there  cnii 
icp  of  this  ualiire  which  will  not 
justly  dearrve  a  public  proseeatiou,  inasmuch 
u  if  it  should  uuce  prevail,  it  would  moke  it 
impossible  to  have  any  law  whatsoever  Aia\y 
exei'Utrd,  and  ex|Kiae  the  lives,  liberties,  and' 
properties,  of  tbe  mtnl  innocent,  lo  dMiiwrer 

3  Y 


1059] 


15  GEORGE  IIL  Tfial  o/Maha  Rajah  Nundacmar,  [1000 


io^  before  the  i^overnor  general  and  couucil, 
who  do  uot  constitute  a  court  of  record  :  if  they 
Were  a  court  of  record,  the  only  proper  evi- 
dence would  have  been  a  record  of  the  convic- 
tion for  the  peijury  ;  the  books  were  therefore 
not  desired  to  be  produced. 

[The  Counsel  for  the  Prisoner  informed  the 
Court  that  the  Prisoner  had  something  to  say  .3 

Court,  By  all  means ;  let  us  hear  it :  bat 
would  it  not  be  more  proper  for  you  to  ask  him 
what  it  is,  that  you  may  judge  of  what  be  has 
to  say  ? 

Counsel,    I  know  it  is  not  improper. 

of  the  greatest  villains.  And  therefore  it 
bath  been  holden,  that  not  only  such  per- 
sons are  indictable  for  perjury,  who  take  a 
false  oath  in  a  court  of  record,  upon  an  issue 
therein  joined,  but  also  all  those  who  forswear 
themselves  io  a  matter  judicially  depend- 
ing before  any  court  of  equity,  or  spiritual 
court,  or  any  other  lawful  court,  whether  the 
proceedings  therein  be  of  record  or  not,  or  whe- 
ther they  concern  the  interest  of  the  king  or 
subject.  And  it  is  said  to  be  no  way  material, 
whether  such  false  oath  be  taken  in  the  face  of 
a  court,  or  persons  authorised  by  it  to  examine 
«  matter,  the  knowledge  whereof  is  necessary 
for  the  right  determination  of  a  cause ;  and 
therefore,  that  a  false  .oath  before  a  sheriff, 
upon  a  writ  of  enquiry  of  damages,  is  as  much 
punishable  as  if  it  were  taken  before  the  Court 
on  a  trial  of  the  cause. 

**  Alifo  it  seemetb,  that  any  false  oath  is  pu- 
nishable, as  peijunr,  which  tends  to  mislead 
the  Court  in  any  of  their  proceedings  relating 
to  a  matter  judicially  before  them,  though  it  no 
way  affect  the  principal  judgment  which  is  to 
be  given  in  tlie  cause ;  as  where  a  person  who 
■oiTers  himself  to  be  bail  for  another,  knoniof^^ly 
and  wilfully  swears  that  his  substance  is 
greater  than  it  is.  Also  it  hath  been  resolv- 
ed, That  not  only  such  oalhd  as  are  taken 
upon  judicial  proceedings,  but  also  all  such  as 
any  way  tend  to  abuse  the  administration  of 
justice,  are  properly  peijuries;  as  where  one 
takes  a  false  oath  before  a  justice  of  peace,  in 
order  to  induce  him  to  compel  another  to  find 
sureties  for  the  peace,  &c.  or  where  a  person 
forsuearH  himself  before  commissioners  ap- 
pointed by  the  king  to  enquire  of  the  forfeitures 
of  his  tenants  estates,  &cc,  whereby  he  makes 
them  liable  to  be  seized  by  exchequer  process. 
Also  it  hath  been  said,  that  a  false  oatu  is  pu- 
nishuhlc  as  perjury,  in  some  cases,  wherein  the 
king's  hononr  or  interest  is  concerned,  though 
it  do  not  concern  the  administration  of  justice ; 
as  where  one  swears  a  false  oath  concerning 
the  |K)ssession  of  lands,  before  commissioners 
appointed  by  the  king  to  inquire  of  such  per- 
sons whose  titles  to  the  lands  in  their  possession 
are  defective}  and  want  the  supply  of  the  king's 
patents. 

**  Jt  seemeth  clear,  that  no  oath  whatsoever 
taken  before  persons  actuig  merely  in  a  private 
lapadty,  or  before  those  who  tak«  upon  them 


Court.  What  is  it  P- -A.  The  Haba  Raiab 
desires  that  Kissen  Juan  Doss  may  be  asked 
farther  as  to  the  Curra  Nama. 

Court,  Has  be  any  thing  else  to  say? — 
A,  Nothing  else. 

Court,  Do  you  Choose  to  ask  the  oaestioD  t 
or  that  Alaha  Rajah  should  ask  them  himself  f 
You  had  better  ask  them.] 

Kitsen  Juan  Dou  examined. 

Did  you  ever  explain  the  Corra  Nama  yoa 
spoke  of  to  Mohun  Persaod  ?— Mohan  Pler- 
saud  went  in  his  palanouin  to  the  boose  of 
Maha  Rajah,  and  I  followed  after.  I  do  not 
know  what  conversation  passed  between  Maha 
Rajah  and  Mohun  Persaud :  Maha  Rajah  seat 
for  the  Curra  Nama  to  his  own  house :  Mohoa 
Persaud  was  present  when  I  read  it.  Tbs 
Curra  Nama  was  afterwards  shewn  to  FodnHh 
hun  Doss. 

When  you  shewed  the  Curra  Nama  to  Mo- 
hun Persaud,  what  did  he  say  ? — He  ssid  as- 
tbing. 

to  administer  oaths  of  a  public  nature,  withosl 
legal  authority  for  their  so  doing,  or  befsrs 
those  who  are  legally  authorised  lo  administer 
some  kinds  of  oaths,  but  not  those  which  hap- 
pen to  be  taken  before  them,  or  even  M<on 
those  who  take  upon  them  to  administer  jostiei 
by  virtue  of  an  authority  seemingly  coloarsbK 
but  in  truth  unwarranted  and  merely  void,  csa 
ever  amount  to  perjuries  in  the  eye  of  the  lav, 
because  they  are  of  no  manner  of  force,  botars' 
altogether  idle. 

**  And  from  the  same  ground  it  seemetb  abs 
clearly  to  follow,  That  no  false  oath  in  an  alE- 
davit,  made  before  iiersons  falsely  preteodiof 
to  be  authorized  by  a  court  of  justice  to  take 
affidavits  in  relation  to  matters  depending  befbit 
such  court,  can  properly  be  called  perjury,  be> 
cause  no  affidavit  is  any  way  reganJed,  unlea 
it  be  made  before  persons  legally  intrusted  widi 
a  power  to  take  it,  as  being  both  of  suffideot 
ability  to  ask  all  proper  questions  of  the  partf 
who  shall  make  such  affidavit,  and  also  of  suck 
integrity  as  not  to  suffer  any  thing  to  be  in- 
sertfd  tiierein,  to  the  iruth  whereof  the  party 
hath  not  sworn.  And  though  it  may  be  said^ 
that  an  affidavit  taken  before  persous  falsely 
pretending  to  be  commissioned  for  such  purpose 
by  tlie  courts  of  justice,  doth  directly  tend  to 
impose  upon  such  courts,  and  may  poanUj 
happen  through  surprize  to  be  read,  and  mij 
also  in  its  own  nature  be  altogether  heinous,  11 
if  it  had  been  made  before  persons  regular!/ 
impowered  to  take  it;  yet  inasmuch  as  it  is  of 
itself  of  00  manner  of  validity,  and  is  no  other- 
wise regarded,  than  as  it  hath  the  appearaoot 
of  l>eing  sworn  before  persons  legally  commio- 
sioned,  without  which  it  would  have  no  man* 
ner  of  credit,  it  seemeth  that  offences  of  tbil 
nature  are  most  properly  punished  by  severely 
chastising  those  who  usurp  such  an  authority 
of  administering  of  oaths,  without  any  kgil 
warrant''  Hawkins's  Pleas  of  the  CrowSi 
vol  1,  p.  318,  ct  seq. 

See,  also,  vol.  10,  p.  U7i. 


10(5I] 


at  Calcutta^for  Forgery. 


A.  D.  1775. 


[lOCtt 


Did  lie  make  no  objection  ? — He  did  not  say 
m  word  of  it  in  my  hearing.  He  only  said  the 
apace  of  six  niontns  is  written. 

Did  Mohun  Persaud  see  fioUakey  Doss's 
name  written  to  it  ? — He  did. 

Why  did  Mohun  Persaud  desire  y oo  to  8fo  to 
If  aha  Rajah  ? — He  desired  me  to  go  along 
with  him. 

.  Why  ? — He  did  not  tell  me  any  thing  par- 
ticular.    1  explained  to  him  the  Nagree  paper. 

Croii'Examination, 

What  was  the  sum  mentioned  in  the  Cunra 
Kama? — 1  saw  a  promise  in  fatour  of  the  g»- 
▼emor  and. Mr.  Pearson  :  likewise  account  of 
a  bond  for  jewels.  There  was  some  promise 
in  favour  of  Maha  Rajah  ;  and  lastly  for 
d5,000  rupees,  on  account  of  teeps.  To  the 
article  of  the  bond  for  jewels,  no  sum  wan  spe- 
cified. There  were  sums  specified  to  the  Maha 
Rajah  and  the  governor ;  but  1  do  nut  recollect 
what  they  were. 

Is  the  Curra  Nama  yon  now  mention  the 
•aroe  you  made  up  the  books  from,?— It  was 
the  same,  but  I  did  not  extract  the  account 
Pudmehun  Doss  did. 

^  Who  produced  the  Curra  Nama,  Mohan  Per- 
aand,  or  Maha  Rajah  ?•— Maha  R^ajah  Kent  for 
it  from  his  house.  There  was  another  Persian 
letter. 

Did  you  point  out  to  Mohun  Persaud  tlie 
name  of  Bollakey  D«iss  on  that  paper?— Mo* 
Imn  Persaud  took  the  paper  in  bia  own  hand, 
and  read  it. 

Was  this  the  first  time  you  had  seen  the  pa- 
per?—Mohun  Persaud  took  me  to  thehioase 
Jpydmohun  Doss  shewed  me  before. 

Why  did  not  you  mention  this  before?-  — 
Mohan  Persaud  forbid  me  to  mention  it :  he 
has  given  roe  no  victuals  for  these  four  years. 

Did  you  then  remember  it  ?— Mohun  Per- 
aatul  had  forbid  me  to  tell. 

As  you  were  sworn  to  tell  the  whole  trath, 
and  have  mentioned  this  Curra  Naroa  to  oAen, 
why  did  you  not  mention  this  circumstance  be- 
fore P— If  nobody  asked  me  about  it,  why 
•bould  I  tell  the  bad  actions  of  Mohun  Per- 
saud? 

Court,  Because  H  is  to  save  the  life  of  an 
iooocent  person.— ^1.  Now  you  ask  me  the 
question,  I  recollect  it ;  I  did  not  before. 

Whom  have  you  conversed  with  since  last 
night ?— I  went  down  to  examine  the  papers; 
came  here,  went  home,  and  did  not  see  or  con- 
▼erte  with  any  one  kast  night. 

Have  you  spoke  to  any  one  to  day?— 1 
went  to  the  bouse  of  Mr.  Jarrett,  to  converse 
with  a  Nagree  Mohurer. 

Were  tli^e  any  other  people  at  Mr.  Jarrett's? 
.—There  were  10  or  12  people. 

Did  you  converse  with  any  of  them? — I  did 
not :  I  conversed  with  my  own  man. 

Did  yoa  sneak  to  your  own  man  about  the 
Curra  Nama  r — I  did  not  speak  to  any  one.  I 
•poke  to  nobody  but  the  Court. 

Did  not  you  send  a  written  account  to  Maha 
Rajah  of  every  thing  that  you  knew  ?«--l  did 


write  a  Persian  letter  to  Maha  Rkjah :  Maha 
Rajah  wrote  a  Persian  letter  to  me.  Having 
read  it,  I  wrote  him  an  account  of  books,  and 
accounts,  and  a  few  words  of  circumstances  that 
bappeneil  before  Bollakey  Doss's  d^ath. 

Did  you  in  that  paper  relate  this  cireirai- 
stance  ?— -So  far  as  related  to  Pudmohun  Doss. 
I  did. 

Did  you  write  that  paper  for  the  purpose  of 
acouainting  the  Maha  Rajah  of  all  you  knew  ? 
— 1  did  inform  him  of  all  the  circumstances, 
but  this. 

Why  did  yon  not  inform  him  of  this  ?— Mo- 
hun Persaud  desired  me  to  say  the  words  were 
erased  and  stratcbed  out :  and  therefore  1  di$i 
not  say  any  thing  about  it. 

W  hen  did  Mohun  Persaud  desire  yon  to  say 
this  ? — He  told  me  a  great  while  ago  before 
Ballgovin  of  all  the  circumstances. 

Did  you  mention  in  your  letter,  that  yoti 
wrote  to  Maha  Rajah,  what  Mohun  Persaud 
had  said  to  you? — No. 

'  Why  did  you  not  ?  can  you  tell  any  l^onest 
reason  ?•— Because  I  am  a  servant  to  Qupgahis- 
sen,  and  Mohun  Persaud  is  his  attorney,  and 
Gungabissen  lives  with  jVlohun  Persaud. 

Did  you  shew  Mohun  Persaud  the  letter  you 
wrote  to  Maha  Rajah? — J  did  not:  1  only 
wrote  to  Maha  Rajaii  to  acquaint  him  with  the 
accounts. 

Did  you  write  nothing,  hut  concerning  ac- 
counts?— f  must  own  the  truth.  1  did  not 
write  to  Maha  Rajah  any  thing  aboat  this  rir- 
eumstance :  Mohua  Persaud  is  a  gt'eat  man*; 
he  told  me  not. 

Was  not  Maha  Rajah  a  greater  man  than 
Mohun  Persaud  ? — 1  was  much  al'raid  of  Mo- 
hun Persaud. 

Did  you  recollect  this  circumstance  at  the 
lime  you  wrote  this  letter? — 1  did  not. 

if  you  had  recollected  it,  would  you  have 
wrote  it? — 1  certainly  should. 

Then  your  being  afraid  of  Mohun  Persaud, 
was  aot  the  reason  why  you  did  not  write  it  ?— 
I  am  mudi  afraid  of  Menun  Persaud. 

[Question  repeated.] — 1  was  afraid-  of  Mo» 
bun  Peraaud. 

[Question  again  repeated.]  1  did  oot  recoU 
leot  it. 

The  being  afraid  of  Mohon  Persaud,  and  tha 
not  recollecting  it,  are  two  different  reasona. 
Both  of  them  cannot  be  true :  was  it  because 
you  were  afraid  of  Mohua  Persaud,  or  becausa 
you  did  not  recolhict  it? — [No  answer  could 
be  procured.] 

When  did  Mohun  Persaud  first  bid  you 
mention  it? — He  took  a  written  paper  from 
me :  in  this  written  paper,  he  madie  me  write 
ten  words  I  did  not  know,  and  leave  out  ten 
words  1  did  know. 

Do  you  meim  that  Mohun  Persaud  occasion- 
ed you  to  write  to  Maha  Rajah  ? — Mohun  Per* 
saud  and  1  were  on  bad  terms,  when  the  afiair 
was  in  the  Adawlet.  I  gave  evidence  in  favour 
of  Maha  Rajah :  the  complaint  was,  that  Maha 
Rajah  had  taken  money  oppreshively.  I  ga? a 
eviflenoe  that  ha  did  not. 


106SJ 


15  GEORGE  III.  Trial  ofMaha  Rajah  Nundocamar,         [1M4 


Were  jou  at  that  time  afraid  of  Mohun 
Pervaud  f— No:  1  was  not  afraid  at  that  time. 

Were  you  afraid  of  Mohun  Persand,  when 
you  said  that  the  books  of  the  army  were  sepa- 
rated from  Rollakey  Dosa'a  other  papers  bv 
Ills  order? — Mohun  Peraaud  forbid  me  to  tell. 
J  am  afraid  of  him. 

When  was  it  Mnhnn  Persaud  told  yon  not 
to  mention  it  ? — I  believe  a  year  and  a  half,  or 
two  years  affo.  In  the  late  prosecution  Maha 
Kajah  told  me,  if  I  would  write  out  a  paper,  I 
pliould  have  my  wages.  1  did  write  out  a  pa- 
]ier :  J  do  not  know  the  particulars. 

Dill  that  paper  contain  all  you  know  of  this 
traiisoctiuii  P — J  wrote  it  out,  and  1  copied  it. 

Did  Mohun  Persaud  tell  you  what  to  write, 
or  did  yon  tell  him  P — Mohun  Persaud  wrote  it 
out  first :  he  used  to  tell  me,  when  I  wrote  it 
out,  he  would  pay  nre  the  wBgeu  ;  it  remained 
10  or  14  days  on  the  bed  of  Guogabissen. 

Did  Muhim  Persaud,  at  any  other  time,  except 
the  time  last  mentioned  [i.  e,  about  two  years, 
or  a  year  and  a  half  ago]  desire  you  not  to  men- 
tion it  P — In  the  paper  he  {;a?e  me  to  copy  this 
is  not  mentioned,  which  I  obserTed  could  not 
add  any  thing  to  it. 

[Question  repeated.] — No ;  aboottwo  years, 
or  two  years  and  a  half  ago,  he  told  me  two  or 
three  times,  but  nef  er  told  me  since ;  1  put  him 
in  mind  I  knew  another  circumstance. 

Did  be  ever  mention  it  but  these  times  ?— ^ 
No. 

When  did  you  receive  the  letter  from  Malia 
Rajuh  p— It  is  eiffht,  ten,  or  6fleen  days  since 
1  got  Maha  Rajah's  letter. 

[Here  the  Evidence  closed.] 

Lord  Chief  Justice  Impej/  : 

The  prisoner  stands  indicted  for  forging  a 
Persian  bond,  uith  an  intent  to  defraud  Bol- 
lakey  D(i8s ;  and  also  for  publishing  the  same, 
kn<iviing  it  to  be  forged.  This  offence  is  laid 
in  several  manners,  by  different  counts  in  the 
indictment,  sometimes  calling  it  a  *  writing 
ohiigHtory/  and  sometimes  a  *  promissory 
note;'  and  it  is  laid  to  be  with  an  intent  to  de- 
franil  ditrtTcnt  people,  differently  interested. 

1  sliall  lay  out  of  the  case  all  those  counts 
touhich  1  think  no  evidence  can  be  applied  ; 
and  shall  only  mention  those  to  which  it  may, 
and  shall  point  out  those  to  which  it  most  par- 
ticnl:irly  n|)plie8.  I  lay  out  of  the  case  the 
counis  where  the  publications  is  said  to  be  to 
def'inuil  Bo'.lukey  Do^s,  as  the  publication 
mIdcIi  is  proved  was  after  his  death  :  as  also 
those  w  hich  charrre  it  to  be  to  defraud  Piulmo- 
liiin  Doss  and  Ciun«rahissen  as  joint  executors, 
tlu'ri>  lieiiii^^  110  proof  thai  Pudmohun  Doss  ever 
w:i«<  r.n  extcuior. 

TiivMnily  counts  to  whirli  any  evidence,  in 
my  f>[>inion,  can  be  applied,  are  the  first,  filUi, 
iiii;th,  and  thirteenth,  which  charge  this  in- 
fill ii'i.ent  to  be  forged  with  intent  to  defraud 
Iioi!aki-y  Doss :  the  eighteenth,  which  charges 
it  to  lie  i\);-^ed  wiUi  intent  to  defraud  (jimga- 
bis^ea  and  iiingoo  L  ill,  nephev^s  and  trustees 


named  in  the  will  of  Bollakey  Dota:  tbeaiM- 
teenth,  to  which  the  evidence  moit  forcibly  ap- 
plies, for  publishing  the  same  knowiog  it  to  be 
forged,  with  intent  to  defraud  GuDgaiimcB  and 
Hingoo  Loll :  the  SOth  and  ilst,  vbich  cbarfo 
the  forgery  and  pubUcation  to  be  with  iatcm 
to  defraud  Gungabiiseo,  the  survifiog  ei*> 
cutor. 

There  has  been  no  et idence  at  what  tiase 
the  instrument  was  actually  forged  ;  and  tbcrt- 
fore  it  may  be  difficult  for  you  to  ascertain  whe- 
ther it  was  in  the  life  of  Bollakev  Docs,  aad 
consequentiy  whether  to  defraud  Dim,  or  anch 
persons  as  bad  iniereit  in  his  eatale  after  bii 
decease. 

The  publication  was  clearly  after  his  de- 
cease ;  and  therefore,  if  you  should  tbiok  tbs 
prisoner  guilty  of  that,  you  would  not  have  ths 
same  difficulty  as  to  whom  it  was  to  defraud, 
as  it  must  be  his  executors,  or  other  persoas 
who  took  benefit  by  his  will.  As  the  esMs 
was  distributed  according  to  the  divisioo  of  the 
rupee,  which  is  a  custom  in  this  country  simihr 
to  that  of  the  Romans  dividing  the  as ;  tbcrt 
is  no  doubt  It  must  have  been  to  the  JMwja- 
dice  of  his  nephews  Oungabtssen  and  niagss 

I  will  however,  after  I  have  ^ooe  tbrosfk 
the  whole  evidence,  point  out  that  part  of  il 
which  applies  to  the  actual  forgery,  and  tbet 
what  applies  to  the  publication,  knowing  il  la 
be  forged. 

As  the  trial  has  now  taken  so  many  dayi^ 
and  the  evidence  is  so  long,  notwithstandm 
you  have  given  an  attention  that  1  have  never 
before  seen  in  a  jury  through  so  long  a  trial; 
it  will  be  necessary ,  for  the  purpose  of  briugisf 
it  together,  and  to  refresh  your  memories 
as  to  those  parts  which  parsed  earl}'  in  tbs 
trial,  to  recapitulate  the  whole  of  the  evidence. 

[Here  the  Chief  Justice  read  over  the  %ibole 
of  the  evidence,  and  then  proceeded.] 

By  the  laws  of  England,  the  counsel  for 
prisoners  charged  with  fielony  are  not  allowed 
to  observe  on  the  evidence  to  the  jury,  but  ars 
to  confine  themselves  to  roatter»of  law  :  but  I 
told  them,  that,  if  they  would  deliver  to  meaoy 
observations  they  wished  to  be  made  to  ihe 
jury,  I  would  submit  them  to  you,  and  givt 
them  their  full  force ;  by  which  means  they 
will  have  the  same  advantage  as  they  wouM 
have  had  in  a  civil  case. 

Mr.  Farrer  has  delivered  me  the  fV>lU>wing 
observations,  which  I  read  to  you  in  hi»  o«o 
words,  and  desire  you  to  give  them  the  full 
weight,which,  on  consideration,  you  may  tbiak 
thf  y  deserve. 

**It  in  no  forgery  on  Bollakey  Doss,  becaose 

*  it  is  not  proved  tu  have  been  forged  in  his  lifil 

*  time.* 

He  is  certainly  right  in  the  observation,  that 
there  is  no  proof  adduced  of  the  time  of  the  ac- 
tual forgery. 

*  No  forgery  on  the  executors,  because  tbe 

*  prosecutor's  evidence  prove  that  they  vers 

*  previously  ioformed  of  thcibrgery,  and  vofan- 


1065] 


at  CaladiOfJar  Forgerg^ 


A.  D.  1775. 


[1066 


*  Urily  paid  the  bond.    Pudmohui  1>qm  «• 

*  pressly  knew  it.' 

Tliin  will  depend  on  the  evidence,  wbicb  I 
nliall  observe  u|K)n  beretifter,  whether  Gnnira- 
biwen  was  so  intbrmed.  I  think  there  ii  grant 
reason  to  suspect  that  Pudmohun  Doss  was 

frivy  to  the  fraud,  if  any  liraud  has  been.  But 
have  laid  those  counit  out  of  the  case,  wliicb 
charge  either  the  forgery,  or  the  publication, 
knowing  of  the  foruery,  with  an  intent  lo  de- 
traod  Pudmohun  l>osa  and  Gungabiasen  as 
joint  executors,  because  the  prosecotors  have 
Ailed  in  this  proof  of  Pudmohun  Doaa's  being 
no  executor.  They  proiluoed  no  probata  to 
Pudmohun  Doss,  and  would  have  proved  it  by 
his  havinff  signed  an  account  delivered  into  the 
Mayor's  Court.  This  we  did  not  think  suffi- 
cient to  prove  him  executor :  Mohun  Persaud 
by  that  meana  might  likewise  have  been 
INTOved  an  executor ;  for  he  has  signed  an  ac- 
count which  was  delivered  in  to  that  court. 

*  No  forgery  upon  the  trustees,  or  residuary 
'  legatees,  because  they  had  only  a  contingent 

*  interest  at  the  time  o4  the  publication,  aniToot 

*  a  vested  one.  It  was  not  an  interest  *  debitum 

*  in  pr«8enti,  solvendum  in  futuro :'  had  they 

*  died  before  the  contingency  happened,  the 
'  interest  would  not  have  gone  to  their  repre- 
'  aentatives  as  such,  and  as  claiming  under 
'  them,  but  to  tlie  next  of  kin  of  Bollakey  Doss ; 

*  therefore  they  could  not  be  defrauded.' 

This  is  a  point  of  law,  and  I  cannot  help  dif- 
fering from  Mr.  Farrer  in  it;  for  in  my  opi- 
nion, and  in  all  our  f>pinions,  the  interests  of 
the  nephews  and  residuary  legatees  is  a  vested 
interest,  and  would,  whenever  the  money  due 
lo  Bollakey  Doss  from  the  Company  should  be 
paid,  go  to  the  representatives.  The  receipt  of 
that  money  is,  1  suppose,  what  is  understood 
by  Mr.  Farrer  to  be  the  contingency. 

Thia  objection  seems  to  be  made  from  mis- 
stating an  observation  made  early  in  the  cause 
by  my  brother  Chambers,  and  which  1  was  at 
first  struck  with  ;  which  was.  That  neither  the 
appointment  of  executors,  or  any  part  of  the 
will,  was  to  take  pUce  till  after  the  payment  of 
the  debt  from  the  Company ;  that  is,  that  Bol- 
lakey Doss  considered  himself  wortli  nothing 
bot  that  debt,  aud  meant  only  to  make  a  will  in 
case  that  money  should  be  recovered.  But,  on 
looking  into  the  will,  I  fioiutefl  out  to  my  bro- 
ther Chambers  that  there  were  dispositions  of 
other  monies ;  aud  we  are  both  aatisfied  that 
the  appointment  of  executors  would  have  taken 
place,  and  the  will  had  sufhcient  to  operate 
npon,  though  that  money  had  not  been  jwid  ; 
aud  that,  if  it  was  not,  Bollakey  Doss  dul  not 
mean  to  die  intestate.  But,  however,  there  is 
evidence  that  it  has  been  satistied  by  Com- 
|inn  v*s  bonds. 

Mr,  Farrer  has  likewise  given  me  these  fur- 
ther observations : 

*  Persian  letters,  sealed  in  the  usual  mode 

*  of  the  country,  not  allowed  to  he  given  in  evi- 

*  doDce :  bv  our  laws,  lelters  sealed   in  the 

*  usisal  mode  in  EngUnd  wookl.' 

You  cast  your  eyca  on  thoM  Ictlen,  and  nb« 


■inrad  on  the  recencjr  of  tlie  writing.  You 
thou|tbt  them  an  imposition  ;  but,  as  they  were 
not  given  in  evidence,  I  desired  you  would  not 
suffer  it  to  nsake  any  impression  on  you.  I 
have  no  apprehensions  tha  laws  of  any  country 
would  permit  them  to  be  given  in  evidence. 
They  were  letten,  enclosed  in  a  cover,  sesied 
with  the  seal  of  Bollakey  Doss ;  but  were  se- 
parated  ftom  the  covers,  which  bad  been  open- 
ed. Any  wtitings  might  have  been  put  iuto 
those  covers,  lliere  was  no  signature  to  the 
letters.  There  was  no  attempt  to  jjrove  that 
the  directkm  of  the  covers  were  of  the  same 
hand -writing  with  the  letters  tliemseUes,  or 
that  they  were  the  hand-writing  of  Bollakey 
Doss,  or  of  any  of  his  writers.  If  this  was  ul- 
lowed,  any  evidence  might  be  fabricated,  to 
serve  all  purposes.  Letters  in  Euglaod  have 
the  signature  of  the  writer,  and  his  liaud- 
writing  may  be  proved  :  it  is  im|>ossible  these 
could  be  given  in  evidence. 
'The  witnesses  are  dead,   the  tranaaetion 

*  is  stale,  and  long  since  known  to  the  prose- 

*  cutor.' 

These  are  objections  of  weight,  which  you, 
gentlemen,  ought  carefully  to  attend  to,  when 
you  take  the  whole  of  the  evidence  into  con- 
sideration, for  the  purpose  of  furniiog  the  ver- 
dict ;  and  i  have  no  doubt  you  will  attend  to 
them. 

*  No  evidence  of  defendant's  having  forged 

*  Bollakey  Doss's  seal,  for  which  he  alone 

*  atands  indicted.' 

There  is  clearly  no  direct  evidence  of  his 
having  actually  forged  the  seal.  But  Mr. 
Farrer  is  mistaken,  wlien  he  says  the  prisoner 
stands  only  indicted  of  forging  the  seal :  he  is 
inaccurate  in  saying  he  atands  indicted  of  forg- 
ing the  seal ;  it  is  for  forging  the  bond.  But 
he  does  not  stand  indicte*!  of  that  only  :  he  is 
indicted  for  publishing  it  knowing  it  to  be  forg- 
ed; and,  as  I  shall  l^reafler  shew,  it  is  to  that 
the  evidence  chiefly  applies,  nod  to  which  I 
must  require  your  more  immeiliate  atteiiiion. 

'  The  absurdity  of  the  defendant's  conliessing 
'  a  circumstance,  which  would  endanger  his 
'  life,  to  people  with  whom  he  was  not  in  terms 
*of  confldence — his   refusing,   three   months 

*  after,  to  become  security  for  Couiaul  O'Deen 
Mn  his  farm;  a  thing  trifling  in  its  nature, 
'  when  contrasted  with  the  consequences  which 
'  might  naturally  be  expected  from  a  refusal— 
'  the  small  deg^ree  of  credit  due  to  a  conlessiou 
'  made  only  once,  and  noboily  present  but  the 
'  party  and  the  witness,  which  are  tiic  words  of 
'  Comaul's  evidence.' 

It  is  highly  proper  yon  should  take  these 
circumstances  into  consideration  ;  you  will 
consider  on  what  terms  they  were  at  the  time  of 
these  conversations.  Confessions  of  thin  nature 
are  undoubte«lly  suspicious;  and  to  uliich,  ex- 
cept there  are  mattera  to  corroiiorate  them,  you 
should  be  very  cautious'  iu'  giving  too  iniich 
credit. 

*  Motbing  any  ways  extraordinary  in  (.'n. 
'  maul's  mentioning  the  circumstance  of  the 

*  defeodaDt's  wifiaiMon;  aa  it  ia  well  Luowa 


1067] 


15  GEORGE  III.  Trial  o/Maha  Rajah  Nundocomar^ 


[1068 


*  that,  in  the  most  common  occurrences,  the 

*  natif  es  of  this  country  fonn  the  most  iniqoit- 

*  ous  schemes,  which  are  not  brought  to  matu- 

*  ritj,  or  disclose<l  to  the  public,  for  a  much 

*  greater  period  of  time  than  the  present ;  and 

*  that  their  truth  and  falsehood  are  so  artfully 

*  intervroTen,  that  it  is  almost  impossible  to 

*  come  at  the  truth.* 

My  residence  in  the  country  has  been  so  short, 
and  my  experience  so  little,  that  f  can  form  no 
judgment  of  the  truth  of  this  observation :  it  is 
an  appeal  to  the  notoriety  of  the  dispositions  of 
the  natives.  You  have  been  resident  long  in 
the  country :  some  1  see  who  were  born  here ; 
you  know  how  far  it  is  true,  therefore  I  leave 
itentirely  to  you. 

Mr.  Brix  has  communicated  to  me  the  fol- 
lowing observations : 

*  Improbability  of  the  bond's  being  forcfed, 

*  from  its  being  conditional  only ;    for  which 

*  there  •could  be  no  necessity  if  it  was  forged, 

*  as  it  rendered  the  obligation  less  strong,  with- 

<  out  any  apparent  reason.' 

It  certainly  would  have  been  as  easy  to  have 
forged  an  absolute  bond.  Hut  there  is  no  evi- 
dence when  the  bond  was  forged,  if  it  was 
forged  :  it  might  have  been  after  the  payment 
of  the  debt  diie  to  Bollakey  Doss :  it  might  be 
to  give  an  air  of  probability  to  it.  But  this  is 
matter  proper  for  you  to  judge  upon. 

*  From  the  circumstance  mentioned  therein 

*  of  the  jewels  being  robbeil,  as  that  very  cir- 

<  cumstance  lessens  the  value  of  the  obligation, 
'  it  might  entitle  tlie  deceased  or  his  rcpresen- 

*  tatives  to  relief  in  equity.' 

This  circumstance  of  mentioning  the  jewels 
is  undoubtedly  one  that  makes  the  transaction 
very  suspicious,  as  there  is  no  evidence  g^ven 
of  any  loss  of  jewels ;  and  indeed  the  evi- 
dence that  has  been  produced  on  that  head  goes 
a  g^eat  way  to  prove  that  no  such  je\i'els  had 
ever  been  lost.  It  is  ingenious  to  turn  this  to 
the  advantage  of  the  prisoner.  You  will  de- 
termine whether  it  can  be  so  applied. 

These  are  the  observations  made  by  the  pri- 
soner's counsel :  you  will  consider  *them,  to- 
gether with  the  observations  I  have  submitted 
to  you  upon  them. 

1  shall  now  make  some  few  observations  on 
the  evidence,  both  on  the  part  of  the  crown 
and  the  prlNoner ;  desiriiii*',  as  1  have  frequent- 
ly during  the  course  of  the  trial,  that  you  wilt 
not  sufl'er  your  judgments  to  be  biassed,  or  the 
prisoner  to  be  any  way  prejudiced,  from  any 
thing  that  has  past,  nur  by  any  matter  what- 
soever, uliich  has  not  been  given  in  evidence. 

Tlie  evidence  on  the  part  of  the  ci-own  to 
support  the  actual  forgery,  is  that  of  Mohun 
I'ersaud,  ulio  says,  that  Maha  Hnjah  Nuudo- 
(M)mar  declared,  that  he  had  prepared,  or  drawn 
out  three  papers,  tiie  amount  of  one  of  which 
was  48,021  rupees,  which  is  the  amount  of  the 
present  bond,  and  is  applied  as  a  confession  of 
the  actual  foiigioff ;  bat  as  the  confession  may 
bear  m  diffcfent  mteniKlAtiott.  tiwrt  bciii|r  no 


tftlM.tfWfl 


be  wrote,  drawing  or  ceasing  to  be  drawn,  it 
may  mean,  that  he  caused  Bollakey  Doss  td 
draw  or  prepare  the  bond,  and  therefore  I  think 
the  first  would  be  a  hard  and  rather  m  forced 
construction  of  his  words ;  and  indeed  he  did 
not  actually  specify  this  bond.  Comaul  O  Decs 
also  gives  evidence  that  will  apply  to  tlie  fbr« 
gery.  Maha  Rajah  Nundecomar  told  him. 
That  he  had  himself  fixed  Comaul  O  Deen's 
seal  to  the  bond ;  and  he  proves  m  requisitiw 
from  Maha  Rajah  Nnndocomar,  to  give  evi- 
dence. That  be  was  a  witness  to  the  bond,  wk 
makes  him  promises  if  he  will.  This  b  Ibe 
evidence  of  the  forgery  ;  but  I  tbiok  it  will  W 
more  necessary  to  attend  to  the  evidence  is 
support  of  those  counts  which  I  have  said  Ibe 
evidence  may  be  applied  to,  and  which  chsrfs 
the  publication  with  an  intent  to  defraud. 

The  evidence  which  appliee  to  the  actsil 
forgery,  applies  likewise  to  tlie  knowledge  of 
its  being  iorged.  ftlohun  Persaud  proves  the 
bond  produced  by  Maha  Rajah  Nuodoooaiar. 
A  receipt  of  Maha  Rajah  Nnndocomar  for  ibt 
Company's  bonds,  paid  in  satisfaciioo  of  iha 
bond  in  question,  and  the  actual  satisfactkm  R- 
ceived  by  Maha  Rajah  Nundoooooar. 

Two  witnesses  depose.  That  the  name  ps^ 
porting  to  be  in  the  hand-writipg  of  SllaWr, 
IS  notof  his  hand- writing.  Sabboot  PoUack 
swears  positively  to  this :  be  says.  He  was  vcH 
acquainted  with  his  writing;  and  speaks  is  ti 
the  usual  manner  of  his  attesting  which  hi 
says,  is  different  to  that  on  this  paper. 

'Rajah  Nobkissen,  on  the  paper  being  sbovi 
him,  swore  positively,  that  it  was  not  the  bas^ 
writing  of  Sillabut ;  but  afterwards  reirscid 
the  positiveness  of  his  opinion :  but  the  circsn- 
stance  of  his  immediate  fixing  on  the  thns 
papers,  which  were  before  proved  to  be  of  Srf- 
labut's  writing,  is  a  stronger  proof  of  the  kaov* 
ledge  of  his  hand-writing,  tiian  auy  poautite 
oath. 

I  must  again  caution  you  against  receiiis^ 
any  impression  unfavourable  to  the  prisoofr, 
from  the  hesitation  and  doubts  or  exclainatioi* 
of  this  witness,  or  from  any  other  circumstaoca 
except  what  he  actually  <leposeil  to. 

Both  these  last  witnesses  agree,  that  tbr 
hand  to  this  bond  is  better  than  SSeeiiabut's  haw!. 

Other  circumstances  are  adduced  to  draw 
an  imputation  on  this  business.  An  accowt 
subsequent  to  the  date  of  the  bond,  which  bis 
1772,  is  producetl  to  show,  that  Bollakey  Iksi 
was  at  that  time  iodehte4i  to  Maha  Rajah  N«ib- 
docomar  only  in  the  sum  of  10,000  rupee; 
but  I  think  no  great  stress  can  be  laid  on  thil* 
as  it  contains  a  reference  to  such  other  debts  n 
may  Bp|>ear  by  his  hooks. 

The  Counsel  for  the  Crown  have  provri, 
that  a  draught  for  a  large  sum  of  money  esi 
paid  at  Benares,  about  the  time  of  the  besJ 
given,  on  the  credit  of  Bollakey  Doss,  in  ftftr 
of  lord  Clive.  This  was  adduced  for  the  par- 
{Kjee  of  showing'  Bollakey  Doss  to  be  at  that 
time  in  good  circumstaocesy  and  to  infer  As* 
ibemst  an  improbability  of  bis  entering  into  ihii 
^    "^ :  but  I  think  it  proves  no  sucb  " 


K)69] 


at  CalcuUa,Jbr  Forgtry, 


A.  D.  1775. 


[1070 


much  lardfer  sum  would  no  doubt  hafe  been 
|iaid  uii  lord  Clivers  credit  alone  ;  and  it  in  cer- 
tain, ihat  Bollakey  Doss  was  at  that  time  a 
debtor  to  Malia  Ilajab  N'tindooomar. 

There  is  another  circuuutlance ;  that  Bolla- 
key Do&s  had  never  mentioned  either  the  de- 
pobit  (d'  the  jewels,  or  the  loss  of  them ;  and 
that  there  is  no  entry  of  it  in  his  books. 

Comaul  O  Deen  produced  a  paper  with  the 
impression  of  his  own  f>eal,  which  he  swears  to 
be  in  the  possession  of  Maha  Uajab  Nundoco- 
roar :  yon  before  said,  you  thou^fht  it  to  be  the 
same  with  that  to  the  bond  ;  you  will  accu- 
rately examine  it;  I  have  not;  I  am  told, 
Ibere  is  a  flaw  in  both  the  impressions. 

Comaul  O  Dcen  accounts  for  his  seal  beinflf 
in  the  possession  of  Maha  itajah  Nundocomar, 
fMid  swears  he  has  not  receiveu  it  back :  his  evi> 
dence  is  sapfKirtrd  by  Coja  Petruse,  whose 
character  you  all  know,  and  Moonshy  Sudder 
O  Deen,  to  whom  he  repeated  the  conversa- 
tions with  Maha  lUjah  Nundocomar,  wbeo 
they  had  recently  past ;  you  know  the  prac- 
tices of  the  natives,  and  whether  it  is  probable, 
as  the  counsel  for  the  prisoner  has  sujfg^ested, 
chat  this  is  a  deep-laid  scene  of  villainy. 

The  character  of  Comaul  O  Deen  was  en- 
quired into  from  Coja  Petruse,  and  you  have 
beard  his  answer. 

Subornation  of  perjury  was  endeavoured  to 
be  iixed  on  him  by  the  evidence  of  Hussein 
Alii ;  but  as  to  Cawda  Newas,  nothin^j^  was 
proved:  as  to  the  seal -cutter,  his  conversa'tion 
with  him  seems  rather  to  streogtheo  than  im- 
]»each  his  credit. 

This  bond  was  found  cancelled  amoni?  the 
papers  delivered  into  the  Mayor's  court,  as  be- 
longinjif  to  the  estate  of  Bollakey  Doss ;  but 
the  papers  of  Pudmohun  Doss  and  Bollakey 
D'iss  were  mixc<l. 

This  is  the  substance  of  the  evidence  for  the 
crown  ;  and  no  doubt,  if  the  witoc^sses  are  be- 
lieved, whatsoever  you  may  think  of  the  for- 
ll^ery,  tliere  is  evidence  of  publication,  with 
luiowled{(e  of  forgery. 

On  the  other  hand,  if  you  believe  the  wit- 
nesses for  the  prisoner,  a  most  complete  answer 
is  f^iven  to  the  charf^e. 

There  are  no  less  than  four  witnesses  present 
at  the  execution  of  the  bond  by  Bollakey  Doss, 
three  of  whom  had  been  privy  to  a  conversation 
at  Maha  llajah  Nuodocomar's,  when  the  con- 
sideration of  the  bond  was  acknowledged  by 
Bollakey  Doss :  the  same  persons  prove  the 
attestation  of  the  bond  by  the  three  witnesses 
tberetOy  who  are  all  dead. 

The  brotlier  of  Matheb  Roy  is  produced, 
who  says,  that  Matheb  Hoy  was  well  known  to 
fliurea  Mull  and  Cossinaut :  Huzree  Mull  aud 
CotsiBnat  did  know  a  Matheb  Roy ;  but  it  is 
olcftr,  from  their  description  of  the  person,  that 
it  u  not  tiM  brother  of  the  witness  at  the  bar. 
Bovrereri  Cossinaut  gave  an  account  of  the 
ftmilr  of  the  man  he  knew,  whose  father 
990  fiuDKOO  Loll ;  but  said,  there  was  another 
800900  LoU.  It  seems  extraordinary  that 
^mf  flhoald  bo  two  Bnogoo  Lolls,  two  SAb«b 


Roys,  and  two  Matheb  Roys,  in  two  different 
families :  however,  there  is  no  doubt  of  the  ex- 
istence of  two  Bung(H>  Lolls  and  two  8aheb 
Rovs;  the  improbability  then  decreases,  and 
both  Tage  Roy  and  lioopnerain  swear  to  the 
existence  of  the  other  Matheb  Roy.  It  is  ex- 
traordinary, however,  that  this  man,  who  is  de- 
scribed by  his  brother  to  be  a  poor  man,  and 
servant  to  a  prisoner  in  the  gaol,  and  was  not 
known  to  Cosainant  or  Huzree  Mull,  should  be 
described  by  the  counsel  for  the  prisoner  as  a 
man  of  note  and  family,  and  as  being  acquainted 
with  Cossinaut  and  Uuzreo  Mull. 

In  contradiction  to  what  Commaul  ODeen 
had  said,  the  defence  iotrmluces  another  Co- 
maul ;  and  all  the  four  witnesses  swear  posi- 
tively to  his  attesting  the  bond.  He  is  proved 
by  two  witnesses  to  In:  dead;  one  Joy  deb 
Chowbee  saw  a  man  going  to  be  buried,  and 
was  told  it  was  Comaul. 

The  other,  Sheekear  Mahomed,  actually  at- 
tended his  funeral. 

Comaul  O  Deen  swears  positively  It  is  his 
seal,  and  these  witnesses  swear  to  the  attesta- 
tion by  another*  Contaul.  Joydeb  Chowbeo 
mentions  a  circumstance  by  which  he  knew  it 
to  be  the  funeral  of  Comaul :  he  asked.  Whe- 
ther it  was  a  funeral  of  a  Bramin  or  a  Mussul- 
man ?  It  seems,  the  mode  of  carrying  out  Mus- 
sulmen  and  Bramins  differ.  You  must  judge 
from  his  evidence,  whether  be  must  not  have 
known  whether  it  was  a  Mussulman  or  Bra- 
min, without  empiiry  ;  indeed  he  has  said, 
that  he  did  ;  and  the  observation  was  so  strong, 
that  he  after  positively  denies  he  ever  said  he 
made  such  enquiry. 

As  Comaul  is  said  to  have  died  in  the  house 
of  Maha  Rajah  Nundocomar,  it  seems  extraor- 
dinary, that  no  one  but  Sheekear  Mahomed  is 
brought  to  prove  his  actual  death ;  it  must  have 
been  easy  to  have  brought  many  persons  of 
Maha  Rajah  Nundocomar's  family,  especially 
as  he  mentions  five  persons  by  name  that  at- 
tended his  funeral,  besides  cuoleys;  three  in- 
deed he  has  buried  since,  but  there. are  two 
still  alive.  This  must  have  been  known  to  he  very 
material,  for  this  is  not  the  first  time  timt  Co- 
maul O  Deeu  has  given  evidence  concerning 
his  seal. 

It  is  admitted  on  both  sides,  that  8eelabut  u 
dead.  It  is  remarkable,  that  no  account  what- 
soever is  given  of  the  Mour  «»ho  wrote  th< 
bond:  he  would  have  been  a  material  witnct^ 
there  is  no  proof  whose  writing  ii  u  :  it  is  prar 
ed,  that  liollakey  Doss  had  at  ibai  !i«e  a  write 
whose  name  was  Ualkissen,  who  is  tit^A :  ih«r 
is  no  evidence  that  it  wa%  of  hit  .^ks^l ;  be  v« 
I  think,  kuown  to  one  of  the  v£^«»e»  if»  i:. 
execution  of  the  bond. 

A  witness  says,  thai  S^«'«v:t  «a«  4  P*--.;i 
writer  as  welt  as  Vak«ci  10  Y^.x  .kk«>  D  --r?  %  - 
Kissen  Juan  Dais  seraif  *.*  vj^^-j.  :  .•^;. 
asked.  What  Pers^  m-y^  l,v  :^4 
at  that  tinae?  b*  Ks:s««r^  -  11-.  :l: 
Balkiasea,  mmk  Sbc:.ui:-:  l:*.  \:»ii^^ 
sian.*'  It  is  urn.  ssi.a  *\.  u> 
if 


1071]  15  GEORGE  III.         Trid  ofMaha  Rnjah  Nundocomar,  [IQTf 


sioD  had  Bollakey  Doss  to  call  for  another 
writer  ? 

There  is  no  evidence  of  any  particulars  bein^ 
nieotioneil  to  the  writer  uho  made  out  the  bond, 
thouf^h  it  contains  very  special  matter,  except 
by  one  witness :  all  agrree  that  no  directions 
%vere  iri^en  in  the  room  liefore  the  people  came 
from  Maha  llajah  Nmidocomar  to  Bollakey 
]>08s'8;  and  all  the  witnesses,  except  one,  deny 
any  specific  directions  beinjif  ifiveo  af\er.  It  is 
|K>s8ihle,  he  nii^ht  have  spoken  to  the  Mour 
before  his  comings  into  the  room,  which  the 
oilicr  witnesses  at  this  distance  of  time  might 
have  fbrjii^ot. 

Though  there  are  some  variations  in  their 
evidence  at  the  time  of  the  execution,  that  is 
not  at  all  extraordinary  ;  what  is  most  striking 
is,  the  very  accurate  memories  which  they  pre- 
serve a.4  to  some  circumstances,  and  their  total 
furfirelfnlness  as  to  others. 

The  most  remarkable  instance  of  their  me- 
mory is  the  knowledge  of  the  seals,  w  h  icli  some  of 
them  swear  to  positively,  only  from  having  seen 
them  three  or  four  times  on  the  fingers  of  the 
owners,  from  which  (though  the  seals  must  be 
reversed  when  applied  to  paper,  and  though 
some  of  them  Jo  not  understand  Persian,  and 
consequently  not  the  characters  engraved  on 
the  seal)  they  swear  positively  to  their  being 
able  to  know  the  impressions ;  and  it  is  troe, 
for  they  do  point  out  to  whom  the  impression 
of  each  fiarticular  seal  on  the  bond  does  belong. 
Kissen  Juan  Doss,  who  must  have  seen  Bolla- 
key Doss's  seal  oftener  than  any  of  the  wit- 
nesses, does  not  take  upon  him  to  remember  the 
impression ;  and  on  being  told  the  other  wit- 
nesses did,  he  said,  they  had  excellent  memo- 
ries ;  he  was  not  blesseil  with  such. 

They  arc  liketvise  uniformly  accurate  in 
describinir  the  order  in  which  the  witness-^s 
sealed  and  si^rned. 

I  shall  make  no  observation  on  the  variances 
of  the  witnesses  to  the  execution  y  for,  except 
in  two  instances,  one  of  the  witnesses,  who  re- 
membered the  sum  in  the  bond,  from  ita  being 
explained  in  a  bn!;^uacre  he  did  not  understand, 
the  other,  Slieekear  Mahomed,  is  the  only  wit- 
ness that  spoke  with  precision  as  to  the  sum. 
You  lu'ani  hitn  deliver  his  evidence,  and  will 
form  your  own  judgment  on  that  and  on  his 
whole  evidence,  in  which  he  affirms  and  denies 
the  same  thin^  in  the  same  breath. 

As  to  the  other,  it  was  susrgested,  that  the 
same  words  expressed  the  same  sums  in  3Ioors 
and  Persian,  which  drew  on  an  cnr|uiry  ;  and 
we  had  the  Persian  and  Moor  words  for  the 
sums  mentioned  delivered  in  evidence  ;  you 
will  see  how  far  you  think  they  agree  or  dis- 
agree. 

Nor  shall  I  observe  on  the  manner  in  which 
the  witnesses  on  either  side  gave  their  testi- 
mony. You  saw  and  remarked  them.  The 
jury  having  the  opportunity  to  make  their  ob- 
servations on  the  conduct  of  the  witnesses,  and 
of  hearing  the  questions  ptit  as  circumstances 
■rise,  ia  the  great  part  of  the  benefit  of  a  vivd 
9oce  examination. 


The  defence  does  not  attempt  to  prove  either 
the  deposit  or  the  loss  of  jewels.  And,  indeed, 
Kissen  Juan  Doss,  on  whose  evidence  I  shall 
hereafter  observe,  says,  « That  he  never  heard 
*  of  such  a  loss ;  had  it  happened,  be  most 
'  have  beard  it ;  and  a  thouftand  people  most 
\  have  known  it.'  He  speaks  of  the  loss  of 
jewels  to  a  trifling  Amount,  but  those  lielooged 
to  anotlier  person.  This^  as  I  said  before,  is  a 
suspicious  circumstance.  But  if  the  jewdi 
were  actually  deposited,  of  which  there  is  no 
evidence,  except  what  1  am  going  to  take  no- 
tice of,  the  Korsa  Nama :  though  the?  were 
not  lost,  Bollakey  Doss  mijght  have  tol«f  Maha 
Rajah  Nundocoiiiar  that  they  were  ;  and  the 
Maha  Rajah  might  give  credit  to  Bullakcy 
Docs ;  or  might  chuae  rather  to  take  a  bond 
than  enquire  further  into  the  matter.  It  migkt 
possibly  have  been  a  fraud  on  Maha  Rajik 
Nundocomar. 

Meer  Assud's  evidence  may  l>e  very  nai^ 
rial.  He  produces  a  paper,  purportioff  to  be  i 
receipt  given  by  Bollakey  Dosa  to  him,  Ibr 
valuable  effects  of  Cosaim  AIII,  delivered  byths 
witness  to  Bollakey  Doss,  whicli  hail  the  serf 
of  Bollskey  Doss  to  it.  The  impression  ysi 
will  examine ;  yon  vrill  fiod  it  to  lie  the  same 
as  ia  on  the  bond.  This  was  for  the  pnrp«aB 
of  proving  the  correspondence  of  the  imuiiwiw 
of  the  seal  on  this  receipt,  with  the  seal  on  the 
bond  ;  and  by  that  means  to  prove,  that  the 
seal  to  the  bond  was  the  hieotical  seal  of  Bsl- 
lakey  Doss,  not  one  that  was  forged.  Tbii 
transaction  was  said  by  the  witness  to  be  wbea 
Bollakey  Doss  was  with  the  army  at  Durgbotty. 
Jt  seems  clear  beyond  doubt,  from  the  date  sf 
the  receipt,  from  the  place  the  army  was  then 
in,  and  from  the  circumstances  that  both  Cos- 
sim  Alii  and  Bollakey  Doas  were  in  at  the  tinoe 
the  receipt  bears  date,  that  the  receipt  conM 
not  have  been  given  by  Bollakey  Doss,  sihI 
that  the  whole  is  a  fiction. 

A  very  striking  observation  arises  from  this : 
it  may  account  for  the  witnesses  remembering 
the  seals  so  accurately.  Tasre  Roy  says,  He 
is  in  possession  of  Alatheb  Roy's  seal.  Tbe 
seal  of  Comaul  O  Deen  is  proved  to  have  been 
in  the  possession  of  Maha  Uojah  Nundocomar; 
and  the  person  who  fabricated  this  receipt 
must  have  had  that  seal  which  made  the  im- 
pression on  the  bond  and  the  receipt.  If  tbe 
witnesses  by  any  means  have  seen  those  seals, 
it  is  no  longer  surprising  that  they  should  be 
well  acquainted  with  the  impressions.  This  ii 
a  strong  observation  ;  but  it  is  but  an  observa- 
tion ;  1  would  have  you  consider  it  deliberatdv 
and  maturely  before  you  adopt  it. 

Kissen  Juan  Doss  delivered  all  his  evidence, 
till  this  morning,  with  such  simplicity,  airf 
with  such  an  air  of  candour  and  truth,  that  I 
gave  full  assent  to  every  thing  he  said  ;  and  I 
am  extremely  chagrined  that  there  has  arises 
any  cause  to  suspect  any  part  of  his  evidence* 
He  mentioned  a  paper,  which  he  calls  a  Kdn> 
Nama,  in  which  the  whole  of  this  transaetiM 
was  wrote,  and  which  was  acknowledged  asd 
signed  by  Bollakey  Doss.     Thovgh  the  ent^ 


1073] 


«#  CakMayJhr  Forgetg* 


A.  D.  1775- 


[1074 


iMrfe  in  the  iMolfr  after  the  ^th  of  Bollakey 
l>0Wy  by  order  of  Pudnobua-Dois,  and  p%kf- 
portiiifir  tf)  be  in  the  lifetime  of  Bollakey  Dota, 
earned-  anirka  of  suapicioB  with  it )  yet)  I  own, 
Kiwen  Juaa  Doss  bad  ao  completely  gained 
■ay  oanfiilenee,  tliat  1  gare  implicit  credit  to 
him.  Many  attempt!  were  made  to  eatablisb 
it  ID  ef  ideoce^  wbicb  failed  of  lefpil  proof;  but 
as  1  thoiighi  ao  well  of  Kiaseo  Juan  Doaa,  and 
aait  would  have  been  exiremely  hard,  if  auch 
a  paper  hart- existed,  that  the  prianner  abould 
be  deprived  of  the  l>eneiit  of  it,  I  said  (having 
first  asked  the  con^eot  of  ray  brethren,)  that, 
thoHffb  it  was  not  strictly  eridence,  1  would 
leave  it  tu  you  to  give  such  weight  to  it  aa  you 
thoiiirbt  it  tleserv^.  I  still  leave  it  to  you  ; 
and  if  you  believe  that  such  a  paper  ever 
dieted,  it  would  be  the  highest  injustice  not  to 
Mqoit  the  prisoner. 

Attempts  were  maile  to  bring  tliia  to  the 
knonleilge  of  Mohun  Persaud  ;  and  if  it  did 
exist,' and  was  in  the  knowledf^e  of  Mohun  Per- 
aaiid,  this  prosecution  is  most  horrid  and  diabo- 
fieal.  Mohun  Persaud  is  guilty  of  a  crime,  in 
Biy  apprehension,  of  a  nature  more  horrid  than 
nurder. 

But,  I  own,  what  passed  after  the  counael 
fot  the  prisoner  had  closed  his  evidence,  has 
very  much  weakened  the  confidence  I  had  in 
&iaaen  Juan  Doss.  The  counsel  did 'not  desire 
that  he  should  be  called,  aasigning  aa  is  usual 
a^  their  reason,  that  they  had  forgot  to  exa- 
mine to  any  particular  point  which  waa  con- 
tajned  in  their  instructions ;  but  we  are  inform- 
ed that  the  Maha  Kajah  had  something  to  aay. 
All  that  he  says  is.  That  be  desirea  Kis-* 
ten  Joan  Doss  may  be  further  interrogated 
■a  to  the  ILnrsa  Mama.  The  question  then  is 
■BOiediately  put  to  him,  Whether  he  ever  ex- 
phuoed  the  kursa  Nama  to  Mohun  Persaud  P 
and  then  he  giveatbe  account  of  Mohun  Per- 
saud's  having  aeen  it  at  Maha  Rajah  Nundo- 
•onsar's. 

When  he  is  examined  to  the  reason  of  hili 
B«t  having  told  it  before,  all  that  simplicity,  all 
that  air  of  truth  and  candour,  which  we  had 
ftiaarked  in  him,  instantly  vanished ;  his  looks 
were  caat  down,  his  tongue  Imultered,  he  pre- 
varieatea,  he  contradicta  himself,  ha  did  not 
•eem  the  aame  man.    '  He  did  net  tell,  beeauae 

*  in  was  not  asked.*    *  He  did  not  roemion  it 

*  to  Maha  Rajah  Nundocomar  in  hia  letter, 

*  haeanse  he  waa  afraid  of  Moiiun  Peraauck' 
'  He  did  not  mention,  because  be  did  net  reo>l- 

*  lect  it.'  *  He  did  not  deliver  it  iu  evidence, 
'•keeauae  afraid  of  Mohun  l^ersaud.'  Mohun 
Persaufl  is  a  great  man.  He  waa  not  afraid  to 
write  the  fetter.  He  did  not  ahew  the  letter  to 
Mohun  Peraaud :  wliy  should'  he  be  afraid  to 
iaaert  this  circumstance  ?  If  he  now  atanda  in 
to  much  ffiear  of  Mohan  Persaodl  as  not  to  men- 
tion tbia  in  hie  evidence,  was  he  so  mnch  afraid 
«f  him  when  he  voluntarily  and  directly  con- 
fronted him  as  to  the  army  books  P 

All  this  fear  ariaes  from  no  recent  threat:  it 
in  m  coanpqucnce  of  a  convcmtioB  at  the  dio- 
tBBOO  of  soase  yenvi; 

VOL.  XX. 


ft  is  for  jfon  to. determine  how  far  he  really 
stands  in  awe  of  Moliun  Persaud,  and  wliat  the 
efieota  of  that  intiAiidation  was  when  he  deli- 
vered hia  evidence. 

It  is  strange,  as  the  witness  was  so  often 
examined,  and  so  particularly  to  this  Kursa 
Nama,  that  Maba  Rajah  Nundocomar  never 
before  suggested  this  matter  to  his  counsel. 
.  If  this  latter  part  of  Rissen  Juan's  evidence 
is  true,  he  must  be  either  guilty  of  perjury  or 
very  strong  prevarication  in  hIa  former  evi* 
dence.  Being  asked  as  to  Mohun  Persaud  and 
Gungabisfieii's  knowledge  of  the  entry  made 
from  the  Kursa  Name  ?    He  aays,  *  1  cannot 

*  say  that  Muhuo  Persaud  and*  GungalNKaen 

*  knew  of  it  at  the  time  of  the  entry ;    they 

*  knew  of  it  afVerwardit.    Mow  can  I  tell  when 

*  they  knew  of  it  first  P  They  must  have  known 
'  it  from  the  papers  in  tlie  Dewaimy  Audaulet ; 
'  thev  were  all  called  for  there.  1  should  tell^ 
'  if  1  knew  Giingabis^en  or  Mohun  Peraaud 

*  knew^  of  the  entry.' 

He  muat  have  known  it  was  more  material 
to  prove  that  they  knew  of  the  Kursa  Nama 
itself,  in  which  the  particulars  of  the  account 
which  formed  the  sum  in  the  entry  were  wrote, 
and  which  Bollakey  Doss  had  signed.    But  ho 

Presently  afterwards    |MMitively   says,    That 
lohun  Persand  and  Gungabisaen    were  not 
aceuainted  with  tl>e  accounta. 

In  another  part  of  his  eridence,  he  says  to 
Pudmobun  Doss,  *  Miike  my  miud  easy  about 

*  the  bond  we  are  now  paying,'  or  (for  there 
was  a  doubt  in  the  interpretation)  *  whwh  wo 

*  have  paid.' 

The  time  that  this  explanation  was  made  at 
Maha  Rajah  Nundoconiar's  is  not  ascertained  ; 
but  it  must  have  been  before  the  payment  of 
the  bond  ;  fi>r  afterwards  it  could  be  of  no  use. 
If  then  Kissen  Juan  Doss  ha«l  before  seen  tbia 
Kuraa  Nama,  and  explained  it  to  Mohun  Per- 
saud, why  did  he  demand  that  his  mind  should 
be  made  easy  about  the  bond  P  and  how  was  it 
made  easy,  only  by  tiie  production  of  a  papec 
that  be  Imd  seen  before. 

f  am  much  hurt,  to  be  obliged  to  mako 
theae  observations  on  the  evidence  of  a  man 
that  I  entertained  so  good  an  opinion  of.  I 
muat  desire  you  to  recoils,  with  regard  ttf 
this  observation,  and  every  one  that  1  submit 
to  you,  that  yon  are  to  make  no  farther  nae  of 
them,  than  as  they  coincide- with  yoor  opinions 
and  observations  ;  and  when  they  do  not,  you 
should  reject  them ;  for  it  ia  you,  not  I,  thai 
are  to  decide  upon  the  evidence. 

Attempts  were  made,  by  meain  of  Monolnitt 
and  other  witnesses,  to  impeach  Mchnn  Per* 
saud,  by  particular  facts,  of  attempts  to  suborn, 
and  by  general  character.  Yon  must  judge 
how  rar  they  have  succeeded.  Thev  totally 
failed  in  the  same  attempts,  as  to  cJommaiu 
(yDien. 

It  is  to  be  observeil,  likewise,  that  no  person 
hat  been  railed  to  impeach  the  witnessea 
bnraght  by  the  defendant. 

There  are  many  observations  to  be  Oiade  \tt 
favour  of  the  prisoner ;  and  1  am  sure  your 

3Z 


1075] 


15  GEORGE  m.         Trial  ofMaha  Plafak  Nmicemar.         [KM 


homaiiity  will  prompt  you  to  eoforce  thorn,  at 
fir  as  they  will  bear. 

I  before  said,  that  the  defence,  if  beliered, 
was  a  fttft  refdtatioD  of  the  charge ;  it  is  not 
only  so,  bnt  It  mast  fix  an  indelible  mark  of  in- 
famy on  the  prosecutor. 

There  are  four  positi? e  witnesses  of  the  ao- 
toal  execution  of  the  bond  by  Bollakey  Doss. 

In  opposition  to  Commaul's  e?ideuce,  there 
are  as  many  to  prove,  that  the  witness  attesting 
was  another  Commaul. 

Matheb  Roy  was  not  mentioned  by  the  evi- 
dence for  the  crown.  Four  witnesses  saw 
him  attest  it ;  and  two  other  witnesses,  one  of 
them  bis  brother,  likewise  pro?e  that  there  was 
•ach  a  person. 

In  opposition  to  Rajah  Nobkissen  and  Pat* 
lock,  who  swear  the  nameSillabot  tothe  bond, 
is  not  of  Sillabut's  hand-writing  ;  four  wit- 
nesses swear  positi? ely  to  the  having  seen  him 
write  it. 

Much  depends  in  this  prosecution  on  the 
evidence  of  Mohun  Persaud :  yon  must  judge 
how  fiir  his  credit  has  been  snaken :  most  of 
▼on  know  him :  you  must  determine  how  far 
le  deserves  credit;  and  how  probable  it  is, 
that  be  would,  through  malice,  or  any  other 
corrupt  motive,  accuse  an  innocent  person  of 
a  capital  crime.  If  you  think  him  capable  of 
it,  you  sbould  not  give  the  least  attentiovto 
liis  evidence.  He  swore  nositively  to  the  bond 
produced  by  Maha  Rijan  Nundocomar,  and 
ihr  which  the  Company's  bonds  were  ^ven, 
being  the  same  bond  that  was  produced  m  evi- 
dence ;  he  said,  he  knew  it  from  circumstances, 
but  did  not  explain  what  those  circumstances 
were;  this  1  mention  as  going  to  his  credit 
only ;  for  the  whole  defence  proceeds  on  iden* 
tifying  this  bond,  and  proving  it  a  true  one. 

You  will  judge  how  far  he  is  contradicted 
by  Kissen  Juan  Doss,  as  to  the  army  books ; 
^d  which  of  the  two  are  to  be  believed. 

An  imputation  was  attempted  to  be  thrown 
on  Mohun  Persaud,  for  preventing  Guiiga 
Visier  from  attending,  who  was  said  to  be  able 
and  willing  to  appear  as  a  witness :  but  that 
lias  been  cleared  up,  to  the  full  satisfaction  of 
us ;  and,  I  do  not  doubt,  to  your  satisfaction 
likewise.  He  could  not  be  called  by  the  pro- 
aecutor,  on  account  of  bis  interest ;  and  no 
prejudice  should  accrue  to  the  prisoner,  for 
dot  calling  him,  for  the  same  reason. 

The  counsel  for  the  prisoner  have  urged  the 
liardsbip  of  this  prosecution  being  brought  at 
this  distance  of  time.  You  have  heard  when 
Mohun  Persaud  first  suspected  the  forgery ; 
and  when,  by  Commaul's  declaratiun,  he  bad 
reason  to  be  confirmed  in  the  suspicion. 

You  have  heard,  when  the  papers  were  de- 
livered out  of  the  court ;  if  there  has  been  any 
desired  delay,  and  jou  think  Mohun  Persaud 
bad  it  in  his  power  to  carry  on  an  effectual  pro- 
■ecntion  before  be  has ;  it  is  a  great  hardship 
to  Maha  Rajah  Nundocomar,  especially  as  the 
witnesses  to  the  bond  are  all  dead ;  and  you  i 
ought  to  consider  this  among  the  other  cir-  I 
aanataooei  wUch  ace  ia  his  favour.    Thoogb,  J 


to  be  sure,  this  hardship  is  anieh  dfaBialshrf^ 
as  there  were  so  many  witnesses  still  alivt^ 
who  were  present  at  the  exeeatioD  of  it, 

There  are  two  pieces  of  writtffo  enksam 
relied  on  by  the  prisoner :  ooe,  the  entry  ki 
the  book  from  the  Kurra  Nanaa,  on  aeeooBt  ef 
the  agreement  of  the  snroa ;  and  yon  frill  find 
that  the  sums  sud  by  Kisaea  Joaa  Deal  la 
be  contained  in  the  Knrra  Nana  ;  vis. 

Durbar  expences    ....      0,000  B? 

Bond  Batta  and  premium    •    <M^6S0  7 


do  amount  to  the  sum  of 


75,630  r 


which  is  the  sum  in  the  entry. 

The  other  is  the  account  delivond. by  Mai 
hun  Persaud  and  Pudmohun  Does,  suboamMsl 
to  the  account  delivered  in  by  Podaoiohun  Des^ 
in  which  Pudmohun  Doss  had  taken  credk  ftr 
this  sum;  and  the  subsequent  aooonnt  likewin 
contains  it. 

I  do  not  think  much  can  be  drawn  ftom  tUi^ 
for  the  anms  had,  as  Mohun  Peraaod  Mfk 
been  paid,  and  therefore  they  certainly  woalf 
take  credit  for  them,  to  prevent  ibeir  boaf 
charged  with  them  ;  this  tney  would  do,  wsis 
the  monies  properly  or  improperly  paid. 

Tbore  is  certainly  great  improMiilily  that  a 
man  of  Maha  Rajah  Nundooonmr'a  raak  aad 
fortune  should  be  guilty  of  so  mean  an  ofleaes 
for  so  small  a  sum  of  money. 

It  is  more  improbable,  as  he  is  proved  Is 
have  patronised  and  behaved  with  great  kind" 
ness  to  Bollakey  Doss  in  his  lile-tinie,  that  bs 
should  immediately  afker  bis  deceaaa  pluaicr 
the  widow  and  relations  of  his  friend. 

There  does  likewise  appear  to  haTO  beca  a 
suit  in  the  Audaulet,  which  must  have  bss  a 
civil  suit ;  but  it  does  not  indeed  appear  tbit 
Mohun  Persand  was  a  party  ;  and,  mdeed,  for 
what  reason  I  know  not,  neither  side  barf 
thought  fit  to  produce  the  proceedings. 

I  nave  made  such  observations  on  the  en* 
dence  as  the  bulk  of  it,  and  the  few  minutfi 
I  had  to  recollect  myself,  would  allow  me  is 
make. 

You  will  consider  the  whole  with  that  caa- 
dour,  impartiality,  and  attention,  which  bsi 
been  so  visible  in  every  one  of  you  during  tfas 
many  days  you  have  sat  on  this  cause. 

You  will  consider  on  which  side  the  weiahl 
of  evidence  lies;  always  remembering,  tail 
in  criminal,  and  more  especially  in  espial 
cases,  yon  must  not  weigh  the  evideoca  is 
golden  scales ;  there  ought  to  be  a  great  di^ 
ference  of  weight  in  the  opposite  scale  bdias 
you  find  the  pnsoner  guilty.  In  cases  of  pi^ 
perty,  the  stake  on  each  aide  is  equal,  aad  4l 
least  preponderance  of  evidence  ought  to  toil 
the  scale ;  but  in  a  capital  case,  as  there  fl0 
be  nothing  of  equal  value  to  life,  yon  abooid  ki 
thoroughly  convinced,  that  there  does  not  iw 
main  a  possibility  of  innocence  before  yoa  giia 
your  verdict  against  the  prisoner. 

The  nature  of  the  defence  in  this  ease  b 
such,  that,  if  it  is  not  believed,  it  most  pisM 
fatal  W  (he  party  ;  for  if  yo«  do  wA  balim  H 


7] 


Trial  ^Jotfph  Fowke  and 


to  fix  iHMJur;   anrl  subiTnatiau  oF  perjury  on 
the  nrosci-uloT  Bn<l  his  niinesses. 

You  will  sgiiiD  tnil  (ii(iin  iransicler  Ihe  cha- 
rMder  of  the  pnMM^iilor  siiil  his  witnesses,  the 
Pittance  of  the  prDsecminn  trnm  (be  time  llie 
afleoev  ii  EUppnwd  to  be  cominilted.  Ilie  proof 
•□d  Dilure  ot'  ihe  contessinng  said  to  be  raade 
by  the  prisoner,  hii  rank  snil  fortune.  These 
■re  all  reiaons  In  prevent  your  K'n'mg  a  hasty 
knd  prccipiiala  belief  lq  tht;  cliarge  hrnu^hl 
^faiiut  him  ;  but,  if  you  beliure  the  tacts  swum 
■gsinst  liim  to  be  true,  they  cauDOt  alter  the 


olhfTt.  A.  D.  1775.  [1078 

of  tlie  faclji  theniselvea.  Your  teuK  of 
,  nod  your  onn  fvellD^i,  will  not  allow 
ynu  to  conricl  the  {insoner.  unlets  your  cnn- 
Bciencei  an  fully  saiisfieil  beyond  all  iloul>t  of 
lii»B'uilt.     If  they  are  not,  you  mil  brir- =- 


luey  are  noi,  you  niii  Drinij  in 
rlilch,  from  the  diciates  of  hu* 
will   be  incliued   to   ^ite;   but. 


'  consideralion,  1 


manity,   j —  ..   ^.-~,   ^u. 

iliniilJ  your  CODKiencei  be  Iborouehly  con 
riDced  of  bis  beinp  guilty,  ■  ■      - 

■iln  sure,  wilt  prevail  on  you  iioi  i 

diet  according  to  jou maths. 

The  Jury  retired  for  about  at 
trough t  in  their  verdict,  (juilty. 


557.  The  Trial  of  Joseph  Fowke,  Francis  Fowke,  Maha  Rajah 
NoNDocoMAR,  and  Roy  Rada  Churn,"  for  a  Conspiracy 
against  Warren  Hastings,  esq.  Governor  General  of  the  Pre- 
sidency of  Fort  WiUiam  in  Bengal.  At  Calcutta  or  Fort  Wil- 
liam, in  Bengal  aforesaid  :  15  Geoucje  III.  a.  d.  I  775. 
[Snbjoined  to  the  Trial  of  Nundocomar,  for  Forgery.  Pub- 
lished by  Authority  of  the  Supreme  Court  of  Judicature  ia 
Bengal.    London :  Printed  for  T.  Cadell  in  the  Straud,  1 776.] 


Hjf  wai/  «/  Jnlroduction  to  Ihe  Report  nf 
the  TriaU  nj  Joseph  Fowie  and  others, 
was  published  the  Jblluviing  Account  of 
certain  Preliminary  Measuret.  Jt  it  in 
Hte^not  tinintereatlng, 

D  EPOBITIONS 


ACONSl'lRACV    Au.iNST  WARHEN 

HASTINGS.  Eso. 

Calcult/i,  ApriliO,  1773, 

On  the  l!Hb  insunl,  about  nine  in  the  morn 
Inf,  Coinaul  O  Deen  Alii  Cawo,  the  furmer  of 
lletlgelM,  caraetu  Mr.  Hastini^,  with  a  com- 
pbikl  BgBioft  Mr.  Joseph  Fowke,  for  having 
asUr1«d  from  hiui,  by  violence,  accusatioLis 
KgaHUt  Mr.  Hastings  anil  other  penuos.     The 

rrtjoulara  of  bi«  «tnry  will  be  related  at  large 
bi*  deposition.     He  said,  be  bad  that  iuHtKiit 
nwde  bit  escape  from  the  lianita  of  Fovrke  and 
Niuulocuinar.     His  jamui*  was  torn,  bii  face 
ad  he  was,  or  appeared  to  bv,  out  of 
Mr.   UaUiogs   told    him,    he    cnuhl 
d  bim  no  redreu  ;  and  referred  him  to  the 
iTJuBitee.     He  went.    The  Chief  Justice 
_        J   brard   tite  coniplaiDi,  lummoned  the 
'  otbar  judge*  lo  meet  hini  in  the  etening;  and 

*  8m  Oi«  prcoading  Case. 


late  that  night  Air.  Hastings  received  tbe  fol- 
lowing Letter  from  them  : 

*'  Tbe  Hon.  Warren  HESting!!,  esq. 

"  Sir;  a  charge  hariogbeen  exhibited,  upoa 
oalb,  before  as,  against  Joseph  and  Francia 
Powke,  Maha  Ka_iah  Nundocomar,  and  Rada 
Churn,  for  a  conspiracy  against  you  and  others; 
we  have  sutnrooued  the  parties  to  appear  to- 
raotTOw,  at  10  o'clock  in  the  forenoon,  at  Iha 
bouse  of  sir  Elijah  Impey,  where  we  must  re- 
(|uire  your  attendance, — \Ve  are,  Sir,  your  mast 
oliedient  bumble  servants,  E.  Impey,  Robsst 
Chahders,  S,  C.  Lemaistbc,  Joiln  Uvoc." 

*'  Culcuttu,  April  19,  1775." 

The  same  inliinatioii  was  aenl,  in  the  sam« 
forin,  to  Mr.  Barwvll.  Mr.  Vansittart,  Maha 
Haiab,  ttsjebultub,  andCanloo  Uaboo. 

Tbe  uexi  morning  Mr.  Hawingt  attended,  at 
did  the  other  persous  named  in  the  letter. 

The  persons  examined  as  evidence  ou  tbe 
charge,  were  Comaul  O  Diea,  Ins  Moonaliy, 
Malbew  Miranda  and  Timothy  Pcreira,  two 
Kritrrt  of  Mr.  Fowke,  Abermanuu  u  Genloo, 
and  a  Mooniby,  both  aervautt  of  Mr.  Fuwke, 
and  Yar  Mahomed,  d  well-known  bervaot  dJ' 
Nundocomar.  The  enamioalion  lasted  tiU 
eleven  at  oigbt. 

It  will  be  nt-crsaary,  before  we  proceed,  to 
remind  tlie  reader  of  a  represeatalion  which 
ABt  made  to  Sir.  Uailings  by  Cumaid  O  Ueen, 
of  Ihe  like  attempt  made  by  mr.  Fowke  in  Ue- 
ceiubrr  lam,  to  extort  accuaations  from  bim  ; 
ami  which  waa  laid  before  ibo  board  on  lb* 
i;jU)  of  tbat  noulh.     In  tbe  course  of  the  lUt 


15  GEORGE  in.  Trial  qfJotejA  Fmke  amdiMertt 


1079J 

examiDatton  it  appeared,  that  Mr.  Fowke  bail 
WDt  to  the  Board  of  Revenue  a  letter,  dated  the 
18th  of  April,  accomiKinied'by  a  paper,  beariDif 
the  aenl  of  Comaul  O  Deen,  and  containing  a 
formal  recantation  of  his  former  repreaenta- 
tjou.  Mr.  Hastings  had  not  yet  seen  these 
papei-s. 

The  following  are  copies  of  the  Depositions 
B  hich  were  taken  before  the  Judges. 

Deposition  of  Comaul  O  Deen  Alli  Cawn, 

upon  oath. 

"  Havinjv*  a  demand  on  tiie  Dewan  of  the 
Calcutta  district,  for  the  sum  of  26,000  rupees, 
on  account  of  the  advances  made  on  the  colla- 
ries  in  the  liedj^elec  districts,  which  he  had  not 
paid  to  me ;  to  frighten  him  1  went  to  Ma  ha 
Rajah  Nundocomar,  and  gave  him  three  ar- 
sees ;  two  against  the  said  Dewan,  and  the 
third  against  Mr.  Archdekin,  telling  him  to 
keep  the  two  arzees  against  the  Dewan  in  his 
own  hands ;  and  that  when  Moonshy  Sudder 
O  Deen  should  arrive  from  his  house,  and  1 
should  receive  my  money  through  his  means, 
that  1  %vould  make  him  (Nundocomar)  a  pre- 
HfOt  of  6,000  rupees,  and  take  liack  my  arzees 
from  him  :  1  also  desired,  that  he  would  lay  the 
aisee  which  I  had  given  him  against  Mr.  Arch- 
dekin before  the  committee,  and  afford  me  his 
patronage.  The  said  Rajah  a^eed  to  this,  and 
dismissed  me.  Another  day  Maha  Rajah  told 
me,  chat  his  business  dependeil  on  Mr.  Fowke, 
whom  1  must  visit.  1  -answered,  that  in  the 
month  of  Poos,  a  quarrel  hapueneil  between 
that  gentleman  and  me,  and  that  I  therefore 
could  not  go.  He  replied,  It  did  not  signify. 
At  his  desire,  1  accompanied  Rada  Churn  to 
visit  t-he  said  gentleman,  who  talked  to  me  very 
friendly.  In  ihc  mean  time,  Monnshy  Sudder 
O  Deen  arrived,  and  tohl  me  to  gei  hack  my 
arzees  ;  and  that  he  would  settle  my  affairs 
wiUi  the  aforesaid  Dewan.  1  went  to  the 
Muha  Rajah,  an<l  desired  to  have  my  arzees  re- 
turned to  ine.  Muha  l^tjah  re|i!ied.  Give  me 
the  6  000  rupees,  according  to  aj^reement;  and 
take  hack  vour  ar/.ees.  I  said,  i  have  not  vet 
receivr-d  the  money ;  as  soon  as  1  have,  I  will 
assurtilly  give  it  ^ou.and  will  give  you  a  writ- 


[1K0 


bear  the  particulate  of  it  aiioe  fron  you :  Ibis  m 
of  no  cunsequenoe  to  you.  Baing  vaosedilaH, 
1  said,  Give  me  whatever  draii  yo«i  pkaaa; 
Afterwards,  at  night  of  tbe  6tb  Bjraaac,  al  bit 
own  office,  be  ciuiiBd  me  to  -tiave  it  writtrB  by 
my  own  Moonshy,  and  took  it  froai  me;  aad 
on  the  8th  instant  he  sent  me  triib  Rada  Cbim 
to  Mr.  Fowke.  Tbe  said  geoilemao  eaUcd  mt 
into  bis  chamber,  and,  placing  two  trfkan  $94 
two  Bengallies  over  me,  firat  ol'  all  aakod  of 
me.  What  suras  did  you  gire  to  the  fioteenNr, 
Mr.  Barwell,  Mr.  Yanaittari,  &c.  aa  hcihaa  f  I 
answered,  1  gave  no  bribes.  Havk^  beavi 
this,  he  suddenly  flew  itUo  a  paaaiuo,  and  tmk 
up  a  book  which  lay  near  him,  to  strike  me, 
saying.  Do  you  desire  yonr  owo  wrifait? 
Write  what  1  desire  you,  and  put  yoor  seal  tt 
this  arzee.  Being  fr^lened,  i  juii  my  aeii 
to  the  arzee,  and  said,  Tell  me  what  you  tfesirt 
I  should  write,  that  1  may  write  it.  He  said, 
Write  that  you  have  given  45,000  rupecSi 
within  three  years,  as  £-ibea  to  Mr.  BarwcU, 
15,000  rupees  in  nuzzies  to  tbe  JGoverosr, 
12,000  to  Mr.  VausitUri,  7,000  to  Mtfha  Rajak 
llajtth  fiullub,  and  5,000  to  Baboo  Kisaen  Can- 
too.  I  was  confined  in  a  ch umber,  without  aay 
power;  and,  beiiig  in  fear  of  my  reputation  aiiil 
life,  I  wrote  what  was  desired  of  me  wiib  aiy 
own  hand,  and  gave  it,  and  thereby  obtaiod 
my  liberty ;  and  when  1  got  out  of  the  cban- 
ber,  I  stoofi  at  tlie  top  of  the  ataira,  and  calkd 
aloud  to  Mr.  Fowke's  son  and  Rada  Cbura, 
'*  Give  me  back  the  falsities  which  1  have  beet 
obliged  to  write,  and  have  been  taken  from  ■« ; 
oUierwise  1  will  go  and  lodge  a  ooaiplaist 
before  the  Audaulet."  Shitnsheer  Beg  and  Ui 
Moonshy  are  witnesses  to  the  truth  of  Ibia 
Mr.  Fowke's  son,  hearing,  went  to  his  iaiber, 
and  after  much  conversation  came  out,  and  sai4 
to  me,  Go  for  the  present  to  your  house ;  tbe 
Maha  Rajah  will  come  here  to  mormw,  do 
you  come  here  at  the  same  time  ;  I  w  ill  then 
satisfy  \  on.  l^-ing  remedi!<'ss,  1  came  to  mv 
own  house,  and  urnt  to  Moonshy  8udderO 
Deen,  anfl  suid,  Do  you  cro  and  give  notice  to 
l^lr.  Hur\\ell  and  Mr.  Vunsittart,  that  Mr. 
lu}\% ke  has  this  day  exercised  great  opprtssion 
on  me,  and  has  made  me  write  a  ^reat  number 
of  falsities  airainst  the  <rentlemen,  which  he 


ten  a (rreement  to  this  effect.  He  would  not  has  taken  from  me ;  and  that,  whatever  is  to  hf 
consent  to  this;  and  on  the  5th  of  Bysaac  said  j  done,  will  he  execute<l  to-morrow.  This  day, 
to  me.  In  the  n^onth  of  Poos,  you  gave  in  an  !  heing  the  9thof  liysaac,  I  came  to  Mr.  Foivfci^i 
arxee  of  complaint  against  5lr.  Fowke,  on  '  house,  and  saw  that  he,  his  son,  and  the  Maha 
which  acr'junt  he  is  displeased  with  you.  ami  '  Rnjuh,  were  consulting  ioi;ether  in  his  obaa* 
will  not  return  them  to  you.  I  replied,  I  gave  her,  I  stood  without.  About  two  garriesif* 
the  arzees  in  trust  to  you,  ami  not  to  Mr.  terwards,  the  said  gentleman,  the  Maha  Kajab, 
Fo\vk(>.  lie  answered.  Do  one  thing,  and  I  he,  came  out,  and  got  into  their  palanquins,  i 
will  return  your  arzees:  I  will  give  you  a  '  came  before  them,  and  called  for  jutioe  frsa 
draft  of  an  arzee,  which  you  must  write,  and  the  Council  and  Audaulet,  and  desired  thai  they 
present  to  the  general,  and  a4>ree,  that  when  j  would  return  me  the  Hritiug  which  they  bad 


you  are  appointed  to  i'oorniah,  you  will  present 
this  arzee  against  the  governor  to  the  council :  if 
you  t\o  not  agree  to  this,  your  arzees  will  not  be 
returneil.  1  said,  Shall  I  give  a  false  arzee  to 
Mr.  Fowke,  to  procure  the  return  of  my  own 
arzees.^  He  replied.  You  need  nut  give  this 
arxee,  or  put  your  seal  to  it-;  be  only  wanta  to 


yesterday  forced  me  to  write,  and  taken  I'niai 
me.  The  said  gentleman  and  Maha  Rajab, 
being  enraged,  told  their  people  to  take  Bf, 
and  keep  me  within  the  house.  1  oppasfd 
them  with  all  my  force,  and  got  into  my  paka* 
(|uin  ;  there  were  near  90  people  with  me.  Tba 
quarrel  continued  between  my    pcopla  iti 


lOdl]    Jor  q.  Compinu:^  mnmt  Warren  H^ftingSf  etq*    A.  D.  177& 

theirs  till  I  arrif  ed  at  the  house  of  Rajah  Ra- 
jah Bullub,  when  their  people  returned.  1 
went  to  (he  gi>f  ernor,  and  represented  all  these 
particHlars  to  him :  I  hope  for  justice." 

Ktel.      [COMAUJt  O  J>EEN  ALU  CaWK.] 


Q.  Wbeo  was  U  ^ou  fir^t  applied  to  dtundo- 
•omar  wUh  the  aneeas  P— ^.  The  latter  end  of 
Cbite. 

Ha  dclirar«d4be  Ibree  argees  to  Rada  Churo, 
wbo  earned  them  to  Nundooomar,  whoaa  be 
himself  4lid  not  see  that  ni^ht ;  but  the  next 
^ay  be  saw  Nuoducomar,  who  told  him  be  bad 
*Bt»if ed  the  araees ;  that  be  would  gif e  the 
mut  afruost  Mr.  Arcbdekio  to  the  Committee, 
MkJ  keep  llie  others  by  bim. 

His  ofi«»r  was,  hy  means  of  Rada  Churn* 
4»000  to  Nuoflocomar,  and  S^OOO  fur  himself. 

He  says,  he  made  this  ofler  because  he 
eypected  that  Niiuiiocomar,  by  his  ^reat  io" 
fluence  in  Calcutta,  uhicb  is  well  known, 
would  be  able  to  procure  the  payment  of  the 
■lOfMfy. 

That  Rajah  Nundoconcar  had  always  iiiflu- 
tnoe,  but  particularly  KJnce  the  Rajah  ol'Burd- 
wan  obtained  his  Keliaut. 

That  the  Raid  Rajah  and  the  Rajah  of  Rad- 
abue  paifi  him  attention,  and  that  be  baa  Ire- 
^eiitly  50  palanquins  at  his  door. 

H«*  did  nut  himself,  at  that  time,  mention  the 
■loney  to  Nnndocomar,  but  only  made  the  offer 
lo  Kada  Churn:  it  not  beinf(  usual  to  offer 
mouey  to  the  principal,  but  through  an  inter- 
mediate peraoii. 

What  he  mentioned,  conceminfp  the  draft  of 
tbe  .arzc'e,  mii*  said  by  Nuudocomar  in  a 
wbiaper;  and  heard  by  no  one  except  Rada 
Cburu,  80u-in-law  to  Nundocuraar,  who  con- 
ducts Ur.  Fowke's  business,  and  ia  supposed  to 
be  bis  banian. 

He  says,  that  Nuiiilncomar  dictated  the  draft 
of  an  arzee  to  his  (Comaul'b)  Moonshy  ;  and, 
atler  baviui;  altered  it,  desired  that  he  would 
arder  his  llouushy  lo  write  it  lair.  He  then 
eomplained  of  ilbess,  and  went  away,  leaving 
bis  Monnshy  there. 

That  Nunducoinar  sent  bis  Moonsby,  about 
ten  St  night,  uuder  the  charge  of  another  per- 
son, with  the  arzee,  and  directed  him  to  affix 
hia  seal  to  it,  which  he  then  refused ;  saying, 
that  be  had  made  no  such  agreement. 

That,  on  tbe  8tb,  when  he  went  to  Mr. 
Powke'a,  there  ware  no  others  in  tbe  room  ex- 

3t  Mr.  Fowke,  Rada  Churn,  and  two  Ren- 
lies  and  two  writers.  Young  Mr.  Fowke 
mud  others  passed  in  and  out  of  the  room 
sereral  times.  Mr.  Fuwke  shewed  bim  tbe 
arsee,  and  desired  him  to  put  his  seal  to  it.  He 
aay  s  he  was  in  fear  and  trembling  on  acoount  of 
Mr.  Fowke's  anger,  who  took  up  a  large  folio, 
and  threatened  to  beat  him  witli  it;  that  be 
had  laid  bold  of  his  feet,  and  desireil  forgive- 
Dtaa,  oiul  that  be  would  do  whale? er  Mr.  Fowke 
pleased. 

What  Mr.  Fowke  desired  bin  to  write  was, 
Ibat  he  gave  tbe  soma  of  money  formerly  men- 
totba  Oovaroor^^.  BariMllrdso.  Tbia 


was  OB  a  aeparite  list,  wriuau  by  bimtdf  out 
of  fear. 
That  Ue  did  aot  put  down  any  ceasoot  for 

flvAMg  ^beae  suns,  nor  was  desired  by  Mr» 
owfie  to  do  ao.  He  did  noi  give  these  aumOt 
nor  soy  other ;  and  should  nearer  have  AhoiigbS 
of  accusing  tbcae  gentlemen,  bad  it  not  bees 
for  Mr.  Fowke  and  Mundocomar's  conduct. 

He  took  tbe  farm  of  the  Hedgelee  district 
for  &we  years,  and  fumisheil  375,(XX)  maunda 
of  salt,  and  collecu  76,000  rupees  revenue. 
The  Company  |>ays  bim  a  lack  of  rupees  year« 
ly  for  tbe  salt  which  he  provides  for  them. 

DEPOSmON  of  NUNDOCOMAR. 

<*  Comsul  O  Been  Cawn,  ia  his  childhood. 
If  as  with  me  two  or  three  yeara :  since,  simie 
disputes  arising,  he  separated  from  oie  ;  about 
two  uionths  ago,  he  mentioned  to  Rada  Chura 
that  a  violent  enmity  had  subsisted  betwixt  hioi 
and  me,  and  begged  Rada  Churn  to  endeavimr 
to  bring  ua  togetlier ;  be  made  many  iutreatica 
to  this  purpose  to  Rada  Chum,  hIio  intoruied 
oie  of  what  had  passed ;  ami  likewise  tuf-«rmed 
me,  iliat  Comaul  O  Deen  was  much  aahamed 
of  his  tiehaviour  lo  me ;  antl  tliat  be  bctfged 
his  faults  might  be  forgiven  him.  1  told  Rada 
Churn,  in  answer,  that  he  Mas  in  the  urong  to 
mention  this  affair  tf»  me ;  who  earnestly  re- 
quested, that  I  would  forgive  Comaul  O  Deao. 
J  answered.  That  he  was  very  young,  and  that 
this  man  would  ocraaion  more  dilutee;  but  at 
laat  1  teave  bim  permisaion  to  bring  Comaul  O 
Been  Cawn.  One  day  be  fwid  to  me,  that 
Gunga  Guv  in  Sing  bad  got  £6,000  rufiees  attar 
the  manner  of  a  brilie.  besides  3,000  and  aoo 
which  had  been  taken  by  his  servaais.  1  ask- 
ed him,  if  be  had  ever  mentioned  this  oireum* 
stance  to  any  ono  else.  He  aoswereil,  That 
Judder  O  Deen  and  Gimga  Govin  8ing  were  la 
friendship ;  and  though  I  had  several  umes  da- 
manded  my  money  fmm  tlieni,  the?  would  not 
pay  it.  I  told  bim.  That,  since  that  was  tba 
case,  I  had  no  other  remedy  but  couiplainiog 
to  tbe  oouBcU.  Another  day,  having  writtea 
two  arsees,  be  brousrht  them  lo  me:  after 
reading  them,  1  desired  bim  to  carry  tbem  to 
the  council.  He  then  desired  me  to  aeod 
Rada  Churn  with  bim  to  Mr.  Fowke,  that  that 
gentleman  might  send  tlie  arzeea  to  tbe  coun- 
cil. I  did  so,  and  desired  tbem  to  iciva  my 
eomplimenla  to  Mr.  Fowke ;  requesting,  that, 
iftbeproots  appeared  clear,  he  would  send  tbeai 
to  the  oouDcil,  that  Comaul  O  Deeii  might  ob* 
tain  justice.  He  gave  tbe  arsees  to  Mr.  Fowkot 
ailrr  which  some  days  elapsed.  On  the  Ath 
Bysaac,  I  went  to  the  bouse  of  the  general,  ta 

Iiay  bim  a  visit.  IV  bile  f  waa  at  the  ffcaaral'a, 
[  received  a  msKSsge  from  Rada  Churn,  in- 
forming uie,  that  Comaul  O  Deeu  and  himself 
were  at  tbe  house  of  Mr.  Fovike,  and  requeat- 
ed  1  would  call  in  oh  J  went  borne.  I  went 
there  accordingly.  Mr.  Fowke  tukl  me,  That 
Comaul  O  Deen  had  aiade  both  verlial  and 
written  representations  lo  bim,  and  requeaiad 
tliat  I  would  examine  tliem,  and  inlbrm  bins 
what  part  of  bis  reprewMatioBi  wera  trva. 


Hoes] 


15  GEORGE  m.  Tfiai  qfJoteph  Fouh  mat  oihen,  (lOM 


Comaol  O  Deen  mid,  That  he  htd  a  pain  id 
his  bowels,  and  could  not  remain  any  looser, 
^t  that  be  would  come  with  a  foal  draft  of  bis 
complaint  in  the  ereniDg^.  I  went  home.  About 
terea  in  tbe  e? eoiog,  Comanl  O  I>een  came  to 
mv  house,  brinffin^  a  foul  draft  of  a  paper  and 
a  Moonthy  with  bim,  and  desired  Rada  Chum 
to  carry  bim  to  me.  He  according^l;^  came  to 
4newitn  the  foul  draft;  and,  upon  inspecting 
it,  I  aaketl  htm,  What  was  the  meaning  ^ 
Qherab  Purwar  Audanlet  GoosterP  He  an- 
awered.  That  the  council  were  entitled  to  be 
called  Gherab  Purwar  Audaulet  Gooster.  He 
told  me,  that  tbe  copy  he  had  ffi^en  roe  was 
Dot  well  worded,  and  liegged  of  me  to  make 
4Nit  anptl^er.  His  Moonshy  then  began  to  make 
cut  another  copy.  He  bad  written  out  about 
half  his  arzee,  when  Comaul  O  Deen  observed 
that  he  was  ill,  and  would  go  home.  He  left 
his  Bloonsby  liehind  him,  and  went  away. 
Just  as  be  was  going,  he  desireil  me  to  send 
Slieik  Ear  Mahmud  with  the  letter  when  it 
was  done ;  and  that  he  would  seal  it  at  home, 
and  send  it  back  to  me.  I  then  went  out  of  the 
office,  and  told  Sheik  Ear  Mahmud  to  carry  the 
arzee  to  Comaul  O  Deen,  together  with  the 
Moonshy ;  and  in  case  ComaulO  Deen  should 
affix  his  seal  to  it,  to  bring  it  back  to  me,  and  I 
would  send  it  to  Mr.  Fowke.  When  the  arzee 
was  wrote.  Sheik  Ear  Mahmud  and  the  Moon- 
•by  carried  it  to  Comaul  O  Deen ;  who  sealed 
it,  and  gave  it  to  Sheik  Ear  Mahmud.  Next 
morning  the  arzee  was  shewn  to  ne :  I  direet- 
ad  Rada  Chum  to  carry  Comaul  O  Deen  with 
the  arzee  to  BIr.  Fowke.  This  was  en  Sunday. 
Comaul  O  Deen*  gave  the  arzee  to  Mr.  Fowke. 
Two  days  after,  being  Tuesday,  I  went  to  Mr. 
Fowke's  house,  who  obsenred.   That  if  two 

r»ple  witnessed  the  arzee,  it  would  be  better, 
said,  he  was  right,  if  Comaul  O  Deen  would 
agree  to  the  proposal.  One  gurry  after,  Comaul 
O  Deen  came.  1  informed  biro,  that  Mr. 
Fowke  thought  it  would  be  right  to  make  two 
persons  affix  their  signatures  to  the  arzee  as 
witnesses.  He  agreed  to  it ;  and  two  writers 
were  called,  to  whom  Comaul  O  Deen  said, 
This  is  my  arzee ;  witness  it.  On  Tuesday 
ef  euing  Comaul  O  Deen  came  to  me,  and  told 
me,  He  was  informed,  that  Mr.  Fowke  intended 
to  deliver  in  the  arzee  to  the  council  next  day. 
He  requested  to  go  for  one  gurry  to  the  house 
of  Mr.  Fowke,  and  to  entreat  him  to  deliver  in 
the  arzee  against  Gunga  Govin  Sing  first.  He 
made  use  of  many  intreaties,  and  at  last  I  got 
into  my  palanquin,  and  recommended  his  m- 
treaty  to  the  consideration  of  Mr.  Fowke. 
That  gentleman  answered,  That  he  would  do 
what  was  proper.  When  I  was  going,  Comaul 
O  Deen  represented  to  me,  that  it  was  very 
hard  upon  him  that  the  arzee  against  Gunga 
Govin  Sing  was  not  delivered  ;  for,  if  the 
other  was  given  in  first,  he  feared  he  should 
gain  no  advantage  from  that.  I  advised  him 
to  be  patient,  and  to  give  in  his  arzee  to  the 
eoundl,  where  he  would  obtain  redress.  He 
would  not  attend  to  what  I  said,  but  ran  to  the 
governor's,    i  went  home.  "^ 


Sh£ik  ear  Mahmud  being  sworo  ;  RijahNan- 
docomar  desires  ha  will  ^ve  an  aoooonC 
of  the  drcumstancet  af  this  ailair. 

**  One  ev«iing  Maha  IBLMk  tittang  in  his 
dewan  kbasma,  or  office,  Comaul  ol  Dam 
Cawn  came  to  bim,  and  sat  with  him  about  an 
honr  and  a  half;  when  be  was  going  away,  ha 
pointed  to  bis  Moonshy,  who  was  sitting  si 
some  distance  writing;  and  ordered  bia  pespis 
to  ask.  If  he  bad  finished  the  arxee?  Hia  pes^ 
pie  returned,  and  informed  him  that  one  half 
was  done.  He  then  requested,  that  tbe  Rajah 
would  be  so  good  as  to  send  one  of  hia  peopb 
with  the  Moonshy  and  arzee  when  it  abonld  be 
finished ;  and  that,  when  he  bad  aealed  it,  ha 
would  return  it.  Rajah  Nundooomar  oitlcnd 
me  to  carry  the  paper  to  Comaul  ul  Deen  whm 
it  was  finished,  and  to  take  the  Moonsbj  with 
me.  I  asked  the  Moonshy,  if  hia  arzee  wm 
ready  ?  He  answered.  It  was  not ;  but  he  hai 
only  two  or  three  more  lines  to  write.  Ate 
one  gurry,  the  Moonshy  informed  ma,  thald» 
paper  was  ready ;  and  I  went  with  it,  in  «•• 
panv  with  the  Moonshy  and  another  pcnonyli 
thenouseof  Comaul  ti!  Deen;  tbeSfooMhy 
put  the  paper  into  his  hand.  He  gave  ma  bs^ 
tie,  and  a  hooka  to  smoke.  He  then  read  Iha 
arzee  from  beginning  to  end,  and  blotted  oat  a 
word  of  it,  in  that  part  whidi  conoemed  Ifr. 
Graham  ;  and  Goofhast,  he  said,  to  be  pot  si 
stead  of  it.  He  then  spoke  the  following  wwdi 
to  me :   <  Sheik  Ear  Mahmud,  I  wrote  lbs 

*  contents  of  this  arzee ;  and  if  a  hnndred  Gs» 

*  rans  are  put  on  my  h«Mi,  I  will  swear  to  lbs 

*  truth  of  every  wora  in  it.'  He  then  took  dT 
his  ring,  and  ordered  his  khidmidj^,  or  mt' 
vant,  to  bring  his  ink-stand ;  which  was  ae^ 
cordiogly  done.  He  then  sealed  the  arzee; 
and  asked  two  Moonshys  and  myself,  wba 
were  present.  If  tbe  paper  was  well  sealed? 
To  which  we  answered  in  the  affirmative. 
After  that,  1  carried  the  paper  home.  Rajth 
Nundocomar  was  asleep.  I  put  tbe  arzes 
under  the  care  of  the  Consumma,  directing  biai 
to  give  it  either  to  Rada  Chum  or  Rajah  Nun- 
docomar in  the  morning.'* 

Sheik  Ear  Mahmud  examined,  the  Arzee  b^ 
iog  shewn  to  him. 

In  what  part  of  this  arzee  is  the  word  Goof« 
hast,  which  you  said  in  your  evidence  was  pal 
in  the  place  of  another  ? — Comaul  ul  Den 
made  an  observation,  that  Goofhast  should  ks 
inserted  in  one  part  of  the  arzee  where  Mr. 
Graham's  name  was  mentioned ;  bot  he  M 
not  alter  it  in  my  presence. 

Is  this  the  petition  which  Conuul  O  Dcea^ 
Moonshy  wrote  in  Rajah  Nundo<»mar'B  hooifi 
and  which  you  carried  from  thence  to  tbe 
house  of  Comaul  O  Deen  ? — [shewing  No.  L] 
— ^This  is  the  petition. 

Did  Comaul  O  Deen's  Moonshy  copy  ths 
arzee  from  a  fuul  draft? — One  man  read  tbe 
foul  copy  to  the  Moonshy,  who  wrote  wlit 
was  dictated  by  the  other  peraon. 

Who  was  the  other  penon  ?-— I  da 


^PSfi]     Jo''  <t  Cmupiraci/  agatnH  Warm 
^^■satne.     1  aliuuld  kaow  liiiD  if  1  <*m  to  sec 


Haslijigs,  esq. 
tlie  ml)  1 


19  ■  terTBDl  of 


jlODeen's. 
How  do  you  know  ?--  He  lolJ  mi  bo,  ib  I 
accotii|)aiii«J  liiin  to  Ilia  liouse  of  Coroaul  O 

Otd  Itnjati  Nuiidwomiu  read  over  cither  the 
fi>nldnirtoi'ilii?iBirco|>y  urihearzee?--!  do 
not  know  ibai  lie  eillicr  read  tlie  foul  drali  or 
the  iait  copy . 

Wlio  weie  llie  nioonatiyt  10  whom  Coroaul 

fita  said.  It  not  the  pjper  well  sealed  ?-  — 
Iwn  Uoucifihys  who  accompanied  me  froai 
b  Nundoconiar's,  aod  who  were  CocoBul  O 
)'•  ferraDU. 

Jlitoiiihy  Khadar  Ntwas  Caan  examined. 

Did    ttajali   Nundoconiac  read  the  petition 

after  it  was  first  wrote  from  his  diclalingr— - 

^Bejlid  read  it.     He  lirsl  L'Bte  a  tiiiJl  draft  of  it 

^^BTlbe  handa  of  one  of  Vis  owd  people;  nod 

^^B  corrected  it.    He  Hril  dictated  the  arzM 

^^|pa ;  it  was  aAerwards  again  ivrillen  by  one 

^^^ii  own  people ;  and  the  Itajah  then  cnr- 

fccted  that  copy  with  his  own  hand,  and  gave 

it  to  me  to  write  fair. 

HsTeyuu  a  copy  of  it?— -No. 
Ilo  you  remember  the  anbject  of  the  araee  P 
— I  do  t)ol  remember  any  ihin^ofit. 

Did  you  write  more  araces  than  one  that  day? 
—Only  one  that  day. 
In  whose  name? — Comaul  O  Deen  Cawn'a. 
To  whom  wai  the  anec  roeaDt  to  cotn plain  ? 
—1  do  not  know. 

A^init  whom  was  the  complaint?— Against 
lli«  gaytToOT,  in  the  arzee  thai  was  dictated 
10  toe. 

What  waa  complained  of  in  the  arzee?— I 
before  told  you,  that  I  coutd  not  tell.  It  is  in 
i1m>  petition,  which  may  be  produce*]. 

Cvmuul  O  Dun  Caan  eiamiDed. 

Waa  the  complaiui  ai^inst  the  governor, 

Mr.  Barwell,  Mr.  VaniitUrt.  and  Hajali  Bui- 

tub,   in  one  arzee,  or  in  more  i' — They  were 

•oatainrd  in  one. 

T»  how  many  papen  did  you  aflli  your  sig* 
■alare  that  day  ? — I  put  my  seal  to  the  arzee, 
maA  Biy  signature  to  one  lurd  un  aeparate  |m. 
?»- 

What  did  that  a^arale  paper  contain  ?--.An 
•seeont  of  sums  giren  to  dilTerent  peranna. 

What  waa  coataioed  in  the  arzee  ? — 1  do  not 
kiMw ;  lat  it  be  produced. 

Were  the  uames   of  the  gsvemor,   or  any 
«Uier  penona,  mentioned  in  that  arxce  ?— •The 
~      raor's  name  waa  mentioned  in  the  conier- 
n  bchi  with  the  Rajah,  when  the  foul  dralt 
wrltlcn  at  night.     The   complaint   waa 
t  the  go'crnar.     Air.  Graham's  name, 
I  G<rtin  ISing'a,  and  Suddrr  U  Deen's, 
pntfntioiMtd. 

<*U>  which  you  set  your  seal  at 
pawkr'a  houie  the  aame  written  by  your 
ifajrooUiafithf— Tliaatxeeaaalcdby  mo 


A.  D.  1T75.  [1080 

ritten  by  my  Mom- 


■hy  on  the  6tli. 

Did  you  on  the  8tfa  affix  your  signature  or 
seal  to  any  other  paper  than  the  arzee  and  the 
fiird?--!4o,  I  did  not. 

Was  the  Dame  of  any  wllneaa  affixed  to  the 
arzee  .'--The  senanU  of  Mr.  Fowke  did  aSs 
Ibcir  names  as  witnesses  to  the  arzee. 

Did  they  likewtae  etSx  it  to  Ihe  furd?  — 
No. 

Was  there  in  the  arzee  an;  references  to  th« 
separate  paper? — No. 

Was  there  no  arzee  to  explain  the  nature  of 
the  separate  paper  P— No,  there  was  none. 

Was  there  any  Bemootaula  on  the  fnrd  ? — 
When  the  furd  first  came  on  the  carpel,  I  was 
blind  and  senseless  with  cryio^r. 

How  did  you  write  the  fui3  in  audi  a  aitaa- 
lionP — 1  wrote  upon  the  furd  the  words,  Roa- 
san  nedum,  or  right.     I  wrote  uo  other  part 


What  letters  or  words  did  you  write  on  Ih* 
furd^ — I  wrote  words  to  shew  that  I  approv- 
ed il, 

Wbetberthe  fitrd  cnntaioed  a  list  of  name* 
and  sums  of  money,  or  if  it  contained  any  things 
else.^ — dimply  a  list  of  the  uames  anil  sum* 
collusively  taken  on  account  of  Hedgelee, 

Who  wrote  the  furd  ? — I  do  not  know. 


Wboi 


n  the  room  at  the  time?— Hr. 


Foivke  and  Rada  Churn  were  present ;  muj 
other  people  passed  backwards  and  forwania 
through  the  room;  who  they  were,  I  do  doI 
know. 

Who  brotieht  the  [len  and  ink  in,  to  write 
the  furd? — Every  thmgof  the  kind  was  there. 

Was  the  name  of  the  governor  or  any  other 
person  manlioned  in  the  arzee? — The  com- 
plaint was  against  the  novernar.  Moonshy 
Sudder  O  Deen,  Gunga  Goiiu  Sing,  Mr.  Gra- 
ham, Mr.  Vansittarl,  K.jal.  lii.llub,  aod  the 
governor's  Moonshy's  names  were  mentioned 
in  the  arzee,     I  do  not  recollect  any  otbera. 

Was  there  any  thing  relating  to  the  Ingatee 
affair  and  colhiaioiis,  in  the  ar/ee  sealed  by  you 
on  the  8lh.'— The  petition  was  vrry  loiig:  I 
cannot  remember. 

Cannot  you  remember  Ihe  least  of  il? — I 
can  say  noihing  respecting  the  arzee  till  I  havo 
seen  it.  [Comanl  O  Uecn  Cswn  represent*, 
there  wan  another  small  arzee.]  I  gave  in 
another  ar/ee  respecting  the  Audaulel  of  Hid- 
gelee. 

Hiiw  did  yon  sign  Ihe  furd  ? — I  wrote  flui- 
gan   neduni,  or  '  I  acknowledge  it,'   upon  the 


'■& , 


to  say  you  wrole  the  furd 
with  jour  own  hand,  when  you  only  signed  it? 
—  Azidust  Khood  Novistadada,  which  are  my 
own  words,  may  mean  signing  my  name  with 
my  own  hand,  as  well  ai  writing  it  out  with 
my  own  hand. 

lulo  whose  hands  was  that  furd  dehreredr." 
Mr.  Fowke  said  to  me.  You  have  given  tnc 
this.  I  answered,  1  auknowledgc  it.  I  gave 
it  into  Mr.  Fuwba's  baada,  alter  bavins  **- 
kuowled^d  it. 


10S7} 


15  GEORGE  III.  Trial  of  Joufh  Fimke  alkd  oAer$^  [UMB 


Did  yon  wxpfo&t  tbaft  Ibe  writers  ftooA  6¥er 
you  as  f|^uarti8?---No,  1  did  not  imagine  they 
were  put  orer  me  as-  jgfuardt. 
-  Are  yo«  certain  you  did,  on  the  8th  Bysaao, 
write  aoy  thin^  upon  any  other  pa|ier  in  Mr. 
Fowke'ii  houMe  besiilps  the  two  arzees?— None 
but  these  two  |M|iers,  besides  the  furd,  which  I 
•ipiPil,  but  did  not  write. 

Into  whose  hands  was  thai  furd  deKf  ered  ? — 
Mr.  Fowke  said  to  me,  Yon  have  KiTen  me  this. 
1  answcreii*  Tlwt  1  bad  written  Rutsan  nednm 
upon  it. 

[The  question  repeated.]— -I  gpafe  it  into 
Mr.  Fowke's  hands,  fXUsr  writing  Roasan  ne- 
dnih  upon  it. 

.  WIm}  was  present  when  the  furd  was  deliver- 
ed by  Mr.  Fowke  to  you  to  sign  ?— I  did  not 
■mrk  any  witnesses;  it  was  in  Mr.  Fowke's 
beute  ;  a  nnmber  of  people  were  going  back- 
wards and  forwards. 

In  what  room  ^^as  the  fard  delivered  ?— In 
tke  bed  chamber. 

.  At  what  time  of  the  day  was  the  fsrd  deli- 
vered P  Was  it  at  the  same  time  the  other  pa- 
pers were  delivered?—!  believe  about  twelve 
•'elork  the  arsee  was  sealed,  and  the  furd  sign- 
.«d  at  the  same  time. 

Were  they  signed  in  the  same  room  P— Yes. 

You  say  that  you  wrote  what  was  desired  of 
you,  and  thereby  obtained  your  liberty.  What 
ch>  you  mean  by  obtaining  yonr  liberty?-— 1 
WM  got  into  a  pnce  where  i  considered  myself 
V  subjected  to  austbrtanes ;  from  which  I  was 
■et  at  liberty. 

Was  you  ever  in  danger  of  your  life?— 1 
was  apprehensive  of  my  reputation ;  and,  when 
ba  lifted  up  the  book,  even  my  life  might  have 
suffered.  [Gomaul  O  Deen  gives  au  account 
of  his  signinsr  the  arzee,  &c.]  When  Mr. 
Fowke  desired  me  to  seal  the  paper,  I  answer- 
ed, That  I  had  made  no  such  promise  to  Maha 
Rsjah,  and  that  I  had  not  given  the  arxee  wil- 
lingly ;  that,  in  the  petition,  Maha  Kajah  had 
written  Ghereb  Fuelvar  Audaulet  Gooster,  but 
that  1  did  not  know  who  could  be  addressed 
Audaulet  Gooster,  and  who  it  was  that  would 
issue  orders  equal  to  such  a  title :  that  if  he 
would  carry  me  before  any  such  man,  I  wo^ild 
seal  the  paper  in  their  presence.  Mr.  Fowke 
was  angry  ;  and,  being  impressed  wiili  fear,  1 
sealed  the  paper ;  and  immediately  aAer  this 
went  out  of  the  house,  and  raised  the  clamour 
of  which  you  have  bel'ore  heard.  1  knuvv  no- 
thing further. 

(Shewing  N°.  1.)  Is  this  the  paper  your 
Moonshy  wrote? — My  Moonshy  wrote  it  at 
Maha  Rajah's  house. 

[Same  question  respectinsf  arzee  N°  2.]  My 
Moonshy  did  wriie  this  pa)ier.  When  I  went 
to  Maha  Uajah  he  asked  me,  in  a  friendly 
manner.  What  reason  trmpted  y<iii  to  complain 
to  the  governor  aijainst  Mr.  Fowki-  i'  I  answer- 
ed, that  i  was  a  farmer;  I  did  not  complain. 
I  gave  an  account  of  what  hail  piiNscd  from  the 
beginning.  When  IVIr.  Fowke  aske«l  inc  im- 
proper questions,  and  was  an{rry  at  me,  1 
thought  it  necessary  to  complain,  and  gave  an 


arsee  into  the  governor*!  bamli^  to  la;^  bffiRt 
the  council.  Maha  Rajah  asked  me,  'if  I  had 
a  copy  of  the  petition  in  my  poaaessioa  ?  I  an- 
swered, that  1  had ;  and  then  went  home.  I 
Bought  for  it,  but  was  not  ahia  to  find  ii ;  m? 
Moonshy  was  ^j^one  from  Calcutta.  Aa  1  eonti 
not  find  it,  1  mformed  the  Rajah  of  it.  Bi 
then  desired  me  to  write  doWn  whatever  parts 
of  it  I  eonid  recollect;  and  that  then  3fr. 
Fowke  would  no  kmger  shew  his  anger  to  oHi 
I  then  made  my  Moonshy,  who  has  thia  dsy 
appeared  aa  an  evidence,  write  down  the  arns 
N^  3,  and  gave  it  to  Maha  Rajah;  whodt- 
sired  me  to  seal  it.  1  acconliugly  fixed  my  sni 
to  it.  Since  that  time  1  have  heard  notbiaf 
more  about  this  arzee. — [ComnutuJ  O  Dsm 
further  observes,  two  Portuguese  writers  bifs 
witnessed  the  arzee  M*.  9,  though  be  affiisA 
his  seal  to  it  in  his  own  house. 

Mr.  Fowke,  Whether  you  recollect,  tbit, 
when  you  delivered  the  arzee  to  the  govenwri 
the  governor  said.  Is  all  thisitrue  P  Id  answer  It 
which  you  said,  It  is  all  a  lie  ? — A.  It  is  fabr. 

MaihcBo  Miranda^  a  Portuguese  writer  to  Vk* 
Fowke,  sworn. 

When  Commanl  O  Deen  first  acknowle^H 
the  arzee,  N**.  1,  was  any  reluctance  thewnm 
his  part  ? — Not  any. 

When  this  paper  was  acknowledged  by 
Coromaul  O  Deen,  did  he  do  it  willii^y?^ 
Willingly. 

Did  he  appear  at  all  frightened  ? — No. 

Did  you  see  any  thing  like  force  or  violcacs 
in  Mr.  Fowke's  behaviour,  when  he  madetbi 
acknowledgment  ? — No. 

Did  he  acknowledge  before  you,  that  he  bad 
told  manv  lies  al)out  Mr.  Fowke  in  a  fonaer 
paper  ? — Knows  not. 

Kelate,  as  well  as  you  can,  what  passed.— 
Mr.  Fowke  asked  Cominaui  O  Deen,  wlm 
the  papers  shall  ho  prodiice<l  in  council,  asd 
they  iiliall  demand  th«*pnrtirular$,  whose  oasie 
will  you  make  use  of?  Ifo  said,  the  general's. 
Mr.  Fowke  asked  him  over  a^rain.  Did  1  ni«e- 
tinn  the  general's  name,  or  t^ven  my  own  name, 
or  demand  such  a  paper  from  you  ?  To  wbieb 
he  answered.  No.  Mr.  Fowke  then  said,  Wh/ 
will  vou  make  use  of  such  names?  To  wNeh 
he  answered,  Who<e  name  siml)  I  nieatioa? 
Then  Akermannii  asked  C'oinaiil  O  Deen,  Wi» 
required  this  paper  fn>m  you  *  i>td  \ou  givs  it 
of  your  own  free  will,  or  did  any  body  iasiitsB 
your  givinuf  it?  He  said.  1  -jfMis  it  of  my  ess 
free  will.  Then  he  said,  1  went  to'  Kais 
Churn,  and  told  him  that  I  have  done  a  gmi 
fault  on  Mr.  Fowke.  Hada  Churn  asked  biMi 
What  fault  he  had  committed  ?  He  then  niii 
He  had  cn^en  him  the  fiarticulars,  which  bt 
had  brought  in  writing,  in  that  arzee ;  and  tkrt 
lie  sheweil  it  to  itada  Chum,  who  had  bid  his 
shew  it  to  Nundocomar ;  and  the  Rajah  Isl 
him  carry  it  to  Mr.  Fonke.  Mr.  Fowke ibtf 
asked  Comaul  (>  Deen,  Whether  this  pspv 
waK  all  true?  When  he  said,  it  was  all  irai^ 
bat  one  lie ;   and  said,  that  ha  copcctW  th* 


10BJX]    fir  a  tynupiraey  agidmt  Warrvn  ttattings, «}.    A.  D.  1775.  [1090 


fault  df  Mnonihj  Sudiler  O  Deen :  and  (he 
drponrnl  UTt  Hie  mom,  and  him  in  it 

Dill  ;aii  hear  Cuniaul  O  Dmd  »A  for  Ihe 
|npiT  Mck  ? — 1  wu  writing  ot  my  ilmtU,  ind  1 
did  tiriir  tiim  niik  tlie  jiaj)eni  buck,  and  auk 
«hii  he  ihoulit  wriir;  aad  Mr.  Fuwke  told 
liim,  he  uliould  not  hare  the  [laper  back,  nor 
wrile  BnT  thinp  in  bis  Iioum. 

Did  Cominaul  O  Drcn  brin|f  (be  Brs«M, 
which  ynu  ^itncstfd,  alnng  with  him  in  Mr. 
Fowke'a?  — I  dn  mil  know. 

Did  Mr.  Fii'wkp,  in  yanr  hearnigf,  uk  any 
^ominnii  abniit  (irewnli  ? — No. 

Was  Mr.  Pawke  pmpnt  when  yOu  li^rd 
ynar  name  1o  the  uttef—l  ai^ned  it  in  llie 
««raad*.  Hr.  Powke  wai  in  hi*  own  ronm: 
both  Ihe  arzeet  were  Maled  in  proiencp  of  Hr. 
Franm  Potke,  and  not  ofHr.  Joaeph  Fuwke. 
After  tlipy  were  iraled,  they  were  carried  into 
the  room  lo  Mr.  Joaeiih  Po»ke.  They  were 
both  aealfd  at  Ihe  lame  time.  They  were 
■uled  bpfnre  the  rnnreraBtion. 

H;id  Cumaul  0  Deen  Cawn  wen  Mr.  Fowke 
bef'ire  (he  aesln  were  put  ? — I  do  not  know  :  1 
Wtt  not  prewnt  at  all  timet  when  Mr.  Fuwke 
mild  Coniaul  U  Drfo  vrere  logetber. 


that  day,  berore  the  aeali  were  put  tu  the 
•rzenP — 1  cannot. 

What  lime  uF  the  day  were  they  lesled  ? — 
Atniit  noon. 

What  lime  did  you  we  Comaul  O  Deen  Hrtl 
that  day  T — About  ten  or  eleTen,  in  the  ve- 


«  on  any  other  paper  ? 


Did  you  hearComaut  O  Dkd  My  it  waabia 
•Ml  r — I  iiw  hint  leal  il. 

li  that  your  aj|{rialur«  to  N'.  3  f — Yei. 

DM  ynu  hear  Comaul  ODeen  ackonwledtre 
tfaa  aiifoalure  •)  liia  own  ? — I  taw  him  real  il, 
and  heard  him  adinowledife  it. 

Wail  the  ink  put  on  Ihe  aeal  before  hv  put  il 
aa  both  pnpert  F— The  leal  waa  dipt  in  the  ink 
MWe  il  wai  put  to  the  papers. 

Do  you  know  if  Mr.  Funke  did  or  did  aol 
■ak  Comaul  O  Dren  any  qaeationi  relaliuif  lo 
prearnU  ? — I  Jo  not  know ;  pot  in  my  pretvore. 

What  tinw  did  Comaul  O  Ueeo  cume  to  the 
boaac  ? — Abunt  ten  oreleien. 

In'wbat  room  wai  Ihe  aeal  put  to  thote  pa- 
tera?—In  Mr.  Fntncia  Fowke'a  room. 

Are  you  anre  it  itbi  not  put  In  it  in  the 
rcruida? — Nn,  it  nat  nol  put  in  the  Teranila. 

DoPt  Mr.  Princia  Kuwke'i  ronm  open  lo  the 
ffraiida  T — No,  you  go  through  the  hall  lo  Mr. 
Vranrii  Fowke'aronm. 

Wbere  wai  Mr.  Fowke  when  the  teaU  were 
putr— Inhltownruom. 

DtTyOd  know  ir  Comaol  0  Dew  bid  bean 
VOL.  X.\. 


with  Mr.  Pnwke  berore  the'teati  w 
do  not  recollect. 

Did  C'imnul  O  Deen  make  any  and  what 
nniaef — He  was  h^itioi;  and  prayinz;  but  I 
do  not  know  fur  wlint.  He  came  out  tu  ths 
vertuda,  and  denired  Hr.  PiiWke  younger  to 
intercede  with  hit  father;   hut  I  do  uoi  know 

Did  ynu  at  any  time  nee  Mr.  Fonke  lid  up  a 
book,  offertn^  to  ilriki'  Cuitiaiil  O  Drrn  ? — I 
dill  not;  but  I  hrard  Mr.  Powke  bid  him  go 
out  of  hii  pretence.  [Multhew  Miranda  heintf 
asked  Ihe  lame  qneilioni,  make*  the  tame 
answeia.] 

Q.  to  C.  0  Deta.  Are  thete  i)ie  two  wrilert, 
who  you  aliepfed  were  put  oicr  yon,  when  vou 
■i|[ned  Ihe  arsee? — A.  Parcira  wa*  oue  ut'llM 
wrtieri)  the  ol  her  pi  Had  and  rrfiBiiae<l;  aud 
tometiuea  another  came  in  hi*  plnce.  While 
i  waa  in  cufivut»alion  with  Mr.  Powke,  MinM 
Bengalee!  likewise  tnraeiiiaea  caote.  They 
were  both  at  firat  pretent, 

Aktnuaaiiu,  Serrant  to  Mr.  Fowlce,  awem. 

Aktrmannu.  Mr.  Pnwke  laii)  to  me,  and  (ft 
another  writer  named  Mirauda,  Lliten  tn  what 
pauea  betwixt  nie  and  Comaul  O  Detu.  Mr. 
Powke  askpd  Comaul  ODeen,  Wlien  ynu  carry 
lliote  paper*  to  council,  and  shall  be  atked  about 
them,  what  will  ynu  sty,  and  whose  name  hJTI 
yiin  oiiike  die  of  f  He  answered.  That  lie 
would  make  use  uf  the  crarrara  name.  Mr. 
Puwke  Ihen  laid.  Why  will  you  make  ute  of 
the  generat'i  name?  Did  the  general  atk  you 
any  Ibin^  himself,  or  did  I  ask  you  any  thing 
in  ihegeneral'a  namef  Comaul  O  Deen  an- 
twered,  Nn.  Mr.  Powke  then  aaid.  Why  do 
you  use  ilie  (^iierarH  namr?  lie  taid,  Whose 
name  shall  I  use?  Mr.  Powke  said,  Make  um 
of  Iboie  persona'  names  whn  make  iuquiriee 
from  you  about  ihis  buiinru.  I  then  asked 
Comaul  U  Deen,  if  he  hail  himself,  nf  lilt  own 
free  will,  written  Iheae  paperaf  or  if  he  had 
been  obliged  li>  write  them  T  Comanl  O  Deen 
saiil  lo  me,  1  went  one  day  lo  U<bnn  lltda 
Chum,  and  desired  him  to  make  roe  tnjusinled 
wiih  Hr.  Fowke,  ai  I  had  aaid  tnmeihinii  of 
hiiu  bad  ;  Radi  Churn  aaid,  What  bad  thinga 
hare  ynu  said  of  him  t  On  which  1  iufurined 
Kada  Churn  of  erery  thing  concerning  il;  and 
■aid,  I  hi*e  brought  the  <bul  dralt  of  ilieae  par- 
lirulara  :  Rada  Churn  aaid,  Shew  il  In  Maha 
KiUdIi.  Mr.  Powke  aiked  Comaul  O  Deen, 
If  what  he  had  written  was  true  or  false?  Co- 
maul O  Dppu  nnawered.  It  is  all  true;  thri« 
was  one  fal.pbnnd.  Mr.  Fuwke  atkrd.  What 
iH  il  f  Coinnul  O  Deen  answered.  There  ar<i 
aotne  bad  eiicumstances  relating  lo8ndderO 
Deen,  whirh  I  haie  concealed.  Hr.  Pinke 
said,  There  ii  nut  oue  lye ;  you  have  only  h;t 
one  man  etcape. 

Were  vou  in  Mr.  Fowkc'i  bed-cbamber  with 
Comaul  6  Deen  7— Vra. 

Did  ynu  are  Mr.  Fiiwke  Vitt  up  the  book  tii 
■Irike  L'omaut  O  Deen  P— Nu. 

Were  you  in  the  room  all  the  lime  with  Co« 


1091] 


15  GEORGE  III.  Trial  (fJosqJi  Fuvake  and  others. 


[lOM 


maul  O  Deen  ?— Coiniiul  O  Deen  was  in  Mr. 
Vraocis  Fowke's  rwiin.  When  Mr.  Fowke 
called  me  iuto  his,  either  Mr.  Fowke  or  Rada 
Churn  desired  that  Coiiiaul  O  Deen  mi^ht  be 
called  :  I  called  him,  and  carried  him  iuf>  Mr. 
Fowke*8  room  wtih  me. 

From  that  time,  did  ynu  continue  in  the  room 
till  Comaul  O  Deen  went  away  ? — I  was  all 
the  time  iireseiit,  and  not  absent  a  moment. 

Was  Miranda  all  the  time  in  the  rm>in  with 
you  ? — He  was.  He  went  out  for  a  uiomeot, 
to  shut  the  door. 

Was  Pareira  in  the  room  aU  the  time? — He 
was  not  io  the  room  :  be  was  waitiuj^  in  the 
veranda. 

•  While  you  were  in  the  room,  di'l  M  r.  Fowke 
use  any  words  or  actions  that  might  tend  to  in- 
timidate Comaul  O  Deen?— No. 

Whether  you  are  sure  that  Comaul  O  Deen 
was  not  in  the  room,  before  he  went  into  Mr. 
Francis  Fowke*s  room  ?— We  were  in  the  ve- 
randa before.  He  bad  been  in  Mr.  Fowke's 
room  before  that. 

How  loofT  had  he  been  in  Mr.  Fowke's 
room  ? — 1  do  not  know.  I  know  that  he  was 
iu  Mr.  Fowke's  room. 

Wua  it  about  a  gurry  ? — I  do  not  know. 

Do  you  recollect  if  there  was  any  pen  and 
ink  in  Mr.  Fowke's  room  ?— I  did  not  see  any. 

Did  you  hear  Comaul  O  Deen  cry,  or  mate 
any  noise  .^— No. 

Do  you  recollect  Comaul  O  Dcen's  going 
out  of  the  house  .^— It  was  past  one  o'clock. 

Did  you  see  him  go  out.^^I  did. 

Did  Comaul  O  Deen  go  out  uf  the  house  im- 
mediately after  going  out  of  Mr.  Fowke's 
room  ? — No,  he  went  out  of  the  room,  and  re- 
mained some  time  in  the  f  eranda. 

Did  he  return  again  into  the  room  ? — He 
went  into  Mr.  Fowke*s  room ;  but  not  io  the 
room  of  Mr.  Fowke  senior. 

During  the  time  he  was  in  the  vrraiula,  did 
be  express  any  signs  of  discontent.^ — 11  u  uns 
displeased,  and  requested  the  papers  initrht  not 
be  sent  iuto  council  that  day,  but  deferred  to 
the  next. 

Did  he  desire  to  have  the  papers  back  again  ? 
—He  did  not  demand  them  ;  but  said  that  he 
wonld  write  them  better  for  next  day. 

Did  he  make  any  outcry  when  he  wont  into 
the  street?— No. 

Was  Shumshfrhrg  in  Mr.  Fowke's  house 
when  (.'oinanl  O  Deen  went  away? — 1  know 
DO  one  of  the  name  uf. Shuuisiierbe;;.  If  I  st-e 
|he  person  alluded  to,  I  bhall  be  able  to  unsvwr. 

Name  all  the  persons  who  were  present  at  j 
Ihe  lime. — 1  dw  not  reiUiniU'r.  1 

Were  there  many  people  there  ?— No. 

JUrrutaut   J'Un,  Moonshy  t«»  Mr.  Francis 
Fowke,  sworn. 

Whether  you  rcmcinlicr  Com  an  I  O  Dern's 
going  away  from  Mr.  Fo\\Lc's  liouse  on  the 
^th  Kepaac? — I  do  nut  rememlier  it. 

Do  you  remember  Comaul  ()  Dotn's  asking 
4#  kuv«  any  tiling  rcilored  to  bim,  and  what  he 


said  ?~Ves,  he  did  ask  for  aomctbiiig  back ; 
and  said,  I  will  git e  it  in  writiii|(  aflcrwardi. 

[The  (|ue6tiu»  repeated. 3  He  did  not  ask  ti 
take  it  back ;  but  said,  if  it  wai  iccancd  It 
him,  he  would  alter  it. 

Did  he  say  auy  thing  aboot  falMtjf^Ha 
did  not  say  there  was  any  thiog  falav:  be  ni^ 
There  is  something  wrong  in  it ;  give  it  dm, 
and  I  will  alter  it. 

Did  he  comj)lain  that  he  was  forced  to  wrili 
it?— When  Mr.  Fowke  befrao  to  fold  up  Iks 
letter,  he  began  to  cry  out  Uiat  force  had  bcci 
used. 

[Uuestion  repeated.]  He  did  cry  oat  thtf 
force  was  used,  although  it  bad  been  allolcd 
by  two  witnesses. 

How  do  you  know  that  the  paper  he  caU 
for  was  the  same  attested  by  two  sntnesics?— 
He  did  not  demand  that  paper  which  was  at- 
tested by  the  witnesses. 

What  paper  was  it  he  demanded  P—Hh 
paper  which  was  not  sealed  in  my  prmaa, 
but  which  he  brought  from  home  :  it  has  ths 
word  *  Isshaad '  upon  it 

Did  not  you  ask  the  meaning  of  some 
and  expressions  io  the  arzee  that  has  the 
■  Isshaad  '  upon  it  ?— I  did  not. 

Did  you  copy  out  the  contents  of  the 
N°  1 ;  and  do  you  not  know  the  contents  of  ii? 
— 1  did  ;  1  kno^  the  subject  and  contents  if 
the  arzee :  1  learnt  it  first  from  the  moulh  if 
Comaul  O  Deen,  and  allerwards  made  andf 
acquainted  with  it  by  reading  tlie  arzee,  warn 
I  found  some  little  difference  from  the  iaftr* 
matinn  I  had  received  from  him. 

Do  you  reiMeiuber  any  thing  of  a  coofcffi- 
tion  between  Comaul  O  Deen  and  Mr.  Foakc^ 
Moonsliv,  Mahmud  Mushruff? — Y«s.  Usis- 
shy  .Mafimud  Mushruff,  upon  seeing  Conml 
<)  Deen,  expressed  some  anser  against  him,  fir 
lia^iiii:,  as  he  said,  once  before  made  him  gift 
oaih  ;  and  asked  Comaul  O  Deen,  if  he  ciM 
to  lite  liouse  with  the  intention  of  doing  the  lit 
ariuiit.''  Comaul  O  Deen  answered,  I  did  BR 
occasion  you  to  swear  by  my  own  pleasure:  I 
wrote  out  an  arzee  for  the  preservation  of  D/ 
own  character ;  if  1  had  not  written  it,  my  ic- 
pu  tat  ion  would  have  suffered. 

How  many  petitions  do  3'ou  know  of  Ce- 
maul  O  Deen^s  signiu;;  ? — He  put  his  lai 
to  one  arzee  in  my  presence :  other  four  wbick 
I  have  seen  in  the  hitnds  of  my  master,  tboeifc 
1  know  not  fiom  what  particular  persoaski 
got  them,  were  undt-r  his  seal. 

Was  cither  of  the<e  two  petitions,  N"  1  ill 
2,  the  iJhZt.es  he  seukd  iu  your  presence.*— 
YefJ, this  was,  N*  2. 

Where  was  this  N"  3  sealed  ? — In  Mr.  Ff» 
CIS  Fowke'b  room,  bfl'ore  me. 

Further  Proceedirtgt, 

What  Mr.  Touke  said  in  his  Defence  m 
not  minuted.  He  atUrmed  that  the  arzee csac 
into  his  hnn.!<  (whether  brought  by  ComaolO 
De<'n  or  not  he  row  Id  not  remember)  ittdv 
sealed.  Thut  Comaul  O  Deen  acknowled^Il 
iu  the  preseuce  of  the  two  witnenes,  who  1  ^ 


1093]    for  a  Conspiracy  against  Warren  Hastings y  esq.    A.  D.  1775. 


[1094 


ed  it,  with  e?ery  expression  that  conid  mark  it 
be  his  ovrnfoluntary  and  cheerful  act;    that, 
at\er  Comaul  O  Deeo  bad  qaitted  the  chamber, 
he  returned,  forcings  his  way  into  Mr.  Fovrke's 
presence,  decUred  bis  unwillingness  to  hare 
that  arzee  presented  to  the  council ;  intreated 
and  implored  Mr.  Fowke  to  give  it  back  to  him, 
fell  'at  his  feet,  and  embraced  his  legs  with 
•ncli  violence  as  to  give  him  pain.    That,  pro- 
voked with  this,  Mr.  Fowke  did  Itf^  up  a  book, 
wbicb  was  a  volume  of  Churcbiil's  Vovages, 
mnd    with  difficulty  restrained   himselt    from 
■Inking  him  with  it.    That  every  sylluble  of 
tb«   funi,  or  paper  of  bribes,  was  false;    and 
that  he  never  saw  or  beard  of  such  a  paper. 
Mr.  Barwell  in  rejily  said  somelhiiig  upon 
tlie  subject  uf  this  part  nf  the  accusation  ;    on 
which  Mr.  Fowke,  aildressing  himxclf  in  a 
very  earnest  and  pointed  manner  to  htm,  said, 
Will  you.  Sir,  declare  upon  vour  honour,  or 
yoor  oath,  that  you  never  received  thai  money  i* 
(meaning  (he  45,000  rupevs  said  to  have  been 
metttioned  in  the  furd  as  receiveil  by  Mr.  Bar- 
well.)     Mr.   Harwell    replied,    **  that  he    did 
4eny  it  upon  bis  honour  and  «>atli."    Then, 
mmI  Mr.  Fowke,    "  1  mnst  acquit  }ou.*'    The 
rest  of  bis  defence  consi8ts  in  untiesiations  uf 
kis  own  innocence;   and    deciaralioiiH,  that, 
while  he  livedo  he  would  ever  use  bis  utmost 
cadeavours  to  detect  and  preveut  oppression, 
whatever  might  be  the  rank  or  power  uf  the 
oppressor;    in  invectives  ai^ainst  the  cbarac- 
lerof  Comaul  O  Deen,  und  appcaU  to  the  in- 
tegrity of  bis  own,  viith  much  and  violent  de- 
daination. 


The  Examination  being  closed,  the  Judges 
leqaired  of  the  |>er8ons  aflected  by  (be  sup- 
posed Conspiracy,  to  declare  whether  I  bey 
would  pnMccute  the  authors  of  it  at  the  next 
■ewon  ot  Oyer  and  Terminer ;  and  (be  mom- 
log  of  the  23d  was  appointed  to  receive  this 
detennination. 

Mr.  Barwell,  Mr.  Vannittart,  and  Mr.  Ilast- 
iaga,  attending  at  the  time  appointed,  declared 
llieir  intention  to  prosecute  Joseph  Fowke, 
Maba  Rajah  Nundocomar,  and  Hada  (yliiim. 
Mr.  Vansitiart  anil  Mr.  Hastings  rrquiied  bail 
aboiild  be  given,  and  bound  themselves  by  a 
reco'/nizauce  to  prosecute;  I^les^ieum  Ijacam 
aad  Farrer  were  sureties  for  Mr.  Fowke  ;  vtd. 
Thornton  and  captain  \Vebl>er  for  Nundocomar 
aad  Kada  Churn. 

8ir  John  l>oyly  was  employed  as  interpreter 
ia  the  first  examination  of  Comaul  O  Deen 
Cawo,  before  the  (.'liief  Justice  and  the  Judg<*s, 
on  the  19(h  ;  fearful  of  not  poshessingsutii- 
dent  resolution  in  the  presence  uf  many  people, 
be  desired  that  some  other  person  might  assist 
bim  in  this  otfici*  on  the  next  day  :  and  Mr. 
£Uiott  was  accordingly  desired  tn  aUend  with 
bim,  which  he  did,  an<l  was,  m  t  fleet,  the  only 
iaterpreler  on  the  20ih. 

The  part  which  sir  John  Doyley  had  chosen 

IB  Ibie  business  drew  ou  him  the  severe  displea- 

snie  ut*  the  Iniard,  that  is  to  say,  of  sfeneral 

'  Ulareriogi  colouel  Monsou,  and 'Mr.  Francis, 


who  had  been  assembled  as  osnal,  this  being 
their  day,  to  a  board  of  inspection,  and  form^ 
themselves  into  a  council  for  the  general  de- 
partment ;  they  censured  him  for  neglect  of 
doty,  in  terms  which  directly  imply  a  censure 
for  having  obeyed  the  onlers  of  the  governor 
general,  and  threatened  bim  with  dismission 
from  bis  employment  ou  the  next  instance  of 
the  like  neglect. 

N°  3  and  3  are  extracts  of  the  consultations  of 
the  SOth  and  24th  instant,  containing  the  exa- 
mination of  sir  John  Doyley,  and  other  mi- 
nutes, which  respect  the  affair  in  question. 
These  are  in  themselves  of  no  moment ;  but 
they  mark  the  temper  of  the  majority,  and  the 
interest  which  they  took  in  the  prosecution. 

But  of  this  they  afforded  a  more  conspictiouf 
proof  on  the  evening  of  the  21sl,  which  was  the 
day  follo\^  ing  the  meeting  of  the  judges.  Ge- 
neral Clavering,  colonel  Monson,  aud  Mr. 
Francis,  accompanied  by  the  elder  Mr.  Fowke 
and  others,  whose  names  are  iM)t  Hufficiently 
ascertaine<l,  went  to  the  house  of  Maha  Itajan 
Nundocomar,  and,  ns  it  is  said,  gave  him  pub- 
lic encouragement  and  assurances  of  prutec* 
tion. 

This  visit  is  mentioned  viithont  evidence  or 
vouchers,  as  a  circunibtance  of  such  notoriety, 
that  it  n  quires  neitlier  ;  for  (he  substance  of 
the  conversation  comes  only  report.  Such  an 
honour  paid  to  such  a  man,  and  on  such  an  oc* 
casion,  by  the  actunl  rulers  of  the  state,  too 
plainly  indicates  their  participation  in  the  mys- 
terious intrigues  which  have  been  long  carried 
on  in  the  offices  of  Fowke  and  Nuiidocoioar. 
The  nature  of  the  intrigues,  and  the  legality  of 
them,  will  be  best  understood  by  the  future 
event  of  the  trial,  at  the  approaching  asiizes. 

On  the  95tb  instant,  Mr.  Fowke  addressed  a 
letter  to  the  Board  of  Ilevenue,  in  which  he  in. 
closed  three  arzees  of  t^maul  O  Deen  Cawn  : 
these  appear  to  be  the  name  which  were  first 
presented  by  Comaul  O  Deen  against  Ginga 
Govin  ISintr  and  Mr.  Arcbdekin,  and  to  which 
frequent  allusion  is  made  in  the  depositions  N* 
4  is  a  copy  of  Mr.  Fow  ke's  Letter,  and  N*  5 
translations  which  have  been  wade  of  the  tbrta 
arzees. 

«'  To  the  lion.  Warren  Hastings,  esq.  Goverp 
nor  General,  6lq.  Council  of  Revenue. 
««  Honourable  Sir  and  Sirs;     on  the  ]3tb 
of  Decemlier  last,  Comaul  O  Deen  .Ally  Cawa 
delivered  to  your  board  a  [»a|)er  containing 
many    falsities    injurious  to   my  repuUtioa ; 
which  I  refutetl  upon  my  oath,  aud  the  oatba 
of  two  otlifT  persons.     lie  has  now  put  another 
l»aper  into  my  hands,  which  I  take  the  liberty 
of  inclosing  to  you  for  my  further  justification. 
In  this  paper  it  is  pretended,  that  the  gover- 
nor general   was  active  beyond  the  limits  of 
justice  to  forward  a  charge  tending  to  my  disho- 
nour.    Jf  it  contains  a  calumny,  I  shall  rejnica 
to  hear  that  the  author  has  a  brand  of  inlanoy 

I  set  upon  him,  as  a  public  warning  toall  caluiii- 
ttiatora  and  detractors.  But,  whatever  may  ba 
tbe  iiaie  uf  the  inquiry,  it  is  evident  thai  th« 


1095] 


1 5  GEORGE  III.  Trial  ttfJtaepk  Ftmike  mti  aiken^         {TUB 


irnTeninr  ureneral  oice  tliouglit  CoiD«ul  O  |imnii»r:  tkat  Mr.  Fowke,  m  thm  kmmnt oC 
Dien  Ally  Cawn  a  perjion  wbcMe  teslimoo^  was  ilie  Tf  cka  Cullarica,  bail  m§kird  m»  hiom  mmk 
iiut    10   \ie   rejectf  J   h  h^u   a^ainU  tne  ;    and  \  1  bad  giv«n  as  duuceim  to  the  Engbih  gc» 


therelorv  I  iidiit*  1  ma  v  be  indulfft^  in  a  r«(|ue!»t,  ,  tletneii,  aoit  bow  niuob  to  lb«  nali>««  is  fmi 
thai  ilie  recaiitaiiou  'of  Cooiaul  AU^  O  Doeii  :  Ibrealeoinqf  n>o  with  Kvorc  |i«Miiiibini:Mi  il'  i 
nay  have  a  place  on  tb«'  recurd^  aa  well  an  bis  '  did  not  declare :  1  rejilied,  '  that  Mr.  FM»he 


'  did  not  say  so  to  mo ;  and  if  thefv  fchuald  kt 
'  any  auf  {Melon  of  taKhnod  iu  tlio  peiitaon,  a^ 


tbniuM  arcuiiation.    Couscious  ut' the  respect  1 

OMt*  to  ^01  eminent,  J  cannot  meotiou  the  go- 

TeriKir  ^eiif  raPs  name  without  pain,  though  |  *  oath  would  be  required :'  Guoifa  G«»%iB  aa- 

ehMriiiialiy  necessary  to  my  own  particular  jus-    swered,  *  G«i  you  lo  Muoi»hy  Suddcr  O  Vmrn, 

tifiratiun.  *  and  aftk  his  advice,  and   I  w^tl  tbilow  yoa^' 

**  I  have  fun  lier  the  honour  to  inclose  a  paper  I  WliiUt    I   was  reUting    this  €XMivcr««iioo  is 
which  Cniiuul  Ally  O  Deeti  Cawn  declares  to  j  Sudder  O  Deen  at  his  house,  Guo^  Gnia 
ha«e  been  the  tir^l  accouut  which  he  wrote  with 
his  own  tree  itill. 

**  I  am,  with  the  greatest  submission »  bon- 

md 


oiirahle  Sir  and  ^iirs,  yuur  very  uliedient  ai 
faithful  servant,  Joseph  Fowke." 

Culcutta,  April  JR,  ]77jr. 

Translation  iff  the  accompanying  Paper , 

NM. 

"  I  am  desired  to  give  an  account  of  what 
convpr»aiion  pawsed  between  me  and  Mr. 
Fi»wLo:  J  do  here  declare,  upf»n  the  tailh  of 
my  religion,  thf  truth  id'  this  transaciion  ;  «iz. 

"  BaodKser  Ghose  preferred  a  complaint 
against  me,  ou  account  of  salt  of  his  Tecka 
Culiaries  ;  and  the  cau^e  was  reft  rred  for  exa- 
iiiinatiun  to  Mr.  Fuwke.  Aficr  Mr.  Foiike, 
baling  heani  both  partiei«,  had  dismissed  us,  I 
lient  in  the  evening  to  Nounshy  Sudder 
O  l>een,  Mr.  Graham's  Moooshy,  and  related 
to  him  the  conversation  thai  had  |iabsed  at  Mr. 
Ffi»ke*s.  Sudder  O  Deen,  *  I  comprehend- 
*'  the  affair  :   it  is  pro|ier  you  should  relate  this 

*  to  Giinga  Guvin  Sing,  Dewau  of  the  Calcutta 

*  Committee.*     1  n^plied,  <  what  is  the  fiuod  of 

*  relating  this  to  the  Urwan  ?  do  you  yourself 

*  relate   to   the  Deuan    uliat<:ver  yoii   think 

*  pro|)€r,  but  pay  attention  to  my  uilvuuiage 
'  and  interest:  my  atfairs  wear  a'lery  severe 

*  aspect  uith  lestitct  to  administration,  and  1 

*  nm  in  great  ditficulties.'  On  the  igth  Pag- 
hdon,  I  Ment  to  Den  an  Gov  in  Siug,  and  rt> 
latcd  the  conversaiiun  to  him;  to  which  he 
inatle  no  reply,  but  went  to  the  Hurbar.  On 
the  Cuih    l\i^li(iijn,  at    12  uMock,  Moonshv 


came  in :  after  some  CiuiverKalion  belwixl  tbra, 
they  totd  me,  that  I  should  Dot  have  to  swear; 
and  that  I  need  be  under  no  apprebeiMV*B»N 
thai  aceouiit :  haviug  oo  reaouree,  I  ounipM 
with  I  he  MfNiDsby's  and  Dewaa'a  deaire,  Witt 
home  and  wn>te  the  petition,  whi«:b  I  kept  ly 
me :  on  the  S6ih  Paglioou,  GuDi(a  6uf  in  Hug 
said  to  me,  *  You  have  not  yet  d«livand  d« 

*  petition,  and  Mr.  Graham  is  very  ab;:rj.abirt 
'  it ;  you  ouirht  to  go  immediaicly  to  the  §h 

*  venior,  deliver  )our  |ictiUfin,  and  wait  a^ 

*  Mr.  Graham  lo-inorrow,  wiih  the  aacoMi 
*•  of  your  ha%ing  done  so,  and  1  wiU  be  h  Xb 

*  Graham's  bouse  at  that  time  too.'  I  ■«! 
immediately  to  the  i;o»erni»ry  and  prntatfA 
the  petition  1  hwl  prepared.  When  the  )S^ 
reruiir  hsd  read  it,  he  said  to  me,  *  You  bm 

*  written  this  account  in  a  diffeiest  OBsaMr 

*  fnim  n  hat  Mr.  Grabain  related  it  to  aw  ;* 
I  answered,   *  thai  1  had  not  nieotiuocd  mif 

*  thiiii;  of  it  to  Mr.  Graham :'  the  guvrntf 
rf  p*ied,  '  Mr.  Graham  tnfurmed  me,  ilHt  Mr. 

*  Fouke  told    ynu  to  declare  what  yuu  pve- 

*  seiiti-d  t«i  the  gentlemen,  and   what  lo  ttt 

*  Muisuddies ;  and  that,  if  you  did  not,  iiss 

*  should  be  welt  puniKhed.'  Fniiu  the  lisr 
that  Mr.  Grdham's  hoiionr  might  suffer;  ( 
ans«cered,  *  that  1  uiuihl  coritfct  the  |>ctjwi 
*■  to  the  manner  iu  which  Mr.  Oiahain  bti 
^rilaieil  lo  his  honour,  and  bring  it  itieitay 

*  fiillowint;.  The  gfivemor  replied,  *  ¥«a 
'  must  not  put  it  oft'  till  to-morrow,  write  \Mr 
'  petiiitMi  iiiHiiediaicly  in  this  place.'     I  iwdt 

*  that  I  hail  not  mv  Moonshv  miiIi  ma;'  ike 
giivfnior  an^wrreil,  *  .My  Mounshy  is  at  hio^i 


Siiddtr  O  Dten  stmt  fur  me,  and  \M  me,  that  j  *  ilirtaie  to  him,  and  let  hiin  write  wh'dt  Mr. 
the  inie:ri.t:aiioiis  put  to  iiic  by  Mr.  Fowke,  |  Mjr:ihain  said.*  I  was  thus  €»iiUiMiied  li 
and  my  :iii»v«er  iijutn  the  suhjrct  uf  the  Tecka    iniiie  this  |ieiitioo  to  the  guvt*  rnor's  Mdoufrkf. 


C'oriiries  iif  sail,  had  iieen  re!a:ed  to  Mr.  <tra- 
ham  hy  J)tt«an  (iovin  Sinir ;  thai  .Mr.  Gra- 


uhirh   I   flelivi-rtd,  when  fiuished,  to  the  gi 
vt-m<>r  :  liut  I  obtiiine<l  no  copy  of  it.     I  tk* 


ham,  vnthout  makiiiir  any  re].!y.  had  cone  to  ;  declared  to  him,  that  a  faise  oath  would 
the  grveinor,  and  related  tlie  wliole  rircum-  i  tin^ ii'sh  the  huht  of  my  religmu :  if  tkcM 
sianteio  liiiii;  and.  leinrnini:  ioliiso\«n  house,  j  shiiuhl  he  any  inierntuauons  made  to  me  le* 
liati  liiifcieii  hi  in  (Suildfr  O  l)et>n>  to  stnd  tur  spectincr  the  |ie:iiiun.  I  louid  m*!  take  an  oUb 
nie,  and  Uit  inc  to  write  a  |Klilion  upon  thi^  '  to  it :  atiiY  bt  arin«r  this,  lie  daitnisoed  ine.  1 
suhjict.  ..ml  dtliicr  it  to  the  go>ern'*r.  In  '  went  i<n  tlie  v*<ih  Patrlinon  to  Hou^hear  Joflf 
coi.lorui.lv  to  MJiat  Smlder  t>  Uetn  hail  >aid.  1  |  ^.^!r.  Vaii^iiurt)  ;  ^hw  him  the  accuuot  of  iki 
drew  out  a  petition,  a:-.d  sheiteii  it  lo  him  :  h:iv-  •  prtiiion  I  bid  delivesed  to  ilie  umemnr,  csa* 
iiig  piruH'd  It,  he  t<M  nie  to  sliew  ii  to  Gtinga  cernin'^  the  conrtr^aiiou  at  Mr.  Fowlfie's,  la' 
Ciovin  Sinir,  a:ul  iivike  whate\ur  dcniuciions  to'd  imn,  that,  if  1  were  to  be  »imply  inien** 
and  additions  he  shiut.!  direct  me;  and  added.     tr>ki«^l  upon  it,  it  was  very  well;  it'iavMik 

*  what  I  now  tell  yai,  is  b\  the  direction  oi     khould   be  re^mrpd,  that  I  would  noi  ir'ive  it 

*  Mr.  John  Graham.*     I  shewid  the  |»4Hiiiun  |  I  likewise  said  the  same  to  Malia  lUjah  Rif 
to  Gorin  Sing ;  who  told  uie  to  wriie  it  w  this  |  Bullub.    1  have,  in  this  addieaBy  rrtord  ibi 


IIk7: 


']    fur  n  Corwfwwjr  agakist  Worrm  Hastings,  esgk    A.  D.  177S. 


[tOU8 


trulh  af  tti\t  tnnsariiiin;  and  Gml's  plaaiijiv 
bfi  rfuoe  Willi  ra|itcl  la  tb«  ilclvmiiiKitiDU  ol 
Ibn  bMiauiwttIa  ^uremtir  aiul  eauDcil  U|ian  il. 
1  \iaire  Bu  lUbcr  mi^tpni*  bui  (ioil  iiiiil  liia  Pro- 
(ihel,  uul  ibe  gaiil)«iteo  i>t  ihe  cunnoit;  Inxii 
Ike  auiaoiaDMinrni  ul^  Hulixcliiii  Jwif^  tiiua 
to  llie  preseoT,  1  liara  sulad  oprlghlly,  ttti 
line  neter  M'nie  uny  of  the  biiccewlve  rul?r» 
of  lliig  voiinlry  ullrreil  an  untrue  Ar  u 
codling  Hoiil,  I  liave  here  related  Uwti 
ajiil  iihall  iiiii'ude  nu  tVirilier." 


"  B^nuttT  Ghose  Vbi'  Munudar,  by  niaan« 
ofLalta  Aj»i!  Hoy,  of  cerfiiin  TecllB  Oullaries, 
prerrrreil  a  cainpluiiit  againsl  me  lor  live  thnu- 
■ami  uiiiuii<lBur  sill ;  inconanjuenceorwhich, 
tbe  i^neral  aifiil  Tor  niv,  an<l  ilien  rrferred  me 
and  BbiU!>m.t  Ghuse  lo  Mr.  Fowkf,  ilia t  ill e 
genllemaa  miylit  inquire  into  llie  csuw.  In 
l6e  course  nf  llie  diiicussiim,  Bunabaar  Ghose 
nid,  '  Tbis  man  Uiib  i;'*^"  ^amv  preaenlt,  and 

*  by  Ibis  weana  ulilaiueil  ibe  luaioeiti  of  the 
'  TecLi  CojliirlM  ;'  Mr.  Foukc  «»'ul  lo  me,  '  if 

*  (iiMe  be  (rue.  and  you  have  i^iwca  any  ihin^ 
'  In  any  MuUuddie,  declare  ii ;'   I  aiuwered, 

*  that  UunBhter  Glioie  linJ  dacUceil  hIisI  was 
'  false ;  unit  thai  f  bud  not  made  iiny  prfSftils." 
Mr.   Pciube  Htlerwsi'dg  took  iliiwii,  in  wriliDg, 

re[iri'ientarit>nB  of  boih  |iarties ;  and  then 
111),  '  I  prrfucily  roiiijireltend  iliis  caua^,  niid 
■liitll  relnie  it  lo  Uie  general,  who  will  decide 
upon  il.'" 


the 


ol  ftcve 


"  UiiBimrable  Sir,  and  Sira ;  I  (qJm  tlw 
Itbaty  of  utvlosiniF  tlitre  |iMitioiw,  wliich  were 
pill  in  Ibe  linnila  uf  lay  son.  Franuii  some  tune 
Moue.  lu  uanolate,  niiti  iuiention  Ibai  lliry 
tbould  Ik  aliprnnda  laiil  befiire  your  boaril. 
CouMttl  All)  Cawnwill  dewrmine,  whetbur  be 
chiuesla  prAcei'd  on  Ihein  petilionaor  nol:  he 
IwB  uever  ouunKrcnaiided  bin  former  iirUer  ; 
bul,  aa  be  may  oiil  acru)ile  (o  say  IhUdy  Ibal  I 
ad  wiilHiut  biM  piiviiy  aad  eaiwtuit,  I  bet;  leave 
ta  infiimi  yuu,  my  srile  intriidua  in  laying  Iheae 
piqtvn  belive  you  is,  tbut  ibey  may  lie  sitnty 
drpoKiteA  10  yuur  baiidH,  in  oaw  it  «bould^<  b<> 
tl»uii|;b*  neoeaiary  beraslnr  to  refer  lo  ihsni, 
ua  a  cbnrue  ot^  cooaplroey  exlnbitod  airiiinat 
nt«  by  Comaiil  AUi  Cawii,  Hw  whioli'  I  am 
laioad  lo  hold  up  miy  baud  ai  ilie  har  al  the 
l.tial  aenionK  of  »j'«r  and  Mxninet  and  gM>l 
d*lFtcry ;  the  bunooralile  Warren  H«slii>){a, 
pi*eruiir  tfcUFral,  »nil  George  Vuiniilarl 
e«i)UirFs,  lieiui;  irty  iinwrcnl'irs  :  bestiles'  ibeae 
^uilrmro,  I  wu  chorKcd  wiili  a  coaapraey 
Uf^uiat  Htcliaril  Carw'dl,  piq.  rba  Rojatt 
Uollitb,  and  Uabuo  hi«lit»  KoDi,  as  will  ap- 
pear iu  II*  (UmiDDOl  iisiitKl  lij  the  chief  jtia- 
lice.  Mad  jiMUcea  »r  Iho  Huproiiie  Court  of  Jii- 
dicaturr,  dated  Ibe  lOili  day  of  April  1775.  At 
tbe  claae  of  tbe  evideaoej  oa-tlie  oalb  of  Com- 


Diaul  Alii  Caun,  Richard  Barwell,  esq.  waved 
Ins  deioHod  for  a  Inil ;  but  said,  lie  sbuuld  pro- 
secute, or  not,  a«  I'ulure  circumKiani-et  mielit 
»i>|iear.  Tbe  lEuJuh  Bullub  and  Baboo  Ki^hen 
Kant,  aa  I'  tuidentanil,  nittnlii-w  iWir  proie- 
cnlion  eanirrly :  IwinK  nuiir  Ui  nae  ur  fall  \if 
Ibe  law*  trf  inymuniry,  I  ahall  aanr  iMKhiit); 
at  ibia  limp,  lu  innuaniM  aaj  himii  eitlirr  to  my 
BG))uilt>l,  fetl>ln(t  trutti  la  linJ 


■■  I  an,  with  the  iMHl  perfect  sabmifsoD, 
hoa«ur<fcle  811',.  and  &n,  your  fi-rv  obnlim* 
and  litiihAil  nerTani,  JoaRra  l^tnmB." 

*'  Fart  IfiUiimi,  95(*  Jj.11/,  ITTS." 

TroTulolion  nf  three  Arzees,  indottd  m  Mr. 
fua>kt'i   teller  lu  the  Hwrd  of  Hmeiiim, 
daltd  the  35<A  of  April,  1 77  J. 
I. 

"  ta  Ik*  Benipl  year  Itai,  at  the  awl  nf  tlw 
raonib  Hauiib,  I  fariiiril,  I'roM  tiit  KcattraMD' 
of  the  Calcutta  ConnulWp.  all  IlieMilt  waib* 
i»)he  Pur^mnnisbaKt  Keura'  Uh'I,  ^0.  Msf*- 
jah  Mnutvtb,  und  Dociidaaina,  ite.  ia  ibo 
dialHrl  of  Hedeelee,  fur  lour  y«ara,  at  an 
aKieeineiH  of  lOO.OOO  laaonds  <>t  salt,  lo  h* 
delivered  al  twice,  at  100  rufieia  ;  and  I  rc- 
ceiiad  ie  aitiaiii.'e  Hpou  rite  ai'cxunt  liu.560 
rupees  oat  uf  Ibal  mHU  ;  ihe  Urnaai  tiunKa 
Govin  Sio)^  by  en  underhand  ■elllenarat,  pH-. 
BUadrd  aie  lo  give  hiin  3(i,aoo  ruppea,  upaa 
iliJH  aifreemeM,  that  whatever  quantity  of  nAl 


ildc 


ified  100,000  imttMlK,  be  woiilit  cawat  il  tn  be 
({iven  up  oil  dtc  iiaM  of  pxrernnena,  mt  lba« 
l-slisvlrfi  have  an  npparluni^  nf  ih^piiiiagof 
time  HiJh  vberevcr  I  ahoubl  diuie,  and'  iliV' 
proAtashouM'  be  for  niTBelf:  Uixin  litis  Bjpraa<- 
inant,  Gtmfpi  Govin  81111;  neonved  from  ntr, 
the  finlliiue,  15,000  nipeea  in  tnohiirs,  upon 
Ihia  undurband  sellleoient.  In  tbe  munlll  of 
Je}'l,  1'  made  a  demaad  upnn  ibo  Oemui  Hi 
hatte  tbo  wll  ciwo'  up;  tlie  Dewao  did'  not 
^re  up  tbe  lalt,  hut  InrciMy  tiKih  from  ma 
15,000  rupees  more,  on  account  nf  the  lUider- 
hand  settlemeat:  I  wai  ihneloiw  unable  to- 
pay  uirlhe  sdvanoe  of  the  sall-wnrbs  wjlltuut 
a  Imlanoe.  Tboiesali-workerauuw  brine'ibaii< 
clairaa  agiaiiwt  ma,  and  endravDur  lo  lay  iheir 
cnmplainla  heAre  llie  Hussnor.  I  have  braa 
vary  importunate  inth  the  Uovm ;  aod  have 
repre«eDlrd  tn  him,  ilial  I  am  punr,  and  un 
uoi  able  lu  flillit  my  •ibIi,c»iioai>  Ibr  ibe  afor«- 
aaid  sum,  and  have  enlriralt^l  liiin  lo  sHtle  il ; 
but  Ih>  paya  no  reaanl'n  wf;  nnd  I  am  ulteely 
111  a  loss  where  m  raiBe  tlip  money.  10  com- 
plete I  ha  ioreMmcnl,  I  humbly  rerpi^M,  Ibat 
the  afrireaaid  Dewtin  may  bp  aammoned  ;  mmI, 
upon  titejnstieeiif  my  ctnini' briii);  eata<diibed, 
thai  be  may  be  orrtored  10  rrlurn  toy  innnef, 
with  lbs  iatcrest  due  10  my  cruiliiiH-a  upon  itr 
ibal  1. '3ay  be  releaaed  IVniivlbe  im|Kirtunili«a' 
of  the'lill-ivarkers  and  my  oiliercrediinm.  and 
IiBTf  leiaure  10  complete  tbe  govcrtHneitt'li  in- 
rcHlnteet. 

Sealed,  *'  Cu^avl  Aui  C^om," 


1099] 


15  GEORGE  III.  Trial  ofJosejA  FtAcke  and  oihen,  [1 109 

No  adf  aotage  is  derived  from  Roop  Rim's  re* 
If.  maiDing  in  the  district ;  but,  oo  tbe  contrary, 

ruin  to  tbe  farmer  and  loss  to  tbe  g^vemmeDt. 
1  am  bopei'ul  that  the  Aodaulet  business  may 
either  be  intrusted  to  roe«  or  to  tbe  said  Ram 
Ram  Bhose.  It  was  necessary  that  1  should 
make  this  representation  to  you." 


Arzee  from  Comaul  O  Dee?i  Alu  Caun. 

*«  In  the  year  1180,  Villacty,  vrhen  tbe  Bon- 
dobust*  of  tlie  farms  took  place,  a  daro^a  of 
the  Audaulet  to  the  llidf^elee  district  was  a|>- 
jiointed  from  the  presence ;  upon  condition 
that  he  should  not  have  any  thing  to  do  with 
farminfj^,  bnt  should  confine  himself  to  the  dis- 
tribution of  justice,  in  disputes  concerning  pro- 
perty,  and  in  causes  of  murder  and  romry  ; 
and  that  the  officers  of  the  tanners  should  sit 
with  him  in  the  Cutcherry .  On  these  terms, 
Ram  Ram  Bhose  was  appointed,  on  the  part  uf 
Mr.  William  Lnshinzton,  and  went  into  the 
said  district,  where  he  examined  in  that  ap- 
pointment for  tbe  space  of  one  year,  and  did  nut 
interfere  in  the  farminjif  business ;  and  even 
consulted  with  the  officers  of  the  farmer,  in  the 
determinini^  mattere  of  property.  He  did  not 
interfere,  in  any  manner,  with  the  farming  bu- 
siness. On  account  of  unseasonable  rains  that 
year,  there  was  a  deficiency  of  many  thoussnd 
roaunds  of  salt.  In  the  ^ar  1 181,  on  the  dis- 
mission of  Ram  Ram  Bhose,  Muddun  Gopaul 
was  appointed  in  his  place ;  and,  within  two  or 
three  months  afler  his  arrival,  had  committed 
such  oppressions  as  prmluced  complaints  to  the 
presence  against  biro  from  great  numbers  of 
the  Rciots ;  and  there  were  great  deficiencies 
in  tbe  quantity  of  salt  made;  and  the  8alt 
Bangas  were  not  opened  at  the  proper  season. 
Afterwards  Dewan  Guuga  Gorin  8ing  dis- 
missed Mudduu  Gopaul,  and  sent  Roop  Ram 
on  iiis  own  part  there,  who  arrived  at  the  end 
of  Chite,  and  exercised  great  oppressions  on 
the  Salt  Reiut4.  He  kept  the  8aH  Tavildars 
and  Kialandars  two  months  in  chains,  and  col- 
lected 3,800  rupees  from  them  and  others  in  the 
name  of  Dewan  Gunt<^a  Ciivin  Sing.  Having 
given  such  sums  collusively,  how  could  they, 
without  piundcriug  the  salt,  make  good  their 
revenue?  The  said  Kiatanilars  entered  false  re- 
C4irds  in  the  Dultur,  and  ilclivered  the  salt  at 
such  a  fthort  weiirht,  that  the  surplus,  which 
was  esublished  at  54  iM^'  |K>r  hundred  inaunds, 
did  not  amount  to  10  luuunilR.  He  now  de- 
mands from  my  renter,  on  account  of  the  defi- 
ciency 
every  li 

olitanied  from  the  (fovernmiMit,  and 
agreement  which  I  gave,  there  is  no  such  con- 
dition mentioned.  At  the  same  rate  at  which 
I  deliver  it  to  the  goverinnent,  1  receive  it 
from  tlicHi'iots;  for  I  nceivcd  advance*:  from 
the  i;overiMiii'iit,  nnd  paid  tliem  to  Keiots. 
The  saiil  kfiuts  having  plundert'd  the  salt,  and 
made  Jilmrt  doiivn-ies;  if  J  do  n»»l  receive  it 
from  the  Ucir»tK,  from  u hence  am  I  to  tjivc  it  ? 
]  issue  an  order  to  the  said  Dewan,  denianding 


III. 
Arzee  from  Comaul  O  Deem  Alli  Caw5. 

"  In  the  month  of  Bepaack,  1181,  Velarpio, 
Ranipusand  Muckerjee  under- farmed  the 
Tecka  Colaries  from  me,  on  account  of  Baboo 
licekenace  and  Nuudee  giving  Mr.  Arcbdeckio 
as  his  security.  ]n  the  mouth  of  Chyte  the 
said  person  complained  against  me  to  ihe  gen- 
tlemen of  the  council,  under  pretence  of  a 
claim  upon  me  for  the  expence  of  working  six 
coliaries;  by  which  1  was  put  under  great 
uneasiness  for  thrcL*  months ;  but  af^er  thai 
time,  baring  been  unable  to  establish  bis  claiia 
by  the  agreement  entered  into  between  us,  tbt 
committee  did  not  find  it  valid.  lo  tbe  mesa 
time  31uckerjee  died ;  and,  during  eight  months 
afiernards,  none  of  his  heirs  cither  came  ni^^h 
me,  nor  adjusted  settlement  of  the  farm,  oor 
delivered  tbe  salt,  accordintr  to  the  agrecnieol 
executed  by  the  Dewan.  The  baid  gentleman, 
under  pretence  of  being  the  security,  bassiocr, 
without  giving  inc  intimatiou,  distributed  Ac 
advances  in  the  dilferent  purguuiiahs  and  vil- 
lages of  the  Tecka  Coliaries,  although  I  aa 
the  person  who  farmed  them  from  govern  meat; 
and  the  good  or  evil,  or  the  profit  or  loss,  which 
may  ensue,  is  my  concern.  Uy  what  grsRt 
has  Mr.  Archdeckin  taken  upon  himself  tbe 
management  of  this  business,  to  the  prejudics 
of  my  affairs  ?  The  said  gentleman  was  seen* 
rity  for  Muckerjee,  and  I  have  demanded  *jpt»a 
him.  Nutuithstauding,  from  a  motive  ot  in- 
justice, he  has  obtained  pos>es>iion  iu  the  couo* 
try,  and  has  complained  against  iiie  to  the 
council,  on  account  of  the  advances. 

"  The  said  gentleman  having  been  appointed 
t(»  superintend  the  salt  business,  upon  liis  sr- 
rival  in  the  district,  instead  <if  living  at  the 
usual  place,  touk  up  his  residence  at  tiie  Tack- 
fiel  Culcherry,  nnd  pulled  down   the  old  ac- 


of  the  overplus  of  salt,  sixty  rupt^es  for  '  comniodations,  and  liuilt  a  new  one  for  him- 
lundri'd  maunds.  In  the  I'oitnh  which  1  |  self,  after  turuuig  out  the  officers  of  the  Cut- 
in    the  i  cherry.     When  the  officers  of  the  CutclKrrrr 


have  no  place  to  stay  in,  what  must  the  chi- 
rncter  of  the  farmer  he  in  the  country  :'  Tiic 
Zemindar,  Uoiois,  \c.  attend  cliieHv'  on  ilis 
said  gentleman  ;  next  to  hiiii  on  Uopraui,  arii 
only  wait  upon  the  poor  farmer  at  their  lei- 
sures. The  responsibility  lies  uiihthe  tanner; 
but  Mr.  Archdickiii  ext'icises  an  aiiihor«i\  : 
there  cannot  he  three  rulers  in  one  ihsuidt 
uithout  occasioning  a  loss  both  to  the  farmers 


of  him  on  uhat  pretenrt*  Roop  Ram  kept  the  .  and  the  Com]»any.      1  am  ho|ieful  tor  jukUi-f* 
Kialandars  andTuviidars  two  months  iu  chains.     &c.''  (A  true  Translation.) 


*  Literally  a  binding  or  ti/ing.  It  here 
seems  to  mean  a  stttleiDent  of^  the  amount  of 
tlie  tftxot. 


(SlLIIlt'd)         \V.  ClIALMEHS, 

V"  Translator  to  tbe  Khalsi^ 


for  a  CiMsjnracy  mgmmi  Warren  HtuiingSy  esf.     A.  D.  1775. 


[llOf 


EXAMINATION 

INTO  THE 

IM  OF  ROY  RADA  CHURN 

ivilpgeofan  Ambassador,  as  Vakeel 
lrick  ul  Oowla,  Nabob  of  Bengal. 

Court  of  Jadtcatare.    Fort  William, 
2lRt,  1775.     PrescDt,  the  Honour- 
Rubert  Chambers,   Stephen   Ceesar 
aistre,  John  Hyde,  Esquires. 

3,  on  the  ProsecutioD  of  Warreo 
1^8,  Esq.  Governor  General, 

against 
)A  Churn  and  others,  for  a  Misde- 

• 

lief  Justice,  beings  prevented  by  indis- 
'om  attendini;  the  Court,  sent  them 
rin^  Letter  and  copy  of  Memorial, 
i  acquainted  them  he  had  received 
Sovernor  General  and  Council : 

Elijah  Impey,  knig[ht,  Chief  Justice, 
he  rest  of  the  Jud)(es  of  the  Supreme 
t  of  Judicature  at  Fort  William. 

lemen  ;  enclosed  we  have  the  honour 
it  you  the  copy  of  a  Memorial,  which 
presented  to  us  by  Roy  Rada  Churn, 
i\  of  the  Nabob  Mubarick  ul  Dowla, 
ugt  that  a  bill  of  indictment  has  been 
and  found  against  him  in  the  Su- 
urt  of  Judicature. 

is  person  is  the  Vakeel,  or  public  mi* 
the  Subah  of  these  provinces,  we  con- 
to  be  entitled  to  the  rights,  privileges, 
initles,  allowe<l  by  the  law  of  nations 
latute  law  of  England  to  the  repre- 
I  of  princes.*  We  therefore  claim 
its  in  bis  behalf;  and  desire  that  the 
2i;ainst  him  may  be  void,  and  that  the 
jiug  out  and  executing  such  process 
roceeded  against  in  such  a  manner  as 
irects. 

hive  the  honour  to  be,  gentlemen, 
t  obetlient  humble  servants, 

**  John  Clavering. 

**  George  Monson. 

"  Phiup  Francis," 
e  Department,  Fort 
71  f  June  20,  l??."!. 

**  Kxaiuioed,  R.  S.  Sec." 


»f  a  Memorial  enclosed  in  the  above : 

Honourable  the  Governor  General 
Council,  at  Fort  William,  in  Bengal. 
Memorial  of  Roy  Rada  Churn. 

*  memorialist  begs  leave  to  rppresent, 
IS  for  two  years  last  past  been  resident 

the  Case  of  Dob  Paotaleoo  Sa,  vol.  &, 


at  this  presidency,  as  ambassador  or  minister 
of  his  excellency  Mubarick  ul  Dowla,  Nabob 
of  Bengal,  and  has  the  charge  of  all  his  affairs 
amJ  concerns  there ;  and  has  never,  during 
that  period,  acted  in  any  other  character  or  ca- 
pacity whatsoever,  nor  been  the  servant  of,  or 
directly  or  indirectly  employed  by,  the  honour- 
able the  East  India  Company,  or  any  British 
subject;  and  therefore  conceives  himself  no 
ways  subject  or  amenable  to  the  laws  of  Great 
Britain,  but,  on  tiie  contrary,  entitled  to  all  the 
priWleges  granted  by  such  laws  to  the  ministers 
of  all  foreign  potentates  or  states  resident  withia 
any  of  the  settlements  or  poasesaions  of  the 
king  of  Great  Britain.  That  a  short  time  ago 
a  summons  was  issued,  by  sir  Elijah  Jmpey, 
knight,  one  of  his  majesty's  justices  oftbe 
peace,  requiring  vour  memorialist  peraofiallr 
to  appear  on  the  then  next  day,  to  answer  to  a 
pretended  charge  of  conspiracy  against  Warrea 
Hastings,  esquire,  governor  general,  and  others ; 
and  that  your  memorialist,  wholly  ignorant  of 
the  nature  of  such  charge,  and  of  the  righla 
and  privileges  to  which  he  was  entitled  by  the 
laws  of  Great  Britain  as  ambassador  or  minister 
as  aforesaid,  attended  in  consequence  of  such 
summons,  and  was  required  to  give  bail  to 
appear  at  the  then  next  sessions  of  Oyer  and 
Terminer  to  be  held  for  the  said  presidency  ; 
which  he  accordingly  did.  That  your  memo- 
rialist  is  informed,  that  a  bill  of  indictment  has 
since  been  preferred  and  foond  against  him,  on 
the  said  pretended  charge  of  conspiracy,  which 
your  memorialist  apprehends  and  Is  advised,  is 
ao  infringement  of  the  laws  of  nations,  and  of 
the  established  rights  and  privileges  to  which 
he  is  by  law  entitled  in  the  character  afore- 
said. 

"  Tour  memorialist  therefore  claims  the  io> 
terference  of  the  govrrnment  of  ibis  presidency, 
in  support  of  his  said  rights  and  privileges ; 
and  that  such  censure  may  be  passed  on  the 
parties  concerned  in  the  above  outrage  on  your 
memorialist,  as  the  nature  of  the  case  may 
seem  to  require.  Ror  Rada  Cburm." 

<*  A  true  copy, 

**  Revenue  Department^ 
«(  R.  Sumner,  Sec." 


The  Court  directed  Richardson  Mac  Teagb, 
esquire,  one  of  the  masters  of  the  court,  to 
acquaint  the  governor  general  and  council  with 
the  resolutions  of  the  Court  in  consequence  of 
their  letter,  which  were  as  follows : 

^  **  That  the  Court  is  of  opinion,  that  all  claims 
of  individuals  ou^ht  to  be  made  directly  to  the 
Court  hv  the  individuals,  and  not  by  tlie  autho- 
rity oftbe  governor  general  and  council. 

'*  That  it  is  contrary  to  the  principles  of  the 
English  contttitution,  for  any  person  or  persons 
to  address  a  court  of  judicature  by  letter  mis « 
sive,  concerning  any  matter  pending  before 
such  court;  and  that  the  higher  the  station  is, 
the  act  is  the  more  unconstitutional. 

**  That  the  stile  of  the  letter  now  before  the 
Coart,  teeming  to  be  of  the  DSture  of  an  order 

s 


IIOS] 


1 5  GEORGE  in.  Trial  of  Joseph  F(0ioke  and  oihtri^  [I  IM 


ratlMn-  than  |iHttioo,  m  a  stile  in  i^ich  ao  court 
9f  jiMtice  wif^t  to  be  adchreMed." 


June  23, 1775.     Present  ail  the  Judges. 

Mr.  Jarrrtt,  utter ney  for  the  East  Ind'n 
Omfuiny,  ofKpred  two  papers  to  the  Court, 
which,  i>e  acqwainted  them,  he  was  directed  to 
dciirerfr«Ni)  the  i«<»TeriHir  t?«*neral  and  council. 

Ccurt.  We  cannot  rectrive  papers  in  that 
irpe^iiUr  nuinner :  if  you  will  deltrer  the  papers 
to  the  cnuHsel  for  the  Company,  and  he  thinks 
proper  to  aoqimint  the  Court  with  their  con- 
ttoiv,  we  iMwe  no  objecrion. 

The  eouiMiel  for  the  Company,  ha? in(|f  pe- 
rasMl  the  papers,  said,  hr  tmw  nothinj^  impro- 
per in  them  ;  u|ion  which  he  read  them  to  the 
Cewrt,  as  folhms : 

Extract  of  Connditiimit  June  99,  1775. 

We  have  received  two  papers  from  your 
Conrthy  Mr.  MacVea(|;h,  who,  as  we  under- 
stand, came  to  us  as  one  of  the  masters  in 
equity.  If  he  was  sent  from  you  in  that  cha- 
racter to  us,  we  muHt  observe  a  want  of  form 
and  resfieot  due  to  the  cifovernment  of  this 
oouniry,  as  he  came  without  his  usual  forma- 
lities. 

We  observe  with  deep  concern,  that  the 
claim  made  by  this  ^oveniment,  of  certain  pri- 
vileges and  immunities  in  behalf  of  a  person, 
who,  being  a  public  minister,  appears  to  us  en- 
titled to  such  privile;fe8,  should  be  deemed  by 
the  jiidf^es  of  a  very  extraordinary  kind. 

We  inform  you,  that  Roy  Rada  Churn  is  no 
common  Vakeel :  he  receives  a  considerable 
salary  from  the  Soubah  of  Ben^l,  as  his  pub- 
lic minister  at  this  presidency.  At  his  appoint- 
ment, he  was  honoured  with  the  surpeach 
dreNS  and  liorf»e,  which  are  marks  of  hi^li  4iis- 
tinction  ;  and  on  the  delivery  of  his  credential 
to  the  u^%emor  general,  he  received  pauo  and 
ottar  from  liim. 

We  have  made  such  Replies  to  your  Reso- 
lutions, as  we  think  consistent  with  our  honour 
and  dignity  ;  and  we  have  directed  our  attorney 
to  instruct  our  counsel  to  move  to  quash  the 
indictment,  no  far  as  it  concerns  lioy  Rada 
Churn,  the  Soiil>ah*s  Vakeel. 
A  true  extract. 

(Signed)      H.  Auriol,  Assistant  See. 

Extract  of  the  Comultation^  June  C2,  1775. 

\st  Resolution,  ThattheCourt  is  of  opinion, 
that  all  cluiiiis  of  individuals  ou^ht  to  be  made 
directly  lo  the  Court  by  tl>e  individuals,  and 


the  Supreme  Court  is  established)  and  with 
whom  the  ^vernmenl  of  the  presitlency  have 
been  instructed,  since  the  passiiifr  of  such  act, 
to  make  a  further  treaty  or  treaties :  for  these 
reasoas,  it  was  iacambeiit  on  the  K^CTmaent 
to  make  such  clsims  of  exemptioo,  on  cod- 
pfauat  to  them  made  bv  the  party  injared,  as 
would,  under  similar  circumstances,  liave  hsea 
made  by  the  authority  of  ufoveroment  in  Enj[- 
land.  The  gfeVemment  af  this  presidency  loos^ 
in  all  their  aegociatinas  aod  traoaactioas  wirii 
the  couniry  powers,  becoaaidered  ia  every  re- 
spect as  iu vested  with  aoverei^D  amlMirity  aod 
all  its  incidents,  under  the  express  saactioo  of 
the  British  laws.  The  Company  have  now  i 
public  minister  residinif  at  the  court  af  ibeNt* 
bob,  Soubah  of  these  provinces.  The  applica- 
tion aow  under  Gonsideratioh  has  been  made,a 
near  as  circumstances  would  adnait,  in  the  mia- 
ner  above  alluded  to,  there  not  being'  in  Ihii 
country  any  officer  of  the  Crown  or  Cominay 
invested  with  powers  similar  to  ibose  of  his  a»- 
jesty 's  attorney  general  in  England ;  who  wadd 
there  have  been  the  proper  officer  to  liavetaka 
cotrnizance  of  such  a  complaint,  on  the  repre* 
sentation  of  government,  without  patting  tbt 
party  injured  to  the  necessity  of  parsooally  m 
directly  making  his  claims  to  a  court,  tbs 
authoritv  of  which  be  conceives  himself  ao  way 
amenable  to. 

9d  Resolution.  That  it  is  contrary  to  tbi 
principles  of  the  English  constitution,  for  Mj 
person  or  persons  to  address  a  court  of  jitilkt 
by  letter  missive,  concerning  any  matter  peod- 
ing  before  such  cciort ;  and  that  the  higher  Ibi 
station  is  of  the  person  or  persons  so  addremfi 

the  act  is  the  more  unconstitutional. Rrp-^ 

Tlie  idea  of  an  addn^ssfrom  individuals  seetf 
to  run  throui^h  the  whole  of  this  ResolntM 
also.  It  is  sufficient  for  us  to  observe,  that  the 
appliralion  made  to  the  C<uirt  was  not  maileby 
the  memlK^rs  who  have  signed  it,  in  their  pri- 
vate capscities,  but  in  their  political  one,  0 
constitutiniT  the  goverument  of  thisprp^ideDry, 
cotiformaMe  to  the  powers  vested  in  the  iMp* 
rity  of  the  t»ovemor  general  and  council  by  iha 
late  act  of  parliament.  The  opinion  of  the  Sa- 
preme  ("oort  does  not  apply  at  all  to  the  pre- 
sent case,  how  far  soever  it  may  be  ri^ht  as 
general  principles. 

3d  Resolution,  That  the  stile  of  the  Irtia 
now  before  the  Court,  scemint^  to  bctd'ibesa* 
tiirc  of  an  order  rather  than  petition,  is  s  srh 
in  which  no  court  of  justice  «>uuht  to  bead- 
dressed. Replt/,      TU'xn  Resolution  will  W 


more  fully  and  satisfactorvly  answered,  bv  re* 
not  by  the  authority  of  the  jjovemor  general     feiring  to  the  terois  of   thie  Iipplicatinn,  ih.inkf 


and  council. Rtpli/.    The  claim  in  question 

is  not  that  of  an  individual,  but  of  the  {govern- 
ment ot  this  presidency,  on  ln?h:ilfof  the  ini- 
niefer  or  ie(ireyenUtive  of  the  chief  Indian  po- 
tentate or  power,  within  the  province  of  Ben- 
gal, Bahar,  «nd  C)ri>iMu  ;  Ixnween  whom  and 
the  £aiit  India  Company  a  treaty  sidisiMed 
previims  to  the  passing  the  late  act  of  pirlia- 
ment  (under  the  authority  of  witich,  and  his 
m^ietly'i  charter  granted  in  pursuance  thereof, 


any  remark  thereon.  The  claim  of  a  riirbts 
not  nn  order,  either  in  ft»rm  or  RotiMaiieri 
neither  was  it  our  intentiou  to  address  the  C«urt 
hy  petition. 

A  true  extract.  H.  Auriol, 

Assisrant  Merretary. 
The  Court  inqn.ired   Mhrther  either  oftM 
papers  hail  any  -.address,  and   were  infonaei 

ihey  had  not,  '  l.he  Courl  thcQ  returned  *• 
following 


LI05]     for  a  Cortapiratif  against  Warrtn  H<atingt,  eiq.     A.  D.  1775. 


[1106 


Amatr  lo  the  above  Papert. 
The  Caurt,  with  Tery  great  crtncrin,  per- 
CCJTe.  thai  a  mrssa;;*  seal  by  lli«  Artt  otGcer  of 
their  Courl,  li>r  the  purpose  ul'  iirervtiliiig'  a 
correipnii'leoce,  whirh,  it  carrieil  on,  mii<t  enit 
in  alterciiti'in,  has  t)fi  psleemed  by  Ihe  Coiiu- 
cil  a  want  orrmpei'j  in  (lie  niwle  ul'  delieerinff 
it,  aod  haK  proilut^eil  that  very  allercalion  which 
it  was  etiileatl^  iotcndeJ  lo  pre«enl ;  an  aller- 
catlon  which,  in  ihe  Gr»i  in^unce,  oaghl  (o  be 
■t<i)i|icJ;  ao<l  thercldre  (lie  Court  nill  not 
make  uae  sioifle  <>b»i;ri  nlion  on  the  want  of  ail- 
drew  til  Ihe  Cuurt,  or  ihe  siihj^cl  matter  of 
(heir  papen.  Tbuse  who  first  enil  a  dupiile 
whirili  iDAy  be  of  «o  much  cunseq.ience  lo  lie 
piihlic,  iu  our  opinion,  acl  with  ibe  mosl  di^- 
DJIy,  and  rieaerve  beat  of  the  pubhc.  Tbe  issue 
ofthii  hutiufSH  sriflinieDtly  efiDces  the  impro- 
priety of  the  mode  of  application  by  the  Go- 
vernor General  and  Council  i  if  the  Compiuiv 
ihoUL'ht  it  riifhl  to  apply.  Ihera  are  but  two 
modes  in  which  it  cuuld  properly  be  done. 
Tlioutfh  neilher  the  Cruwa  nor  the  Compaoy 
bare  aa  Allomey  General,  ihey  have  a  alanJ- 
ia;(  counsel ;  a  moliuo  ousht  to  have  been 
ma'le  by  that  cnuowl ;  if  (hey  <lid  not  think 
proper  to  inEtruct  that  couimel,  the  |iruper 
mode  wuii  by  petitirn  ;  it  ia  the  muile  that  ihc 
charlt^r  has  preacribeil  for  llie  East  India  Com- 
pany, whose  aitenlB  thi'  Oiivernar  General  and 
Couocil  are.  Au  appeal,  uoder  the  circuin- 
•taiices  deaerihed  by  ihe  Acl,  is  a  maiUr  of 
ri^ht :  in  preterre  that  decency  neceatinry  in 
B|iplicaliotig  10  his  majesiy'i  coitri  of  justice, 
Ibe  Eaai  India  Corapaoy,  as  well  as  all  aiher 
appeliaiits,  must  not  claiiu,  hut  prefer  an  hum- 
ble   petiliiin.     Tlime   are    the    words   of  llie 

clinr  it,  there  is  nuihing  hnmiliating  in  it ;  it  ia 
mere  iiiaiier  of  lurin.  This  l«ing  (hut  ex- 
plained ;  to  pre'ent  any  further  aliercniions  of 
this  nature,  ihe  Court  mu-il  inform  the  hoard, 
thai  (hey  cannot  (reipecl  beinK  had  tu  the  di{j- 
nhy  of  his  miijenly'a.courl,  and  to  the  welfare 
of  the  Ci>iit|mny)  reoeire  in  fulure  any  letters 
or  measnic'^  bui  in  lliat  form.  IViib  respect 
Iu  the  application  itself,  ibe  Courl  does  not 
n  it  auy  question  relative  to  the  East  In- 


dia C..in|.snj  having  a  ji')*ef  of  recciting 
basMtdurs,   nor   whsl  riijht  ^mbPsMdoia 
fterly  «on'iti'ui«l  aod  received  by  them  tnay  be 
iniiiled  10.   Weoliserve,  that  Roy  lUda  Ciiurii 
natei  in  his  Menmrial  lo  the  Cuunci)  (for  what 

eaT|i<ite  »e  know  nui),  ihal  he  was  called  afion 
y  m  ■umntnits  issued  by  Hir  Elijah  ItDpey,  knt. 
One  of  bis  roajesty'sjusliceaut'ibe  pence.  We 
mull  acqiiainl  Ihe  Board,  ihal,  the  matters  laid 
lo  ibe  cbarire  of  Rny  [Uda  Churn  lieing  of  a 
poblic  nature,  and  affeetine  Ibe  Brat  member 
of  ifDvenimeiit  in  this  presidency,  the  Chief 
Juaiice,  unuilliii<  Iu  act  aloae,  called  upon  all 
bis  breiliren  lor  their  assistance ;  atid  that  the 
•nnainouB  was  sii;neil,  and  every  oriter  in  Ihe 
caiiae  lawl--.  by  every  one  of  the  judges  of  ibe 
Bupreme  Court  of  Judicature,  after  maluie  ile- 
^beraiixo,  and  au  ewiyinMwa  \kt,i  Uok  up  • 
■      VOL.  XJi.  ^^^^^^E1^ 


whole  day.  Rny  lUda  Churn  was  not  nl  ihal 
lime  a|)prized  of  his  heinif  invrsird  wiib  ih* 
sailed  rigbu  of  nn  ■mhussaitor :  (hough  his 
claim  iti  made  very  laie,  if  he  is  really  snd  ivnA 

Jide  invested  with  nuch  riK;liU,  they  will  most 
undoubtedty  be  liluweil  him  in  their  full  ex- 
teal.  The  claim  seemii  lerioua,  and  deservef  . 
the  atlenlion  of  the  Court,  as  it  ia  made  by  the 
Governor  General  and  Council;  they  knutr 
the  facts  upon  which  ihey  claim  it  i  ihe  Court . 
cannot  be  auprizeil  nf  ihem.  As  wearecnu- 
iident  llie  claim  wouhl  out  he  made  wiihout 
grounds,  we  shall  expect  lo  he  infurmed  of  tlrs 
tullnwiag  circumslBoces,  wilhi'Ul  which  »• 
cannot  lietermine  ihi-  claim.  The  iiuesiion  ap-  ' 
pears  lo  u«  lo  be,  whelherihe  Nabob  Mubariirk 
III  Diiwliib  slanda  in  such  ■  reUiion  to  the  East 
India  Conipauy,  as  lo  he  able  to  send  to  thif 
precideiicy  a  public  minister,  upon  whom  ths 
rigblB  of  en  ambassador  can  aitai^b;  therefor* 
we  shall  eapect  that  the  genlleraen,  who  mads 
the  claim  in  hla  behalf,  do  verify,  by  affidavit, 
that  the  Nabob  Muburivk  ul  Dowlah  is  >ikh 
verei^n  independent  prince.  That  he  is  in  • 
aitualion  to  make  war  and  peace  with  ihi*  set- 
tlement. That  he  is  a  priuce  tui  jarii.  Tha»  , 
lie  appoints  bis  ministers,  and  pertiirms  all  aclf 
of  sovereignly,  independently,  and  without  the 
contronl  nf  lliis  government.  That  be  is  in  all 
Degocinlinns  treated  as  •  priuce  taij'ur if.  Thesf 
are  facts  within  the  knowledge  uf  tbe  gentle- 
men of  the  ('0 unci] ;  Ihey  can  verify  them; 
and  if  they  do  not,  the  Cuurt  will  uuderstan  j 
ihal  Ihey  do  not  consider  bim  as  princepi  tui 

jurit.  It  will  be  necessary  likewike  to  inquire 
who  the  person  is  that  is  aeni  as  vakeel,  or  am- 
hwuador,  and  what  are  his  powers.  We  shall 
expect  lo  have  it  terilied  by  affidavit,  thai  h 
vakeel  is  a  public  oiinisteT,  having  the  righl  jm 
revofanili  dowHta;  where  he  was  coinmoraat  I 
at  the  time  he  was  appointed  vukrel,  and  lor 
twelve  months  heiure,  tl  cujut  ditioni  fun* 
tubdUuifuit.  We  shall  likewise  expect  it  ta 
be  verifiud  by  the  geuilcmeu  of  tbe  Council, 
that  they  have  always  treated  Roy  RDdnf'hnm 
as  a  person  investnl  niib  all  those  rights  wbicli 
they  claim  on  his  bchulf,  and  that  ihey  do  in  no 
res|>ect  whaiever  consider  him  subject  lo  III* 
ordi-r  or  couiroul  of  this  government.  Thes» 
matters  must  \x  clt-ared  up  :  otherwise  Ibe  al- 
lowance of  Ibis  claim  may  he  an  iulel  lo  % 
grievance  much  complsineil  of,  ihe  exrrtinn  o^ 
the  power  of  a  double  gnvtrnment.  These  cir- 
cuiiislBQCCS  are  pointed  sirongly,  tbul  tbej 
may,  if  puasible,  be  ohtisled.  Analreiityif 
mcnliuued  in  (he  pa|rer»  between  tbe  bon  ih* 
Companv  and  Muiwrink  nl  Diiwlab,  the  CoUTf- 
eipect  tbat  treaty  to  be  laid  befuti:  them. 


Present,  all  (he  Judges. 
'arrer.     I   have  the  diieclions  of  ih^    j 
r  General  and  Council  (o  move  ihf    | 
hat   Roy   R-da  Ch.irn,  a         ■ 
r  iak«N,  el  Um  bldit^  I 


1 107]  IS  GEORGE  HI.  Trial  o/Jaeph  Fmke  mnd  Mm,  [IlOl 

keeps  in  pay  a  body  of  troopt.  From  all  tbai 
circumstances,  it  is  evideot,  be  it  a  aovcraipi 
prince.  I  will  also  beg  leove  to  DeotioD  aa 
obsenration  of  the  Chief  Justice  the  other  day, 
which  wafi,  *'  That  the  annbossador  of  m  pov* 
erful  jirince  would  lie  entitled  to  no  niora  pri- 
vilege on  account  of  his  potency.'**  Theidbrti 
fortiori  the  present  wedkness  of  the  SobahsbooM 
be  no  argument  why  hia  aoitMsaadora  Amii 
not  have  their  privilege ;  they  ousfat  rather  « 
that  account  to  meet  wifh  proteciioo  IVoai  tt 
Majesty's  courts  ofjuitioe.    If  the  Nabob  il 


Dowlah,  may  be  exempt  from  a  prosecution 
commenced  against  him  by  Warren  Hastings, 
esq.  Governor  General ;  and  that  the  prosecu- 
tion, so  far  as  it  concerns  him,  may  be  quashed ; 
und  that  the  Court  may  pau  such  cemure  and 
punishment  at  they  shall  think  proper  on  tlte 
persons  who  have  commenced  theprouaition. 

Court,  You  roust  specify  the  censure  and 
punishment  you  wish  the  Court  to  pass. 

Mr.  Farrer,  1  did  not  conceive  that  to  be 
necessary ;  I  lieg  leave  to  withdraw  that  part 
i>f  the  motion. 

(The  words  in  italic  we>e  aooordiogly  struck 
out.) 

Mr.  Farrer f  in  support  cff  the  motion,  said. 
That  Roy  Rada  Churn,  having  being  informed 
that  a  prosecution  had  been  commenced  against 
bim,  had  presented  a  Memorial  to  the  Governor 
General  and  Council,  stating,  that  he  was  a 
▼akeel,  or  public  minister,  to  the  Nabob,  and 
claiming  the  privilege  of  an  ambassador.  That, 
in  consequence  of  that  application,  the  Go- 
vernor General  and  Councii  had  sent  a  letter 
to  the  Court,  claiming,  for  him,  such  privilege; 
that  an  answer  wits  sent  to  that  letter  by  the 
Court,  which  had  produced  a  ibessage  from 
the  Board ;  to  virhich  an  answer  had  likewise 
been  sent  by  the  Court.  That  as  the  Court, 
in  their  last  answer,  had  said,  tliat  fliey  did  not 
consider  this  as  any  question  relative  to  the 
right  the  East  India  Company  might  possess 
of  receiving  ambassadors,  he  would  decline 
aaying  any  thing  as  to  that  point. 

Court.  We  have  given  no  decisive  opinion : 
therefore  exercise  your  own  judgment. 

(Mr.  Farrer  then  proceeded  to  make  some 
observations  on  the  message  sent  by  the  Court 
to  the  Council.) 

Court,  We  think  it  highly  improper  that 
any  message  from  us  should  be  commented 
upon  by  couos^;  what  was  mentioned  in  that 
inessa<re  was  intended  as  hints  to  the  gentlemen 
who  made  the  claim  on  behalf  of  Roy  Rada 
Churn,  of  what  it  would  be  necessary  for  them 
to  prove,  which  no  doubt  they  have  done;  we 
therefore  wiwh  you  would  confine  yourself  to 
what  you  can  support  by  affidavits. 

Mr.  Farrer.  We  have  affidavits  to  prove 
every  thing  that  is  necessary  to  be  proved  ; 
what  has  been  mentioned  as  necessary  to  be 
supported  by  affidavit,  1  do  not  conceive  requi- 
site ;  many  of  the  things  are  what  cannot  be 
aworn  to,  but  which  I  hope  will  be  admitted 
from  their  public  notoriety.  First,  I  shall 
prove  the  Nabob  Mubarick  ul  Dowlah  to  be  a 
sovereign  prince,  and  that  he  exercises  acts  of 
iovereignty  ;  I  conceive,  that  in  all  matters, 
^here  the  laws  of  England  have  not  altered  bis 
situation,  he  must  be  a  sovereign  prince  ;  he 
exercises  criminal  jurisdiction  Uiroughout  his 
dominions,  and  signs  the  death-warrants,  with- 
out any  controul  whatsoever  from  this  govern- 
ment. He  has  exercised  the  right  of  sending 
embassadors  time  immemorial.  He  is  pos- 
iKiied  of  a  royal  miot^  aitd  ooiot  aiooey.    He 


not  the  sovereign,  1  ihould  be  glad  to 
who  is.    Other  European  eettlements  ackaoO^ 
ledge  the  sorereigntv  of  the  N^mb  ;  md  1  fli 
instructed  to  say,  that  a  FreDcbmao  if  aoi^ 
under  actniil  confinement  for  aome  liadawi 
nour  committed  within  the   provincea.   Hi 
asserting  that  the  Nabob  is  not  the  aovera^^ 
would  he  productive  of  the  moat  dreadfol  en- 
sequencea.    It  would,  in  all  probabiity,  Il 
productive  of  a  war  betweeo  us  and  the  aevojl 
European  nations  who  have  aettlementi  widdi 
the  nrovincea.    for,  if  the  aovereigntj  if  nM 
in  the  Company,  all  the  disputes  witbui  ttl 
provinces  must  Of  course  he  decided  by  aa.  Il 
to   the  Nabob's  being  prtncepi  suijurit^  ikl 
cannot  be  verified  by  affidavit ;    it  is  sufidal 
if  he  is  received  as  nuch  by  bis  ewa  auljwfc 
Rada  Churn  Roy  was  invested  with  the  eaagv 
of  liis  office  from  the  Nabobs  which  was  * 
tended  with  an  extraordinary  def^ree  of  baow 
in  the  mode  of  conferring.    He  receitad  tt 
letters  of  credence  in  Se|itember  1773.    B^ 
Rada  Churn  baa  resided  m  this  settlencfll,  ■ 
the  character  of  vakeel,  or  public  iniiiiilff. 
ever  since  that  time,  except  for  an  interval  iff 
few  days,  from  the  32d  of  May  to  tbeaoik 
Though  he  should  have  been  dismisani  b  ik 
intermediate  space  ;  yet,  if  the  indictment  va 
found  afterwards,  it  ought  to  be  quashed.   Rff 
Rada  Churn,  by  virtue  of  his  appointment. m 
ceives  from  the  Soubah  a  salary  of  900  rapes 
per  month. 

The  Counsel  for  the  Company,  in  sepfort 
of  the  motion,  produced  the  foUowing  papen: 

1st,  Memorial  of  Roy  Rada  Chum.  Copiei 
page  1101. 

2d.  The  letter  from  the  Council  to  the  CosiC 
which  inclosed  that  Memorial,  dated  Wk 
June,  1775,  which  had  been  altered  by  tki 
Clerk  of  the  Crown  (with  the  permissioooflki 
Court)  into  the  proper  form  of  a  pctiiii* 
Copied  page  1101. 

3dly,  The  following 

Affidavit  of  Rot  Rada  Chosn. 

"  The  KiNo,^  at  the  proaecution  of  W«MI 

Hastings,  Esquire, 

against 
"  Rot  Rada  Churn  and  otbera,  for  a  Miiii' 

meaner. 


"  Roy  Rada  Churn,  the  peison 

tioned,  maketh  oath,  that  he  ta  a  Hindoo 
of  th^  province  of  Bcng^J,  and  is 


E 


I]    far  a  Conipiracy  agatnil  Warrrn  Hastings,  esq.     A.  D.  )77.5. 


t«ro  yMr«  tiiil  upwardB  UsI  pinl  litt  bcrn.  resi- 
dent ii>  Calcutu,  u  Fort  Will.mn.  ifiireMtJ,  «■ 
the  public  mioisler,  nr  *ikeel,  of  ]Utib«rick  n) 
]>o«tah,  Nabob  ut  Bengal,  Bahtr,  aixl  O-iui. 
(«sce|it  for  kbiiul  (be  apatrr  of  It^n  ilayi  in  Ibe 
tuotith  «(  May  bi«l)  briI  diirKnl  with  ibe  con- 
ducling  Bod  ImnHctiiiK  his  Bfliiini  and  con- 
cerai  wilh  Ibe  hoonurnble  Ibe  Eail  ladia  Com' 
pwiy  Bnd  other*,  bi  ihe  PreBidpocy  of  Fort 
WilliBiD  KforeiBiit  1  kdJ  (list  he  receives  b 
nMtitbty  utary  nf  900  rupees  in  vinue  of  Bitch 
bia  B|)|H>iotmeiiI  Bod  DfBce  BforeMul  ;  Bad  WBi, 
on  hi*  bcini;  invesled  therewith,  honoured  by 
bii  said  mailer  Ihe  Nabob  wilh  a  CbauX|iaor- 
cliBit  Kelaul,  a  ^i-psileh  IflBrisMh,  a  Jaichaw, 
ft  Call  ki|j  bee  an  J  lEnrse,  b9  eiwiitfos  nf  tuch  bis 
■ppoiittmeot  and  office  ;  and  lliit  Uie  Siirpnitch 
HtrisBBb  iTBi  lied  on  ihi*  cleponent'a  hcail  by 
the  Nabob  himself,  as  b  a  markofilislinKuislwd 
bonour.  Anil  this  rieponenl  further  naith.  ihat 
91)  his  inlrojuclinii  to  Warren  Ilaslines,  esquire, 
Ibe  ihen  ^Ternor,  is  minister,  nr  rskeel,  ai 
•foremid,  he  received  from  him  Iwelle  niiit 
and  ollar,  which,  this  deponent  sailli.  he  be- 
liases  are  tml  usually  given  lo  vakeeli  of  Ra- 
^bs,  or  others  of  interior  rank,  but  only  (o  llie 

Kjblic   minialers,  or  fakeeli,  of  the  Siibaln, 
•bobs,  or  oiber  superior  Indian  stales  and 

*'  And  this  deponent  fiuUier  sailh,  llial  he  is 
not,  our  diiriiig;;  ihe  |ieri<id  fint  sJiove  written 
bu  been,  in  the  ■i:rTic«  or  eniplnymeni  of  Ihe 
WJd  East  Iruha  Company,  or  ul'  any  British 
•utyect  whnmsuertr  ;  but  i«  reudeut  in  Csl- 
CUIIB  u  the  public  miulaier,  or  vakeel,  of  the 
•aid  Nslmb,  ami  on  im  other  business  wliatso- 
CTcr.  Anil  this  depuncnl  furthrr  saitb,  that 
there  is  not  now  any  other  minigler,  ur  vakeel, 
.of  the  saj J  Nabob  Mubarii^k  ul  Uiiwlah  resideni 
In  Calcutta,  or  at  the  Presidency  aforciaid,  as 
ifak  deponent  verity  believes. 

"  Sutwctiked,  the  mark  or  name  of 

'■  nuv  Ii*i>*  Chum." 
"  Si"»n  at  Cnlcutta,  lliii  SSth  day  ul  June, 
177^  before  nic.     J.  Htor.." 

4thly,  Copies  of  Letters  nf  Credence,  Dis- 
iniMiuD,  BnJ  He-appninlineul,  from  the  Nabob, 
add  teased  to  the  Governnr  General. 
Front  Ihe  Naboli  Blaluiriek  ul  Dowlab,  In  the 

fiuseruor;    received  the  3^d  ut  Srpleuiber, 

"  Boy  Uada  Churn,  who  has  been  honoureil 
wilb  the  B|tpotntinenl  of  vakepl  at  your  pre- 
•enca,  an  ilie  disroissiun  of  Roy  Itamnsut,  now 
|)rocc*ila  to  you.  He  ivili  atiend  n|iu.  ynu  fur 
■bolransautiunofniy  affairs;  and  your  favour 
tawsrd  him  is  ijTeaier  than  I  can  express." 
(A  true  tntnsistinn.) 

..  ..r..   i> ii,  pCTsisji  Translator." 

)  the  Nabob  Hubarirk  ul  Ilowlali  In  the 

iri  receive'l  the  asd  of  May,  1775. 

Koy  Itada  Churn  has,  for  some  time 

tft  an  idle  pcrMp,  aud  consideiuig  hia 


being  retained  as  niy  vakeel  intirely  useless,  I 
have  dismissed  him  from  llie  1st  of  l^uflcr,  in 
the  ISlh  Bun  (year  of  his  Majesty's  relgti) ;  and 
write  ihia  for  jour  iaforniaiioii."  (A  Irua 
traoBlatiuu.)  ■>  Wm.  Hedturm,  P.  T." 

Prom  the  Tfabnb  Miihsrick  tit  Dnwiah  lo  iha 
Governor;  rec rived  llie  30th  of  May,  1775. 
I'  I  some  time  ago  informed  ynu,  that  I  hsd 
dismissed  Roy  Raihi  Chum,  at  the  aolicitatiun 
of  Yatebar  Ally  Caun.  As  the  said  Roy  ha* 
been  for  a  long  time  employed  as  my  vakeel  to 
yon,  I  have  re-instaled  him;  ind  I  request 
that  you  will  shew  him  the  same  degree  nf 
favour  *t  furoieriy,  and  pay  attention  tu  wltai- 


trsttslation.). 


.  RBnrEiits,  P.  T." 


'  The  King,  at  ibe  proseoation-  of  Warren 
llBsIingi,  Esquire, 


I  Roy  Rada  Cut 


olhc»>,  for  a  Bfiade- 


"  William  Rcdfeartt,  of  Colciitta,  genilemnn, 
maketh  oath,  anil  mith,  thai  Ihe  Persian 
wrilinii,  in  the  paper  hcreunin  anneKe«l  cnn- 
lainvd,  is  a  true  copy  of  the  nri|,'insl  letlera  of 
credence,  disinissii>n,   aoi)   re  appuintment,  of 


above-named  Kny  Rada  Chu 


>Bkeel 


lo  the  > 

been  tiled  among  the  records  anil  muniments 
of  the  honourable  the  East  India  Company,  at 
their   presidency   of  Fort  Willinni    aforesaid, 
taken  and  made  by  this  deponent  from,  anil 
carefully  compared  with,  sueh  originals ;    and 
that  he  has  a  knowledge  of,  and  is  conversant 
in,  the  Persian  language;    and  that  the  Eng< 
lish  tTrilinir,  contained  in  the  said  annexed  pa< 
]ier,  is  B  trae  ttannlation  of  the  said  origitisl 
letters,  to  tlie  best  of  ibis  dennneni'*  Judgment 
and  belief."         Hictied,     "  Wm.  HEnpEAHS." 
■■r^worn  at  Calcuiu.  this  SOih  day   of  July, 
)7T5|  before  the  Court,  J.  Pani-ifBRU,  Clerk 
of  the  CfOWD." 
5.  Article*  of  a  Treaty  and  AaHECKEtrr  be- 
tween  the  Goreroor  and   Counuil    of  PoK 
WiUiam.  on  tbc  part  of  tlie  Eiigli-h   Bist 
liidi^  Company,  and  the  Natiob  Mubarick 
ul  Dowlah. 

On  the  Part  a/tht  Company. 
"  We,  the  Governor  and  Council,  iln  cngaga 
to  secure  to  the  Nabob  Mubsrick  nl  Doolah, 
tlie  8i)ubahdarry  of  the  proviflces  of  Bengal, 
[{ahar,  and  Orissa,  snd  tn  supiiori  him  llierciii, 
wuh  all  ihe  C'lrapany's  forcca,  againal  all  hi* 

On  tlie  Part  of  the  SaM. 

Amticlk  I. 

"  The  Tr«aty  which  my  father  furmnly 

concluded  wilh  the  Company  upon  his  first  bc- 

cewion  to  IbcNiaantal,  engagiDg  loirgard  lb* 


1111] 


15  GEORGB  IIL 


kioiKiT  anil  repulalion  uf  ihn  Compinj,  aoil  of 
the  Guvemor  and  Caiiocil,  •■  hi*  own  ;  ind 
Ihkt  tntrrtKl  into  wiili  U)V  brvtbrro  (he  Nabnbi 
V^*im  111  Di>»l<ihaad'»l}cf  111  Da»)ah  ;  liie 
■aiiie  trpaiit^,  i>u  Tar  ■•  la  JDcoiikutrnt  m  iili  tlie 
trui!  Hjiirii,  iiilrni,  bihI  (neaniiig  tlieraof,  1  do 
berebj'  raiity  ,aod  cuufinn. 

Abticli  II. 
"  Tlie  hiDEf  has  b«en  tirarioiid^  plmrd  to 
^ranl  iintu  llie  Euj^lifli  East  India  <'niii|>aiij' 
tlic  DfwaeDrpRliip  of  iteii^l,  Buhar,  and 
OHiMa,  at  a  l'r«p  |pfi  Tor  I'TEr  ;  aod  I,  liavJO|f 
■n  eiitirr  niiiB'leooe  id  llicm,  anil  in  tlirir  ler- 
vanlH  wllltsl  in  tliitconnlry,  that  tiolliiiin  whal- 
«(rr  be  pn>|iiiKi1  ur  enriiH  inlurxecuiioo  by 
thpni,  drriieatiDit  from  mj  hiii 


Triai  tifJoiepk  f<Atfa  diii  tlHtn,  fl^^ 

Hr.  Nmmam.  A>  eonud  on  tbe  pnatuiliw 
agaiMt  Riiy  Kada  Cbgm  (togMber  iritb  atiwn) 
for  a  conipiracv  a|caiiut  ihe  Govemnr  Ocnrral, 
I  ranont  out  n'ae  lo  0p{|pie  Uun  estnordiawf 
■ppliRatiun. 

1  undfrKaod  Ihe  motion  ehirfly  lo  he,  Hit, 
R<iy  Kada  Chiirn  claiminif  th«  pririlegra  of  a 
•ubasaadDT,  Ihe  council,  by  llieir  ftdvocati^ 
moTca  the  Ctiurt,  that  the  indictmcai,  for  a 
eoo*|iirary  agaiDal  hiin,  ipaj  be  qDaataeil;  A( 
latter  par),  at  Brat  mralioiinf,  •>' Ihe  pi 


iDjf  puniabeil,  bdoft  witbiwnwn.  la 
aupport  or  thia  mutiup,  tbe  fullowing  praya 
aitiim*  are  urged ;  via. 

Itl,  Tlie  •oiere'iRnlj  nf  ib«  Enat  India  C«» 
pany.     Tbrir  puwer  lo  declare  ivar  and  miki 
iuteresi    '  p^ce;  and  coti*r<|uratly  to  recaTO 


liie  Kond  ul  mv  iwuntry,  do  tlitTftbre,  for  I  *"•  f"""  «*»•  '■'•«»  puruoae. 

iluciint;  ilie  alfiiln  of  ilie  Soubih-         3''-    That  Mubinci  ul  Oowlnb  »  a  Mic- 
rriifti  prince,  pOMeMine  the  T)){hl  of  ar~' — 


(lieWi 

darry,  aii'l  iirmnoi  Dff  my  Iiod 

"    ■  "'    '  iif  ihif  Coiiipaiiy,  In  the 


beat  manner      ambnsaadora,  which  ri{[ht  he  h«a  alirayai 


•Krei-,  that  (tie   pniiminK    the    prvfiucpa    of    •^'•^  ■  V'' ''"' '" 


Bengal,  Baliar.  and  Oriiiaii,  und  llic  IV 
£ie»t  fur  llMt  purpiiiie,  hr  inlirely  li^ft  to  llieir 
dincrpliiinaodijnoilmiiiiaK'rmfnt ;  in considNB- 
liiNi  iif  Ibeir  pajioi;  ibe  king  Sliah  Aalnm,  by 
monllil^  payiiieutH,  an  by  treaty  agreed  on,  the 


acts  of  aorneip^ 


■he  lolloping  inatmcet: 
iHt,  By  kecpiDg  a  standini^  army. 
Sod,  And  by  poweuintc  the  puwer  of  wim 
Ditlraliogcriiuioat  juaiice. 

And  in  behalf  of  bia  eKoeltency,  we  ira  i» 


auni  ot.rup*M  twu  lacka  aixKfo  thuuBand  »ix     for"""^  o*"  '','"  •ri'"'""""''  m  Vakeel, 


butiHreil  aud  sit,  lea  aouas,  anil  nine  nice  nipeei 

i>lU,ei)e  10  91;  and  tri  ii.e  Miib^rirk  al  DOw- 
ib  tbe  aniiiiHl  klijieDd  uf  rii|iees  Ihirty  we  lacka 
eighty  one  tli[>u->and,  nine  hundred  and  utnety- 
one,  nine  anuui  (31,81,901  9);  viz.  tbe  lum 
of  rupera  filiern  lacka,  eitfliiy-ooe  tliutinand 
nine  liundml  and  ninely-aue,  oine  annaa 
(15,81.001  9),  tiir  my  hoiiae,  aervanl*,  and 
other  ex|ienees,  indiajienaiibly  nrcPNrary  ;  and 
Ilie  remaining  anm  uf  rupees  sixteen  lacka 
rupees  (16  00,000)  for  ibe  BDjipurl  uf  aucb 
■ea|i"iy!i,  peunii,  anil  bercimilasiM,  as  may  be 
projier  Inr  my  Hssnarry  unly;  but  oo  uu  ac- 
count cviir  (0  exceed  tbut  aniuunt. 

Article  111. 
"Tlie  Naimb  ^linai.h  Duwiah,  who  waa  at 
tbe  inaUnre  uf  llie  ^ntt-rm>r  an'i  gentlemen  uf 
tbe  roiitieil  ap|iiiint*'il  Naliub  of  the  pruviiU'ra, 
and  inteiiti'd  nilh  Uii-  inHnai;ement  of  affiiira, 
in  ciinj'iiiniun  uiih  »»li  llij.di  Dooliibram  and 
Ju;;gBi  St-at,  sliall  coniinue  in  ilie  «ame  post, 
and  with  Ibe  haine  aiittinriiy  ;  ami,  having  a 
perfect  cwnlitlein-e  in  biin,  I  mmenver  agree  lii 
lei  bitii  have  Ihe  disbursing  ul'  ilie  ubuvp  sum  uf 
rujiees  (.iiiern  laiks,  for  ilic  purposes  Ebufe 
nent  tuned. 


,  (* 


'>) 


Signed,  VV.  HTNxe,Sec. 

Gtbly,  A  iiiiiniiiid  f.um  t 
ficr,  ID  cuiii<-i)'ieii'e  ul  a 
kinif,  cinifiritiillg  a  I'-mier 
pany,  I'ur  c:niiiii<i[  luunejr 
auw  M'  Ibe  Jtiog. 


Nabnh  iVIeer  Jaf- 


inisier ;  bii  briiit;  imeiled  wiih  *tl  Ibr  loln- 
nitiea  lunal  on  the  occaiiun  ;  the  puaarMnarf 
a  aalary  of  900  rupees  a  munth,  anil  being  it- 
linguoihed  and  rereired  by  tbe  gxi*en>or  as  ■ 
ambamadur,  for  that  be  gate  liim  ottar  ml 
beetle  nutl.  In  tujipurttif  which  laai  albp> 
tiiins,  on  behalf  of  the  persun  sent  ««  an  ankt- 
aaifor,  au  atfidarit  of  Uuy  RaiJa  Cburu  it  f^ 
duced  ;  and  we  are  '  lold,  that  erery  thof 
is  awurn  to  which  tbe  caae  will  admil  ^ 
wlitch  I*  ibe  only  Just  poaiiiuD  that  has  kfci 
ineniiuncd.  and  hIiiuIi  renders  it  >ery  unofO*- 
sary  I'ur  me  tu  say  more  upon  the  preaeal  oc- 
<;a»iuii,  Iban  taking  up  ihe  lule  puint  of  n^tin 
the  periiin  senilini:'  the  public  minister ;  M,i 
ihatis  mil  eslalilislieii,  tbe  right  ul  Ibe  penN 
ceni  ceases  uf  course  ;  and  it  is  imtualtri^  !■• 
far  tbe  pernuns  lo  wbmn  aucb  aiubastjil'ir  li 
sent  are  veKleil  with  the  power  of  receiitng  « 

On  ihe  first  applimtion  of  Ihe  cnuucil  on  lU 
ociMsian,  yuur  lunlnbips  anijuuncnl  five  ihinft 
ueceasary  In  b«  established  liy  aflidutit,  iu  uf- 
purl  of  tbe  claim  on  bebull  of  Muhanck  il 
Diiwlah,  ibo  peioun  ending  a  public  mtaitkti 

lit,  Thdi  ftlubariik  ul  UuwtaL  is  a  hk- 
reigo  indepenili'iit  ]n'iiire. 

t<\.  Thai  be  ia  iu  a  siluatinu  to  be  aUt » 
make  wnr  and  peaie  m  lib  this  Keitleineiil. 

Silly,   Tlisl  be  isy'rincfy.j  ivijari*. 

4lbly,  tliut  he  a|>fji>iiils  his  uiiniatera,  ei 
(leiliirnis  all  autiuf  Kivereignly,  lodepeoilrBtlt, 
and  wilbnut  ihe  conlroul  nl  Uiis  guterumML 

3ihly,  That  be  is  In  all  aegotiaiiuDi  ttcaoJ 
as  a  |inucF  $uijuri*. 

Ill  kuppnrt  of  whirb  facta,  inalrail  of  Mf 
affiilaiit  Ixing  jirudiiced,  ilie  iniuiMR'a  Mf 
poaed  letiersufcredeiicearB  lead;  andaMair 
of  2UI  of  Jttarcli  1770,  between  Ac  HiMw 


€  I  IS]    for  a  Con^mey  agtutut  Warren  Hattings,  e$q.    A.  D.  1775. 


[1114 


the   Company,    exhibited ;    bj  the  latter  of 
which  it  is  ?ery  obfioas,  that  the  two  first  re- 
quiaJtea  for  eatabliahiuf;  the  claim  are  disproved, 
aod  the  dependency  of  the  Nabob  on  the  Com- 
pany fully  established.    Instead  of  being  able 
to  make  war  or  peace  with  this  settlement,  the 
Com|>any  agree  tu  anpport  him  in  his  subah- 
ship  with  their  forces,  and  to  allow  him  an  an- 
nual stipend  of  rupees  31,81,991  9^  which  they 
think  nroper  to  make  the  disposition  of,  by  set- 
tling the  expenres  of  his  salary,  by  limiting  the 
number  of  hii  peons,  seapoys,  &c«    They  sti- 
pulate for  the  continnance  of  the  then  officers 
and  ministers  in  their  jtosts,  and  expressly  ap- 
point one  of  those  ministers  to  ha?e  the  dispo- 
sition (iu  the  manner  therein  mentioned)  of 
one  moiety  of  the  money  at  that  time  allowed 
him  by  the  Company )   which  stipend,  so  al- 
lowed him,  was  in  the  ensuing  year^  by  order 
of  the  court  of  directors,  reduced  to  the  sum  of 
16,00,000  rupees  per  annum.      Will  thene  acts 
and  p<»wer  iu  the  Company  shew  a  sovereign 
independency  in  Mubarick  ul  Dowlah,  and  his 
being  able  to  make  war  and  peace  with  this 
•etilemetit?     Do  ihey  not,  on  the  contrary,  in- 
contestibly  prove,  not  only  hia  dependency  on 
the  Company  :  but  that,  though  nominally  a 
Nabul),  he  is  in  fact  no  more  than  an  instrument, 
mnd  may  be  deemed  an  ageut  of  theirs?  It  does 
not  appear  that  he  ever  thought  himself  a  so- 
vereign prince,  or  till  on  the  present  occasion 
ever  ctmceivefl  he  had  a  right  to  send  an  am- 
bassador, Hhich  be  could  only  now  have  been 
prompted  to  by  some   friends  of  Roy  Rada 
Churn,  in  order  to  lend  him  an  assisting  band 
OD  so  preraing  an  emergfr  ncy  F 

The  uul^  presumptive  act  of  sovereignty 
▼eate<l  in  or  exercised  by  Mubarick  ul  Dowlah, 
la  his  signing  the  warrants  on  capital  convic- 
tiocis  in  the  presidency  Audaulet  court,  before 
they  are  carried  into  execution  ;  but  even  this 
is  a  delusion:  and  political  motives  in  the  Com- 
pany, when  they  created  these  courts,  induced 
them  to  vest  this  power  in  him,  which  wilt  be  pre- 
eently  fully  explained  ;  and  we  shall  shew  the 
eoostitutmg  the  courts,  and  administering  crimi- 
nal Justice,  to  be  s«ivereign  acts  of  the  Com|>any, 
sod  not  of  the  Nabob.  As  to  the  Nabob's  stand- 
ing army,  announced  as  an  instance  of  theso- 
▼ereignty  of  the  Ntibob,  and  of  which,  though 
we  are  informed  by  the  counsel,  there  is  not 
4Mie  jot  of  proof;  your  lordships  will  find  his 
nrmy  a  very  in<»ffensive  one ;  for  it  is  no  other 
than  bis  swarry,  of  which  the  .number  of  sea- 
poys and  peons  is  limited  hy  the  Company: 
nor  can  the  Nabob  have  occasion  for  an  army, 
who  has  no  possessions  to  lose,  and  who  is  pro- 
tected iu  the  place  he  holds  by  the  forces  of 
another  power,  which  the  Company,  by  the 
treaty  which  has  been  produced,  have  under- 
taken to  protect  him  in. 

That  Mubarick  ul  Dowlah  is  not  a  prince  jiii 
jur'u^  will  not  bear  a  moment's  contention. 
ilia  being  a  Nabob  would  not  make  him  such, 
If  tie  bad  obCainetl  his  Subabship  by  the  regular 
Jine  of  appointment  from  the  Rdogul,  whote 

-'^ — njiabob  oiigtiMlly  wasi  leopocarily 


created  to  superintend  the  afisirs  of  a  province* 
and  was  removable  at  pleasure ;  but  there  has 
not  been  a  lawful  Nabob  since  the  death  of  8a « 
jab  Caun,  which  hapi»ened  in  the  year  1739. 
It  is  well  known  that  Mubarick  nl  Dowkih  is  a 
son  of  Meer  Jaffier,  the  Jammada,  who  was 
created  a  Nabob  by  lord  Clive ;  from  w  hirh  cir- 
cumstsnce,  ttie  idea  of  a  prirtceps  mi  juris  ceases 
immediately ;  and  1  believe,  alter  what  has 
been  shewn,  will  presently  ap|)ear  more  fully : 
I  need  not  suggest  that  the  Company,  in  their 
negociations,  have  not  treated  or  ever  const- 
dered  Mubarick  as  a  prince  tui  juris;  so  that 
there  does  not  appear-the  least  pntot  l»efnre  the 
Court,  of  any  one  of  the  five  requisites  declared 
as  necessary  to  be  established,  or  a  ground  for 
a  supposition  of  sovereignty  in  the  person  said  to 
creste  and  send  the  public  minister  or  arobas^ 
aador  to  this  settlement  which  renders  ii*  unne- 
cessary for  me  to  consider  how  far  the  Com- 
pany have  or  have  not  an  unlimited  authority 
for  iltnding  or  receiving  ambassadors.  From 
the  deficiency  of  evidence  in  sup|)ort  of  the  pre- 
sent claim.  It  is  unnecessary  on  our  parts  to 
produce  the  affidavits  we  have  obtained,  to  dis- 
prove what  we  thought  might  have  been,  at- 
tempted to  have  been  supported  :  but  in  order 
to  convince  ^our  lordships  how  ill-advised  and 
ill-irrounded  the  claim  is,  we  shall  evince,  by 
the  affidavits  of  the  Governor  General  and  other 
fientlemen  of  the  old  council,  that  Mubarick  al 
Dowlah  is  every  way  de|>endent  on  the  East 
India  Company,  who  appoint  his  officers  and 
servants,  allow  him  an  annual  stipend,  and 
themselves  possess  the  entire  foininand  of  the 
military  power  of  Bengal ;  that  he  has  neither 
a  seapoy  to  command,  an  inch  of  land  to  eujoj, 
nor  a  rupee  in  his  treasury,  more  than  what 
the  Company  may  think  pn>per  to  allow  him  ; 
and  although  the  criminal  courts  were  nomi- 
nally the  courts  of  the  Nabob,  3^et  that  these 
courts  were  created  by  the  Company,  in  the 
month  of  August  1779,  by  tlieir  own  auihority, 
without  consulting  or  requiring  his  concur- 
ience  ;  and  the  mode  of  the  said  province,  set- 
tled by  the  late  president  and  council,  to  be 
under  the  inspection  and  control  of  the  Com- 
panv's  servants. 

With  respect  to  Roy  Rada  Cham,  who  is 
taught  to  swear  himself  a  public  minister,  I 
believe  it  never  entered  his  imagination  before, 
that  he  was  more  than  a  common  vakeel ;  nor' 
18  a  public  minister  ever  cou8titute<l  by  that 
name  ;  for  at  the  court  of  Delhy,  where  am- 
bassadors are  received,  and  a  real ,  power  is 
possessed  of  creating  them,  they  are  distin- 
guished by  the  name  of  Elchee ;  and  by  the 
affidavits  before  mentioned,  it  will  sppear  from 
gentlemen  long  resident  in  this  country,  a 
vakeel  was  never  looked  upcm  as  a  public  mi- 
nister, or  entitled  to  the  rights  of  an  ambassa- 
dor :  hut  even  suppobing,  for  a  moment,  the 
creation  was  legal  anil  regular,  and  Rojf  Radm 
Chum  actually  had  been  a  public  minister  ap- 
poifited  in  the  year  1779,  it  appears,  and  is  ad- 
mitted, that  lie  was  dismissed  by  the  Naliob  i^ 
MUowOQtbeSd  of  April,  1775|  and  is 


1119]  13  GEORGE  Ul.  Trialtf  Joseph  FMkeMndoiheri^  [IIW 

toot  K^admitted  till  tome  time  in  May  foUow- 
io^.  Id  the  intermediate  time  between  bis  dit- 
mNMion  and  re-aupoiatmeni,  tbe  crime  for 
which  he  is  indicted  wa»  committed,  ditco?ered, 
and  a  prosecution  for  il  actually  commenced ; 
•0  that  his  excellency's  amhasaadorial  claim»  if 
there  was  a  ground  for  it,  would  stand  him  in 
BO  stead  on  the  present  occasion,  and  it  only 
exposes  the  wishes  of  those  who  prompted  him 
to  make  it.  I  therefore  hope  your  lordships 
will  dismiss  tbe  motion,  with  costs. 

Mr.  JBrix.  Mr.  Newman  has  so  fully  ob- 
■erved  on  the  insufflciencv  of  the  e?  idence  nro- 
duced  in  support  of  the  claim,  that  I  tbinlc  it 
unnecessary  to  add  aov  thing  to  what  he  has 
•aid  on  that  head.  1  snail  therefore  proceed  to 
point  out  the  definition  of  an  ambassador,  as  I 
find  it  laid  down  in  the  books,  which  will  in- 
contestibly  prove  that  Roy  Rada  Chum  cannot 
be  considered  in  that  light ;  and  then  proceed 
to  shew,  from  the  nature  of  the  Mogul  go- 
▼emmeot,  how  far  the  Nabob  Mubarick  ul 
Dowlab  comes  under  the  description  of  a  sove- 
reign independent  prince. 

Ambassador  is  a  person  sent  by  one  sove- 
raign  to  another,  with  authority,  by  letter  of 
credence,  to  treat  upon  affairs  or  state.  Coke, 
4  Inst.  153. 

It  is  therefore  requisite,  thst  the  person  who 
ealts  himself  ambassador  should  be  sent  by  a 
king,  or  absolute  potentate  or  state  ;  and  that 
he  should  have  leltersof  credence  from  the 
sovereign  by  whom  he  is  sent,  containing  his 
appointment  and  instructions.  Coke,  4  Inst. 
ISS. 

Therefore  one  who  hath  not  sovereign  autho- 
rity cannot  send  an  ambassador  to  another, 
lb.  Grotius  de  B.  &  P.  I.  ii.  c.  18,  §  S* 

No  subject,  though  he  be  very  great ;  nor  a 
Viceroy ,in  whom  it  would  be  high  treason.  When 
the  Scots  (inconsultoprincipe)  sent  Lowden  and 
others  to  Lewis  13,  to  treat  in  the  name  of  the 
whole  nation  for  assistance,  he  would  not  re- 
ceive them.  Queen  Elizabeth,  in  like  manner, 
refused  to  receive  CImstopher  Assonville,  sent 
to  her  in  quality  of  minister  of  state  from  the 
duke  of  Alva,  then  governor  of  Flanders,  he 
having  no  commission  or  credentials  from  the 
king  of  Spain.     Molloy,  de  Jure  Mar.  120. 

It  is  the  actual  exercise  of  sovereignty  that 
gives  the  right  of  sending  ambassadors ;  inso- 
much that  kioKS,  tliat  are  conquered  in  a  de- 
clared open  war,  lose  that  right,  together  with 
other  privileges.    Grot.  ib. 

The  principal  rights  of  sovereignty  of  which 
theSubah  Mubarick  ul  Dowlah  must  be  pos- 
•essed,  to  give  bim  such  a  relation  with  respect 
to  the  India  Company  as  to  enable  him  to  send 
any  person  with  the  privilege  of  an  ambassador 
to  this  presidency  ;  are,  1st,  That  he  is  a  so- 
vereign mdependent  prince :  2dly ,  That  he  is 
in  a  situation  to  make  peace  and  war  with  the 
settlement:  Sdly,  That  he  appoints  all  his  mi- 
pisters,  and  exercises  all  acts  of  sovereignty, 
independent  of  any  other  power,  and  without 
the  oootroul  of  this  government;  and  lastly. 
That  he  ii.ia  all  DegodatioDs  conaiderad  and 


treated  as  princept  tat  jurtM^  Lat  M  aee  hew 
far  the  Siubah  Mubanck  ul  Dowlab  oosMa 
under  this  description. 

Whatever  the  forma  of  govemoient  in  this 
country  may  have  been  in  earlier  tiasea,  it  is 
notorious,  that,  since  the  establishment  of  the 
Mogul  empire,  Bengal  hath  been  a  provinoa 
thereof.  The  Subah  of  Bengal,  daring  the 
time  that  the  empire  continued  to  maintain  its 
original  vigour  and  strength^  was  no  more  than 
the  king's  viceroy  or  governor  of  Bengal,  Ba- 
har,  and  Orissa :  as  such,  he  had  tbe  com- 
mand of  the  military  forces  for  the  defeoce  sf 
the  provinces,  and  the  adminiatration  of  crimi- 
nal justice.  The  branch  of  tbe  rercnae  aad 
justice  in  civil  matters  was  intrusted  to  a  dis- 
tinct office  independent  of  the  Subah,  vis.  The 
Dewan  of  the  empire.  In  progreaa  of  time,  as 
the  empire  weakened,  the  Subahs  grew  stronger^ 
and  appropriated  to  themselves  the  revenue  si 
the  provinces ;  but  even  in  the  weakest  state  sf 
the  empire,  the  Subahs  always  acknowledgfd 
the  emperor  as  their  sovereign,  styled  them* 
selves  their  servants,  and  tooK  tbe  invesiitum 
of  the  provinces  from  them. 

It  is,  therefore,  by  usurpatiou  only  that  tbcj 
at  anv  time  exercised  the  rights  of  aovereigalj; 
but  these,  I  apprehend,  entirely  ceaaed  with 
the  expulsion  of  Meer  Cossira  Ally  Cava. 
Meer  Jaffiar,  whom  the  Company  placed  ia 
the  Naziinut,  had  only  a  shadow  ot  power,  sad 
not  even  that  shadow  remained  with  either  of  hit 
children. 

The  present  Subah  Mubarick  al  Dowlah  ii 
so  far  from  being  an  independent  -prince,  tbat 
be  is  in  all  things  dependent  on  tiie  Bogliik 
government.  They  alone  receive  the  reveasci 
of  the  province  ^  be  has  only  a  pension  of  16 
lack  of  rupees  for  his  support:  so  far  from  be- 
ing in  a  situalion  to  make  peace  and  war,  be 
cannot  even  raise  the  smallest  body  of  troopi,. 
nor  hath  he  the  appoiutroent  of  any  offioen. 
Tt  is  in  evidence  before  the  Court  on  a  lite 
trial,  that  Rajah  Goordass  Roy  received  tbe  is- 
vestiture  of  Dewan  to  his  household  from  Mr. 
Hastings,  when  at  the  bead  of  the  late  admh 
nistration,  and  the  same  hatli  been  confirmed 
by  the  present  governor  e^ueral  and  council. 

The  late  act  of  parliament,  and  the  charter 
by  which  tbe  supreme  court  is  established 
clearly  evince,  that,  in  the  eyes  of  the  Britiib 
legislature,  the  provinces  of  Bengal,  Bahir, 
and  Orissa,  are  considered  as  a^  conquered 
country,  in  which  the  conqueror  hath  a  right 
to  introduce  his  laws,  and  make  them  obe3ed. 
How  can  he  be  called  a  sovereign  indepeo«lfnt 
prince,  whose  subjects  are  at  liberty  to  eva^ 
his  civil  or  criminal  jurisdiction,  by  becoroial 
directly  or  indirectly  the  servants  of  the  £o|* 
lish  Company,  or  of  any  British  auliject? 


ApFiDAvrr  of  Warren  Hastings,  Esq. ;  Ge- 
vernor  General  of  Bengal. 

This  deponent  maketli  oath,  and  aaitb,  1W 
the  late  president  and  council  did,  on  or  d 
tbe  month  of  August^  1772,  by  tbcir  own 


^Ill7]  Jtrfl  Coniprecr/ a(;ain3t  Warren 
tlinrilv,  >|)potDl  Mnnee  B^nm,  relict  of  tlie  Isle 
Kabflb  Mc«r  JaSirr  Ally  Vav>a,  to  l>e  euirdian 
or  liiF  prcscDl  Nibob  Miibarick  ul  Uowhh  ; 
aoil  (tajt  G'H)r<taM,  ton  of  itlahn  Rajah  Niiti- 
docuiiiNr.  10  be  Denao  <>F  llie  laii)  Naboti'i 
hniiwlinlil.  sliowing  to  llie  giid  Manee  Bc' 
^iim  ■  Hilary  «r  140,000  rupees  per  aaoum  ; 
■  nd  to  (he  Mill  TlBJa  GiionlaM,  for  bimseirand 
officen,  a  salary  or  100.000  rupees  per  Bonum. 
That  tbe  sail)  late  preiiJent  and  council  did,  no 
oralraul  tlie  oionih  of  Aiigost,  177?,  plan  and 
rouKtitiile  rei;ulnraad  distinct  courta  of  justice, 
ciril  aod  criminal,  by  their  own  authority,  for 
adfiiinistraliuQ  of  justice  to  tbe  inliabilanls 
IhrouRhoutBen^,  nithautcooaullioglbeMid 
Nabob,  or  requiring  hia  coDCurreoce ;  and  that 
the  said  cif  i1  courts  were  made  solely  depen- 
dent on  the  presidency  of  Calcutta ;  aod  the 
•aid  criminal  courts  were  put  under  the  in- 
•jieelion  and  conlroul  of  the  Company's  ler- 
Tsnts,  although  osleoiibly  under  the  name  of 
the  Nazim,  as  apjiears  froni  the  lullovring  el- 
iract*  from  the  plan  of  tlie  adoiinisinitinn  of 
jutoic^,  constituted  by  the  prciidenl  and  cuuo- 
eil. 

"  Article  I.  That  in  each  dialrict  shall  be 
«il>bHshed  two  courts  of  juHicalure;  one  by 
the  name  nf  the  lyiuBussul  Sudder  Auitaulel.  or 
Proiinctal  Court  of  Dewanne*,  for  tbe  coi;nl- 
|knee  of  citil  causes,  the  other  by  (he  oame 
T  Fbousdance  Audaulet,  or  Court  of  Phous- 
iaoe,  for  (he  trial  of  ell  crimes  and  roisde- 

H^  Article  IV.  That  in  the  PhonsJauce  Au- 
,  the  cauzee  aod  muftee  of  ibc  dislricl, 
Itwotnoulafyn,  shall  sit  lo  expound  the  lair, 
■  determine  how  lar  the  delinquent  shall  he 
Ihy  of  a  breach  thereof;  but  that  the  col- 
lorihall  also  make  it  his  buniness  to  attend 
tA  the  proceedings  ofihe  court,  so  far  ss  to  gee 
■hat  all  necessary  e*ideiiceB  are  summoned  and 
vianiined;  (bat  due  weight  is  allowed  lo  Ibeir 
tetlimuny  ;  and  Ihal  tbe  decision  part  ia  fair 
mnd  impartial,  accordins;  to  (heproofgexhibiiiKl 
in  (he  course  of  the  trial ;  and  that  no  causes 
•hall  be  heard  or  Ivied,  but  in  the  open  court  re- 
IfuUrly  ahsembled, 

••  Article  V.     That,  in  like  manner,  two  su- 
preme court*  of  juBlife  shall  beesiablisbed  at 
Ihe  chief  seat  of  goiernmenl,  tbe  one  under 
K  Jke   denoiniuHliun   of   the    DewaDee    Sadder 
hto^aulet,  and  Ihe  olher  ihe  Nizamut  Sudder 
■^daulet. 

P***  Article  VII.  Tliat  a  chief  officer  of  jus- 
'  ifee,  appointed  on  the  part  of  Nnzim.  shall  pre- 
side in  (he  Nizamul  AuJaulei,  by  the  title  of 
Darroga  Audautet,  asaisted  by  lhe*cbiefcaiizee, 
ihe  chief  miiftec,  and  three  capable  mnulivys; 
that  their  duty  ahall  be  to  rciiae  all  proceeii- 
iii|[S  of  ibe  Phouidance  Audaulet  in  capital 
CAaes,  by  siKoil'ying  Iheir  approbation  or  diaap- 
probation  thereof,  willi  their  reasons  at  iar^e, 
la  prepare  the  aenlence  for  the  warrant  of  the 
Naxim,  which  shall  be  returned  into  Ihe  Mo- 
•mwul,  and  Ibere  carried  in  execution.  Thai, 
with  mpect  lo  (bin  court,  a  similar  conlroul 


Hasllngt,  etq.    A.  D.  1775. 


[ins 


is  rested  in  Ihe  eolleclara  nf  the  dtsliKt*;  •» 
llui  the  Company's  idminiitraiion.  in  chanc- 
ier of  ibe  IcinK's  bewan,  may  besaliafied  thml 
tbe  decrees  of  justice,  on  which  both  tbe  wel- 
lapp  and  talrly  of  Ibe  country  so  msierially  de- 
penils,  are  not  injured  or  pervcrccd  by  the  eVfMta 
of|>BrliHlilynrcnrruplinn." 

And  ibe  said  deponent  further  aaiib,  Thai  h* 
liebefes  the  ntiove  to  be  true  extracts  from  (he 
■aid  plan  of  adminisiralioo  of  jusiioe,  as  enlered 
in  in  the  cons  uh  a  lions. 

Tbe  said  depunenl  further  sailb,  Tlial  Ihe 
mansgement  of  Ibe  rcteauea  of  the  said  pro- 
Tince  of  Bengal  has  hir  some  years  past  been, 
and  DOW  is,  entirely  iu  the  hands  of  (he  East 
India  Company,  and  their  reprewuiatites  in 
Ibis  coutttrv,  wilbout  lbs  smallest  parti cipat ion 
of  (he  saiil  Nabob.  And  thla  deponent  further 
sailb.  That,  iu  cooiequcnce  of  ordera  from  the 
Cuurl  of  Directors,  daled  in  April  177 1.  iha 
annual  stipend  ftllowed  to  the  said  Nabob  Mu. 
barick  ul  Duwla  was  reduced  from  the  sum  of 
3t,81,e9t,9  rupees  per  annum,  to  the  sum  of 
1(1,00,000  rupees  per  unaum. 

And  lastly,  tbe  said  deponeot  aajlh.  That 
he  believes  all  the  above  faets  tu  be  publicly 
known,  as  lliey  are  particularly  set  lorth  in  & 
printed  book,  enlitled,  ■•  Repniis  from  the 
Commillee  of  tbe  House  of  Commons." 


day  of  June,  1775. 


:.  I.111- 


AfFiDiviT  tn  Geohcc  VaMSHTjUiT. 

"  This  deponent  makelb   oath,  and  uilb. 

That,  to   Ibe  bmi  of  his  kuowlntge  and  belief, 

Aliibarick  ul   Dowla,   ibe   present   Nabob   of 

Bengal,  is  nol  a  soverei^'n  independent  prince, 

lo  make  war  on  tbe  East  India  Company  or  its 
B««lltmcuu.  That  Ihe  said  Alubarick  ul  Oowla 
dues  nol  appoint  hi*  own  miiiislera,  nor  per- 
form oibflr  acts  of  sorereignty,  inde|«ndentlv, 
and  without  (he  consent  of  the  representatirea 
here  of  the  East  India  Cumiiany.  The  said 
deponent  further  sailb,  Tbai  (be  whole  miti- 
lary  power  of  this  province  of  Bengal  has  been 
for  several  years  pasi,  and  now  is,  solely  and 
entirely  under  the  command  of  ihe  said  Ea« 
India  CiiinpaDy  and  their repreirnlalives,  with- 
oul  being  in  the  small'^al  deforce  under  the  con- 
lroul or  induence  of  tbe  laid  Nnlwb.  That 
Ibe  Bole  mauagemeni  of  the  revenues  of  the 
aaid  province  has  also  been  for  some  time  past, 
and  now  is,  in  tbe  bands  of  ibe  renreseuUiive* 
of  the  said  Company,  wiiboul  the  least  partici- 
pation of  the  Nabob.  That  a  mode  for  admi- 
niitration  of  juBlice  both  ciril  and  criminal  to 
the  inhabiunta  of  Ibe  said  province  was  settled 
by  Ihe  lale  presicleni  and  council,  in  or  about 
ihemonlhofAugustlTT?,  by  their  own  autho- 
rity, without  coosulling  lbs  aaid  Nabob,  or  re- 
quiring his  concurrence;  and  that  that  plan 
was  carried  into  cieculion,  by  which  the  civil 
courts  ibrouehoul  ibe  province  were  put  en- 


1U9J 


15  GEORGE  III.  Trtdl  ofJoupk  FcnJce  and  others.  [1190 


criinioiil  conrti  under  the  inspection  and  con- 
trol of  the  Company's  servants,  although  the 
'Utter  were  uominally  the  courts  of  the  Nab<ih. 
**  That,  in  the  year  1772,  the  said  late  presi- 
dent aiul  council  did,  by  their  own  authority, 
appoint  Manee  Beifiira,  rehctof  the  late  Nabub 
m^f  Jatner,  to  be  guardian  of  the  present 
Nabob;  and  Rajah  Gonrdass,  son  of  Malia 
Rajah  Ntindocoinar,  to  be  Dewan  of  the  Na* 
bob's  household  ;  and  by  their  own  authority 
ap|K>iuted  salaries  to  the  said  Manee  Be^i^uin 
and  the  said  Rajah  Goordass.  Ami  tlie  said 
deponent  further  s.iith.  That,  in  consequence 
of  onlers  from  the  court  (»f  directors  signitied, 
he  is  intbruied,  in  their  letter  of  the  10th  of 
April  1771,  the  annual  sti|iend  of  about 
S2,00.000  rupees,  a^ret-d  to  be  paid  to  former 
Nab.)bs,  and  to  tiie  picsent  Mubarick  ulDowla, 
was  reduced  to  16,00,000  rupees  per  annum. 
.  '*  The  said  dep«Mient  furttiersHith,  That,  dur- 
iogf  his  residence  in  India,  he  has  never  under- 
stood thata  persitn  residint;  under  I  he  denomina- 
tion of  vakeel,  was  a  public  minister,  entitled  to 
theri{;hts  of  amitasbadors ;  but  conceived  such  a 
person  to  be  liable  to  the  local  jurisdiction  of 
the  courts  civil  and  criminal  where  he  resided. 

(Sit^iied)  *'  George  Vansittart." 
**  Sworn  belore  iiie,  ilie  87 tb  day  of 

June,  1775,        S.  C.  LEMAisraB." 

Two  other  Affidavits  were  read,  one  made  by 
Mr.  Hurst  and  the  other  h^  Mr.  Lane  (both 
members  of  the  late  connril)  in  exactly  the 
iame  words  as  that  of  M  r.  Vansittart. 

Air.  Farrer.  There  has  not  been  the  least  at- 
tempt to  prove  that  the  rij;>;ht  of  these  provinces 
is  not  in  the  Nabob  Mubarick  ul  Dowlah  ;  his 
beinflf  diverted  of  the  power  is  no  ar<rument 
against  his  poksessinjf  the  right  of  sovcreii^nty  : 
1  thiref'ort'  hope,  that  he  nill  meet  with  full 
protection  from  tins  Court,  and  that  his  vakeel 
Kada  Churn  will  be  allowed  the  ri^ht  of  an 
ambassador. 

Chief  Justice.  You  are  hard  pressed,  to 
make  use  of  that  argument:  the  Coin|)any 
will  not  thank  you  fur  statin*;  the  rij^ht  to  be  in 
Mubai'ick  ;  for,  if  it  is,  the  exercise  of  the 
power  must  be  an  usurpation  in  the  India 
Company  ;  but  I  do  not  take  it  to  he  so,  for 
the  treaty  uhich  you  have  produced  is  a  sur- 
render by  him  of  all  povicr  into  the  hands  of  the 
Company. 

In  the  decision  of  this  question,  it  will  not  be 
necessary  to  euier  into  the  common-place  learn- 
ing conoernindf  the  rights  of  ambassadors,  nor 
10  what  manner  they  have  been  sanctified,  not 
only  by  the  most  polished,  but  even  the  most 
barbarous  nations.  All  nations,  who  have  had 
intercourse  with  others,  ha«e  held  their  cha- 
racters sacred  ;  the  rights  of  ambassadors,  as 
far  as  they  relate  to  the  question  before  us, /ifi 
revocandi  domum^  are  clearly  established  by' a  11 
the  writers  on  the  subject;  nor  will  it  he  ne- 
cessary to  decide,  whether  the  £ast  ln<lia  Com- 
pany nave  or  have  not  a  right  to  receive  public 
■unittcn,  upoa  irhpoa  iU  the  righta  of  awbas- 


aadora  will  attach :  they  are  authorized  In  inaka 
treaties,^  war,  and  peace,  with  tlie  country 
powers  in  India.  It  is  most  certainly  uccfs- 
sary,  that  they  should  receive  affenia  firum  tboie 
powers,  for  the  transaction  of  their  public  bn«- 
neas:  I  do  not  absolutely  say,  that  it  is  a  con- 
sequence, that  those  agents  should  l»e  put  in 
the  situation  of  foreign  mioistera  at  Europcso 
courts ;  nor  would  I  by  any  means  be  under- 
stood to  put  a  negative  upon  it :  it  is  not  ne- 
cessary in  this  case,  and  perhaps  no  case  may 
ever  arise  wherein  it  may  be  necessary,  to  de- 
termine it.  I  give  no  opinion  about  it ;  and  I 
desire  that  may  be  clearly  understood :  then- 
fore,  however  this  case  may  be  detenuiofd, 
the  dignity,  honor,  and  powers,  of  the  govcra- 
ment  of  this  settlement  are  safe :  tbey  are  sof 
afiectetl  by  it :  the  Court  will  alwa}  s  support 
them,  when  they  are  fairly^  openly,  and  legally 
exercised.  There  is  enough  and  etiouip h  to  de- 
termine this  claim,  without  entering  into  thil 
question. 

But,  though  the  rights  themselves  are  dearly 
established,  it  will  be  proper  to  conaiiler  thetras 
and  substantial  reason  that  has  induced  tbsl 
common  consent  of  nations,  which  is  called  the 
ju$  gentium^  and  gives  sanction  to  them.  Ose 
reason,  and  a  common  one  assigned,  is,  Ihil 
they  n»present  the  person  of  their  prince,  ail 
carry  his  majesty  about  them  ;  and  tbcrefim 
their  persons  must  be  sacred :  this  is  ratberi 
captivating  and  dazzling  than  a  substantial  rrtp 
son  ;  it  is  a  fiction.  No  nation  was  more  dii- 
lized  than  the  Romans  \  no  nation  (with  voj 
few  exceptions)  was  more  attentive  to  the  pn- 
vileges  of  ambassadors ;  yet  mere  sacredoefl 
of  person  did  not,  among  them,  protect  fisa 
justice :  the  vestal  virgins,  the  tribunes  of  tbe 
people,  the  high  priests,  the  ponlifica  muim 
(unless  actually  officiating)  and  all  others,  «b» 
had  nothing  to  protect  them  but  the  sanctitv  of 
their  persons,  were  subject  to  tbe  courts  of  jus- 
tice :  I  do  not  recollect  any  claim  made  simply 
on  that  ground,  but  the  exemption  claimed  by 
the  popes  for  the  Romish  clergy,  <  |»ersoBi 
\enim  quantumvis  sancta  sola  in  jus  vecatiooe 

*  non  violatur.'  There  is  another  fiction,  ibal 
ambassadors  are  not  considered  as  within  the 
territory  of  the  prince  to  which  they  arc  seat; 
this  and  what  1  before  mentioned  are  not  prs* 
perly  reasons,  but  tictions,  formed  to  Katisf}  lbs 
reasonings  on  the  municipal  laws  of  the  coua- 
trics  to  which  the  ambassadors  are  sent :  lbs 
true  and  substantial  reason  is  derived  from  tbe 
necessity  of  protecting  persons  sent  on  maieriil 
business,  in  which  the  public  is  concerned  *,  it 
is,  '  ne  ab  officio  susccpto  legation  is  avoceoliir, 
'  ne  impediatur  legatio.  ne  prohibeautur  pub- 
'  lico  niunere  fungi ;'  the  main  ^reat  hiisiiiH^ 
which  chiefly  npe;utes  to  cfive  this  right,  i^ 
that  of  making  treaties,  more  espt*cially  sucb 
as  concern  war  and  peace,  *  f)MiH  paris  etf<Bd^ 
*■  rum  sunt  nuntii  el  proxenetu;,  et  s;»e  his  ^v^ 

*  lium  so«:ieta«i  et  Hinica  quics  salva  es!%e  nrqisL* 
Amun:;  pouons  capable  of  making  real  ireaije^ 
anil  making  %iar  and  pi-iioe,  it  is  aba<ilutrly  le* 

cestitry  that  thiir^   Khgui(i  lie  inun 


I 


1191]    fortt  CoHspiraci^  against  Warren  Hastings,  esq.    A.  D.  1775. 


[1 122 


agents,  whose  pertom  should  he  protected  even 
from  the  Iftws,  lest  the  laws  should  be  made 
the  lostrament  ofdefettiRg  nenrociaiions,  which 
tniKlit  be  of  the  utmosit  coDsequeace  to  the 
state ;  otiierwise  nations  must  li?e  in  eternal 
war,  or  iu  insidious  peace ;  for  if  there  were 
not  peraom,  harbintj^rs  of  peace,  who  oonld 
with  safety  come  to  the  opposite  party  to  pro- 
pose p<*ace,  anil  the  terms  on  which  it  should 
Ha  held  invi«>lable,  thoui|^h  the  conteDding^ 
powers  were  each  peaceably  inclined,  the 
horrors  of  war  must  continue ;  and  when  they 
ware  tired  out,  an  insecure  armistice  would 
lake  plaee,  to  last  no  lon^i^er  than  till  one  of  the 
panias  had  rpoovered  strength  and  spirits  snfB- 
ekfiii  to  renew  hostilities.  It  is  from  the  real 
bcmaass  between  nation  and  nation,  not  from 
My  representation  of  supposed  majesty,  that 
tbcir  rights  are  substantially  founded.  Is  Mu- 
parick  nl  Dowlah,  or  was  he  eter,  a  prince  in 
I  aitnatlon  of  transacting  any  public  business 
if  consequence  with  this  settlement  f  Is  he, 
^rom  the  evidence  before  us,  capable  of  making 
iraT  and  peace  with  this  settlement  P  If  not, 
ibnugh  there  may  remain  in  him  a  shadow  of 
naieatv,  1  think  no  sanctity  of  pertnn  can  be 
lerived  to  his  Vakeel,  which  will  be  sufficient 
la  give  him  the  rights  of  an  ambassador :  for 
bin  reason  1  threw  out,  when  this  was  before 
neiitioned,  what  1  thought  would  be  necessary 
ar  the  governor  general  and  council  to  make 
iflt,  before  they  conid  support  this  claim :  I 
[ill  it,  that  if  they  could  not  make  it  out,  they 
aiffht  have  an  op|iortnnity  of  relinquishing  a 
lam,  which  I  was  fully  aware  mnst  embar- 
aaa  them ;  they  have  chosen  to  persist  in  it, 
nd  to  force  the  Court  to  a  determination  on  a 
oeation,  which  their  counsel  states  to  be  poli- 
eal  ;  and  that  to  protect  a  man,  charged  (whe- 
ler  properly  or  no,  will  appear  when  the  in- 
ictment  is  tried)  with  a  conspiracy  against  the 
rat  man  in  this  settlement,  the  governor  gene- 
i1.  Whatever  my  opinion  may  be,  the  gen- 
emen  of  the  council  must  have  been  clearly 
Ml ri need  of  the  justness  and  indispensability 
r  tfae  claim ;  or  in  such  a  case,  I  am  sure, 
lejr  would  not  have  made  it. 

We  have  said,  it  would  be  necessary  that  the 
arernor  general  and  council  should  verify,  by 
B^vit,  that  Alubarick  ul  Dowla  was  a  sove- 
t|gii  prince,  in  a  situation  to  make  war  and 
saee  with  this  settlement :  that  he  was  $ui 
\t^  ;  that  he  appointed  his  own  ministers ; 
\m%  lie  performs  ail  acts  of  sovereignty  inde- 
■inlently,  and  without  the  controul  of  this  go- 
muneot ;  that  he  is  in  all  negociations  treated 
I  WL  prince  tui  juris :  that  a  Vakeel  m  a  public 
iniater,  having  the  ju$  rtvocandi  damum: 
At  the  governor  general  and  council  have  al- 
■ya  treated  Roy  llada  Churn  as  invested  with 
e  rifcfito  which  they  claim  for  bim,  and  that 
ley  do  not  consider  him  subject  to  the  order 
Kl  eontronl  of  this  government:  no  inch  affi- 
itU  baa  been  made;  I  should  have  been 
lueb  avrprised  if  there  had  ;  but  the  reason 
hren  fof  want  of  the  affidavits  is  not  the  true 
M  ;  namely,  That  the  facts  wotild  not  bear 

VOL.  XX. 


them  out :  the  reason  given  by  their  counsel 
is,  That  the  governor  genersi  and  council  could 
not  make  the  affidavits  required,  bccaube  they 
are  a  corporation. 

I  cannot  imagine  from  what  confusion  of 
ideas  this  notion  has  sprung ;  in  fact,  they  are 
no  corporation  ;  if  they  were,  could  it  enter 
into  the  mhid  of  any  man,  that  it  was  sufficient 
for  a  corporation  merely  to  make  a  claim,  with- 
out supporting  it  by  proof?  to  (ling  a  claim  on 
paper  into  court,  antf  leave  it  to  establish  itself 
without  evidence  P  Though  a  body  corporate, 
fua  corporate,  cannot  make  an  atfidavit,  each 
mdividnal  that  composes  it  can  :  in  fact,  the 
governor  general  has :  the  indiviituals,  if  the 
fkcts  would  have  borne  them  out,  might,  and  I 
have  no  doubt  would,  have  made  the  affidavits, 
especially  as  the  Court  had  informed  them,  if 
they  did  not,  the  negative  of  the  question  put 
woald  be  taken  pro  conf'etso.  They  have  Hoi 
even  sworn,  or  given  any  evidence,  that  they 
themselves  do  now,  or  ever  have  treated  Roy 
Rada  Churn  as  a  person  invested  with  the  rights 
they  claim  for  him  from  us,  nor  that  they  do 
not  consider  him  subject  to  the  order  and  con- 
troul of  this  government:  is  be  then  to  be 
treated  as  a  public  minister,  merely  to  elude 
justice,  and  in  no  other  respect  to  be  so  treated  f 
I  have  little  doubt  but  that  this  man  was  ori- 
ginally appointed  by  the  influence  of  the  late 
administration;  and  am  not  surprised  that 
those  who  form  the  government  of  this  presi- 
dency, which  undoubtedly,  exercises  authority 
over  the  master,  cannot  swear  that  they  do  not 
think  the  servant  liable  to  the  controul  of  the 
government  of  this  presidencv. 

What  has  been  prodnced  m  support  of  tliia 
claim  ?  A  paper  which  In  called,  a  treaty  with 
Mobarick,  a  I^unnud  of  Neer  Jaffier  Ally  Kaun, 
the  affidavit  of  Roy  Rada  Churn,  and  two  let- 
ters to  the  governor  general,  which  are  called 
the  credentials. 

The  treaty  indeed,  by  its  first  article,  nomi- 
nally guarantees  to  hitn  the  possession  of  Ben- 
gal, Bahar,  and  Orissa ;  but  by  the  other  arti- 
cles, all  power  whatsoever  is  taken  from  hirai 
nothing  is  left  him  but  an  empty  title,  and 
81,81,991  rupees  annually  ;  even  that  sum  it 
appropriated,  all  but  16  lack,  to  his  household ; 
and  it  is  expressly  stipulated,  that  the  remain- 
ing 16  lack  should  be  expended  by  the  officer 
named  in  the  treaty,  in  maintuining  the  peons, 
&c.  of  his  swarry.  He  is  thereby  obliged  to 
keep  up  the  ensigns  of  power,  and  maintain 
the  outside  pomp  of  a  pcince,  by  the  very  in- 
strument which  is  an  actual  surrender  of  hia 
sovereignty,  if  he  was,  which  is  not  in  prooT, 
ever  possessed  of  it. 

It  was  stated  by  the  counsel  st  the  bar,  to 
induce  the  Court  to  believe  that  the  military 
power,  that  substantial  evidence  of  royalty, 
was  in  bis  hands,  that  he  kept  an  army  on 
foot:  what  does  it  turn  out  to  beP  a  mere 
swarry,  to  keep  up  ofteiisible  pomp,  and  make 
him  appear  what  ne  is  not.  It  is  a  miserable 
attempt  to  impose  on  the  Court.  As  to  the 
Bannud  of  Hecr  Jaffiofi  that  is  produced,  ta 

4C 


1 193J  15  GEORGE  III.  Trial  of  Joseph  Fmke  and  oihers,  [1 18( 


sbew  that  Muharick  has  a  right  to  a  miot,  ano- 
ther mark  of  sovereignly  :  does  it  prove  it  ?  It 
proves  that  the  East  India  Company  had  exer- 
cised the  right  of  coining  money ;  and  what 
they  posseMed  'More,  is  confirmed  to  them  by 
the  grant  of  Jaffier.  By  what  authority  the 
East  India  Company  daimcxl  it  before  this 
grant^  does  not  appear ;  it  does  appear  they 
exercised  it :  but  tnough  Meer  Jaffier  might 
be  a  sovereign,  how  is  Muharick  connected 
with  him  ?  no  title  has  been  attempted  to  be 
derived,  nor  any  succession  proved,  from  Jaffier 
to  Muharick.  Is  there  any  proof  that  Muha- 
rick ever  coined  money  in  bu  own  name  ?  He 
certainly  did  not.  All  this  is  mere  colour,  and 
•o  faint  that  1  can  hardly  induce  myself  to 
think  that  the  gentlemen  who  made  the  appli- 
cation do  themwlves  believe  what  they  are  de- 
furouB  the  Court  should  believe.  The  creden- 
tials, as  they  are  called,  instead  of  supporting 
the  cUim,  prove  expressly  that  Ro;p  Rada 
Chum  was  not  Vakeel  to  Mubarick,  either  at 
the  time  the  oflence  charged  in  the  indictment 
was  committed,  or  at  the  time  that  the  matter 
was  enquired  into,  and  Roy  Rada  Churn  bound 
over  by  the  judges  to  appear  at  the  present 
sessions.  He  was  appointed  two  years  ago  ; 
on  the  22d  May,  1775,  the  last  leUer  was  read 
by  the  governor  from  Mubarick  ul  Dowlah,  in- 
forming him,  that  Rov  Rada  Churn  had  been 
a  very  idle  person,  and  that  he  conceived  his 
having  a  Vakeel  as  an  useless  expence,  and 
there^re  he  had  dismissed  him  from  the  Ist  of 
Suffer,  which  corresponds  with  the  2d  of  April. 
The  fact  complained  of,  and  the  binding  over, 
was  all  in  April.  He  is  reinstated  the  SOlh  of 
May.  The  grounds  on  which  he  was  dis- 
charged are  worthy  observation ;  I  cannot  help 
feeliiifr  for  Mubarick,  who,  by  that  letter,  seems 
to  feel  his  own  situation  ;  he  thinks  the  having 
a  Vakeel,  or  as  lie  is  affected  to  be  called,  a 
public  minister,  was  needless,  and  the  expence 
unprofitable.  So  it  was :  had  he  any  affairs  of 
cun8e(|uence  to  negociate  here  ?  could  he  make 
war  or  peace  P  Why  was  Rada  Churn  dis- 
missed .'*  Jiecause  he  was  an  idle  person,  and 
because  he  was  chargeable  to  the  Nabob ;  he 
is  discharged  for  a  good  cause.     )s  any  reason 

ti;ivea  why  he  was  restored?  Had  he  become 
ess  idle.'  Had  Mubarick  more  business  to 
transact  ?  The  saving  his  salary  could  not  be 
great  during  his  short  dismission  ;  was  the  Na- 
bob grown  richer  ?  Why  then  was  he  restored  ? 
The  true  reason  is  too  obvious.  Roy  Rada 
Churn  had  got  into  a  disagreeable  scrape. 
Mubarick  was  desirous  of  protecting  him  from 
It.  Though  the  idea  of  protecting  in  this  man- 
ner is  by  no  means  Asiatic ;  1  will  not  suppose 
that  any  influence  other  than  the  personal  inte- 
rest of  Roy  lUda  Churn  was  exerted  over  the 
Nal>ob  on  this  occasion. 

We  next  come  to  Roy  Rada  Churn's  affi- 
davit. 1  think  the  person  that  drew  that  affi- 
davit, and  suffered  him  to  swear  to  it,  is  most 
highly  to  be  censured.  What  is  he  made  to 
swear  ?  That  he  now  is,  and  for  two  years  and 
upwards  last  past  has  been  resident  in  Calcutta, 


as  the  public  mbister  or  Vakeel  of  Muberick, 
except  for  about  the  space  of  tea  days  in  Hay 
last,  and  in  no  other  character ;    and  that  be 
has  been  charged  with  conducting  and  trawact- 
ing  bis  affiiirsa  with  the  East  India  Compaajr 
and  others,  at  this  presidency.    That  tbm  ■ 
not  any  other  public  minister  or  Vaked  of  ths 
Nabob  Mubanck  resident  in  Calcutta,  as  hs 
verily  believes.    This  last  is,  I  have  nodonk, 
perfectly  true,  and  he  might,  I  dare  say,  havs 
safely  added,  nor  any  other  place  wbataaever. 
The  letters  to  the  governor  general  are  ml 
credentially  for  transacting  businea  with  ths 
East  India  Company  and  others  ;    but  whit  I 
chiefljT  blame  is,  the  anSeriof  him  to  swev, 
what  IS  not  true,  that  he  resided  as  a  pahii 
minister  or  Vakeel,  when  he  was  not  VakecL 
It  is  said  he  did  not  know  till  these  letters  wcis 
shewn  him  that  he  had  been  dismlsaed ;  wkj 
then  did  he  make  an  exception  to  ten  days  ■ 
May  ?  He  most  have  known  it  when  be  iwmc 
the  affidavit ;  if  he  did  not,  the  affidavit  nigbi 
have  been  amended ;  if  it  was  not  ainendedl,rt 
least  it   should   have  been  explained  lo  ik 
Court  wiien  the  affidavit  was  read.     I  calM 
upon  the  counsel,  when  the  letter  was  read,  li 
acquaint  the  Court,  whether  the  facts  cliai|ri 
on  Roy  Rada  Churn,   and   the  eiK|airy  BU 
them,  was  during  the  time  of  his  dismisMii 
but  could  receive  no  answer.     He  that  dnv 
the  affidavit  must  have  known  it.     He  swcao^ 
he  was  in  the  character  of  Vakeel  for  two  yon 
last  past,  except  ten  days  in  May.     I  f  that  hd 
been  true,  he  would  have  continued  Vaked  tB 
after  the  time  he  was  bound  over.     He  tfaoagK 
or  rather  those  who  drew  the  affidavit  tbougll^ 
tlie  time  material.     It  is  plain  thia  oonU  oiC 
be  accident.    He  is  either  made  to  awear  nbl 
is  not  true,  or  to  prevaricate  most  abominablj. 
But  there  is  another  circumstance  in  f» kick 
the  drawer  of  the  affidavit  is  most  highly  cul- 
pable.    He  is  made  to  swear  to  what  he  cosU 
not  understand,  the  term  *•  public  minister;'  it 
conveys  ideas  that  are  hardly  to  he  expliM 
to  the  natives  of  this  country :  and  for  wlnl 
purpose  ?  Could  it  l>e  expected  that  the  Cosrt 
would  only   attend  to  the   sound    of  wordi? 
Could  it  be  thought  he  was  nearer  proving  hia- 
self  a  public  minister  on  whom  the  ri^bt  d 
ambassadors   would    attach,    hy    using  tkN 
words,  than  if  he  had  simply  sworn  nimclf 
Vakeel.^  There  is  no  affidavit  of  the  place  of 
residence  of  Rov  Rada  Chum  before  hit  frift 
appointment.     But  it  turns  out  from  thif  ifi- 
davit,  that  he  was  resident  here  before  bisbil 
appointment,    and   therefore    subject   to  ihl 
English  laws.     If  so,  he  is  answerable  hoti 
for  an  ambassador,  any  more  than  another  p^ 
son,  is  not  to  commit  crimes  with  impnni^* 
He  will  be  subject  to  that  tribunal  to  wbicbl^ 
was  subject  before  he  was  invested  with  hi 
public  character.     If  he  was  a  subject  of  ikt 
prince  who  sent  him,  he  will  be  subject  to  kii 
courts  of  law :   if  he  was  answerable  is  ikt 
courts  of  law  of  another  priuce,  he  must  Is 
called  upon  in  that  prince's  courts ;  if  be  vH 
before  subject  to  the  state  in  which  be  n  c^ 


e: 


p]    for  a  Consfiracy  against  (Varren  Haifings,  ciq,     A.  D.  1775. 
he  will  Blill 


[1126 


I'  Iwlur 


embauy  )ie  was  not  subject  to  llie  pi 
whoce  employ  lie  is,  Ilie  sole  a<.i  ut'  luikiug 
bim  BiobuBailor  will  not  tn^ke  dim  liable  to 
biscourlB;  except,  perliKji^,  in  inait^rB  ntiiuli 
relate  m  liisemWKy,  TUcie  are  itiffereocet 
of  u|iiiiioiui  un  tills  mibiecl,  as  1  slateit  the  Diher 
day  ;  but  I  lake  llio  ivawn  and  weight  of  au> 
lliurilietlu  be  un  Ibjsaide.  I  tlico  staled  wli^ 
Wicqurfuft  was  a  «lreauoug  op|>oser  of  this 
docirjue.     Byukershoeck  in  firm  in  tills  opi- 

Thus  iliitanili  un  lUe  evidence  In  support  of 
the  daioi.  It  is  mere  colourable  evidence; 
but  when  the  afliilsvits  on  the  ulher  side  arc 
rMd,  that  colour  liii mediately  vaiiishea, 

The  Governor  Geiier*!  sivears,  that  the 
late  ailmiiiistralinn,  by  Iheir  own  aullioiily, 
ftppointed  IVIonur  Begum  to  be  cuardlan  to  the 
Nabob,  and  Rajah  Goiidasii  Dewan  of  his 
household,  allowiog  eacb  of  Ihera  large  sala- 
(icA  :  that  llie  same  admiolslration  planned  mid 
coDalructed  criminal  and  civil  cuiirls  by  ibeir 
ovro  autliority,  without  turns ulting  the  Nabob, 
nr  requiring  his  concurrence  ;  the  civil  were 
made  ilependeot  on  tbe  prc^^ideocy  solely  ;  and 
th«  criminal,  Ihouifh  held  in  the  uame  of  tbe 
Nabob,  are,  ia  fad,  under  the  coatrnul  and  in- 
apectiou  of  the  servants  of  the  Bast  India  Com- 
puiy  :  that  the  manaj^ement  of  the  revenue 
(the  sinews  of  war)  are  entirely  iti  the  hand  uf 
tbe  Eaat  India  Company  and  their  represeala- 
live*,  without  the  smallest  parlicipalion  of  the 
Nabob :  ibat.  In  cunseiiuence  of  orders  from 
the  Court  of  Directors,  tbe  annual  stipend, 
which  was  allowed  blm,  waH  reduced  from 
31^1,991  rupees,  Id  16,00,000  rupees. 

By  what  authority  did  they  appulnl  a  guar- 
dian f  The  Company  had  no  natural  conaec- 
^n  by  blond  with  AIubLirick.  By  what  autbo- 
lity  did  they  appoint  the  Dewao  of  his  boui>e- 
hald,  and  allow  them  large  salaries?  It  could 
only  be  dniie  lu  their  political  capacity,  by  that 
luthority  which  Ibey  exercised  over  bim.  if 
the  treaty  given  In  evidence  was  In  the  nature 
tf  a  real  treat]'  »ilb  a  sovereign  prince,  where 
there  were  mutual  a|{reemeDls  and  cuntidera- 
tioQS.  how  came  this  stipend,  for  so  It  is  called, 
[■  word  hardly  applicable  to  an  independent 
tovereii^  prince)  to  he  reduced  to  ]|j,00,000 
rapeesf  By  what  authority  did  they  erect  the 
eourla  of  law,  aod  exercise  the  admiiiistrHllun 
of  justice,  without  any  com muai cation  with 
him  t  Had  he  himself  any  idea  be  wni  a  sove- 
reign? Duea  he  complain  of  ibe  reduction  of 
hit  stipend,  or  the  iofrineement  of  treaties? 
No:  He  coosider*  bimself^  uhat  he  really  Is, 
sbeolutely  dependent  on  the  Company,  aad  was 
willing  to  accefit  any  pillancethey  would  allow 
bim  for  his  maintenance.  He  claims  no  right. 
Doe*  he  complain  that  the  administratiou  of 
JDstice  is  taken  Into  the  hands  of  the  Com- 
Muy  ?  No :  by  the  treaty,  tbe  protection  of 
tia  subjects  ia  delivered  up  In  the  Company  ; 
tad  he  well  knew,  whoever  ie  held  op  as  the 
Oiteiuible  prince,  tbe  adminlElratioa  of^  justice 


mu^t  he  in  the  hands  of  those  who  have  poner 
to  enforce  It. 

The  Governor  General,  who  I  suppose  had 
a  delicacy  to  slale  more  than  »lii.l  lius  been 
before  made  public,  closes  bis  affidavit  iiiib 
saying,  all  that  he  lias  deposed  lo  he  believe* 
to  he  publiciv  kuown,  as  it  is  particularly  set 
forth  in  ihe  Reports  of  the  Commiiiee  uf  Ibe 
House  of  Commons.  1  knew  it  was  there,  and 
therefore  was  surprised  tti  this  appllitatiun.  It 
Is  so  noinrious  that  every  body  in  the  settle- 
meni  mutt  have  known  it ;  when  I  say  every 
body,  I  mean  with  no  exception  to  tbe  gentle- 
men who  spply  to  ihe  courL  The  only  reason 
1  can  giie  for  their  applying  if,  the  little  time 
ibey  have  been  in  Ibe  country,  and  the  want  of 
knowledge  of  former  iransaclions  of  govern- 
ment, and  Ibe  customs  and  manners  of  the 
people.  I  wished  tlie  Governor  Generst  bad 
pointed  out  the  passnjfe  to  them ;  fur,  if  he 
had,  it  ought,  and  1  hove  therefore  no  doubt 
would,  baie  prevented  this  appjlcalion, 

Tbe  Governor  General's  arodavil  proves  Ihe 
revenues,  iheir  collection,  the  whole  adminis- 
tration of  justice,  both  civil  and  criminal,  and 
even  in  sppointiiifr  the  officers  of  his  house- 
hold, to  be  in  tbe  Company.  Mr.  I^ane,  Mr. 
HiirsI,  and  Mr.  Vausitlarl,  all  meinbei'«  ufth* 
late  council,  depOKe  tbal  Ihe  military  Is  do  like- 
wise. They  swear  Ibat  Ihe  whole  military 
power  of  tbe  province  ia,  and  hn%  been  for  se- 
veral years,  entirely  under  the  coutroul  of  the 
Company  and  their  represen  la  lives.  Tbey 
■wear  that  he  performs  no  acts  of  sovereignty 
independent  of  and  without  the  consent  of  the 
represents  lives  of  the  East  India  Company. 
Nothing  therefore  is  left  to  Mubarick  butau 
euipty  title.  This  has  been  aald  to  lie  a  polj- 
lical  qtieatluti,  and  Ibat  Ihe  delermiuatinn  of  it 
against  the  right  of  the  Vakeel  might  be  pro- 
ductive of  quarrels  with  foreign  nalluos,  espe- 
cially Ihe  French.  I  think  It  can  have  no  such 
effect,  for  whether  tbe  lenitorial  auquluUons 
belong  lo  tbe  crown  or  the  company,  if  either 
oftbem  have  a  rlghl  to  execute  Bovereiguiy 
here,  and  chute  so  far  lu  postpone  their  own 
dignity,  as  to  set  up  another  person,  through 
whom,  and  in  whoae  name,  they  will  exercise 
the  power,  I  don't  know  that  any  foreign  state 
hat  any  riglil  to  complain,  nor  do  I  think  this 
delernrmalinn  can  affect  the  lE^alily  of  Ibe 
courts  eslablished  In  this  province.  All  that  ia 
determined  in  this  case  u,  that  Mubarick  nl 
UowUh,  who  baa  surrendered  bis  power  en- 
tirely Into  tbe  liands  of  the  English  Company, 
caoiiol  himself,  nor  can  tbe  East  India  Com- 
pany in  his  name,  protect  delintiiieniK.  !>ubject 
to  llie  jurisdiction  of  this  court.  IVom  being  pu- 
nished by  the  Inws  of  Great  Britain;  lliat  tbe 
ageuisofthe  East  India  Company  cannot,  by 
making  bim  the  instruuient,  do  indirectly  what 
they  would  not  do  directly.  It  cannot  be  a  po- 
litical queatlon  of  a  serious  nature  in  tbeopi. 
niooof  thei^entleueii  maklug  Ihe  claim;  bud 
It  been  to,  they  would  not  have  pressed  a  deci- 
sion on  II  In  this  very  unfavourable  cate.  It  ia 
no  right  tlaitiied  by  tbe  Nabob ;  both  be  u\d. 


1187] 


15  GEORGE  III.  Trial  of  Joseph  P&i^  mul  Men^  [IttK 


his  Vakeel,  as  the  Vakeel  as  to  himself  candid- 
ly rnnffss«'d  in  h\H  lueniorial,  were  wholly  ig- 
noraot  of*  the  riuhts  and  pri? ileges  to  which 
he  was  entitled  hy  the  laws  of  Great  Britaio, 
aa  ail  nnibasKAdor,  or  puhlic  minister :  if  any 
material  conscqupnces  fnilaw  from  it,  the  (gen- 
tlemen should  iiuve  been  backward  in  forcing^ 
us  to  a  di'i'iKioii ;  for  we  must  gite  sach  an 
opinion,  whatfrer  may  be  the  consequences,  as 
we  think  founded  in  law.  They  were  to  jndg^ 
of  the  politics.  They  have  thought  it  rifrht  to 
have  it  determine<l.  The  evidence  is  before 
lis ;  we  cannot  determine  contrary  to  it.  We 
mustjtidtre  by  laws,  not  by  politics.  Perhaps 
this  question  mifjcht  have  been  determined 
merely  on  the  dates  of  the  letters  to  the  |^o- 
yernor  general ;  but  as  the  counsel  have  made 
the  other  a  serious  question,  I  should  not  have 
thouifht  that  I  had  done  my  duty  if  I  bad  not 
given  a  full  ami  determinate  opinion  upon  it.  1 
should  have  been  sorry  if  I  had  lefl  it  doubtful, 
whether  the  empty  name  of  a  nabob  could 
be  thrust  between  a  delinquent  and  the  laws, 
so  as  effectually  to  protect  him  from  the  hands 
of  justice.  Had  this  been  allowed,  I  don't 
know  how  far  it  might  have  lieen  carried  ;  the 
rights  claimed  extend  not  only  to  the  ambas- 
sMor,  but  his  family  and  servants.  It  is  pro- 
per that  the  public  should  be  relieved  from  the 
anxiety  they  must  necessarily  be  under  from 
such  a  doubt.  It  is  proper  Mubarick  should 
be  informed  of  our  opinion,  that  he  may  not 
make  the  same  attempt  in  future. 

The  rights  of  ambassadors,  as  we  have  been 
treating  of  them,  are  founded  on  jus  gentium 
in  Europe ;  it  is  by  no  means  clear  that  pre- 
cisely the  same  ideas  rule  in  this  great  penin- 
sula of  Hindustan,  where  the  laws,  customs, 
Aid  manners  of  the  nations,  that  inhabit  it,  are 
as  dissonant  from  those  of  the  nations  in  Europe 
as  the  country  is  far  removed  from  it.  We 
know  by  history  that  the  character  of  an  am- 
bassador of  a  certain  rank  is  held  sacred  here, 
or  perhaps  more  so  than  in  any  part  of  Europe, 
hut  does  it  follow,  tliou|rh  in  Europe  the  rights 
of  ambassadors  are  given  to  all  public  ministers 
of  whatsoever  denomination,  that  it  is  so  in  this 
country?     Has  there  been   any  proof  of  it. ^ 


character  which  he  eoaM  send  hiiB»  ctnalhivs 
any  pretensions  to  the  full  ripf bit  of  ai  anbH- 
sador  sent  from  a  sovermgn  iDdepciideot  priaeti 
The  highest  light  sach  miDister  eovMbaiv- 
ceived  in  would  be  (which  ia  cMrryiagit  a  pftk 
wavj  that  of  the  provincial  or  manieipal  anli^ 
sadors  sent  to  Rome  in  the  time  of  Ibe  Roma 
empire.    They  were  oonsidered  rather  as  Nflh 
datarii  or  ProcuratoreSi  and  were  ameaaUe  li 
the  courts  at  Rome  for  ofiences  commitled^a^ 
ing  their  anibassy.    This  coontrj  doesappw 
to  me  in  some  measure  in  the  natarc  of  s  p» 
vince.    I  would  observe,  what  has  been  bHat 
observed  b}'  several  aothora,  thai  the 
of  ambassadors  from  fareigo  princea 
ministers  who  were  sent  from  the  provii 
towns  sutgect  to  the  empire,  elewa  op  Htf 
which  otherwise  in  the  Roman  law  aetinscw 
trary  to  the  ius  gentium^  as  now  uuiluriMi 
concerning  the  rights  of  ambaaaadors ;  wtah 
ever  is  said  derogatory  to  those  rights  is  wbai 
they  are  treating  of  provincial  muiricipal  ai^ 
sters.    Of  the  rights  of  those  of  foreigv  psvai 
no  nation  entertained,  in  general,  an  higtar» 
verence,  or  acted  with  greater  delieaey.  h 
the  infancy  of  Ronia,  when  the  amhaasMMtf 
Tarqnin  conspired  with  some  of  the  Bsmi 
citizens  to  restore  him,  Livy  aays,  I.  ii.ci 
**  Proditoribosextempio  in  vineola  conjeeti^* 
legatis  paululam  addnbitatum  eat,  el 
visi  sunt  commisisse  nt  hostium  loco 


tamen  gentium  valuit.*'    They  aeled  endk 
conformably  to  the  present  idea  of  the  kwif 

nations. 

I  am  glad  I  am  reminded  of  the  appKaia 
for  punishment ;  it  would  not  have  escaped Hi^ 
1  was  on  the  point  of  coming;  to  it:  it  wnfr 
manded  in  the  memorial,  in  the  letter  km 
council,  and  is  again  repeated  Irom  the  essssl 
at  the  bar.  That  is  indeed  treating  this  iliir 
with  a  very  high  band.  In  my  opinion,  ike 
application  is  indecent  and  unjust.  Wheat 
the  persons  to  be  punished  ?  The  prusecrtf 
and  those  who  served  the  process.  Whs  ii  ^ 
prosecutor?  The  governor  general,  the  kt 
niat(istrate  in  this  settlement.  The  very  f^ 
Kous  who  apply  to  have  him  punished  very  sd 
know  no  punishment  cau  be  inflicted  upoo  his 
There'is  to  the  contrary.  Mr.  liurst,  I^lr.  i  hy  the  court.  The  caUing  for  it  is  indeoaiK 
Lane,  and  Mr.  Vansittart,  who  has  resided  long  I  the  highest  degree.     A  punishment  cau  unlflt 


in  this  country,  swear,  they  never  understood 
that  a  |)ersou  residing  under  the  denomination 
of  a  Vakeel  was  a  public  minister,  intitled  to 
the  rights  of  an  ambassador  ;  but  that  they 
conceive  Kuch  a  person  liable  to  the  local  juris- 
diction of  the  courts  ciril  and  criminal  where 
he  resides.  What  is  there  to  oppose  this?  In 
Europe  there  wns  a  time  that  these  were  at 
some  courts  denied  to  aufents  and  residents.  As 
I  have  bf  en  informed  that  one  oi'  the  gentle- 
men of  the  council  has  served  in  the  t-haracter 
of  a  public  minister,  1  will  not  suppose  him  not 
acquainted  with  the  law  of  nations  on  the  sub- 
ject. 

I  do  not  Sfo  so  far  as  to  say  that  M  ubarick  ul 
Dovirlah  might  not  have  a  public  minister 
here ;   but  I  tliink  the  minister,  in  the  highest 


inflicted  for  a  crime ;  it  must  he  known  bra* 
the  counsel  and  his  clients,  that,  except  of 
son  and  felony,  the  governor  gencTsI  Aid 
cil  are  exempt  from  the  criiniual  jusUceeHk* 
court.  Th(»se  who  served  the  pro<*e«s  did  il^ 
express  command  of  all  the  jiidg^es  :  isH^ 
.  cent  to  apply  to  have  them  puniHbed ?  hi 
I  not  like  taking:  out  a  pnicess  in  a  civil  i* 
I  which  is  the  voluntary  act  of  the  party,  asi* 
no  coercion  of  any  order  from  a  mai;i»trale.  ^ 
it  just  that  any  one  should  lie  punished  mi  v 
arcount  ?  The  Vuketl  kuvs,  he  wa>  igiH4»i 
of  ttiC  rights  now  rlaimed  for  him  nhes  ^ 
was  briund  over.  He  had  no  apprebetwiua  (^ 
he  ha  I  such  rights :  could  it  be  su.  posed  ^ 
those,  who  sened  the  samrauns,  and  tdm 
under  the  order  of  the  jiidgeS|  ooaM  besf^ 


P|H]  for  n  CoHipiracy  against  Warren  HnUings,  e>q.  A.  D.  1?' 
«4()r those  righu  that  Roy  ftaita  Chi 
•elf  wai  ignuranl  off  Ou  what  iilea  i 
Ibeo,  can  a  demanil  be  niBile  lo  |iudiiIi 
BBen,  icljng  expressly  under  ihe  orclvr  of  til 
Ihe  judg^,  fur  TiolatiDK  rig-hls  wbicli  lh«y 
nef  ar  heard  uf,  anJ  wliich  io  fact  Jo  Dot  exist  P 
But,  wa>  it  a  ran  for  jiuLiialiiDeDI,  I  ihoiild  bs 
of  opinion,  Ibat  a  pumsiiineni  sliould  becletia- 
•d  nmilar  In  that  inflictnl  at  Naples  on  eat  of 
tfae  principal  otticen  of  an  ambaBsador  from  an 
Jl«lnn  pnpce ;  it  wa«  (be  Pope's  nunolo.  Hin 
reverence  had  bet-n  found,  by  the  ofltcers  of 
tfae  police,  in  B  public  brolbel;  they  hurried 
hiin»WHy  lo  Ibe  mapatrales ;  nbo  declared, 
that  the  aanctiiy  of  his  character  exempted 
faim  from  Ibpir  juriailiclion :  the  reverend  father 
eompUined  in  his  reverend  excellence,  who 
omnplaine*!  to  the  viceroy.  The  viceroy  was 
MceDsed  at  (he  indif^ity  which  had  been  put 
on  so  hi);h  an  officer  of  the  nuncio  ;  and  re- 
solved tw  piiniah  il  wilh  all  the  severity  due  to 
•a  |;roH  an  uu(rD(,re  on  the  law  of  nations.  He 
oondemneiJ  the  officers  of  the  police  to  this  in- 
tiimoua  panishmant ;  that  they  should  be  car- 
riad  through  all  tbe  markets,  streets,  sod  pub- 
lie  places  iu  the  cilv.  with  this  scandalous  label 
oa  Iheir  backs:  "Tbe^e  men  are  exposed  to 
•hame,  becauaeibey  vmuid  noisufTerlhe  revr- 
read  lather,  (irnt  mini'der  and  oonlidrnt  cf  his 
r*verend  excelleocy,  ibe  nuncio  of  our  holy 
ftthertbe  Pope,  to  indulge  hiniaetf  in  tbe  inno- 
cent recreation  of  (be  slews." 

The  more  1  consider  i(,  the  more  I  am  scan- 
dalized at  the  affidavit  made  liy  Hoy  Itada 
Chum  i  I  do  not  so  maeh  blame  hiiD  as  the 
drawer:  it  it  jcaDdalous.  il  is  Baglttnos,  to  lei 
ttim  atvear  to  bis  being-  a  public  minister,  an 
idea  which  is  alinust  impossible  M  be  e.vplaincd 
to  him ;  to  make  him  swear  lo  what  is  not 
troe,  aa  it  (urns  oul,  that  he  was  a  public  mini- 
ster, or  Vakeel,  for  upwards  of  (wo  years,  wilh 
tbe  exrepiioii  only  uf  ten  days;  those  who 
made  tbai  pxceplion  lor  him  ranat  have  known 
tliat  he  was  wiihiiut  ibai  cliaracler  fur  a  longer 
time.  )f  I  sifsin  see  an  atiidaiit  of  Ibis  nature, 
■worn  by  a  native,  we  wilt  inquire  who  drew 
Die  affidavit,  and  the  court  will  animadvert 
nroat  severely  upon  him  :  il  is  not  to  t)e  endur- 
ed, that  the  couscieaces  of  tbe  natives,  awear- 
in<;  io  a  tbreign  lanj^uage,  should   be  thus  en- 

I  consider  this  to  be  an  attempt  of  Mobsrich 
(for  I  ilesire  it  to  be  understood  clearly  (ha(  I  do 
vol  auppose  auy  inflnence  exerted  over  him  in 
this  cnsp),  (o  see  how  tar  the  court  vrouM  nuffer 
him  to  iater[n)9ehim»p|rbetwceii  crimiiiBls  and 
justice;  an  altenipi  the  more  bold,  as  the 
party,  tntenilnl  to  lie  screened,  was  sctually 
ander  nrosecutlon  helrire  the  writing  the  pre- 
tended letters  of  cradeiice. 


'Mr.  Justice  Chaniltn.  I  sijTee  with 
lord  chief  justice  in  opinion,  that  Hoy  Rsda 
Chum  is  not  eniiiled  to  exemption  fiom  tliis 
prnsnsulion,  aud  (hat  the  indiclment  niicht  nol 
to  be  uuished ;  though,  in  de)ivsrin[[  the  rea- 
I  or  my  opinioa,  I  maj  not,  perhaps,  ex- 


fiiao 

pressly  and  entirely  assent  to  all  tba  poaiiiana 
from  which  his  lordship  has  dcducad  that  von- 
cluaioD. 

In  cousiderini;  (hia  subject,  I  shall  nearly 
dlaw  the  method  observed  by  tliu  sdvocB(* 
bo  made  this  motion  on  tbe  part  of  Ibe  India 
CoiBpDny ;  and  shell  ahortly  exatnine,  Isl, 
The  ri);h(  of  the  India  Compsny  to  reoeive 
ambassadors;  Sdly,  The  priiilegea  of  ainbaa> 
sadors  so  received;  and,  Sidly,  Whether,  id 
faci,  Roy  Kada  Churn  is  now,  and  was  at  tbe 
time  when  the  olfeuce  was  committed,  actually 
invested  with  the  character  of  on  ambaaaadsr, 
by  having  been  duly  appointed   and  duly  re- 

That  the  East  India  Company  has,  in  India, 
a  right  to  make  war  and  peace,  will  not,  I  be- 
lieve, be  denied ;  and  I  agree  with  my  lord 
chiefjustice,  that  the  right  of  making  war  and 
peace  is  the  chief  ground  of  seuding  and  re- 
ceiving ambassadnrs.  That  law,  by  wbicb  tba 
person  of  an  ambassador  il  lecured  from  vio- 
lation, is  nnicersally  allowed,  because  universal 
reason  has  demonstrated,  that  of  war  them 
could  be  no  end,  unless  some  man  ini^bl  safdjr 
propound  (he  trrms  of  peace ;  and  that  a  ceasa- 
tion  of  hoMilitiea,  produi-ed  by  mere  lassitude, 
could  not  long  continue,  unless  an  ambaasador 
tnighl  safely  offer  eoodilions  for  ita  conti- 
nuance. The  power,  (hrrflore,  of  receiving 
amiMissadors,  does  not  apjiear  (o  me  (o  be  mcb 
an  incident  to  the  righl  of  making  war  and 
peace,  as  may  or  may  not  accompany  ita  sab- 
lect:  it  aerniB  rather  to  be  an  essential  pto- 
withoat  wbicb  the  subject  cannot  exist, 
such  power,  it  would  not  be  a  right 
if  making  war  and  peace,  bul  a  right  of  making 
war  without  poaailiiitty  of  end  ;  a  viuhi,  which 
every  sound  moralist  will  allow,  thai  uiao  can 
neither  pnsseas  not  conter. 

Many  instances  miifht  be  given  of  viceroys 
and  generals,  who,  by  vlviiie  of  a  ilulegated 
power  to  make  war,  liave  sent  awl  recnvad 
ambassadors.  In  the  preteni  case,  as  tite 
power  of  making  war,  delegated  by  the  crown 
to  the  East  India  Company,  is  conpnieil  to 
the  East  Indies,  their  reception  of  ambassa- 
dors must,  I  conceive,  have  the  same  limits  ; 
and  an  amhasBsdor  to  the  EaM  India  Company 
may  be  received  in  thia  eelllemrot  by  Iha 
Company's  repreaenlatives,  tlie  governor  and 
ooiineit. 

2.  Tbe  privileges  and  exemptions  of  am- 
bnsiadors  so  ret-eived  must,  I  ronwive,  be 
the  same,  which  they  mii;hi  lawfully  ilaiai  if 
Ibey  had  been  rereiieil  in  England  by  the  kini; 
himself.  The  Eiiil  India  Company  can  nei- 
ther wage  war.  nor  receive  nn  aintaassador,  bj 
any  in[rinsic  authority  nf  its  own  t  it  di>es 
boib  by  ihe  aulhorily  of  the  king  of  Great 
Rrilnin,  and  nmler  sanclian  of  his  sovereignty. 
The  ministiT,  whiise  public  cbiracler  ia  ae- 
knowledged  hj-  virtue  of  this  «lvlr«iile'l  power, 
may  be  considered  as  acknowledged  by  Ihe 
kint;  hinisrtf,  and  may  theirfore  euppct  from 
the  king's  court  tbe  tiumunitiea  due  to  that 
character. 


wlihoii 


1 131]  15  GEORGE  IIL  Trial  qfJot^h  JFVw^  and  others^  [IIS 


.  1  hafe  already  said,  that  the  firtt  peat  im- 
munity of  an  amliaisador,  the  seeonty  of  his 
Jife,  depends  on  natural  law  aniversally  oh- 
■erred;  and  it  may  not  be  improper  to  add, 
that  it  is  obsenred  by  Mahometan  princes,  twen 
towaids  Christian  enemies,  not  merely  by  imi- 
tation, but  as  a  reli^pous  and  moral  duty  '  que 

*  sine  peccato  committi,  nequeunt,'  I  say  this 
on  the  credit  of  Relandus,  in  his  Treatise,  *  de 

*  jure  militari  Mohammedaooriim  ooutra  Chris- 

*  liaqos  helium  g^erentium ;'  but  1  mention  it 
rather  as  matter  of  curiosity,  than  of  impor- 
tance to  the  question  before  us ;  because  he 
says  nothing  of  other  privileges  that  pass  be- 
yond personal  security ;  and  also,  because  I 
take  it  to  be  clear,  that  in  Eog^Und  the  ambas- 
sador of  the  most  inconsiderable  Mahometan 
state  is  entitled  to  the  same  exemption  from 
eivil  and  criminal  jurisdiction,  which  is  allowed 
to  the  minister  of  the  most  powerful  prince  in 
Christendom. 

3.  It  is  of  more  importance,  in  the  present 
case,  to  enquire  what  the  facts  are  on  which 
Roy  Rada  Churn  founds  hia  claim  to  be  exempt 
firom  prosecution.  He  states  himself  '*  to 
have  been  for  above  two  years  (--*---)  Vakeel, 
or  public  minister,  of  Mubarick  ul  Dowlab, 
Nabob  of  Bem^al,  6cc,  and  changed  with  the 
Gonilnctinff  and  transacting  his  afiairs  and  con- 
eems  with  the  honourable  East  India  Com- 
pany and  others,  at  the  Presidency  of  Fort 
William."  This  is  by  no  means  a  dear  and 
sufficient  description  of  an  ambassador ;  and 
it  is  certain,  that  our 'ideas  of  an  ambassador 
are  not  necessarily  comprized  in   the   term 

*  Vakeel,'  which  generally  means  no  more  than 
agent,  and  b  frequently  applied  to  very  low 
people,  employed  by  private  men  in  the  ma- 
nagement of  their  afiairs.  It  is  true,  that  if 
lie  be  really  a  public  messenger  sent  by  a  sove- 
reign, with  authority  to  represent  his  person  to 
a  foreigp  power,  he  must  be  intitled  to  the 
legal  privileges  and  exemptions  of  an  ambas- 
sador, by  whatsoever  title  or  denomination  he 
is  distinguished.  But  I  know  that  the  term 
(•----)  Elciiey  is  as  much  appropriateil  to 
the  office  among  the  Mahometans,  as  ambas- 
sador is  in  Europe  ;  snd  it  has  not  been  proved, 
that  a  public  minister,  either  of  the  first  or  se- 
cond order,  is  ever  jcalled  a  Vakeel :  neither, 
if  proved,  would  it  in  any  degree  avail  Roy 
Rada  Churn,  who  appears,  on  examination, 
not  to  have  been  in  fact  employed  by  Mubarick 
ul  Dowlah,  either  at  the  time  when  the  offence 
with  which  he  is  charged  is  sworn  to  have 
been  committed,  or  at  the  time  when  the  en- 
j|uiry  into  it  was  set  on  loot.  The  Nabob  savs, 
in  one  of  his  letters  now  given  in  evidence,  that 
be  had  dismissed  Roy  Rada  Churn  from  the 
1st  of  Suffer,  that  is,  from  the  2nil  of  April 
last ;  and  the  subsequent  letter  replacing  him 
was  not  received  by  the  governor  general  or 
council  till  the  30th  of  May  ;  during  which  in- 
terval both  these  events  happened :  this,  in  my 
opinion,  entirely  puts  an  end  to  his  claim  of 
exemption  ;  for  surely  no  one  will  say,  that  his 
second  appointment  as  Vakeel  ought  to  put  a 


stop  to  a  prosecution  already  commeneed,  far 
an  offence  committed  while  he  resided  here  as 
a  private  man. 

In  the  last  centory,  Wicquefort,  m  native  sf 
Amsterdam,  who  had  an  employment  with  a 
salary  under  the  Sutes  General,  was  appoiolcd 
by  the  duke  of  Lunenboarg  to  be  hia  nsideit 
at  the  Hague :  while  he  remained  there  in  tkit 
capacity,  be  was  tried  by  the  oonrt  of  HoUini, 
for  revealmpf,  by  letter,  some  secrets  of  the  re- 
public, which  it  was  his  duty  to  have  ooa* 
cealed,  and  was  condemned  to  perpetual  ib- 
prisonment  and  forfeiture  of  goods.  Of  tlM 
treatment,  as  of  a  violation  of  the  law  of  na- 
tions, he  complains  in  a  work  which  he  pok- 
lished  soon  after.  While  those,  who  defended 
the  decision  of  the  Dutch  court  of  justice,  is^ 
sisted,  that  if  a  native,  or  settled  inhabilastrf 
any  country,  is  appointed  by  a  foreign  prisee 
to  be  his  ambassador  in  that  country,  ne  cosli- 
nues  subject  to  the  same  iurisdiction  as  bdr«f ; 
this  has  been,  among  the  writers  of  natsnl 
law,  a  disputed  question  ever  since ;  sad,  to 
avoid  the  necessity  of  determining  it  for  the  h- 
ture,  both  the  sUtes  of  Holland  ami  the  Frendi 
court  have  resolved,  that  they  will  not  here- 
after receive  a  sulyect  of  their  own  as  an  s» 
bassador.  But  had  Wicqnefort's  offence  bare 
committed,  and  the  prosecution  against  hia 
been  commenced,  before  the  duke  of  Lssa 
bourg  made  him  his  minister,  1  believe  no  osc 
would  have  dreamed  that  this  new  chands 
could  stop  the  -course  of  justice,  and  eies^ 
him  from  punishment. 

Being,  for  this  reason,  clearly  of  opiaios, 
tliat  the  indictment  against  Roy  Rada  Cbsm 
ought  not  to  be  quashed :  I  thiuk  it  unncea- 
sary  to  determine,  whether  the  ^'abob  Ma- 
barick  ul  Dowlah  is  a  sovereign  indepesdcsl 
prince,  who  can  give  to  his  messenger  the 
privileges  and  immunities  of  au  ambassador. 
Were  there  no  objection  to  his  sovereign^ 
and  independence  but  his  nominal  subordiai- 
tion  to  the  Mogul,  1  should  not  |>erhaps  bcfi- 
tate  to  say,  that  if  he  and  his  ancestors.  Sob- 
ahdars  of  Bengal,  have  exercised  the  power  «f 
making  peace  and  war,  they  have  as  good  • 
right  to  receive  ambassadors  as  the  princes  aoJ 
free  towns  in  Germany,  which  owe  a  nomiaal 
obedience  to  the  em|>eror  and  laws  of  the  eoi- 
pire  ;  but  the  difficulty  which  I  feel  is  grcslir 
in  itself,  and  more  perplexing  on  accouniof 
its  consequences :  on  the  one  hand,  it  appesit 
hy  a  very  solemn  treaty,  very  lately  executed, 
the  English  India  ComfMiny  have  guaranteed 
to  the  Nabob  the  possession  of  the  three  pre- 
vinces  of  Bengal,  Bahar,  and  Orissa,  with  tbi 
title  of  Subahdar :  on  the  other  hand,  it  is  ma- 
nifest, partly  from  the  depositions  of  the  go- 
vernor general  and  other  gentlemen,  that  be 
has  no  military  force,  no  revenue  except  s  pes- 
sion  from  the  Company,  and  no  share  in  tk 
distribution  of  justice  throughout  the  couoinr, 
except  a  nominal  superintendence  over  IM 
criminal  courts. 

In  this  state  of  things  (the  cause  before  res 
not  calling  for  such  determination)  1  sboold  ast 


1 133 J    for  a  Compiraeif  against  Warren  Hastings^  esq.     A.  D.  1775.  [llSt 


think  myself  obliged,  wbaterer  might  be  my 
private  opinion,  unnecessarily  to  decide,  that 
the  king  my  roaster  is  not  sovereign  of  these 
provinces ;  and  to  decide  that  he  is,  I  would 
wish  likewise  to  avoid,  because  the  parliament 
seems  cautiously  to  have  avoided  it,  by  found- 
ing the  jurisdiction  of  this  court,  over  those  who 
do  not  reside  in  Calcutta  or  the  inferior  facto- 
ries, on  personal  not  on  local  subjection ;  and 
because  such  a  decision  might  engage  us  in 
quarrels  with  the  French  and  other  European 
nations  who  have  possessions  in  Bengal. 

Mr.  Justice  Lemaistre»  I  desire  to  testify  my 
acquiescence  to  every  part  of  my  lord  chief 
justice's  learned  and  ingenious  argument :  and 
desire  to  be  understood  as  giving  no  precise 
opinion  m  to  the  question,  whether  or  no  the 
Bast  India  Company  can  or  cannot  send  and 
receive  ambassadors,  or  public  ministers, 
upon  whom  the  rights  of  ambassadors  or  pub- 
Kc  minbters  (as  acknowledged  in  Europe)  will 
atuefa. 

Though  I  am  very  far  from  acceding  to  my 
brother  Chambers's  opinion,  that  such  right 
actually  does  exist  in  the  East  India  Com- 
pany, as  a  necessary  incident  to  that  Kmited 
light  of  making  peace  and  war,  which  they 
bave,  from  his  majesty's  charter,  for  the  pro- 
taetioo  of  their  settlements  ;  I  think  it  a  ques- 
tioo  of  great  consequence,  which  will  admit  of 
a  considerable  degree  of  doubt,  and  ought  not 
to  be  determined  without  argument,  and  upon 
mature  deliberation. 

Every  definition  of  an  ambassador,  or  public 
minister,  that  1  have  met  with  in  the  book,  is  a 
person  sent  from  one  sovereign  to  another, 
with  authority,  by  letters  of  credence,  to  treat 
opon  affairs  of  state.  I  cannot  admit  any  right 
of  sovereignty  in  the  East  India  Company  ;  in 
avery  charter  granted  to  them  by  the  crown, 
there  is  an  express  reservation  of  soverei(;nty 
to  the  king  of  Great  Britain,  his  beirs  and  suc- 
ccaaors  ;  and  1  am  inclined  to  think,  by  some  of 
the  late  charters  granted  to  the  East  India 
Company,  that  their  rights  under  former 
charters  nave  been  very  strictly  cooftrued,  and 
that  no  more  jura  regalia  have  been  allowed 
them,  beyond  what  expressly  appears  upon  the 
fSnee  of  such  grant. 

When  the  East  India  Company  had  taken 
plunder,  it  was  doubted  if  that  plunder  could 
le  vetted  in  them,  without  the  king's  grant. 
IL  charter  was  therefore  applied  for,  and  granted 
lor  that  purpose. 

When  they  were  inclinable  to  conclude  a 
treaty  of  peace,  they  had  considerable  doubts 
how  far  they  could  give  up  any  forts  or  places, 
the  sovereignty  of  which  was  vested  m  the 
grown.  Application  was  made  for  a  charter  to 
Ilia  purpoM;    which  they  likewise  obtained. 

Surely  the  having  the  property  in  plunder, 
ind  the  right  of  surrendering  forts  and  places, 
Bkeo  by  their  forces,  are  as  necessary  incidents 
lo  a  riij^t  of  making  peace  and  war,  as  the  re* 
imwlng  ambassadors ;  and  if  the  king's  law 
lilccra  doubted  as  to  these  pointSi  and  dkl  not 


I  consider  them  as  incidental  to  the  power 
granted  by  former  charters,  I  think  the  pre* 
sent  matter  full  as  doubtful  and  deserving  of 
consideration. 

With  regard  to  this  phantom,  this  man  of 
straw,  Mo&ricfc  ul  Dowlah  :  it  is  an  insult  to 
the  understanding  of  the  Court,  to  have  made 
the  question  of  his  sovereignty. 

But  it  came  from  the  Governor  General  and 
Council :  I  have  too  much  respect  for  that  body, 
to  treat  it  ludicrously ;  and  1  confess  I  consider 
it  seriously. 


Mr.  Justice  Hyde,  I  am  very  happy  to  find 
I  agree  in  opinion  with  my  three  brethren,  that 
Roy  Rada  Chum  is  not  intitled  to  the  privilege 
claimed  for  him  by  the  Governor  General  and 
Council,  not  claimed  by  him. 

My  brother  Chambers  seems  to  diff^,  but 
does  not  really  difi*er,  from  my  lord  chief  jus- 
tice ;  for  no  opinion  was  declared  by  his  lord- 
ship on  the  right  of  the  Company  to  receive 
ambassadors. 

^  My  brother  Chambers  hat  declared  his  opi- 
nion, that  the  Company  have  such  a  right.  I 
desire  to  be  understood  to  give  no  opinion  on 
the  subject,  whether  they  can  or  cannot  receire 
ambassadors,  who  will  be  entitled  to  all  the  pri- 
vileges annexed  to  that  character.  It  is  unne- 
cessary to  decide  the  question  in  this  ease,  be- 
cause the  situation  of  the  person  sending  is 
sufficient  for  the  decision :  but  whenever  it 
does  arise,  it  will  be  a  question  of  great 
consequence,  and  will  deserve  much  con- 
sideration ;  the  safety  of  this  town  may  de- 
pend on  it :  if  it  shall  be  understood  that  public 
ministers,  with  the  vast  retinue  which  the  cns- 
tom  of  this  country  requires  to  attend  them, 
are  exempt  from  any  legal  restraint,  it  may  be 
attended  with  great  inconvenience ;  ev#n  the 
possession  of  the  town  may  be  hazarded. 

The  substantial  reason  for  the  privileges  of 
ambassadors  is,  that  persons  may  with  safely 
come  to  treat  of  peace  or  war ;  but  it  does  not 
appear  to  me  necessary  for  that  purpose,  that 
they  should  be  exempt  from  all  legal  restraint. 
When  the  question  comes  before  us,  it  may 
be  necessary  to  be  informed,  and  to  consider, 
what  rights  are  understood  in  this  country  in 
Hindustan,  to  be  conferred  on  ambassadors  ; 
and  whether  the  customs  of  this  country  do  not 
make  a  distinction  in  the  degree  of  the  person 
sent,  giving  to  one  styled  elchee,  privileges 
which  are  not  given  to  a  vakeel. 

By  the  treaty  which  has  been  read,  it  ap- 
pears, Mubarick  ul  Dowlah  deprives  himself  of 
the  great  ensigns  of  sovereignty,  the  right  to 
protect  his  own  subjects :  he  declares  that  shall 
be  done  by  the  Company. 

The  act  of  parliament  does  not  consider  him 
as  a  sovereign  prince  ;  the  jurisdiction  of  this 
court  extends  over  all  his  dominions,  to  such 
persons  who  sre  servants  of  the  Compan}'  or  of 
any  British  subject,  and  to  every  one  of  his 
subjects  who  chooses  to  submit  himself 
to  our  jurisdictk>n  and  exempt  himself  from 
that  of  his  courts,  by  making  a  oontroul  above 


1 185]  IS  GEORGE  UI.  Trial  of  Joseph  Fmke  snd  M^Sf  [1  IN 

MO  rbpees  in  value,  n4  dedarin^  any  dispute 
on  it  shall  be  determined  in  this  court  only;  to 
that,  if  we  allowed.thU  claim,  his  vakeel  would 
be  the  only  person  in  his  dominions,  to  whom 
he  €*ould  extend  the  arm  of  protection. 

Roy  Rada  Churn  has  not  produced  his  in- 
■trucuons,  which  ou^ht  to  have  been  done,  to 
shew  he  caciie  on  public  business,  such  as  is  the 
proper  subjrrt  of  treaty  between  sovereign 
powers ;  for  whst  appears,  if  this  were  a  proper 
place  tor  it,  his  busmesaas  a  vakeel  might  be 
to  buy  liurses. 

On  the  whole,  theri^fore,  I  am  of  opinion, 
the  defendant  is  not  intitled  to  the  privilege 
claimed  tor  him,  because  1  think  the  situation 
9f  the  person  sending  him  is  not  such  as  will 
enable  him  to  confer  the  character  of  ambas- 
sador. 


July  6th,  1775. 

Present  all  the  Judges. 

The  Chief  Justice  oommnnicaled  to  the 
Court,  the  following  liCtter,  which  he  had  re- 
ceived from  the  Governor ^jleneral  and  Council, 
iDoiosing  a  copy  of  a  Letter  from  the  Nabob 
Mobarick  ui  Dowlah* 

"  To  the  Hon.  Sir  Elijah  Impey,  knight,  Ro- 
bert Chambers,  Stephen  Cfcsar  Lemaistre, 
John  Hyde,  Esqrs.  Judges  of  the  Supreme 
Court  of  Judicature. 

"  Honourable  Sirs ;  We  beg  leave  to  trans- 
mit, for  your  information,  the  translation  of  a 
Letter,  which  we  have  just  received  from  the 
Nabob  Mubarick  nl  Dowlah  ;  fVom  which  it  will 
appear  that  he  looks  upon  himself  as  Soiibah 
of  these  provinces,  and  Roy  Rada  Churn  to  be 
his  vakeel ;  we  request  that  you  will  be  pleased 
to  inform  us  in  what  light  we  are  to  consider 
those  declarations,  which  we  understand  have 
been  made  from  the  bench,  publicly  denying 
the  sovereignty  of  the  Nabob,  that  we  may 
know  how  to  act  when  any  case  occurs  with 
Tesi>ect  lo  the  signing  of  warrants  for  the  exe- 
cution of  criminals  ;  or  what  answer  we  must 
^ve  to  foreign  companies,^nd  particularly  the 
French  nation,  who,  the  better  to  a<tsert  their 
claims  of  independency,  maintain  with  us  the 
same  argument  which  we  understood  has  been 
used  by  sir  Elijah  impey,  that  there  is  no  dou- 
ble government  in  this  country,  and  conse- 
quently that  tlie  proceedings  of  the  Courts  of 
Dewanny  against  their  subjects,  who  reside 
without  those  places  which  have  been  assigned 
to  them  by  the  treaty  of  Paris,  are  direct 
attacks  of  the  English  nation  against  that  of 
France. 

<•  If  it  be  true,  that  the  sovereignty  of 
Mnbarick  ul  Duwia  be  not  admitted  by  the 
•upreme  court,  we  are  persuaded  that  the  chief 
justice  and  the  other  his  majesty's  judges  will 
tee  how  im|>ortant  it  is,  not  only  to  the  tranquil- 
lity of  this  country,  but  likewise  to  the  preMr« 
vation  of  the  Pjeice  which  subsists  between  the 
king  and  the  Bttropean  povren  who  are  settled 


in  this  coantTf,  that  we  should  oot  be  left  in 
doubt  as  to  the  right  to  whom  the  sovereignty 
belongs.  The  late  act  of  parliament,  at  we  ea- 
derstand,  only  sukjecta  such  of  the.  natives  to 
the  juriadiciion  of  the  British  laws,  as  8ie,or 
were,  employed  in  the  service  of  the  Company, 
or  of  British  subjects,  at  the  time  when  tat 
suit,  action,  or  complaint,  against  them  aroie; 
from  whence  we  are  led  to  conclude,  thai  though 
the  king's  sovereignty  were  admitted  to  beei- 
tended  over  those  who  are  so  particularly  ds« 
scribed,  yet  it  does  not  follow,  according  to  sar 
idea,  that  it  includes  the  rest  of  the  natives  if 
Bengal,  Bahar,  and  Orissa. 

■'We  are,  honourable  Sirs,  year  iiKMt  akcs 
dient|  humble  aerrantt,  (Signed) 

*' J.  Clatsbiho. 

**  Geo.  Monson. 

<•  Ph,  FRAMCtS.** 

Fort  Wiliiam,  July  3,  1775. 

The  above  Letter,  lieing  altered  hj  the  Clerk 
of  the  Crown  into  the  Ibrm  of  a  lotion,  vm 
filed. 

Copy  of  a  Letter  from  Mubaiuck  ul  Dovua, 
to  the  Governor  General  and  CounciL 

«  Roy  Rada  Chum  has  for  these  three  yort 
been  my  servant,  and  is  now  in  Calcutta,  ia  Hi 
capacity  of  my  Vakeel :  1  am  now  acqiMiMri 
by  him,  that  somebody  has  complained  agalHI 
him  to  the  Court.  As  the  aaid  Koj  is  new  le* 
tually  employed  in  the  affairs  with  which  ba  ii 
entrusted  by  me,  and  for  these  three  years  hsA 
been  in  no  other  service  but  mine  ;  I  beg  lean 
to  represent  to  you,  that,  if  complaiota  ofHil 
my  Vakeel  are  to  be  admitted  in  the  Cuwi,  I 
will  re6ect  the  greatest  disgrace  and  indiwfcj 
upon  me.  You  gentlemen,  I  hope,  will  oil 
approve  of  such  a  proceeding  ;  but  speak  ii 
such  terms  to  the  gentlemen  of  the  Couil,  ti 
will  prevent  my  affairs  being  impeded  or  di^ 
graced  ;  in  doing  this  you  will  confer  tbi 
greatest  favour  upon  me." 

(A  true  copy  from  the  translation.) 

W.M.  Bruene,  Sub-Sec 

The  Chief  Justice  Ae^i^er&A  the  sentioscntl  if 
the  Court,  in  the  following  words : 

It  is  with  the  deepest  concern  we  find  tk 
Council  still  persist,  notwithstamling  the  fre- 
quent declarations  and  unanimous  opinioooftkl 
Court  (for  it  is  a  mistake  if  it  is  thought  ttf 
brother  Chambers  was  of  a  differefit  opinioB)* 
address  the  Court  by  letter. 

We  declared  our  apprehensions  that  it  wmM, 
if  the  opinion  of  the  Court  and  that  of  the  Cs*' 
cil  should  not  agree,  lead  to  altereationi ;  At 
least  ill  consequence  of  which  wo«td  be,  fk* 
lowering  both  the  Court  and  the  Covocil  in  At 
eyes  of  the  public,  and  would  be  prejudifiill* 
the  affairs  of  the  Company.  We  havedsac 
all  in  our  power  to  avoid  it ;  and,  assailed  ai  at 
have  been  both  in  and  out  of  court,  we  wiH  Ml 
be  provoked  to  depart  from  that  aobrirty  «f 
sentiment,  which  is  pectditily  nwciMiy  florfW 
stations. 


I 


1137]    Jbr  a  Cotufiraeif  offwat  Warren  Httitings,  etq.    A.  D.  1775. 


[IISB 


I  shall  erer  be  for  furoisbhig  the  East  India 
Company  with  every  rviht  and  every  aasiatance, 
indicuiiy  or  extrajudicially,  which  I  think  1 
leipdly  may,  be  the  application  ever  so  im- 
proper, or  the  conduct  of  their  servants  io  ez- 
oentionable. 

VVe  have  asserted  the  impropriety  of  this 
mode  of  application  ;  they  give  no  attention  to 
oar  representations,  and  pay  no  respect  to  our 
unanimous  opinions.  There  is  no  power  here 
to  decide  between  us  ;  they  still  persist :  no- 
thing but  absolute  outrage  will  provoke  us  to 
appeal  to  his  majesty,  or  their  honourable  em- 
ployers :  we  will  not  increase  the  embarrass- 
ment his  majesty's  ministers  must  labour 
onder  on  account  of  India  affairs,  nor  add  to 
the  distress  of  the  East  India  Company :  the 
proceedings  will  be  sent  to  both :  our  conduct 
•hall  speak  for  itself,  without  a  comment :  in 
the  mean  time,  we  must  steer  between  creating 
oonfusion  and  losing  our  dignity. 

The  letter  from  tne  council  encloses  one  of  a 
most  extraordinary  nature  from  the  Nabob  Mu- 
iMfick:  his  situation  is  such,that  thereis  no  man, 
cither  in  England  or  in  India,  will  believe  he 
would  be  induced  to  write  such  a  letter,  was  it 
nut  either  dictated  to  him  by  the  agents  of  those 
who  rule  this  settlement,  or  unless  he  was  per- 
fectly convinced  it  would  be  agreeable  to,  and 
eoiucide  with,  their  sentiments.  We  always 
have  and  always  shall  consider  a  letter  of  bu- 
nness  from  that  Nabob,  the  same  as  a  letter 
from  the  governor  general  and  council. 

He  says  in  that  letter,  that,  if  complaints 
against  his  Vakeel  are  to  be  admitted  in  the 
Court,  it  will  reflect  the  greatest  disgrace  and 
iodignity  on  him. 

There  never  was  such  an  idea  entered  into 
Hio  head  of  an  Indian  Nabob  with  respect  to  his 
Vakeel.  The  Ynkeel,  in  his  memorial,  has  no 
auch  idea ;  he  claims  only  as  a  new  right  given 
to  him  by  the  laws  of  England,  of  which  right 
he  was  wholly  ignorant. 

That  is  not  all :  1  have  au  affidavit  in  my 
band,  made  by  Itoy  Rada  Churn  for  a  different 
porpitse.  He  says,  **  I  never  heard  of  the  word 
*  public  minister:'  I  understand  vakeel;  but 
what  is  the  meaning  of  public  minister  1  know 
Dot ;  vakeel  is  one  thing,  elchee  is  another.  I 
never  liefore  imagined  1  should  have  been  ex- 
cmpte<l  from  punishment  because  I  was  a  va- 
keel. Pe«>ple  every  where  respect  the  vakeel 
of  the  Nabob.  I  never  before  heard,  that  if 
the  vakeel  of  the  Naliob,  or  even  of  the  Ring 
biioself,  should  commit  a  crime,  he  would  be 
oxeiupied  from  the  punishment  established  for 
aoch  a  crime.  Perhaps,  if  the  Nabob  or  King 
was  to  M  rile  a  letter,  the  vakeel  might  be  for- 
gtven." 

I  will  order  a  copy  of  this  affidavit  to  be  de- 
livered, with  the  minutes  of  the  Court,  as  it  will 
^ve  great  lii^ht  into  this  matter. 

Can  any  one.  after  this  believe,  that  the  Na- 
bob himself  really  entertained  the  sentiments 
which  he  adopts  in  the  letter  ? 

If   this    was    the   opinion    of  Roy   Rada 
Cburn,  it  would  have  been  candid  in  the  coun- 
VOL.  XX. 


sel  for  the  Company  to  have  laid  it  before  the 
Court. 

But  the  close  of  the  letter  is  really  alarming ; 
it  is  addressed  to  the  governor  ifeneral  and 
council :  speaking  of  complaints  bemg  received 
in  the  court ;  he  says,  **  You,  gentlemen,  I 
hope,  will  not  approve  of  such  a  proceedings 
but  speak  in  such  terms  to  the  gentlemen  of 
the  Court,  as  will  prevent  my  affairs  from 
being  impeded  or  disgraced."  Did  the  Nabob 
ever  write  in  this  style  to  the  governor  and 
council  before  ?  The  letter  is  transmitted  to  us 
after  our  opinions  have  been  given.  If  it  is  the 
real  opinion  of  the  Nabob,  that  we  can  be  spoke 
to  in  auch  terms  as  to  influence  our  judgments, 
from  whence  did  he  learn  it  ?  We  have  a  right 
to  demand  of  the  council,  that,  in  answer  to 
that  letter,  they  do  acquaint  him,  it  is  highly 
derogatory  both  to  the  honour  of  the  council 
and  the  Court,  to  entertain  any  idea  that  the 
council  would  speak  in  the  terms  he  desires  ; 
and  if  they  did,  that  the  opinion  of  this  court 
could  be  in  the  least  influenced  by  thetn.  We 
think  it  necessary,  on  this  occasion  to  assert,  if 
a  contrary  idea  should  any  where  prevail,  that 
there  doth  not  reside  in  the  governor  general 
and  council  any  authority  whatsoever,  to  cor- 
rect or  control  any  acts  of  the  judges,  either  in 
or  out  of  the  cojirt,  be  those  acts  ever  so  erro- 
neous :  and  that  no  supposed  necessity  whatso- 
ever can  authorize  any  check  or  control  over 
those  acts.  The  law  of  necessity  is  the  law  of 
tyrants:  if  the  governor  general  and  council 
should  assert  such  a  right,  as  they  make  them- 
selves judges  of  the  necessity,  they,  and  not 
the  king's  justices,  would  administer  the  law 
in  this  country. 

We  could  have  ho|>ed  that  the  governor 
general  and  council,  mstead  of  transmitting 
this  insulting  letter  to  the  Court,  desiring  such 
illegal  interposition,  would  have  acquainted  the 
Nabob  how  highly  criminal  it  would  be  in  them 
to  comply  witli  his  solicitations. 

I  cannot  help  observing  a  small  circum- 
stance. 1  have,  since  the  claim  made  by  the 
council  for  Roy  Rada  Churn,  received  two  let- 
ters from  the  Nabob  directed  to  myself,  and 
one  original  letter  from  him,  directed  to  the  go- 
vernor general  and  council,  inclosed  in  a  letter 
from  them  to  the  court.  Though  improper, 
we  took  no  notice  of  that  letter.  I  haa  before 
received  letters  from  him ;  they  had  the  usual 
alcob,  the  same  that  is  given  to  the  first  in 
council.  The  letters  to  me  since  the  dispute,  to 
give  him  a  higher  air  of  consequence,  make 
the  alcob  much  inferior.  The  same  artifice  is 
made  use  of  in  that  sent  to  the  governor  ge- 
neral and  council.  The  alcob  sent  to  the  go- 
vernor general  and  council  is  infinitely  inferior 
to  that  formerly  sent  to  the  first  in  council  and 
myself.  They  best  know  whether  at  any 
other  period  they  would  have  admitted  a  letter 
from  him  with  that  alcob.  They  best  know 
whether  the  Company  in  future  is  to  be  treated 
with  the  same  inferiority. 

This  observation  will  not  be  so  striking  to 
those  who  are  not  conrersant  with  the  customs 

4D 


1 139]  15  GEORGE  IQ.  Trial  of  Joseph  Faake  and  oiktrtj 


[1140 


Unil  ideas  of  the  natires,  and  do  notkoow  bow 
teuacioufl  they  are  of  that  addrew. 

If  our  opinions  are  carefully  examined,  we 
thiok  no  doubt  can  arise  as  to  the  question  of 
finning'  warrants  for  the  execiitinn  ot  criniiiialR. 
But,  If^  they  niay  have  taken  tbeir  idea  Af 
our  judi^ment  from  loose  notes  and  partial  re- 
presentations, the  Judges  hoi-e  wntlen  their 
opinions,  which  were  delivered  on  the  late 
question,  and  will  transmit  them  to  the  ipover- 
toor  i^eneral  and  council,  with  the  present  opi- 
nion of  the  Court.  Mr.  Justice  Chambers,  hav- 
ing taken  no  notes  of  what  he  said,  has  deli- 
vered his  opinion  from  his  recollection  and 
such  notes  as  the  Chief  Justice  was  able  to 
fiirnish  him  with.  The  opinion  of  the  rest  of 
the  Court  is,  ai  near  as  may,  in  the  very  words 
they  were  delivered.  But,  lest  any  doubt  after 
that  bhonid  remain,  and  to  prevent  any  possi- 
ble occasion  of  impeding  or  obstructing  the  jus- 
tice of  tkie  country,  we  explicitly  declare,  that 
thei'e  is  nothing,  in  the  opmion  of  the  Judges, 
which  ought  to  prevent  the  warrants  beint' 
ligned  ai  usual  by  Naib  Nazem,  who  is  paid 
out  of  the  Khalsa  treasury.  Nothing  is  decid- 
ed by  that  judgment,  but  that  neither  the  East 
India  Com  pan  v  nor  their  servants,  both  being 
subject  to  the  laws  of  Great  Britain,  can,  by 
interposing  the  name  of  the  Mabob,  screen  any 
%Hminal  from  the  justice  of  this  court. 

We  have  expressly  said,  that  our  opinions 
did  not  aifect  the  country  courts  establislied  in 
this  province. 

How  far  Mubarick  is  a  sovereign,  with  re- 
spect to  the  Company,  in  the  opinion  of  these 
gentlemen,  is  apparent,  by  putting  the  ques- 
tion, bow  they  are  to  act  with  respect  to  the 
■igning  of  warrauts  for  the  execution  of  crimi- 
nals. It  is  plain,  we  do  not  differ  in  opinion 
upon  that  question.  Nobody,  either  in  Eng- 
land or  ill  liiilia,  will  dispute  to  the  chief  jus- 
tice the  making  use  of  arguments  because  they 
have  been  used  by  the  French  ;  nor  can  it  t>c 
1hoii|r|it  that  arguments  are  weaker  because 
they  have  occurreil  (o  others.  What  the  chief 
justice  said,  was  not  simply  his  opinion  ;  if  it 
was  not  in  every  circumstance  the  opinion  of 
the  whole  Court,  it  was  that  of  the  majority  of 
the  bench  had  not  be  been  there.  But,  in  tact, 
neither  the  chief  justice  nor  any  of  the  jus- 
tices made  use  of  the  arguments  attributed  to 
them.  They  never  asserted  there  was  roy 
double  government  in  this  country.  All  that 
a  negative  is  put  u|)on  is,  the  illegal  exertion 
of  the  powers  of  a  double  go  verument  to  dcfieat 
tlie  king's  laws.  They  were  very  far  from 
drawing  the  consequence  imputecl  to  tJiem, 
Daiiif^jy,  that  the  proceedings  of  the  courts  of 
Dewanny,  agaiust  the  French  who  reside  with- 
out those  places  that  are  assigned  to  them  by 
the  Treaty  of  Paris,  are  direct  attacks  of  the 
English  nation  against  that  of  France.  We 
never  thought  of  the  Treaty  of  Paris.  We 
thjuk  the  positron  itself,  as  stated  by  the 
French,  not  true ;  and  are  astonished  to  see  it 
nsserted  as  our  opinion.  We  have  affirmed 
the  very  coDtmy.    We  bars  fineqaeotly  de- 


sired, to  prevent  partial  and  nttidoni  npre* 
senta'tions,  that  the  Company  would  employ  a 
person  able  to  take  down  the  opinions  of  tbt 
Court  correctly. 

1  can  foresee  no  political  conscqnenopt  frm 
our  decision  ;  but  be  it  remembered  with  whil 
reluctance  we  catered  into  the  question.    We 
flung  out  what  it  was  necessary'  for  the  cooadi 
to  maintain,  and  told  ibem  the  oonsequenmsf 
not  maintaining  ir.    We  did  it  to  save  the  ho- 
nour of  government.    We  did  il  that  ibcj 
might  not  persist  in  a  claim  which  we  feared  H 
would  be  im|)OssibIe  for  ihem  to  aunport.  IVgr 
were  judges  of  their  own  politics.     They  mgd 
us  to  a  decision  we  wished  lo  avoid.     We  vac 
obliged  to  judge,  from  the  evidence  before  m, 
of  the  legality  of  the  claim,  not  of  the  pditid 
consequences.    If,  which  we  do  not  befictt^ 
any  ill  consequences  follow  to  the  stale,  Ibqr 
who  unnecessarily'  arged  us  to  a  decision,  M 
we  who  are  bound  to  decide  according  to  liv, 
are  answerable  for  them.     Did   they  cxpid 
that  we,  who  must  administer  justice  aom- 
ing  to  our  oaths,  should,  contrary  to  evidnee^ 
determine  thil,  %ihich,  though  within  their  sn 
knowledge,  they  would  not  take  upon  IIkb- 
selves  to  swear  to  ?   We  do  not  know  a  wsni 
character  than  a  political  judge  ;   we  do  ■! 
know  a  more  dangerous  one.     Can  any  m 
believe  this  strong  Ktruggle  with  the  Court  ■ 
simply  to  protect  Roy  lUda  Chnmf  kk 
dignus  vindicef  It  is  clearly  to  serve  olhn 
pur]>oses,  which  for  fear  of  prejudicing  Ibea- 
suiug  trial,  1  will  nut  mention.     But  tbe  il- 
tempt  is  on  mistaken  principle.    The  ndn 
of  a  state  should  be  very  reserved  in  briifiif 
on  political  questions  of  real  iuiportanee,  d- 
cepttliey  are  sure  the  law  ou  the  subject  ii 
with  them.    They  must  not  expect  eoai^ 
saoce  from  judges.    AVe  must  execute  ftrtB 
justice.     Were  judges  10  look  to  p^ditical  coi- 
sequences,  they  mufst  ever  he  dictated  to  k/ 
tho.se  that  hold  the  pucrs  of  the  state.    It  wV 
necessary  to  determioe  that  question  in  ihJ 
case.    Mr.  Justice  Chambers  avoided  it,  id 
hinted  something  like  wluit  is  advanced  now  bj 
the  council ;  but  the  other  judges  could  tk 
rest  their  opinion  simply  on  the  dates  of  tbi 
credentials.    As  Mr.  Justice  Chamliers  was  d 
opinion  that  an  ambassador,  a  subject  of  tbi 
stale  in  which  he  is  employed,  is  not  amesil!^ 
to  the  courts  of  justice  where  be  resides ;  lUi 
Chum,  being  a  vakeel,  and  so  accepted  by  ib 
East  India  Company  (if  that  should  give  hii 
the  right  of  an  ambassador),  on  those  priodflv 
otight  not  be  amenable  to  tliis  court,  tbosK^ 
the  offence  was  committed  when  he  was  Bottf 
ambassador.    The  chief  justice,  though  cf* 
different  opinion,  advanced  what  he  saiil  ■ 
that  head  with  a  degree  of  diffidence ;  aoddc).' 
gave  his  opioiou  on  which  side  the  weizfcl  ^ 
authorities  lay.    The  other  justices  Mu^ 
thought  the  same. 

As  to  the  question  put  concerning  tbe  dt^ 
of  the  sovereignty. of  tliis  coontr}* ;  it  mtm^ 
m  as  if  it  was  meant  to  draw  us  into  a  dikS' 
ma ;  but  we  were  never  lesi  enabarrasied  tit* 


li41J    Jiir  a  Conspiraci/ againtl  Warren 

lb*  slate  or  Mubarick  ul  Duivlub ;  we  linve  be- 
fc»  (Ivclarn),  il  is  nol  alwretl  bj  \\m  ilerlsimi. 
Am  to  the  queslion  belweeo  itie  Crnwa  anil  ibe 
Ciamuan;,  ilUuf  k  Tcry  Heltcsle  nsture  i  Uilli 
tfie  Crown  anil  the  Coii)(iHny  hove  Iweumxi'ius 
M  aToiil  britigin^  il  to  a  lieciiion :  n-e  ihererorf 
*ra  ipocli  auriJnseJ  (bal  tbe  tatoM*  uC  ilie 
Company  iboulcl  iirfsi  aii  e\lrajudiciil  0)>i»iuti 
njiiMi  it;  nor,  irgiien,  ilu  wecoDcei'e  ii  >Tniiiil 
operftle  upon  their  cuixlucl.  We  ibuiilil  be 
luucli  conceroeil  if  lliej  bmughl  a  cnae  before 
■U  which  would  make  it  necei^Hry  for  \\a  lo 
(lelermiae  il.  We  would  sToiil  it  it'  we  ciiuU. 
Il'  il  became  absolulely  iiecttaary ,  we  would 
nnl  reltacl  t'toiu  yivia^  our  ojiiniuni  but  we 
would  unt  give  it  uDliI  we  bad  beard  etcry 
thiug  llint  could  be  laid  on  rilbvr  aide,  nur 
uutil  we  bad  oblained  all  llie  light*  and  inrur- 
■nation  ibat  cnald  be  oblaiued  on  ibt-iutgecl. 
But  wa  must  decline  p reel jiitBlely  and  wan- 
touly  giviiit;  An  extra-judiLial  ojiiiiioa  uf  lo 
■nnch  coiiseqnenee,  especially  as  such  bigb  o(- 
fenra  was  lakeo,  tbal  the  Cuiirl  bad  tried  an 
iBdiclmeat,  in  which  a  robbery  wbieli  waa 
comiuitted  bcre  was  char|^eil  t<>  he  cummitled 
on  tiM  kJDg'(  biubway  ;  il  lieins  ernineouflly 
OiuleMlood  that  the  Court  thervhy  had  Inkeii 
upon  itself  To  dcteriniije  tbe  (cry  iiuesliuii  nutr 
[mpiHed  lu  the  Court,  thuugb  il  bad  bfvii,  and 
■MiMl  haie  been,  lUe  furin  ur  the  inUiclineut 
■rbeii  ll>e  preaidptit  and  council  were  juslii'M 
of  Oyer  and  Terminer  and  Guol  Diliicry. 
We  will  net  enter  into  an  argnnient  on  a  niat- 
ler  of  law  wiib  ibe  geuileiiieu ;  much  IfM 
break  inig  their  pru*ini:e,  lo  ilevide  u|iiio  inat- 
l«ra  of  puliticB.  ^Ve  ahould  have  declined 
lakio?  any  uniice  of  ihii  letler,  ha*d  ite  not 
KmeJ  thai  occarion  migbl  have  been  taken 
from  our  silenw  lo  put  a  ilo^  lo  the  criwinat 
jii>lieeioilie  protineeK. 

We  lake  ihia  opnoriiiQily  tn  declare,  Ibat  the 
«al*bl>«hn)enl  uf  lliis  diurl  hnih  uiade  on  ulto- 
tuion  in  riw)iei;t  tu  the  ailiniiiiatrulion  of  ori- 
Btiaal  jiiitice,  except  nuly  id  this  luwn  anil 
Ute  lacloriea  aubardiiiale  lo  this  letllemeni. 
We  declare  il,  thai,  if  ihcre  n  a  aiopiia^a  of 
iuHin,  it  may  be  cleai  that  it  i*  nut  octatioiied 
\g  ibia  Court, 

Hy  brtiiber  Cliauibers  W  pomteil  out  tn  me 
»  pMaagv  in  Roy  Kailu  Churn'a  affidavit,  wliicb 
]  had  neglected  to  make  any  obiervaliou  upun. 

He  nya,  ■  Ilu  ihioka  be  is  ubiiged  lu  obey 
■  the  orders  of  ilie  cuuiicil,  and  Ihal  Ihey  may 
••wmnion  him.  That,  in  tad,  he  wai  calle'd 
'  lo  appear  belore  the  cinncil  ithrn  ibnueiten- 
'  tlvtneu,  who  make  the  claim  fur 


Haati~gs,  esq.      A.  D.  1775. 


i^m 


*er* 


He 


)r  the 


■mJaTit,  ■  It  wai  not  left  lo  my  \\\i 

•  lb«r  I  woutdcome  ur  not ;  il  waa  said,  Cunie.' 

WUat  iben  was  Ibe  senae  of  these  geiille- 
men,  aa  to  hia  having  tbe  ri^'bla  of  au  ambaa- 
Milnr  T  la  be  not  lu  lie  canaiilci'ed  merely  to 
•lude  the  justice  of  iheCuurt? 

The  abi>tr,  baviug  been  signcil  bj  all  Ihe 
Judges,  »■«  nenl,  t<>getber  wiib  their  former 
Opioiona  and  th«  Wllowing  At&da\il,  to   Ilie 


Translation  of  tbe  AstiOAvrr  made  bv  ftor 
Rad*  CHtkN.  beliirc  Sir  Elijah  Impey, 
koigbi,  tbe  4lb  day  of  July  177^. 
"  I  knew  nollhinif  wjih  rBsped  l»  the  righU 
of  a  Vnkeel,  or  Jilchee,  till  Mr.  Farter  iwbed 
me  wliai  tias  my  emptoynent;  lo  which  | 
aiuirered,  ibM  1  wai  a  Vahtel  of  the  Nnhub. 
When  Mr.  Parrerand  Mr,  JarretwereloBrlber, 
I  ineulionedlutbcmlliBllliad  been  the  Nabob'* 
Vakeel  fur  near  three  years ;  «ad  ibey  caiuej 
an  orzee  to  be  written,  which  1  sigurd.  I 
imagine  lliat  ii  naa  necessary  fur  m«  la  obey 
any  order iasaed  lo  me  hy  the  council,  and  lliat 
I  must  attend  upon  them  in  oonfuimily  tu  any 
summona  ibey  may  aenil  lo  me.  1  wai  odc 
day  calleil  lu  appear  before  llie  council,  or 
committfe;  ana  atlendeil  accoidingly.  TU* 
ijavernor,  the  general,  cUonrl  M<ini«iti.  aad 
nir.  Prani'is,  were  present;  Cumaul  O  Dceu 
bad  before  that  presented  suioe  papers  In  Mr. 
Fowke:  tlie  ^ullenien  uf  the  council  asked 
me,  it'  he  had  Kiteu  tbe  papers  lo  Mr,  Fuwk« 
lo  keep,  or  with  the  iuluilion  tbal  they  oiighl 
be  preaented  lo  tbe  rmiucil. 

"  Mr.  Parrer  and  Air.  Jarrel  caused  a  paper 
lo  lie  written  nut  in  the  English  langutige,  19 
tbe  truth  nf  Ibe  cunlenia  uf  which  I  swore  be- 
fore Mr.  Hj'de ;  but  ibey  never  explained  the 
words '  iiublic  miuislcr'  lo  me,  they  ouly  tneo- 
li»ned  Ihe  word  '  Vakeel.'  I  know  nmhing 
nilh  respect  tn  my  hnMOK-  been  dismissed  friun 
Ibe  service  nf  the  Nibob  fur  ten  days.  Tbe 
Nobob  never  wrote  any  ibinfc  of  it  lo  me : 
Mr.  Farrerand  Mr,  Jarret  may  ha>a 
'd  it  from  report.  Mr.  Farrer  said  to  tue, 
:utheNabob'Es«r>'icefiir|eu<Isy»i' 
and  Slid  nolhinif  more.  He  probably  heard  ibia 
I'ruiii  others.  I  never  heard  any  tbing  of  i| 
from  any  one.  lUr.  Farrer  never  told  me  that 
I  bad  been  ilismisiwd  from  the  beginning  of  Ibe 
mMuth  of  SuSer,  One  day  1  went  lo  Ihe  house 
of  culotii-l  Uonsou,  who  said,  I'erhsps  you  was 
ilismisiied  fur  some  day*  from  tbe  service  of  tbe 
NaLuta'.  do  you  know  any  ihiog  of  it?  I  an> 
sirered,  I  know  nothing  of  ii.  This  conver- 
saliun  passed  alicr  1  bad  made  the  affidavit  be- 
fore Mr.  Hyde.  I  never  heard  ihe  worda 
<  public  minister,'  I  understand  vakeel ;  but 
wbaiis  ibe  roe.-ioing  of  public  minister,  I  do 
not  know,  Vak«el  is  one  thing,  sod  Elcbee  i* 
anolber.  I  nevrr  hefoie  iiuai.'iiied  1  should 
have  h'en  exemptrd  from  puBisbment  lieenuse 
I  was  u  vakeel.  Penple  every  where  r^Kpect 
the  Vakeel  of  Ihe  NuIhiK  I  never  brliire  heard 
that  if  tlie  Vakeel  of  tlie  Nabah,  or  even  of 
tbe  King  himself,  ahiiuld  coiumii  a  crime,  he 
would  be  eKem|ilcd  from  tbe  puuishmeDl  eaU- 
(ilished  fur  such  Crime.  I'er bans.  It  the  Nabob 
nr  K'uig  was  to  wrtle  a  leller,  the  vakeel  migbl 
be  forgiven. 

'•  Mr.  Tarrer  ssiil  lo  m^.  1   heard  ihatyoti 
were  disuussed  triiiu  the  Nnbob'*  senice  lor 
leii  ilsys :    ibis  was  al\er  I  had  made  ibe  affi* 
davil :   1  never  before  bad  heard  ■  word  of  Jl. 
(Signed)  "  Ran*  Culilh." 


iierbaps  & 


IMS] 


15  GEORGE  UL 
THE  TRIAL. 

Indictment, 


and  CMifff 


[UM 


*«  Town  (4'  CaJr  \  To  wit.  The  Jaron  for 
tutjbaandFaiioryiix^x  lord  the  king,  upon 
^  Tort  William  f  their  oath,  present,  that 
tn  Bengal^  j  Joseph  Fowke  of  Calcutta, 

gentieroan,  Francis  Fowke 
of  the  same  place,  gentleman,  son  of  the  said 
Joseph  Fowke,  Maha  Rajah  Naodocomar, 
Bahader,  late  of  the  same  place  iohahitant,  and 
Roy  Rada  Churn  also  of  the  same  place  inha- 
bitant, all  of  whom  are  subject  to  the  jurisdic- 
tion of  the  Supreme  Court  of  Judicature  at 
Fort  William  in  Bengal,  being  persons  of  evil 
name  and  fame,  and  dishonest  reputation,  and 
wickedly  devising  and  intending  Warren  Hast- 
^S^9  esuuire,  governor  general  of  the  presi- 
dency or  Fort  William,  in  Bengal  aforesaid, 
Dot  only  of  hia  good  name,  credit,  and  reputa- 
tion to  deprive,  and  to  bring  him  into  the  ill- 
opinion,  hatred,  and  contempt,  of  all  his  ma- 
jesty's subjects  in  the  said  province  of  Bengal, 
and  of  the  native  inhabitants  thereof;  and  by 
that  means,  as  much  as  in  them  lay,  to  dbturh 
the  good  government  of  the  said  country,  and 
the  management  of  the  commercial  concerns  of 
the  honourable  East  India  Company  therein, 
"Which  are  so  eminently  intrusted  to  the  said 
Warren  Hastings,  but  also  to  bring  upon  the 
■aid  Warren  Hastings  the  ill  opinion  and  hatred 
of  the  king  himseli;  and  of  the  two  houses  of 
the  parliament  of  Great  Britain,  and  of  the  pro- 
prietors and  directors  of  the  said  East  India 
Company,  did,  on  the  19th  day  of  April,  in  the 
151  h  year  of  the  reign  of  our  sovereign  lord 
George  the  3rd,  by  the  grace  of  God,  of  Great 
Britain,  France,  and  Ireland,  king,  defender 
of  the  faith,  and  so  forth,  in  Calcutta  aforesaid, 
in  Bengal  aforesaid,  conspire,  combine,  and 
agree  among  themselves,  falsely  to  charge  and 
accus'e  the  said  Warren  Hastings  of  divers 
enormous  and  scandalous  offences ;  particu- 
larly, tliat  he  the  said  Warren  Hastings  had 
then  lately,  by  divers  sinister  and  unlawful 
means,  procured  a  certain  false  accusation 
against  the  said  Joseph  Fowke,  in  the  name  of 
cue  CummanI  ul  Deen  Allee  Cawn,  to  be  made 
and  wrote,  which  said  false  accusation  he  the 
said  Warren  Hastings  had  himself  presented  to 
the  governor  general  and  council  at  Fort  Wil- 
liam aforesaid,  knowing  it  to  be  false ;  and  also 
that  he  the  said  Warren  Hastings  had  hereto- 
fore, corruptly  and  collusively,  received  several 
sums  of  money  from  the  said  Cummaul  ul 
Deen  Allee  Cawn,  in  the  nature  of  bribes,  for 
services  rendered  or  to  be  rendered  to  him  the 
said  Cummaul  ul  Deen  Allee  Cawn  ;  by  that 
means  representing  him  the  said  Warren 
Hastings  as  guilty  of  wilful  bribery  and  cor- 
ruption in  his  office  and  duty.  And  the  jurors 
aforesaid,  on  their  oath  aforesaid,  do  further 
present,  that  the  said  Joseph  Fowke,  Francis 
rowke,  Maha  Rajah  Nundocomar,  and  Roy 
Rada  Chum,  on  the  said  19th  day  of  April,  in 
the  year  aforesaid,  at  Calcutta  aforesaid,  in 
Bengal  aforeaaidi  according  to  the  aaid  couspi- 


racy,  combinatioo,  and  _ 
selves  as  aforesaid,  did^  hAm^j  and  wickedlyy 
for  the  evil  purposes  aforesaid,  mme  and  mske^ 
and  caused  to  be  framed  and  amde^  a  ecrtaia 
paper  writing  in  the  Persian  lanffoage ;  par- 
porting,  that  be  the  said  Warren  Hastines  kai 
then  lately,  by  divers  sinister  and  notawM 
means,  procured  such  false  aocuaition  as  afsra- 
said,  in  the  name  of  the  ssid  Cumsnaul  at  Den 
Allee  Cawn,  to  be  made  and  wrote  agaiosl  the 
said  Joseph  Fowke,  and  had  preaenled  the  sane 
to  the  said  governor  general  and  cooncH  at  Fait 
William  aforesaid,  knowing  it  to  be  false; 
thereby  falsely  and  scandalously  represeoliBr 
the  said  Warren  Hastings  as  guilty  of  the  wm 
offence  of  procuring  the  said  Joseph  Fowke  ti 
be  falsely  accused.  And  the  iurors  tilonuii, 
on  their  oath  aforesaid,  do  farther  present,  ikiC 
the  said  Joseph  Fowke,  Francis  Fowke,  Mahi 
Rajah  Nundocomar,  and  Roy  Rada  Ckaii^ 
afterwards,  to  wit,  on  the  said  19ih  day  tf 
April,  in  the  year  aforesaid,  at  Calcutta  ann> 
said,  in  Bengal  aforesaid,  according  to  the  eo» 
spiracy,  combination,  and  agreement  alowisi^ 
between  them  had  as  aforesaid,  did,  for  ik 
purposes  aforesaid,  by  certain  sinister  and  as- 
lawful  means,  to  wit,  by  intr^-atifs,  proiaiM^ 
and  threats,  procure  the  said  Cum-  co«»pirarT,«< 
maul  ul  Deen  Ally  Cawn  to  alfix  «*  '^ 
his  seal,  containing  the  impression  of  his 
to  the  said  paper  writing,  so  framt^  and 
as  aforesaid  ;  and  that  the  said  Joseph  Foekc, 
in  pursuance  of  and  accordini^  to  the  ooMp- 
racy,  combination,  and  agreement,  heiwMS 
him  and  the  said  Francis  Fowke,  Maha  RajA 
Nundocomar,  and  Roy  Radachuni,so  as  »hn> 
said  had,  afterwards,  to  wit,  on  the  said  llib 
day  of  April,  in  the  year  aforesaid,  at  Calcutti 
aforesaid,  in  Bengal  aforesaid,  did,  airainallbt 
will  and  consent  of  the  said  Cummaul  ul  DifS 
Allee  Cawn,  and  notv«iihstanding  the  t*X|ircn 
declaration  of  him  the  said  Cuiiiiiiaul  nl  Dtct 
Allee  Cawn,  that  the  said  paper  wiriiin*;  hU 
been  forcibly  and  illegally  obtained,  and  ibil 
the  contents  thereof  were  false,  take  and  carry 
away  the  saifl  paper  writing,  and  presmi  die 
same  to  the  governor  generul  am)  council  si 
Fort  William  aforesaid,  or  to  Si>me  or  one  rf 
the  members  thereof,  as  an  arzee  or  petitioaof 
him  the  said  Cummaul  ul  Deen  Allee  Cawa  It 
the  said  governor  general  and  c4»unoil.  Asd 
the  jurors  aforesaid,  upon  their  oath  aforesii^ 
do  further  present,  that  the  said  Joseph  Fowkc^ 
Francis  Fowke,  Maha  Rajah  Nuudocoour, 
and  Roy  Rada  Churn,  afterwards,  to  wit,  « 
the  said  19ih  day  of  April,  in  the  yearafort* 
said,  at  Calcutta  aforesaid,  in  Bengal  afor^ 
said,  according  to  the  conspiracy,  C4HnbiBft- 
tion,  and  agreement  aforesaid,  between  then 
as  aforesaid  had,  did,  for  evil  purposes  afor^ 
said,  unlawfully,  wickedly,  and  onjusdVi 
frame  and  make,  and  caused  to  he  fraiuvd  aM 
made,  a  certain  paper  writing  in  the  Peraiia 
language;  uurporting,  that  the  said  Warm 
Hastings  and  others  had,  indirectly  sod  eoUa- 
sively,  received  from  the  aaid  CuminattI  si 
Deen  Allee  Cawn,  by  way  of  bribes  fibr 


1 1453   J'"'  *  Ccn^urnetf  t^uintt  Warn*  Hastings,  esq.    A.  D.  177& 


[1148 


reiMlered  or  to  be  rcDdered  to  him,  sandry  turns 
of  money  ;  to  wit,  the  said  Warren  Hasting, 
esqnire,  the  sum  of  15,000  rnpees,  Richard 
Harwell,  esquire,  45,000  rupees,  and  to  Hoshyar 
Jung,  thereby  meaning  George  Vansittart, 
esquire,  12,000  rupees ;  and  that  the  said  Jo- 
seph Fowke,  in  pursuance  of  and  aooordint;  to 
the  conspiracy,  combination  and  aj^reement, 
between  him  and  the  said  Francis  Fowke, 
Maha  Rajah  Nundocoroar,  and  Ruy  Rada 
Chum,  so  as  aforesaid  had,  afterwards,  to  wit, 
on  the  said  19ih  day  of  April,intheyearafore- 
said,  at  Calcutta  aforesaid,  in  Benfi^f  aforesaid, 
did,  by  divers  sinister  and  unlawful  means,  to 
wit,  by  force,  threats  and  menaces,  procure  the 
•aid  Cummaul  ul  Deen  Allee  Cawn  to  write  on 
the  said  paper- writing  certain  words,'  purport- 
ing^ that  be  acknowledc^ed  such  sums  to  hare 
been  paid  by  him,  notwithstanding  the  express 
declaration  at  the  same  time  of  the  said  dum- 
naol  ul  Deen  Allee  Cawn,  that  the  facts  there- 
by pretended  to  be  acknowledged  were  false ; 
and  notwithstandiiJ^  in  truth  and  in  fact  the 
•aid  Warren  Hastings  has  not  received  such 
•everal  sums  of  money,  or  any  part  thereof, 
nor  is  guilty  of  all  or  any  of  the  charges  or 
accusations  so  made  against  him  as  aforesaid, 
to  the  great  damage  of  him  the  said  Warren 
Hastings,  to  the  evil  example  of  all  others  in 
the  like  case  offending,  and  against  the  peace 
of  our  said  lord  the  king,  his  crown  and  dig- 
nity. And  the  jurors  of  our  said  lord  the  king 
lariher,  upon  their  oath,  present,  that  the  mid 
Joseph  Fowke,  Francis  Fowke,  Maha  Rajah 
Nundocomar,  Bahader,  and  Roy  Rada  Churn, 
all  of  whom  are  subject  to  the  jurisdiction  of  the 
•aid  Supreme  Court  of  Judicature  at  Fort  Wil- 
liaai  in  Bengal  aforesaid,  being  persons  of  evil 
name  and  fame,  and  dishonest  reputation,  and 
wickedly  devising  and  intending  Warren  Hast- 
ings, esquire,  governor  general  of  the  presi- 
dency of  Fort  William  in  Bengal,  not  only  of 
Ilia  good  name,  credit,  and  reputation  to  de- 
|Nrive,  and  to  bring  him  into  the  ill-opinion,  ha- 
tred and  c«)ntempt  of  all  his  majesty's  sulijects 
io  the  said  pfoviuce  of  Bengal,  and  of  the  inha- 
bitants thereof;  and  by  that  means,  as  mnch 
as  in  them  lay,  to  disturb  the  good  government 
of  the  said  country,  and  the  management  of  the 
affairs  of  the  honourable  East  India  Company 
there,  which  are  so  eminently  entrusted  to  the 
•aid  Warren  Hastings,  but  also  to  bring  upon 
the  said  Warren  Hastings  the  ill-opinion  and 
hatred  of  the  King  himself,  and  of  the  two 
Houses  of  the  Parliament  of  Great- Britain, 
and  the  proprietors  and  directors  of  the  said 
£asl  India  Company,  did,  on  the  19th  day  of 
April,  in  the  15th  year  of  the  reign  of  our  sove- 
reign lord  George  the  third,  by  the  grace  of 
God,  of  Great  Britain,  France,  and  Ireland, 
bin^,  defender  of  the  faith,  and  so  forth,  at 
Calcutta  aforesaid,  in  Bengal  aforesaid,  con- 
•pire,  combine,  and  agree  among  themselves, 
nlsel^  to  charge  and  accuse  the  said  Warren 
Hastings  of  divers  enormous  and  scandalous 
oflenoef ;  particnlariy,  that  he  the  said  Warren 
ilastiiigi  DM  then  Utdiy,  by  di? an  tinister  aiid 


unlawful  means,  procured  a  certain  false  acco« 
sation  against  the  said  Joseph  Fowke,  in  the 
name  of  one  Cummaul  ul  Deen  Allee  Cawn, 
to  be  made  and  wrote ;  which  said  false  accu- 
sation he  the  said  Warren  Hastiugs  had  him- 
self presented  to  the  said  governor  genenil  and 
council  at  Fort  William  aforesaid,  knowing  it 
to  be  false.  And  the  jurors  aforesaid,  on  their 
oath  aforesaid,  do  further  present,  that  the  said 
J.  Fowke,  F.  Fowke,  Maha  Rajah  Nuodocomar, 
and  Roy  Rada  Churn,  on  the  suiil  19ih  day  of 
April,  in  the  year  aforesaid,  at  Calcutta  afore- 
said, in  Bengal  aforesaid,  according  to  the  said 
conspiracy,  combination  and  agreement  among 
themselves  as  aforesaid  bad,  did  falsely  and 
wickedly,  for  the  evil  purposes  aforesaid,  frame 
and  make,  and  caused  to  be  framed  and  made, 
a  certain  paper  writing  in  the  Peniian  lan- 
guage ;  purporting,  that  he  the  said  Warren 
Hastings  had  then  lately,  by  divers  sinister  and 
unlawful  means,  procured  such  false  accusa- 
tion as  aforesaid,  in  the  name  of  the  said  Cum- 
maul ul  Daen  Allee  Cawn,  to  be  made  and 
wrote  against  the  said  Joseph  Fowke,  and  had 
presented  the  saime  to  the  said  governor  gene- 
ral and  council  at  Fort  William  aforesaid, 
knowing  it  to  be  false.  And  the  jurors  afore- 
said, on  their  oath  aforesaid,  do  further  present, 
that  the  said  Joseph  Fowke,  Francis  Fowke, 
Maha  Rajah  Nundocomar,  and  Roy  Rada 
Chum,  afterwards,  to  wit,  on  the  said  19th 
day  of  April,  in  the  year  aforesaid,  at  Calcutta 
aforesaid,  in  Bengal  aforesaid,  according  to  the 
conspiracy,  combination  and  agreement  afore- 
said, did,  for  the  purposes  afbreuud,  by  certain 
sinister  and  unlawful  means,  to  wit,  by  entrea- 
ties, promises  and  threats,  procure  the  said 
Cummaul  ul  Deen  Allee  Cawn  to  affix  his  seal, 
containing  the  impression  of  his  name,  to  the 
said  paper  writing,  ao  framed  and  made  aa 
aforesaid ;  and  the  said  Joseph  Fowke,  in  pur- 
suance of  and  according  to  the  conspiracy, 
combioatbn  and  agreement,  between  him  and 
the  said  Francis  Fowke,  Maha  Raiah  Nundo- 
comar, Bahader,  and  Roy  Rada  Chum,  ao  aa 
aforesaid  had,  aflerwards,  to  wit,  on  the  said 
19ih  day  of  April,  in  the  veer  aforesaid,  at  Cal- 
cutu  aforesaid,  in  Bengal  aforesaid,  dNi,againat 
the  will  and  consent  of  the  said  Cummaul  ul 
Deen  Allee  Cawn,  and  notwithstandipg  the  ex- 
press declaration  of  him  the  said  Cummaol  nl 
Deen  Allee  Cawn,  that  the  said  paper  writing 
had  been  forcibly  and  illegally  obtained,  and 
that  the  contents  thereof  were  false,  take  and 
carry  away  the  said  paper  writing,  and  pre- 
sent the  same  to  the  said  governor  general  and 
council  at  Fort  William  aforesaid,  or  acme  or 
one  of  the  members  thereof,  as  an  arzee  or  pe- 
tition of  him  the  said  Cummaul  ul  Deen  Allee 
Cawn,  to  the  said  governor  general  and  ooun- 
cil;  they  the  said  Joseph  Fowke,  Franeie 
Fowke,  Maha  Rajah  Nundocomar,  and  Roy 
Rada  Churn,  thna  endea?ouring  to  represent 
the  said  Warren  Hastings  as  having  procured 
the  said  Joaeph  Fowke  to  be  falsely  acoueed  ; 
whereas,  in  truth  and  in  fact,  the  aiod  Warrea 
Hattingi  is  mot  gnUty  of  aU  or  any  oT  tha 


1147]  15  GEORGE  III.  Trial  qf  Joseph  FomAe  and  Mertp         [1148 

charKVi  or  Bcctnationi  to  made  aii^mt  biin  as 
aforesaid  ;  to  the  |<reat  dama^  of  him  t be  said 
Warren  Hastings,  to  tiie  evil  examjile  of  all 
others  in  the  like  case  oflendin^,  aad  atifainst 
the  peace  of  our  said  lord  the  kiogf,  his  crown 
and  dignity. 

signed,  Jas.  PRrrcuARO, 

CI.  of  the  CroifD. 
June  Id,  1775.    W.  M.  BECKwrru, 

Clerk  of  IndictiiieDts. 

Comaul  0  Deen  Cawn  examined. 

Are  you  acquainted  with  Maha  Rajah  Nun- 
docomar  ? — Yes. 

Were  you  so  in  February  last  ? — Why  slkould 
I  not  know  him  ?  1  have  known  him  for  tliirty 
3'ears. 

Did  you  ever  apply  to  him  to  borrow  money  ? 
—Yes. 

When  the  last  time? — fn  the  month  of 
Chile,  I  applied  to  him,  to  b^trrow  3,000  rupees. 

Di«l  any  ciinversation  then  pas**  i* — At  that 
time  this  Gouversation.  I  went  to  MahaHsjuh 
Munduoomar  ;  be  desireil  me  to  $it  down,  and 
said  to  me,  Do  j'ou  know  any  thing  of  the 
barramot  in  the  business  between  the  governor 
and  me  ?  I  answered,  1  have  lieard  something 
of  il;  I  have  not  heard  all.  He  said,  There 
has  bfcn  enmity  between  Mr.  John  Graham 
and  me :  he  was  my  enemy,  I  was  his.  I  was 
think  og  of  the  enmity  between  me  and  Mr. 
John  Graham,  anil  of  that  nitli  the  governor ; 
and  the  governor  has,  without  cause,  been 
angry  with  ute,  and  forhid  me  his  house ;  and 
has  told  lue,  I  will  do  bad  things  to  you ;  be 
upon  your  guard.  Being  remediless,  I  took 
the  advice  of  Mr.  Fowke.  Mr.  Fowke  gave 
this  answer :  Until  you  get  the  paper  of  l>ar- 
rumut,  till  you  produce  barramiit  against  the 
governor,  Mr.  Harwell,  Husbia  Jung,  meaning 
Mr.  Vaiisittart,  and  other  gentlemen,  I  cannot 
•ay  any  thing  to  the  gentlemen  in  your  l»elialf ; 
but  if  you  do  this,  I  will  get  you  the  kvllaut  of 
Aumeeu.  Being  remediless,  I  gave  the  bar- 
ramut  papers,  the  barramut  in  the  business  of 
Munny  Begum;  and  1  have  proved  the  go- 
▼ernor  culpable.  Do  you  likewise  consider  of 
this.  I  (C.  O  Dern)  said,  What  you  yourself 
have  done,  you  have  done  well.  But  in  the 
bearing  of  the  world,  it  will  appear  shameful, 
that  you  l>eing  sucrh  a  man  should  do  such  bu- 
ainess.  When  .Malm  Rajah  heard  this,  he 
laughed,  and  said,  To  it,  and  write  a  bond  for 
the  rufiees,  which  }0u  have  apfdied  through 
Hadu  Ciiurn  i'or  on  loan,  and  get  the  rupees 
from  him  ;  and  two  dayit  hence  the  Burdwan 
]>eople  will  receive  ihe  kellant ;  and  then  1 
will  converse  with  you.  He  then  gave  me 
two  pauns,  and  my  dismijision.  Nothing  more 
passed  then. 

Had  you  ever  any  demand  against  the  dewan 
of  the  khalsa  for  any  sum  of  money  ? — He  was 
not  my  ilebtor.  1  bad  a  demand  on  him  for 
the  Tuka  Cotlary. 

Did  you  ever  send  any  areees  to  Maha  Rajah 
Nondocomar  or  Rov  Rada  Chum,  with  respect 
to  tliit  demand?— I  depoaitcd  two  arsees  with 


j  Maha  Rajah  Nandocooury  but  did  Mt 
'  complain. 

Did  you  present  these  arzen  to  Maba  Ba- 

jah,  or  Roy  Rada  Chora  ?— To  Rada  Chwtt 
and  desired  him  to  explain  to  Maba  R^b. 

What  passed  when  yon  preaentcd  tke  wrwem 
to  Rada  Churn?--!  said  to  Rada  Cbura,  Da 
you  take  these  two  araeea  io  deposst ;  1  doat 
deliver  them  in  aa  complaints ;  was  1  la  oaa- 
plain,  I  wookl  complain  of  what  ia  true.  !■ 
order  to  frighten  hinn  I  have  wrote  wbat  1 
pleased  myself.  Do  you  take  tbeae  aa  a  ds- 
posit:  when  Moooshy  Sudder  O  Deen  comt 
fn>m  bis  out-house,  then  we  shall  w^nSnt  it 
among  ourselves ;  and  at  that  tiine  1  will  tsfct 
these  two  arsees  of  you  agaio.  1  will  gift 
6.000  rupees;  4,000  rupees  to  Maha  Bajik, 
and  2,000  rupees  to  you.  I  gave  lim  tbea  It 
golden  mohurs. 

Did  any  particular  cooTersetioa  |Mas?— I 
came  to  my  own  place,  after  having  givtn  bis 
the  arzees,  and  desired  him  to  explaiD  tbea  W 
Maha  Rajah.  I  went  agairt  the  next  iiionii«f 
to  Maha  Rajah's.  Maba  Rajab  aeid,  I  hut 
ii<-ard  from  Kada  Churn  that  you  have  dtp- 
sited  with  him  two  arsees  againat  Guoga  Goris 
8ing;  why  don't  you  present  tbem  to  ihl 
council?  I  will  procure  for  yoii  from  Ihe {t- 
neral  ready  money  to  the  amount  of  the  di* 
mand,  and  I  uill  settle  it  with  Gunga  Go*ii 
Sing.    Mr.  Fowke  is  at  enmity  with  yon ;  ds 

J^'ou  go  with  Rsda  Churn,  ami  be  reconciled  li 
lim  again ;  and  being  reconciled  to  Mr.Foekf^ 
he  will  introduce  you  to  the  general,  iba  cs* 
looil,  and  Mr.  Francis;  and  lie  will  get  yM 
the  appointment  to  Purnea;    and  1  abaM,  ii 
three  or  four  days,  obtain  llie  kellaul  of  tk 
aomeeny  of  the  khalsa.     I  replied,  When  its 
have  got  the  kellaut,  I  will  get  introduced  by 
your  means  to  the  gentlemen  ;  but  ii  does  Obi 
sigiiify  being  introduced   to   Mr.    Fowke.    I 
cannot  go  to-day,  1  \ull  go   with   Hoy  Rtdi 
Churn  to-morrow.     lie  said.    It   is  well.    I 
then  went  home  to  my  own  house,  ami  wcsi 
the  next  day  to  Mr.  Fowke,  with  Uada  Chan- 
Mr.  Fowke  was  laying  U|»on  a  couch  io  tW 
hall ;  I  presentetl  him  with  a  nuzxeer  of  five 
rupees:  he  put  his   hand  U|K>n  the  uwzietf, 
but  (lid  not  take  the  rupees.     He  told  me  to  sit 
down.    1  sat  down.    He  got  up,  and  wentiats 
a  room.    Then  Rada  Churn  took  me  with  hi* 
into  the  room  Mr.  Fowke  went  to.    Mr.  FovU 
shewed  me  tokens  of  kindness ;  lie  gave  at 
lieetle,  rose-water,  and  ottar ;    and   told  m^ 
Do  you  do  what  Maha  iinjah  shall  tell  %uS> 
I  ha?e  heard  your  praises  from  Maha  Rajak; 
do  you  be  perfectly  conteotetl.     Do  y<>n  dt 
what  Maha  Rnjsh  tells  you,  and   1   w'illyiM 
^  ou  the  business  of  I'urneah,  and  confer  nMSj 
favors  on  you.    Having  given  me  beetle,  iwe- 
water,  and  ottar,  1  took  my  dismission,  vd 
went  home;  and  staid  ut  home  two  days:  I 
neither  went  to  Maha  Rajah'a,  or  Mr.  Fowitf'i> 
I  thought  the  business  bad,  and  therefort  M 
nut  go  out  of  my  houae  for  two  da^s.    Tkt 
third  day,  in  the  evenHi|f,  I  went  to  MalnBi' 
jab  \  and  told  bim,  1  will  go  tm  Ha^gblj  ^ 


1119]    Jbr  a  Corujnntejfagainit  Warren  Hastings,  etq.    A.  D.  1775> 


[1190 


liny,  I  haTe  private  business  of  my  own ;  I  am 
roine  to  ^t  in^  dismission.  He  said  to  me, 
That  arKoe  winch  you  (fave  in  to  the  governor 
in  Mr.  F<mlce*s  nniiir,  tJiil  you  give  it  the  last 
oft'Au}|^hun,  or  the  first  of  Poos,  and  when  the 
Governor  fjfave  you  the  arzee  back  ?  Where  is 
that  arzee?  Uriog  it  mc,  I  will  see  it,  and  Mr. 
Fowke  wants  to  see  it ;  do  you  brin^  it  to  me 
to-morrow  evcnins;,  and  then  go,  I  then  came 
to  my  own  house :  the  man  who  was  my  old 
Moonshy  was  gone  home  at  12 o'clock;  the 
next  day  I  made  my  new  Moonshy  Kewder- 
nawaz  write  out  whatever  I  remembered. 
Having  made  him  write,  I  kept  it  myself;  and 
in  the  eveninfr,  having  put  my  seal  to  it,  car- 
ried it  to  Maha  Rajah's,  and  said  to  him,  Sir, 
this  is  the  arzee.  He  took  it,  and  then  gave 
me  my  dismission. 

U'hat  else  passed  ? — I  don't  remember. 

What  was  the  business  you  thought  bid? 
State  it,  if  you  can. — J  looked  upon  this  as  bad 
business.  Maha  Rujah  told  me  to  give  this 
barramut  against  the  Governor,  Mr.  Barwcll, 
Air.  Vansittart,  &c« 

Who  asked  voa  to  give  tlie  barramut? — 
Ifaha  Riyali  Mundocomar  and  Rada  Churn 
told  me.  1  saw  his  heuse  was  a  cutcberry  of 
barramuts;  the  Radshaky  man  went  witn  a 
barramut,  and  others  went  with  barramuts.  I 
was  a  pour  man,  and  was  frightened. 

Did  you  see  the  Radshaky  men  go  with 
barramuts?—!  saw  thoRadshaxy  people  there; 
all  the  world  know  they  went  with  barramuts. 

[Question  repeated.  )—i4.  J  sat  in  the  dewan 
eonnah,  and  saw  the  Radshaky  people  there ; 
»iid  from  hearing  from  one  and  another,  my 
own  sense  |H)inted  out  to  me  that  they  went 
with  barramuts. 

Was  the  liarramut  which  Maha  Rajah  spoke 
to  you  about  already  made,  or  one  that  was  to 
be  |>repared  ? — They  told  me  to  prepare  one  : 
bow  should  it  he  ready  !  had  1  a  barrninut  cut- 
cherry,  that  it  should  be  ready  ?  (Comaul  O 
Deen  desired  to  go  on  with  his  story.)  Having 
received  my  diitmission  from  Maha  Rajah,  I 
went  to  my  house  at  Houghly ;  four  or  five 
days  alter  I  heard  that  Moonshy  Sudder  O 
Deen  was  come  to  Calcutta.  I  came  to  Cal- 
cutta, aud  one  or  two  days  after  Moonshy  Sud- 
der  O  Deeu  arrived :  after  he  arrived,  the  busi- 
ness between  Gunga  Govin  Sing  and  me  was 
settled.  1  went  to  Maha  Rajah's,  and  told 
him,  that  the  business  between  Guuga  Govin 
8inff  and  me  is  sittled,  by  means  of  Moonshy 
6uflder  O  Deen :  give  me  Imck  the  two  arzees, 
'Maha  Rajah  then  said  to  me,  What  is  to  bap- 
pen  in  relation  to  those  rupees  you  conversed 
with  Roy  Rada  Churn  about  ?'^J  said,  Sir,  1 
have  not  received  those  rujiees  vet;  when  I 
receive  back  the  arzetrs,  I  will  make  the  settle- 
ment with  vou,  and  pay  yuu ;  and,  if  you 
please,  1  will  give  it  you  in  writing,  1  will 
^ive  yuu  a  receipt  for  it.  Maha  Rajah  then 
Mid,  Roy  Rada  Chum  has,  without  my 
knowledge,  given  the  arzees  to  Mr.  Fowke, 
and  be  haa  translated  tbem.  I  Mid,  I  had  not 
gifcn  tbem  to  Mr.  Fowke ;  I  bad  not  com- 


I  plained ;  I  deposited  them  with  yon :  what  io 
the  reason  of  your  having  given  them  ?  He 
then  said,  Never  mind  the  arzee  which  you 
presented  against  Mr.  Fowke  by  directions  of 
the  Governor:  do  write  thus,  that  the  Go- 
vernor and  Mr.  Graham  made  you  do  it  by 
force  against  \our  will ;  give  a  writing  to  this 
purpose ;  and  Mr.  Fowke,  from  seeing  it,  will 
be  pleased  with  you,  and  he  will  remember 
you  in  his  own  mind ;  he  will  give  you  that 
arzee  and  the  two  arzees  back,  when  yon  have 
got  the  bnsiness  of  Purneah.  Do  then  give  me' 
an  arzee  of  this  kind.  I  was  then  remediless, 
and  considered  in  my  own  mind  bow  1  ahoulil 
get  back  the  two  arzees ;  and  came  home,  and 
wrote  down  whatever  occnrred  to  me,  i.  e.  1 
caused  it  to  be  written.  At  noon  I  went  again 
10  Alaba  Rajah's ;  Maha  Rajah  was  nut  at 
borne.  1  aat  down  till  be  came.  I  gave  him 
(he  arzee,  as  he  was  getting  out  of  bis  palan- 
quin. Maha  Rajah  read  it;  and  said.  This 
arzee  is  worth  nothing ;  you  have  not  wrote 
well ;  do  you  bring  your  moonshy  with  you  in 
the  evening,  it  ahaJl  be  wrote  here.  1  wac 
ADIfry,  and  tore  that  arzee,  threw  it  away,  and 
came  home.  1  went  again  in  the  evening,  took 
m^  moonshy,  and  brought  him  into  the  presence 
of  Maha  Rajah.  Then  he  called  his  own  Moon- 
shy Doman  Sing;  having  called  him,  he  caused 
my  moonshy  to  write  out  a  foul  draught ;  and 
then  directed  his  own  moonshy  to  write  it  out 
fair.  1  am  not  sure  whether  he  made  Doman 
Sing  or  my  moonshy  write  out  the  foul  draught. 
After  that  Maha  Rujah  took  it,  and  struck  out 
some  thio^  w  ith  his  pen,  and  made  my  moon- 
shy write  It  out  fair.  When  Maha  Rajah  took 
the  pen  to  alter  the  draught,  1  told  him  I  had 
a  pain  in  my  iiell}',  and  wantetl  to  go  home, 
and  that  my  moonshy  would  write  it  out  fair. 
Then  Maha  Rajah  said,  Are  you  in  a  great 
deal  of  pain  ?  I  said,  1  am.  He  then  said, 
(><i,  and  come  to-morrow  morning ;  Rada 
Churn  will  go  with  you  to  Mr.  Fuwke's,  and 
will  there  cause  the  arzee  to  be  given  to  you  : 
1  will  speak  to  Rada  Churn  to  that  purpose. 
1  went  home,  and  then  it  was  about  a  par  or  a 
par  aud  a  half  of  the  night ;  my  moonshy  and 
Shuk  Yar  Mahomed  came  from  Maha  Rajah's. 
Shuk  Yar  Mahomed  said,  Maha  Rajah  sent 
this  arzee,  do  you  put  your  seal  n|>on  it.  I 
said,  There  was  no  agreement  between  Maha 
Rajah  and  me  about  sealing  it.  I  then  gave 
Sheik  Yar  Mahomed  my  hooka  to  smoke,  and 
then  he  went  away.  At  ihat  time  my  seal  was 
not  in  my  tkand  ;  it  was  in  my  ch-  fct.  In  the 
morning  1  went  to  Mr.  Fowke^s ;  Raila  Churn 
was  sittins;  in  young  Mr.  Fuwke's  room ;  1 
went  and  sat  dowu  there :  when  I  had  sat  down 
Rada  Churn  went  in  to  old  Mr.  Fowke.  Rada 
Chum  staid  a  gurry  or  two  with  Mr.  Fuwke. 
Then  Rada  Chum  came  from  there,  and  aat 
down  where  he  sat  before,  in  young  Mr.  Fowke'e 
room.  In  a  few  minutes  Accour  .Bluniiah 
rame  and  called  me,  and  told  roe  that  Mr* 
Fowke  wanted  me.  1  went  to  him  ;  Mr. 
Fowke  was  sitting  on  the  beil,  and  gave  me  a 
cbairtoiitdowBoppoiiletobiw;  beiuitaaid 


1151]  15  GEORGE  IIL  Trial  of  Joseph  F&aAe  and  olhen^  [liS2 

a  few  civil  words  to  me ;  be  tbea  took  the 
arzee  from  the  bed,  and  deuired  me  to  seal  it. 
Tliere  were  two  Tringy  waiters  sod  two  Ben- 
gallies  staudinff  behind  ine,  one  of  the  Beii- 
gallies  was  Aiiuos  Muno ;  the  other  I  do  not 
know.  Mr.  Fowke  said,  Seal  this,  and  give  it. 
I  said,  there  is  no  agreement  between  Naha 
llajah  and  me  to  seal ;  it  is  not  an  arzee;  it  is 
a  jabob  sawaul,  Who  is  the  person  to  whom 
the  words  Gurreeb,  Puriver,  and  Adawlet 
Gnosten  apply?  and  who  issaes  the  order? 
Mr.  Fowke  said,  Leave  that  to  me.  Then 
|blr.  Fowke  was  angry  with  me;  when  be  was 
angry,  I  grew  afraicL  When  I  saw  be  was 
angry,  I  put  my  jamma  in  this  manner  about 
iny  neck,  and  fell  at  his  feet,  and  said,  Mr. 
Fowke,  this  is  all  a  lie ;  I  am  a  poor  man  ; 
dnnU  ruin  me.  Mr.  Fowke,  hearing  this,  took 
up  a  book,  and  cried  out,  God  damn  you,  you 
aon  of  a  bitch!  When  he  took  up  tne  book, 
and  called  me  names,  I  said,  Bring  it,  and  I 
will  seal  it.  He  then  put  down  the  book ;  my 
body  shook  for  fear,  and  1  sat  down  on  the 
ground  in  this  manner ;  1  cried,  and  sat  on  the 
ground.  He  tben  gave  me  the  arzee.  and 
I  sealed  it  He  tben  cried  out.  Tell  these 
people  to  be  witnesses ;  I  said.  It  is  very  well. 
He  then  took  out  a  furd,  and  shewed  me. 
Within  three  years  have  you  given  45|000 
rupees  to  Mr.  Harwell ;  t.  c,  15,000  rupees  per 
annum?  I  said,  I  have  given  it.  He  then 
■aid.  Did  you  give  the  governor  a  nuzzeer  of 
15/)00  rupees?  I  said,  I  gave  it.  Did  you  give 
Uusheia  Jung  12,000  rupees  ?  I  said,  Yes,  I  did. 
Did  you  give  Uajah  Ragibullub  7,000  rupees  ? 
I  said  1  did.  Did  you  give  Cantoo  Baboo  5,000 
rupees?  I  said,  I  did.  He  said,  Sign  this. 
Upon  some  of  the  names  1  wrote,  1  had  given; 
upon  others  I  wrote,  I  delivered.  Having 
taken  this  from  me,  he  saiil,  Go.  I  ran  away 
from  them,  wiping  my  face.  Running  away 
from  thence,  I  came  to  the  stair  case,  and  stood 
there.  Samsheer  Beg  was  standing  there  ;  I 
said  to  him,  ^)ee,  this  force  is  put  upon  me. 
Samsheer  Beg  said  to  me,  1  see  that  you  are 
shaking  ;  but  what  is  the  matter?  I  have  not 
heard.  1  said  to  him,  Will  you  hear  what  is 
the  matter?  Young  Mr.  Fowke  and  Rada 
Churn  came  out  laughing ;  and  stood  at  the 
door  of  thu  iiall.  1  then  said  to  young  Mr. 
Fowke,  Give  me  back  those  papers  which 
your  father  has  taken  from  nie  by  force,  or  1 
will  go  and  complain  to  the  t^eneral  and  to  the 
colonel.  When  J  had  said  this,  he  told  me  to 
stay ;  tiiey  both  went  in  to  Air.  Fowke  ;  they 
came  out  from  thence,  alter  having  staid  a  long 
time.  Young  Mr.  Fowke  brought  out  a  cover 
of  a  letter  of  this  size,  and  said,  Your  arzees  are 
all  within  this;  I  will  put  them  to-day  in  my  own 
chest ;  do  you  come  liere  in  the  morning;  Maha 
Rajah  will  come  also :  whatever  Maha  Rajah 
■ays,  and  will  be  your  pleasure,  shall  be  doue.  I 
was  remediless,  and  came  to  my  own  house. 
When  I  ;rut  to  my  own  house,  I  eat  nothing  ; 
fear  arose  in  my  mind.  When  tour  gurries  of  the 
day  were  remaining,  I  went  to  moonshy  Sudder 
O  Dtwa'Si  and  said,  iU)y  Rada  Churn  lias  dealt 


treacherously  (dagger)  by  me;  they  have* 
ed  me  to  write  a  very  scandalous  paper  of  ba- 
ramuds :  if  in  the  morning  Maha  Rajah  givci 
me  back  this  paper,  it  is  very  well ;  if  be  does 
not,  I  shall  ruin  myself:  do  you  enquire  ate 
me  in  the  morning,  and  acouaiot  Mr.  Barwd 
and  Mr.  Vausittart,  that  this  oppresaon  bu 
lieen  used  upon  me.  1  am  going  now  to  Hahi 
Rajah's,  and  at  night  I  will  come  to  too. 
Having  said  this,  1  went  to  Maha  Rajah'i ; 
Maha  Rajab  was  in  private ;  Roy  Rada  Chora 
was  with  him  :  Samsheer  Bieg.  Shirk  Yar  Hi- 
homed  and  I  sat  down  in  the  gateway.  I  vai 
to  them,  Four  para  of  the  day  thia  opprcsM 
has  been  npon  me ;  that  1  have  yet  four  pui 
of  the  day  to  remain  in  this  manner.  I  aiM 
Yar  Mahomed  for  a  glass  of  water ;  and  hs 
^ve  it  me.  Samsheer  Beg  and  1  in  the  cvn- 
ing  said  our  prayen  together.  After  sayiir 
our  prayers,  I  went  to  Roy  Rada  Churn,  aai 
said  to  him.  On  your  account  I  have  bm 
abused  and  disgraced  by  Mr.  Fowke ;  and  hs 
has,  by  force,  caused  me  to  write  a  paper  I 
cannot  prove :  I  cannot  sit,  give  me  a  piUse 
to  lay  down.  He  then  gave  me  a  pillow,  aai 
I  laid  down.  Roy  Rada  Chum  said,  I  haw 
explained  this  matter  to  Maha  Rajah,  and  heii 
very  angry  with  Mr.  Fowke.  Maha  Rijik 
will  just  now  come ;  do  yon  go  to  him,  he  wl 
tell  you  all.  I  lay  there  about  a  gurry  or  bior^ 
when  Maha  Rajah  came  out  into  the  Devai 
Connah  :  I  tben  went  to  him,  and  sat  dona 
Maha  Rajah  said,  I  have  heard  every  thiif 
from  Roy  Rada  Charn  :  never  mind,  I  will  p 
in  the  morning  to  Mr.  Fowke's ;  w  hatever  ml 
content  you  shall  he  done.  He  then  gave  m 
beetle  and  my  dismission.  I  then  went  ts 
Moonshy  Sudder  O'Deen,  and  told  him  wbl 
bad  passed  between  Maha  Rajab  and  me,  vd 
then  went  home.  The  next  moriung  1  went 
again  to  Mr.  Fowke's;  and  there  was  Mr. 
Fowke,  Maha  Rajah,  and  Roy  Rada  Churn; 
I  do  not  know  where  young  Mr.  Fowke  »<f. 
For  fear,  I  stood  on  the  stair-cuse,  and  did  wi 
go  into  the  room.  About  a  gurry  after  Mr. 
Fowke  came  out  of  the  room  ;  1  salaromtJ  to 
him;  he  took  no  notice  of  it,  and  went  odi: 
then  Maha  Rajah  and  Roy  Rada  Churn  came 
out;  then  I  asked  of  Maiia  Rajah,  W'hat  bare 
you  done  for  me?  He  answered,  I  liavec|iok( 
to  Mr.  Fowke  about  it,  but  lie  does  nut  heir 
me:  do  not  you  mind.  In  saying  this,  3Ubs 
Rajah  got  into  his  palanquin,  and  went  awaj> 
I  culled  out,  Duoy  on  the  king,  and  thecourtt 
the  cjfovernor,  and  on  the  council.  Haitff 
called  out  Duoy,  I  tore  my  jainma,  and  crii) 
out,  Mr.  Fowke,  Maha  Rajali,  and  Roy  W*^ 
Churn,  have  caused  mc  to  write  out 'a  f>te 
baramud  paper  ayfainst  i^entlemen,  and  J  la 
t;oing  to  the  court  to  complain.  Then  Ytf 
Mahomed  and  Neiloo  Sincf  laid  holii  of  n/ 
hands,  or  one  of  them  ;  having  disengai^t^  sir 
hands,  I  went  into  my  own  palanquin.      Man/ 

Seople,  1  do  not  know  whethi  r  Mr  Fuwkr'ii 
laha  Rdjah*s,  or  Roy  Rada  ChurnV  vest 
sciiflling  along  with  my  pcMiple  and  my  beirrrt 
as  far  as  a  house  of  l(ajah  iUjibuUub'i»  liiiik 


1 159]   fir  a  Contfimey  agmtut  Warren  Hdttingt,  etq*     A.  O.  177& 


rii5i 


Counab.  Then  they  webt  back.  I  came 
«Dd  gaT6  notice  of  it  to  tbe  chief  justice  loH 
8aub.  i  am  (inv  veara  old ;  I  liare  seen  tbe 
I>uriiara  of  Souban  and  Kiogv,  and  luch  a 
court  I  ba^e  never  seen.  I  have  read  of  such 
«  court  that  now  shah  wan ;  and  at  the  time  I 
lodfi^  the  complaint,  I  had  no  idea  it  was 
«wch  a  court.  I  understood  that  Mr.  Fowke 
was  oppressive  and  powerful,  and  Maha  Rajah 
Mid  Rada  Churn  were  so  likewise;  and  did 
not  eipect  to  have  found  such  justice  to  a  poor 
nan.  I  thoug'ht  to  myself,  I  shall  he  ruined, 
my  post  will  go  from  me.  When  I  |^o  away 
min  the  Ailawlet,  Mr.  Fowke  or  Maha  Rajah, 
who  are  the  masters  of  the  G4>untry,  will  im- 
|iriaon  me,  and  very  great  ruin  will  ensue ;  and 
BO  ruin  will  accrue  to  you«  from  hearing  Mr. 
Fowke*s,  Maha  Rajah's,  and  Rny  Rada  Cbnm*s 
words.  From  doing  this  business  to  the  plea- 
sure of  Mr.  Fowke,  Maha  Rajab,  and  Roy 
Rada  Churn ;  I  tliouifht,  if  I  would  agree  to 
take  a  falne  uaili  b<'fvre  the  conimitiee,  no  ruin 
woaid  ensue ;  hut  my  religion  would  go. 

Did  Mttlia  Rajah  or  Ri>v  Rada  Chum  ask 
you  tor  the  harramut  P  and  did  they  tell  you 
in*  what  ptir|Mise  they  wanted  it  ? — Wbat  Maha 
Rajah  tuid  ro*.'  almnt  it  I  have  caused  to  be 
wrote  down,  almut  the  gfovernor's  being  put  to 
•haiiie  in  Europe :  Mr.  Barwell,  Mr.  Vansit- 
tart,  and  Mr.  John  Graham,  and  their  consc- 
ience ill  this  affair,  will  be  less. 

From  M  horn  did  you  hear  that  the  governor 
«Dd  tbe  other  gentlemen  would  be  brought  to 
Bbame? — I  heard  ii  from  the  Maha  Rajab,  Mr. 
Fowke,  and  Raila  Churn. 

When  you  had  sealed  the  arzee,  was  it  rc- 
tnmed  to  you  or  Mr.  Fowke  .^ — Mr.  Fowke 
kept  it. 

Do  you  know  what  use  was  made  of  the 
Srxee? — f  know  nothing  of  it. 

When  you  say  you  know  nothing  of  it,  do 
yoa  mean,  yon  have  never  seen  it  since  P-— I 
can't  say  I  have  never  seen  it  since  ;  I  saw  it 
«t  lord  Saule's,  and  in  tliat  room,  (pointing  to 
tbe  Grand  Jury  room.) 

Did  you  give  those  sums  to  the  governor  and 
the  other  gentlemen  ?— I  never  gave  any  body 
4re  ropees. 

Then  why  did  you  say  to  Mr.  Fowke  that 
yoa  had  ? — Mr.  Fowke  had  taken  up  a  book, 
umI  was  in  a  great  passion.  I  did  it  through 
ftsr;  if  yon  was  to  frighten  me,  you  might 
make  me  sign  an  assignment  of  the  kingdom 
flf  Indostan. 

How  came  yon,  when  you  was  frightened, 
to  lay  Yea  tn  tlie  questions  pot  by  Mr.  Fowke  f 
—I  was  frightened;  if  he  did  not  intend 
that  I  should  say  Yes,  why  did  he  write  the 


**crh 


by  did  you  think  it  would  be  agreeable  to 
Mr.  Fowke? — Whatever  Mr.  Fonke  would 
kftTe  bid  me  write,  I  would  have  written. 

Why  should  yon  think  Mr.  Fowke  would  be 
angry  if  you  said  No  p — I  was  in  his  power ; 
bo  was  in  a  passion,  and  angry  with  me. 

Doo't  you  know  that  Mr.  Fowke  wanted 
joa  to  aay,  i  did  sot  giYoF«-[CoaM  gtl  no 

VOL,  XX. 


other  answer  to  tliia  question  tbad  wbtt  wa« 
given  to  tbe  last.] 

Wbat  did  Mr.  Fowke  say  to  you  about  tbo 
ford  ?— >He  aaked  me  if  I  bad  given  Mr.  liar* 
well  45,000  rupeea?  1  answered.  Yes;  1  was 
so  frightened,  I  should  have  said  Yes  to  any 
thing  Tie  said. 

Could  you  collect,  fh>m  the  manner  of  Mr* 
Fowke's  putting  the  question,  that  he  expected 
you  should  answer  Yea  P^-1  knew  very  welf^ 
if  I  did  not  say  Yea,  1  should  be  disgraced. 

How  did  you  know  that.^ — When  I  waa 
sworn  at«  and  called  names,  and  tbe  book  lifted 
up,  what  remained  bot  to  answer  as  Mr.  Fo\i-k« 
pleased  P  He  did  not  tell  me  to  say  Yes ;  but 
he  asked  me  if  I  did ;  and  I  answered  Yes. 

What  reason  bad  yon  at  that  time  to  sup« 
pose,  that  Mr.  Fowke  wanted  yon  tosay  tlioso 

ftfutlemen  fiad  received  money  P— At  first  wheA 
went  to  Maha  Rajab,  be  asked  for  a  barramut| 
and  for  tbe  barraniut  of  Hidgelee.  Why  am 
I  asked  this  question,  when  be  baa  a  cutcberry 
of  barramuts  P 

Who  do  you  mean  by  heP  Mr.  Fowke  or 
Malta  Rajab  P— ft  was  first  held  at  Maha  Ra<« 
jab*s,  afterwards  at  Mr.  Fowke's.  Who  is  liei 
that  all  the  world  should  go  to  him  P  he  is  no 
counsellor  :  there  is  no  other  person  in  Calcutta 
tliat  has  such  an  assemblage  of  black  people  at 
bis  boose. 

Who  ordered  the  persons  to  follow  your  pa« 
Isnquin,  when  you  went  from  Mr.  Fouke'sP^-^ 
I  do  not  know. 

Whose  servants  are  Sheik  Yar  Mahomed  and 
Netto  Sing? — Maha  lUjah  Nondocomar's. 

Did  any  body  else  touch  you  P — Yes,  all  the 
hircarrabs. 

What  i\o  yon  expect  would  lie  done  to  yoii« 
if  your  people  were  less  powerful  than  theirs? 
•—How  do  1  know  whether  they  would  carry 
me  to  the  general's  or  elsewhere  P  I  thought 
they  would  either  confine  me  in  their  own 
house,  or  carry  me  to  the  general's. 

Why  did  you  particularly  think  they  would 
carry  you  to  the  general's,  more  than  to  any 
other  of  the  council  P — Mr.  Fowke  used  to  go 
to  three  gfnilemen,  the  general,  colonel  Mon« 
son,  and  Mr.  Francis.  1  have  seen  it  with  m/ 
eyes.  , 

ft'  Mr.  Fowke  had  wanted  you  to  a  wear  to 
this  i'urd,  would  you  have  done  so  P— If  be  had 
kilted  me,  I  would  not  have  sworn  falsely  ;  but 
if  he  had  demanded  of  me  to  promise  to  sweac 
it  another  time,  1  would  have  peniiitted  it  | 
bot  1  would  not  have  done  it. 

You  say,  you  have  seen  the  Radshaky  peo« 
pie,  and  that  it  was  bad  ;  what  did  you  mean 
by  bad  P — I  saw  them  there ;  and  I  thought 
the  keeping  a  cutcberry  of  barramuts  was  Iwd* 

Do  you  know  Barnassy  Gbo^e P^  1  do;  he 
is  a  ryot  uf  mine. 

Did  he  make  any  complaint  against  jon  P— 
Yes,  he  did,  to  the  general ;  be  sent  for  me  ; 
he  Isid  his  handnpon  the  nuzzer  of  five  lupees 
which  1  ofiere<l,  but  did  not  lake  ii,  and  gave 
me  beetle,  and  told  me  to  come  to- morrow. 
His  Dewao  toki  hiflB  I  was  come ;  tbe  gaaeral 

4JK 


1155] 


IS  GEORGE  UL  Trial  ^Joi^pk 


andoihin^ 


ri\w 


wrote  a  chit,  and  sent  it  and  aneCher  paper,  to* 
crelber  with  me  and  Baroasay  Ghote,  to  Mr. 
Fowke,  and  Mr.  Fowke  woald  enquire  into  it, 
and  report  it  to  him  ;  then  the  ipenerara  man 
went  with  roe  and  Bamaiay  Ghoae  to  Mr. 
Fowlce'a  hooae ;  be  went  up  staira,  and  left  ua 
two  below  ;  the  serrant  then  came  down ;  and 
laid,  he  had  deliYered  the  chit  to  Mr.  Fowke ; 
that  Rada  Chum  waa  then  with  him ;  aud 
when  he  was  gone,  we  ahoiild  be  called  up. 
He  went  away  in  about  four  gurrys.  We  went 
up ;  Mr.  Fowke  was  sitting  upon  a  chair ;  he 
(hen  begah  to  enquire  of  ae  about  Hodgelee, 
the  rcTenues  of  it,  what  it  waa  worth,  and 
CTery  circunstanoe  about  the  salt,  and  all 
other  matters  about  that  country.  fiar- 
nassy  Ghoae  then  told  Mr.  Fowke,  that  I  had 
rented  the  Tecka  Collaries,*  of  Engliab  gen* 
tlemcn,  at  a  Tery  great  ezpenoe. 

What  do.you  mean  by  a  very  greatexpence  P 
— Baruassv  Ghose  told  Mr.  Fowke,  that  I  had 
expended  large  suma  of  money  on  bribes  to 
English  gentlemen  for  the  Tecka  Collariea. 
Mr.  Fowke  then  asked  me,  Does  this   man 

rk  truth  ?  I  said,  He  lies.  Mr.  Fowke  re* 
I,  You  haTe  giren  rupees  to  the  English 
gentlemen.  Then  young  Mr.  Fowke  came, 
and  there  was  a  great  deal  of  conreraation  be- 
tween them  ;  and  then  young  Mr.  Fowke  gare 
me  my  dismission  ;  and  told  me  to  come  next 
day.  f  went  Accordingly  the  next  morning  ; 
and  Mr.  Fowke  anin  interrogated  me,  as 
to  all  the  business  of  the  country ;  and  again 
asked  me  if  I  had  not  given  money  to  Mr. 
Vansittart.  I  answered,  It  is  all  a  lie;  and 
then  Mr.  Fowke  was  angry,  and  he  and  young 
Mr.  Fowke  talked  English  together,  and  dia- 
missed  me.     I  went  again  on  the  third  day. 

What  date  was  all  this? — I  do  not  remem- 
ber accurately  the  day  1  received  the  chit  from 
the  general ;  this  conversation  was  either  the 
last  day  of  Aughun  or  first  of  Poos. 

What  passed  on  the  third  day  ? — Re  asked 
me  what  1  had  given  to  the  English  gentle- 
men, and  what  to  the  Mutsuddies.f  He  told 
me  to  tell  the  truth  :  if  I  did  not,  I  should  be 
greatly  punished.  I  said,  1  had  given  nothing 
to  any  body.  He  said,  you  speak  this  without 
reason.  I  then  said,  I  am  a  farmer,  and  no  thief. 

Did  any  thing  more  pass  on  the  third  day? 
•-I  only  went  to  my  own  house. 

Did  you  go  to  the  general's  ? — I  went ;  but 
I  did  not  meet  with  him  at  home. 

What  did  you  next  ?— 1  came  home  and  con* 
sidered  in  my  own  mind,  whatever  has  past 
between  Mr.  Fowke  and  me,  if  I  write,  and 
give. so  much,  1  do  not  know  whether  the  (^o- 
fernor  will  be  angry  with  me.  What  did  I 
know  that  the  governor  would  be  angry  with 
me  !  therefore  J  did  not  write  much  ;  but,  hav- 
ing caused  a  little  to  be  wrote,  I  went  and  gave 
it  to  the  governor,  and  I  told  hitn  all  by  word  of 
inouth.  The  irovernor  said,  You  have  wrote 
in  your  arzee  little,  and  by  word  of  mouth  yon 

*  8Alt  Contracts. 

t  Clerks  or  Wriierk  io  the  Public  Offices. 


aay  a  great  deal;  wbatefer  yon  tell  ne  by 
word  of  mouth  write  down  io  an  vice,  and  I 
will  inquire  about  it  in  the  eommittee.  1 
answered,  1  have  not  nav  naoonah^  witb  ase ;  1 
will  write  it  out,  and  briog  it  to  mermr 
morning.  The  governor  nnawered,  Ifyoo  bait 
not  your  moonshy  with  yon,  take  mine ;  wd 
whateTor  yon  haye  la  write,  lie  wiU  write  k 
The  worda  the  goyemor  tbeo  used,  ia  ihi 
Hindustan  language,  I  did  not  onderaHni 
He  desired  Mr.  Vansittart  to  expbin  them  w 
me  in  Persian ;  then  Mr.  Vansittart  explaiatd 
them  to  me,  that  the  governor  had  aaid,  Hj 
moonshy  is  here ;  do  yon  caaae  it  to  be  wraw 
by  hiss.  I  agreed  to  it ;  and  the  soveisv 
Gilled  his  own  moonshy  Shereit  Onllah  Ca«% 
and  told  him,  whatever  this  man  has  to  vrin^ 
do  yon  write  for  him.  I  then  caused  bia  n 
write  whatever  had  passed  between  Mr.  Fseks 
and  roe :  having  wrote  it,  J  gaye  it  to  the  ft- 
vemor ;  and  the  governor  having  eauaed  it  n 
be  read  to  him  by  the  moonahy ,  he  kept  it,  mi 
gave  me  my  dismisaion,  and  returned  meihi 
amall  arxee  I  had  given  him.  I  then  caaKli 
myown  house. 

Was  what  you  dictated  to  the  moeaahy  I 
true  account  ?— Whatever  paaaed  between  Jlr. 
Fowke,  Bamassy  Ghose,  and  myseir,  I  casMi 
to  be  wrote  truly. 

Did  the  arzee  contain  any  thing  nrioietitt 
what  passed  between  Mr.  Fowke,  BamMj 
Ghoae,  and  you?— There  might  be  a  ward  « 
two  wrote  more,  about  my  own  affairs,  which  I 
do  not  remember,  whether  relative  ta  Ml 
Fowke,  Bamassy  Ghoae,  and  n>ysetf. 

After  you  went  to  Rajah  Rajebullob,  vfc* 
did  you  first  apply  to  ? — I  first  applied  to  ikt 
governor;  he  said,  I  cannot  ud minister jsuifli 
to  you ;  they  are  three  gentlemen ;  1  an  b«t 
two. 

Who  did  he  mean,  by  three  and  two  grBtI^ 
men  ? — I  do  not  take  upon  me  to  explain  tki 
governor's  meaning.  He  said,  If  you  biff 
any  complaint,  the  king's  court  is  here ;  kip 
your  complaint  there. 

Did  you  lodge  any  complaint  ? — I  then  nid, 
How  shall  I  gel  to  the  Adawlut,  to'  lodgsev 
comulaint?  Mr.  Fowke's  people  will  take ei 
on  the  road.  Then  the  governor  8|ioke  tos 
chubdar,*  and  said.  Do  you  go  a!on<r  with  Ikii 
man  to  the  chief  justice's  house.  I  then  vat 
to  the  chief  justice's,  and  came  inui  kil 
presence. 

(Mr.  Sumner  produces  two  arzees,  andalc^ 
ter  io  which  they  were  enclosed.) 

Prom  whom  did  you  receive  these  ? — 1 1^ 
ceived  them  from  one  of  the  secretaries  of  tki 
public  department ;  I  received  them  from  Hr- 
Auriol. 

Croti'  Examination  qfCcmaul  O  Dsem. 

Have  you  eanversed  with  any  bodysaiki 
anhject  of  your  ezaminalioo  ? — With  nobsdj. 

*  A  ataffbearer ;  one  wbe  waits  with  a  loaf 
stsff  plated  wNh  silver,  and  runa  bsAn  bii 
masteri  prociaimingelaud  Ihi  Mm, 


IrsCampmuj/againH  Wmrtn  Hatting,  etq.    A.  D.  1775. 


Rare  yoo  giten  ko 
or  wriliD)[,  directly  or  imlirectly  ? — I  h»e 
•aid  any  ihiap  li>  any  body,  or  nwd  ibu  ap- 
p«ftrKnce  gl'  jmii  aod  ink. 

Ha*  any  niaonihy  T—l  dn  not  know  tbatany 
tnooDvhy  liai;  I  was  above;  he  was  beta  w  ;  I 
tlJil  ml  BiiRlb  to  him  abniil  it. 

Ttit  lbs  ilay  of  C'liile  yoa  went  to  borrow 
nioniy  of  Miha  Kajah  Nundooomtir.''— 1  fint 
4c<iiBDdc<l  il  on  iho  lirsl  nl'  Cbyle ;  I  got  tbe 
nine*  on  ilie  ]3lli  or  Itlli. 

I>id  yoii  rcceiro  the  money  F — Vet;  I  wu 
^aid  iiiguIJ  muliurs. 

"■■    you    gire    any    MCurity  ?— I  gaio   a 


[1158 


IVhcn  did  you  ap(ily  In  borrow  tlie  monev? 
—I  oflen  More  borrowed  money  orbim  ;  lliia 


>l  the  I 


borronrtrd  ni 


«  aa  il  withii 


noneynrMaha  RnJaliP  i 
■wo  or  rour  nioDthi  f— Nol  wilbin  Iwo  or  loi 
IBMIllll. 

[Question  repeated.}  It  was  between  ii  t 


Un 


Are  ynu  sure  it  wb«  not  moref — I  paid  Ibe 
•aUiice  due  tu  illaha  Hajah. 

[Quealiun  repeated.]  Il  waa  two  or  fnor 
«««■«  aince  I  borrowed,  when  Rupca  O  Din 
Cawn  wai  Phouadar*  of  Hougbly;  I  hare 
burrowed  none  noce ;  I  borrowed  ihrau);h  the 
■WBiia  of  Koy  Rada  Cburo  :  il  was  in  the 
year  of  the  laiiiioe,  fire  or  lix  moolhi  before 
titB  Taruiue  -,   1  canifiL  exactly  Hx  the  date. 

Dill  you  never  apply  between  thai  time  and 
Chyle  to  butruw  money  ? — I  never  made  any 
■pplieuioa. 

Had  you  ever  visited  between  ? — 1  had  fre- 
fneoily. 

When  did  ynu  latltiail  him  before  the  monlh 
of  Chyle  ?— My  aon  was  married  in  Ihe  miinlh 
•r  Phau^UD,  anil  I  ilivn  |Hid  tlie  cuslomary 
oomptioieiii  10  Mabo  Ksjah  of  Mnding  aweei- 
Biaau. 

When  did  yon  *i«il  the  Maha  lUjahP— I 
cwTted  ihe  iwralmeala  niya«lf,  and  preaemed 
ban  with  a  nuzseer.  We  were  on  terms  of 
fneoiltihip  a  Juiik  lime  Wtiire. 

Uuw  liinf;  iMlore  the  nionlh  of  Chyle,  in 
wllicb  vou  bomiwed  the  money  ° — li  was  tbe 
Imh  ofPhaugun, 

H'by  did  yuu  apply  to  borrow  money  } — 1 
bad  oecaaiou  tor  il;  iherelnre  I  borrowed  it. 
The  bond  carriea  no  ioieraat  of  ooe  rupee  per 

Had  yon  any  cnnrrraatlnn  on  any  other  tub- 
JMt  with  Muli4i  Rajah  ? — Wlieoever  I  weal,  he 
.conrennl  with  iiwoa  no  other  lubjeclbul  itie 
batamnl. 

What  Gonteraatloii  had  you  the  day  you  re- 
eeivad  the  mouey  t — I  diil  nol  aee  Maha  Itajab 


■ilh  Uaha  Uajah 


Wben  1  reeeiveil  tlie  money. 
Ilail  you  anv  oooirraaiHi 
l^'lfca  lime  he    desired   you  to  go  to    itoy 
mUf  Chtira  about  the  mimry  F— There 
^^^■•■•mation  about  ibeHunny  Be^u 

Ik 


\  Qu.  Fvnidar,  a  polict  iiagitiiau. 


Did  Maha  Ra|ab  ask  any  qiirstiona  of  you 
vourselfi'—HeBalied  roe  if  i  bad  heard  nbal 
had  pBMed  belweeo  ihe  governor  and  hitn  } 
be  said,  1  waa  not  hia  enemy  ;  1  waa  Joba 
Urahatu'a. 

Did  he  oak  aay  other  question  ?— [He  re- 
ialea  word  tor  woni  what  he  saw  yeaieiday,] 

Did  lUaha  Rajab  ack  any  particular  (joes- 
lioDiP— -Hear  me  wlial  I  am  going  to  relale: 
be  aahed  barramiitn. 

What  did  heaak  about  barraroiita  f — Heaaid 
to  me,  That  when  Ihe  ifovernnr  told  me,  I  will 
be  revenged  on  yon,  I,  Imng  remedileaa,  eoti* 
anlied  withHr.  Powke.  It'ynii  will  br^og  loroo 
tbe  pepera  of  barraniula  aeainit  il>e  gniernor, 
Mr.  Uarwell,  and  Mr.  Vaniitlirt,  those  gdille- 
n>eu  will  mvel  with  ahanie  at  home,  anif  1  wiU 
give  yoii  tbe  buainesa  of  Aumeen  of  iba 
Khalia.* 

Did  be  iik  yon  any  other  wori1«  except 
Ihote  about  Ihe  barram  uls  f — He  aaid,  Do  yoti 
lbi<  buainesa  of  Hedgelee  Comgeer,  Tunilook  , 
and  the  salt  Hhaala.t  aod  from  wherever  you 
can.     By  business,  I  mean  bsrnimuis. 

Did  this  coBvenialton  pass  on  ihe  day  Maha 
Rajah  bid  v<iu  apply  to  Roy  Itiula  Churn  f-~ 
Vea,  thai  ilsy  ;  and  he  laughed  and  lold  me, 
When  tlie  Burdwan  Rajah  geta  bis  drea^ 
Ibeo  1  will  confer  with  you. 

How  came  this  pamcuUr  conversation  lah« 
iutrnduccd? — How  should  1  know  what  wm 
Muha  Rajah'a  reaieiia  for  introducing  it  ? 

there  to  tiiil  him  ;  he  told  me  all  these  wordi, 
and  gave  theae  antwers. 

Tell  the  coDveraaiion.— Pirit,  in  the  monlh 
of  Phaugun  I  weni  lo  Roy  lUda  Churn,  and 
tuld  him,  Uo  vou  tell  Haba  Rajah,  that  Ihert 
is  to  be  a  wedding  of  my  son,  and  beg  him  la 
receive  Ihe  sweeimeals.  Huy  Rada  Churn 
taid,  Malia  Rajah  wilt  take  the  aHeelmeala  a) 
your  aon'a  wedding,  and  will  sliew  you  maoy 
Kindnesses;  this  is  your  old  home  ;  you  must 
be  on  lei;ms  of  friendship  wiih  Malia  Rsjab. 
He  has  taken  ptoper  measures  afiuut  the  Go- 
vernor, Mr.  Barwell,  and  Mr.  Vanailtart,  and 
other  genllempD.  What  Ihey  have  ale,  lliey 
will  be  obliged  in  diignrge ;  aud  will  be  piii  to 
shame  in  Iheir  own  country,  and  will  be  called 


or  d<d  he  say  that  Alalia  liaisti  nunilo> 
aaid    BOF— -It   Haa  what   Maba  H^jah 

Go  on. — And  \a  proportion  to  the  bad  name 
that  ihe  geniiemen  have  given  to  Maba  Rajab 
lirre,  he  will  have  a  good  one  in  England.  1 
(l.'uroaul)Baiil,  There  used  to  be  great  fiiend- 
ship  between  the  Governor,  Mr.  Barwell,  and 
Maha  lUjah.  Was  ii  this  ?  What  i<  ilie  r>fa<.nn 
nl  their  Beoaralion  ?  Ho  answered,  Malin  Rajab 
waa  Hr.  John  Gralian'a  enemy  i    he  waa  oM 

•  Cnmmi»<ioiw>rorthoTrea*arj. 
I  Properly  molt,  n 


1159] 


15  GEORGE  IIL  Trial  qfJatefA  Fmie  and  aOen.  [HGS 


•1  eoemy  of  the  GoverBor  or  Mr.  Barwell. 
Tne  Governor  aufl  Mr.  Birwell  bad  tliem* 
selves  marie  the  Maba  Rajah  their  eoemy, 
•«d  had  forbid  him  to  go  to  their  houses ;  and 
mi&m  the  Governor  prewe&dlaha  Rajah  to  come 
to  bin  house ;  and  Alaha  Rajah  aays,  I  will 
never  see  his  face  ;  1  will  never  ^o ;  and  I 
shall  cooHider  well  of  htm.  I  then  askc^,  Why 
does  Maha  Rajah  go  to  Mr.  BarwelFs  and  Mr. 
Vansittart'd  ?  Roy  Rada  Churn  answered, 
They  are  always  calling  him,  in  order  to  re- 
concile him  to  the  Governor  ;  but  Maha  Rajah 
will  not.  I  said,  Great  men  know  the  business 
of  great  men  ;  J  am  a  poor  man :  go  and  tell 
■o  much  for  me  to  the  Maha  Rajah,  that  I  am 

going  to  the  weddinir  of  my  son,  and  request  of 
im  th^t  he  will  agree  to  accept  of  the  sweet- 
neals.  He  then  said.  Do  you  sit  down  ;  lam 
Ifoiiig  to  Maha  Rajah.  He  returned  in  two 
gurries  after,  and  aaid,  I  have  aatisfied  Maha 
Rajah  ;  he  will  accept  the  sweetmeots.  If  you 
•re  to  go  to  Houghly  to-day,  go,  and  send  the 
sweetmeats;  and  if  you  do  not  go  to-day, 
come  to-morrow,  and  get  your  dismiuion  from 
Blaha  Rajah.  I  said,  I  have  taken  dismission 
from  the  governor,  and  all  the  gentlemen,  ex- 
cept Mr.  Cottrell ;  I  will  go  to-morrow  and  get 
my  dismission  from  bim ;  and  at  a  par  and  a 
half  of  the  day  I  will  come  to  Maha  Rajah,  and 
iret  my  dismission  from  him.  1  went  next 
morning,  got  my  dismission  from  Mr.  (Cottrell, 
and  at  a  par  and  a  half  or  two  pars  of  the  day 
]  went  to  Maha  Rujab's.  He  was  not  there, 
nor  Roy  Rada  Churn.  I  sat  down  in  the  De- 
vrsn  Connah :  just  as  I  sat  down,  Maha  Ra- 
jah's sewarry  canoe,  and  he  also  came.  1  then 
went  down,  and  Maha  Rajah  wasirot  out  of  his 
palanquin ;  as  Jie  was  ^;oing  in,  I  paid  my  sa- 
Jams  to  him ;  Blaha  lt«jah  slopt,  and  said,  f 
have  heard  from  Roy  Rada  Churn  al>out  your 
marriage:  may  Gud  prosper  it !  Undoubtedly, 
when  there  is  a  marriage  at} our  house,  and 
you  send  sweet oieatii,  1  will  receive  them  ;  and 
if  there  is  a  marriage  at  my  house,  I  will  send 
stieetmeats  to  vou.  He  calU-d  lor  the  puodur, 
gavfc  me  lieelte,  and  my  dismission.  I  then 
went  to  Houghly  ;  and  at  the  marriage  of  my 
son,  I  sent  the  sweetmeats  tu  Maha  Kajnli  and 
Itiila  Churn ;     they  both   accepted  of  them. 


the  particulars ;  bat  people  ia  gvacnl  say,  tkit 
there  was  great  friendship  between  the  goter* 
nor  and  you,  and  now  there  is  m  great  diuxccs  ; 
people  laugh  at  this.  If  the  xmindan*  bad 
done  it,  it  would  not  have  ai^i6ed ;  but  tbit 
you  have  done  it,  is  very  bad.  Then  31aba  Ra- 
jah said.  What  can  I  do?  I  wax  to  escape  froB 
the  governor's  bands.  If  1  had  not  done  it,  I 
ahould  not  have  escaped  from  the  goveraoKs 
hands:  being  remediless,  I  did  it.  Hetbcs 
began  to  relate  what  1  related  yesterday  vak 
to-day.  The  conversation  went  on  as  1  jci- 
terday  related  it. 

When  did  yon  speak  to  Roy  Rada  Cbiifi 
about  the  rupees  on  loan.' — When  I  wcntsp 
to  Houghly.  Msha  Rajab  then  told  me  tap 
and  get  the  rupees  from  him. 

What  passed  about  barramnti  «m  this  ImI 
day  you  mentioned  ?-»W  bat  I  have  rdalc^ 
interpreting  many  during  ibe  course  of  the 
examination. 

What  was  said  about  barra mats? — Heiaii 
I  was  an  enemy  to  John  Graham,  and  be  an 
to  me.  The  Gorernor  said,  Be  on  your  gmid, 
I  will  consider  of  you.  I  have  consuhcd  aiik 
Mr.  Fowke.  BIr.  Fowke  says.  Do  yoa  giit 
me  harramnts  against  the  Goeemor,  Mr. 
Barwell,  Mr.  VaosiiUrt,  and  other  gnth- 
men  ;  they  will  meet  with  shame  in  their  on 
country  ;  and  I  will  pnvcurc  for  vou  the  kalW 
of  the  aumeen  of  the  khalsa.  I,  being  me- 
diless,  gave  in  a  barramut  against  the  Gonr- 
nor,  on  account  of  Munny  Begum.  There  ■■ 
a  conversation  in  the  council  about  the  gorcnnr 
and  me  till  one  par  of  the  night.  I  have  pftr* 
ed  the  governor  to  be  in  the  wrong.    Do  jn 


*  landholders.  The  terra  zemindar  is  ^ 
rived  from  the  Persian  words  zamin^  land :  vA 
duTy  holder  or  keepi'r.  Uuiltrr  the  Mahomrw- 
dan  government  of  India,  the  zemindar  wasii 
oliicer  charj^ed  wiih  lliesuperiutendanreulilje 
lauds  of  a  district,  financially  con^ifterfd,  ike 
protection  of  thecuiiivaiurif,  and  the  roaliuM 
of  the  fjoveriiment  »hi«re  of  the  produce;  ed 
of  uhich  he  was  ailowetl  a  commi«i3M» 
auiountiutr  to  al.out  10  per  cent.,  and  orcaUtfC- 
allv  a  special  grant  of  the  i^overumeut  Nb^rti 
a  pai  t  of  the  p'oduce,  for  his  subsistence,  tens- 
I  returned  the  first  of  Ch^le — 1  do  not  know  |  ed  a  2suuncar,  \%  the  appoiiitinent  to  iLi 
whether  the  30th  f'hauguu  or  1st  of  ('h\lc.  |  office  Has  generally  coniinuetl  in  the  same  fv'* 
The  first  day  after  ni^  arrival  I  h(  nt  topav'niy  j  son,  ami  IreqnentU  tu  his  heirs,  bo,  in  |iii>cns 
respects  to  the  Govcruor,  Mr,  Vjubittart,'  ^\A  i  of  time,  and  thion^h  the  dfcay  of  th«:  ruii:; 
all  the  trei.tiemen.  The^d  day  1  went  tu  Maha  ;  powers,  ami  the  confusion  wlucli  eu^urd.  ui 
K:i)ah*»i.  Maha.  Huj«h  was  not  there  ;  1  went  \  hereditary  right  (at  Ih-si  only  prtrscriptne- *> 
and  sal  down  in  the  Dewau  Connah;  in  alitile  claimed  and  tacitly  ackno\«letl|;e<l  lo  be  is  w 
time  Mdha  H.ijah  came.  I  presented  him  \  ztmindun  ;  aud  (iiarticuiarly  iu  the  prc>«;x* 
wiih  a  liUzz^iT  of  one  gold  mohur.  He  took  it,  I  of  Benir:il)  from  bfini:  the  mere  Kup^^•DU%«■ 
and  desiietl  inetosit  d(»wn  ;  which  I  did.  Jle  I  ants  of  the  land,  tnf\  have  been  dei-ia^t^t  0> 
first  asked  me  about  my  health,  and  the  mar-  {  lieri'ditary  proprietors  of  the  soil ;  and  Utf  ^ 
rias^c.  He  theusjjd,  Did  you  hear  at  Houghly  I  fore  t)uctu.uinir  dues  of  ^ovt-riinicui  fea<Ci 
what  paSM'd  httweeu  the  ffoveruor,  and  howl  I  under  a  perniinent  settlement,  lieen  urs: 
have  pro\e<l  him  to  Ik?  in  tlie  wronif .'  I  said,  I 
have  uol  hea.d  particularly  ;  but  1  have  heanl 
you  gave  in  barraunils  against  the  tfovernor, 
and  that  you  have  been  before  the  council  with 

iMped  10  ibe  htfr«Duiiii    |  h#vc  ii«t  beard 


biy  lixeil  in  pe  petuity. —  For  further  ilT^^ 
iMiu  on  this  suti|(  ct,  see  the  Fitih  Hgy^  ■ 
ihe  hon.  Ht>u<»e  nil-mmnon^)  nn  the  Aii-'^d 
the  Kusi  India  C'nmpauyi  and  Ihc 
tliereuDio  Mpexed, 


1 161]   Jor  «  CMMptrne^  agia»A  Warren  Huttings,  etj.    A«  D.  177& 


[iiii» 


bring  barramute  of  Hiilgeleey  6ec.  agiintl  the 
tame  ureutlemeo. 

Did  Maha  Rajah  desire  you  to  get  fmlae 
barraiDUtsr— He  said  nothing  to  me  of  false 
barramuts ;  he  desired  me  to  bring  such  as  I 
could  get. 

Did  he  desire  you  to  get  false  barramuts,  or 
of  such  people  who  had  actually  gireo  mooey  P 
—He  never  said  false  or  true. 

Did  you  understand  that  he  meant  false  or 
true  ? — How  should  I  know  what  was  in  his 
breast  ? 

If  vou  had  been  willing  to  oblige  biro,  do 
you  think  false  barramuts  would  have  answer- 
ed that  purpose  ? — What  1  know,  and  he  said, 
1  tell.    1  cannot  tell  what  he  thought. 

Was  the  matter  of  the  arzees,  oumplainiog 
of  Giinga  Govin  Sing,  true  or  false  .^— I  did 
not  me  them  in  as  complaints ;  I  did  it  to 
i'rigbten  him.  1  wrote  therem  whateTer  I 
thought. 

[Question  repeated.]  I  did  not  do  it  as  a 
complaint ;  1  wrote  much  to  frighten  him. 
There  was  some  money  due  to  me :  I  pot  in  a 
^eat  deal  more  to. 

What  is  the  amount  of  the  money  demanded 
by  the  arzees  P — You  have  the  ariees,  look  at 
them. 

Was  the  whole  of  the  money  due  demanded 
_M  the  arzeesf — It  is  the  custom  of  farmers, 
where  one  rupee  is  due,  to  put  in  four.  If  1 
complained,  1  should  specify ;  if  on  oath,  1 
should  specify.  There  may  be  mooey  due 
ikom  me  to  the  Company  :  I  should,  if  asked, 
My  there  was  none  due. 

Is  that  matter  settled  between  Ghinga  Covin 
Sing  and  youP — it  is,  by  Moonshy  Sudder  O 
]>een. 

What  did  you  receive P^No  one  talks  of 
their  own  riches. 

[Question  repeated.]  IfNr. Cottrell  waste 
4cDow  what  1  received,  he  would,  upon  my 
.going  away  from  hence,  immediately  imprison 
me.  1  am  iodebteil  to  other  merchants:  if 
they  were  to  know  I  had  received  money,  they 
would  come  upon  me.  Whatever  was  wrote  in 
he  arzee,  I  got. 

Did  you  get  26:000  rupees,  which  is  men- 
liooed  HI  the  arzee  P — 1  did  get  26,000  rupees. 
Farmers  engai^ed  in  business  have  various  ac- 
compts.  I  owed  him  iiiuney ;  that  was  de- 
4lucted.    I  received  some  money. 

Did  you  receive  the  whole  in  money,  or 
was  the  debt  of  yours  to  bim  set  off?— It  was 
•e«tle«l  by  Moonshy  Hudder  O  Deen.  What 
was  due  to  me  1  got ;  what  was  due  to  him 
beg|>t. 

Did  you  get  6,000  rupees  in  money  or  seco- 
lilies  P — I  got  more. 

Did  you  get  it  iu  cash  P— I  received  in  ready 
money  more  than  0,000  rupees. 

Did  you  receive  more  then  is  due  P — I  got 
10,000  rupees  in  ready  money:    16,000  was 
4lue  from  me  to  him  ;  that  was  allowed  him. 

Waa  the  matter  of  complaint  in  the  arzees 
4nie  or  false P — What  was  wrote  in  the  arzees 
pictly  true,  Mid  pvtly  extgganaed  from 


the  enmity  between  us.  I  had  separate  •€« 
compts,  by  which  piurt  of  the  business  was 
settled. 

Was  that  16,000  rupees  due  on  accompi 
mentioned  in  the  arzee  P — It  was  not;  thai  I 
wrote  to  frighten  him ;  I  had  not  Iodised  a  com* 

flaint,  I  bad  not  taken  an  oath.  Now  I  have, 
will  answer  whatever  you  ask. 

Were  the  10,000  rupees  due  on  the  reasons 
in  the  srzee  P — Gunge  Govin  Sing,  as  Dewaii 
to  the  Committee  of  Revenue,  should  have  made 
advances  to  me  on  account  uf  the  sali-Horks: 
instead  of  making  them,  he  detained  as  a  de- 
posit, and  made  over  that  sum  as  a  traasfery 
for  my  account  of  land  revenues. 

Was  you  greatly  indebted  ou  account  of  your 
land  revenue  P— I  waa  indebted  a  Urge  sum  of 
money. 

Did  Nondooomar  ever  tell  yon,  that  Roy 
Rada  Chum  had  informed  him  what  passed 
when  he  delivered  the  arzees  P — Yes.  Thai 
when  the  account  came  before  the  council,  the 
general  would  see  that  justice  was  done.  How 
do  I  know  what  was  in  his  breast P  What  he 
told  me,  I  have  answered. 

When  did  you  first  afVer  go  to  Mr.  Fowke's  T 
—I  don't  remember  the  day. 

As  near  as  you  can  recollect? — 1  think  the 
dsy  following. 

Who  did  you  see  at  Mr.  Fowke'sP^How 
can  1  tell  P  There  was  a  cutcberry  there. 

Do  you  remember  the  names  or  any  persons 
you  saw  there  P-i-I  can't  tell  the  name  of  any 
one.  There  were  a  i^reat  many  people;  ze- 
mindars, moguls,  liootaus,  aud  hircarrabs. 

Do  you  know  the  name  of  any  one  persoB 
you  saw  in  the  house? — I  did  not  go  to  write 
down  their  names.  I  mivlit  have  seen  msny 
whose  namfs  1  knew,  but  don't  recollect. 
There  was  one  of  Mr.  Fowke'8  Noouahys^ 
either  that  or  the  next  day,  I  don't  k»ow  which, 
quarrelled  with  me;  and  Roy  Rada  Chum 
threatened  the  Moonshy. 

Did  you  see  any  one  the  first  day  whose 
name  you  recollect.' — I  do  not  recollect  the 
name  of  any  one. 

Did  you  see  Mr.  Fowkep — I  presented  a 
nuzzeer  to  him. 

Did  yon  see  yonnofMr.  Fowke?— He  was 
in  the  room ;  1  saw  him  sit  writing  in  his  rooni. 

Did  you  s|ieak  to  him  P*-No. 

Was  there  much  conversation  between  Mr; 
Fowke  and  Roy  Rada  Chum  ? — Much  laugh- 
ing and  joking. 

Did  you  tell  Mr.  Fowk^  what  had  pre* 
viousiy  passed  between  Maha  Rajah  and  you? 
— Not  at  that  lime.  [Do  what  Maha  Ra* 
J4b  bids  you.]  I  neither  understood  it  to  be 
with  respect  to  Gungs  Govin  8iug,  or  any 
body  else.  1  understo«)d  m  n»y  own  bresst,  I 
understood  Msha  Rajah  and  Mr.  Fowke  talk  in 
this  way.  I  said  to  myttelf,  I  am  poor,  don't 
go  into  such  compsny  ;  ami  I  went  to  neither 
of  them  for  two  days.  I  went  on  those  two 
dsys  to  pay  visits ;  why  should  I  go  oo  this 
business  ? 

Whm  waf  Mooutlty  Sudder  O  Deco  »t  ttutt 


1 163]  15  GEORGE  IIL 

time  f— He  wm  at  bis  out-houte ;  not  in  Gal* 
eatta. 

Did  you  make  any  ohjectioni  to  what  Maba 
Jlajab  ftruek  out  of  the  arzee? — No. 

What  were  the  words  f — 1  remember,  Oe* 
reb  Poriver  (and  repeats  some  other  words ;)  I 
heard  it  read  ;  Jl)Ut  do  not  remember. 

When  did  yon  ^  again  to  Mr.  Fowke'sT — 
The  next  day,  at  nine  in  the  morning,  or  rather 
After. 

Who  was  in  Mr.  Fowke's  room  wbea  you 
went  in?— Accoor  Monnah  called  me,  and  car* 
ried  me  with  him.  Mr.  Fowke  was  sitting  on 
bis  bed,  with  bit  faet  up ;  there  were  two  Ben- 
gallies  and  two  writers  standing  beliind  me. 

How  long  did  the  two  Bengalties  and  two 
writers  stay  there  ? — As  long  as  there  was  good 
conTersation  between  Mr.  Fowke  and  me,  I 
know  that  fonr  men  stood  there ;  when  he  took 
up  the  book,  and  1  threw  myself  down  on  the 
ground ;  1  then  looked  up,  and  said,  Bear  wit- 
ness ;  and  after  that,  I  don't  know  who  went 
or  oame ;  I  was  down  on  the  ground  crying. 

When  you  called  to  bear  witness,  were  the 
two  Benfirallies  and  two  writers  in  the  room  ? — 
1  do  not  know  whether  any  one  was  there;  I 
hardly  saw  myself.  When  Mr.  Fowke  took 
up  the  book,  and  f  sat  on  the  ground,  and  called 
out.  Bear  witness,  1  do  not  know  whether  there 
were  a  hundred  or  none  :  I  was  distressed  at 
xnyown  situation. 

Did  any  body  say  any  thing  to  you  ? — No. 

Did  any  person  in  the  room  do  any  thing .^— 
What  should  they  do? 

When  you  ««cnt  into  the  room,  was  the  door 
fastened  ? — When  1  went  in,  it  had  been  fas- 
tened ;  when  I  came  out,  it  was  not  fastened ; 
when  I  went  away,  it  was  opened. 

Were  there  many  people  about  in  the  fe- 
randa  ? — At  that  time  there  were  but  two  or 
three  people ;  it  was  past  noon  ;  they  were  all 
gone. 

Did  you  offer  to  go  away  when  Mr.  Fonke 
threatened  you? — How  could  1  go,  without 
Mr.  Fowke's  lea?e  ? 

Did  you  ever  ask  leave  ?—Wliv  should  I 
ask  leave  ?  I  put  my  clothes  round  my  neck, 
and  laid  down. 

Did  any  person  be^des  Mr.  Fowke  threaten 
yon? — Young  Mr.  Fowke  shewed  me  kindness. 

Was  be  in  the  room  then? — No;  when  1 
eame  to  the  stair-case,  I  saw  young  Mr.  Fuwke 
and  Rada  Chum. 

Are  you  sure  you  had  not  sealed  the  arzee 
before  these  threats  ? — I  did  not. 

When  you  sealed  it,  did  you  sign  it? — I  do 
not  remember  whether  I  signed  the  arzee  or 
no :  I  think  not. 

Do  you  mean  by  signing,  putting  your  name 
to  it,  or  putting  *  volaab'  to  it  ?— I  was  at  that 
tioie  out  of  my  senses ;  I  can  say  with  cer- 
tainty, that  in  my  remembrance  I  did  not 
•ign  it. 

Was  yon  ever  threatened  by  Mr.  Fowke 
BKMrethanoBceP — Not  after  the  other  dispute 
in  the  month  of  Poos. 

DidlwtkrMin  ikenr— Itwii  lunk  odd 


■ 


qfJo9eph  Fmke  and  othen^  [  IIM 

versation ;  but  not  ao  bad  as  the  last.  I  have 
not  seen  him  since,  except  at  the  chief  juslic8*s 
aod  here. 

Are  yon  sure  yoa  did  not  see  him  agam  thai 
day?— Why  should  I?  Young  Mr.  Fowka 
comforted  me :  I  went  away  to  my  own  bous^ 

At  the  time  the  book  was  taken  up,  who  wers 
there  F — ^The  four  men  were  there ;  but  not 
when  I  was  crying  on  the  ground. 

Did  you  write  on  the  ground  ?— Yea. 

Did  you  carry  a  pen  and  ink  with  yon  ?— 
There  was  a  sicca  dewat,  pen  and  paper,  ready 
upon  Mr.  Fowke's  bed. 

Do  yon  recollect  what  waa  wrote?— Fiis^ 
the  name  of  Barwell  was  wrote,  15,000  raaees 
per  year  for  three  yeara,  45,000  rupeea.  The 
governor,  in  a  Nazziirana,  15,000  rujiers,  tbs 
word  governor  waa  not  naed,  but  Mr.  Ila8tiog|& 
Hushier  Jung  13,000  rupeea.  Raja  Rajcbal* 
lub  7,000  rupeea.  Cantoo  Baboo  5,000  n- 
pees.* 

Had  you  ever  seen  that  furd  before  ?-»Na. 

Have  you  since  P — No :  it  ia  oot  a  furd ;  bat 
such  a  piece  of  paper  aa  this,  [abowiog  a  ahcH 
of  white  paper.] 

Was  there  any  other  writing? — Nathiaf 
more  waa  wrote;  what  be  told  me,  I  wralc; 
nothing  else  was  wrote:  the  words  I  wiili 
were  *  Rusaan  nedum'  and  *  Dadum.* 

How  many  times  did  you  write  tbtti 
words  ?-^0n  the  first  name  I  wrote  *  Rimu 
nedum,'  1  wrote  one  or  the  other  oo  tba  iif 
names. 

Did  Mr.  Fowke  read  the  furd  to  yoa  ?— Bt 
took  it  in  his  hand,  and  aaked  me.  Have  ysa, 
for  three  years,  given  15,000  rapeoa  a  year  is 
Mr.  Barwell  ?  He  did  not  tell  me  ao  from  rtad- 
ing  the  furd.  I  answered,  Yea,  Sir,  I  havf 
given  it. 

In  what  language  was  the  furd  wrote?— Is 
Persian. 

In  whose  hand  did  it  appear  to  be  writteoP 
—  I  don't  know  ;  the  letters  appeared  to  bi 
Haila  Churn's :  1  speak  from  guesa. 

Uowcame  you  to  say  Yes,  rather  than  X», 
to  Mr.  Fowke's  question  ? — He  held  op  a  bnok 
to  me,  when  I  refused  to  seal  the  arzee  ;  I  ia- 
tended  to  say  No. 

Did  you  think  Mr.  Fowke  would  strike  yao, 
if  you  did  not  say  Yes? — When  he  held  np 
the  book,  upon  my  sa^'ing  No  to  his  desire  a 
sealing  the  arzee,  I  conceived  he  would  bsre 
struck  me  if  I  had  answered  No  to  the  quesuos 
put  as  to  the  furd. 

What  distance  of  time  was  there  betwera 

*  The  Rupee  is,  as  a  silver  coin,  of  compa- 
ratively modern  currency  ;  for  there  do  ooC 
exist  any  specimens  in  that  metal  of  a  date  sa- 
terior  to  the  estabhshment  of  the  Mobaraai^ 
dan  power  in  India ;  of  gold  a  great  rossy 
have  been  preserved  of  far  higher  antiqiittj* 
The  imaginary  rupee  of  Bengal,  caUed  tfa 
current  rupee,  in  which  the  Companv'ssr 
counts  were  formerly  kept,  waa  nominally  ft- 
lued  at  3i.  and  the  real  ooiii,  or  sicca  rmpitt  If 
par  canl.  bettarlhiiilbe  nuiiBt  ropai. 


.  t 


■RiBS' 


i]    Jot  a  Compiracp  againtt  Warrtn  flaslings,  eiq.      A,  D.  I77&  [lljK 

wroie,  Tbe  geaeral  has  ref«tred  me  to  Mr. 
I«1I  the  mo-  Fowk«;  Mr.  Fuivke  basiaid  suaadso  loinei 
aad  (hen,  liiTiug  given  va  llii;  smuK  anee  In 
Wtts  done  will),  Mr.  Fuwke  proJuced  the  tbe  gorerQor,  1  told  bim  ercry  thing  b;  wwil 
furd.  of  moulh. 

tVai  it  the  smftll  wxee  that  was  sealeil  tnd 
eenl  lo  Mr.  Fonke,  auil  then  carried  la  the  go- 
vernor ?—Wbeo  lUaha  Kajah  requiivj  the 
arzce  frooi  m^,  llic  man  ubo  had  been  inr 
MooDshy  nas  giinc  botne.  I  caused  lo  Lie  wrots 
whatever  WU  iu  isy  renkeiukrance  by  aty  aew 
Monnsby. 

'"     thai  the  oame  Uial  wasgiven  lo  the  go. 


IV  thinK  paw,  Wt*een  yoor  aealiog'the 
arzee  and  Mr.  Puwke's  producing  the  furd  ?— 
Nu  :  noihinn  piiHeil. 

Did  yuu  sfe  ibe  long  arzee  nilrnvsed  ? — I 
did  not  spe  il ;  ii  wh<  nnt  bel'ure  me :  Mr. 
Pr>»k^  aaid,  Be  »i(iieFiEFa  lo  it. 

Were  Hie  two  Trin.y  wriiers  in  the  room 
black  or  ubite^—BIack;    1  koDiv  une;   the 

Where  uas  ibc  little  araee  aealed  t — la  my 

Did  yoii  !phI  any  other  arzee  F— Two  Bgainil 
Gimea  G^iin  Sng,  in  niy  nun  bouM.  1  aeul- 
ed  nn  oilier  in  Mr.  Fowke'a  bouse. 

Wa<  ihpre  any  body  in  tbe  room  beiides 
Mr.  F"«ke  and  joiirseir? — Yes,  there  were 


Do 


1   heliei 


3  the  » 


A*  !H>nn  B«  Mr.  Fuwke  luld  iiie  to  go,  1  weal 

Did  yini  ubaerie  any  diflcrenl  people  In 
room,  at  tbe  time  of  your  recollection  ? — H 
do  I  kouH  ?   I  went  auay  wiping  my  face. 


At  tbe  lime  Mr.  Ponke  lifted  up  the  book, 
what  position  vtai  he  in  ? — ile  lal  upon  the  bed, 
with  hia  feel  banging  down. 

At  the  lime  you  aeaW  the  lai^e  arzee, 
where  wasiiP — Mr.  Pnwke  toi^  it  from  Ihe 
bed.  near  the  pilloiT ;  and  asked  ma  whether 
]  had  given  thai  araee  ?  I  aaid,  Sir,  ibis  is  not 
an  araee;  il  is  a  jabobaawiiuh  Maha  Rtyah, 
having  taken  a  draught,  has  given  il  for  your 
Mtiat'aclion.  When  I  was  upon  liie  ground, 
he  gave  it  inio  my  hands,  and  1  lealed  il. 

Did  jrou  either  sigu  or  seal  tbe  furd  ? — I 

[Qiiealian  repeated,] — 1  neilherpot  my  seal, 
nor  wrote  my  name.  I  wrote  Ruasan  nednm 
and  Uadum.  WbnteverMr.  Foitke  bad  tolJ 
tDe,  I  should  have  dune. 

Did  Mr,  Fuwke  bid  any  hoily  be  <viliies«es 
la  the  furrl  P — I  put  my  duakeel  lo  ihe  furd, 
and  Mr.  Fuwke  bid  me  gi>. 

When  Mr.  Fowke  pave  yon  Ihe  furd,  did  be 
bid  yon  do  any  thing  with  il  f — He  told  me  lo 

After ynu  had  wmle  upon  il,  as  Mr.  Fotfke 
£d  not  uiuler^itand  Persian,  did  he  desire  any 
body  lo  explnin  it  ? — Nn. 

At  the  lime  you  went  lo  the  goffrnor,  why 
did  ymi  carrr  an  arzre  dilfereiiL  lo  that  whicii 
jou  aflenranls  wrote  by  ihe  goTemor's  Moou- 
■liy  7 — Tbe  general  had  referred  me  to  Mr- 
Fowke  for  enquiry.  Mr.  Fuwke  is  nn  Engliab- 
■pan,  and  I  «in  a  |io<>r  farmer :  ilie  governor  is 
the  mailer  ot  ihe  country.  Gml  knows  wlie- 
Iher  he  wdl  be  angry  with  me  if  1  wiitea  long 
BTKee.  therefore  1  wrote  a  liiile,  and  said  a  great 
telbjr  iruil 111' ioodUi.    IntbelitOeuxeewu 


jab,  Il 
ttyali 


-Itw 

At  tbe  time  the  barramtils  were  lirsl  men- 
tioned, by  tvhuni  were  Ihey  tpeuliooeilf — 
When  I  spoke  about  Ihe  aHeelineals,  lUiI* 
Churn  Arel  luld  me. 

Did  Rada  Churn  lell  you  to  gel  barramulj, 
or  did  he  tell  you  that  Malta  Rajah  wauled 
Ihem  ?—At  that  time  he  told  me  what  I  hara 
repeated  abuul  their  cwming  to  ahamt:  in  Euk> 

Did  Roy  Rada  Churn  ever  desire  you  to  get 
harramula? — Whenever  I  saw  him,  he  aaked 
them  from  me. 

Memion  the  parlicular  lime  when. — Whea- 
ever  people  hare  nny  business  with  Bluhalta* 

'     Ihey  first  apply  to  Rada  Churn  ;   Malii 

'  '    Ihe  masler,  Rada  Churn  tbe  son. 

Examiued  by  Air.  Fanike. 

Dill  Gunga  Govin  SIqi;;  know  that  you  bad 
put  the  arzees  against  hjra  into  mine  or  Rada 
Churn's  hands? — Gunga  Govin  will  lell  you ( 
how  should  1  know  f 

Did  any  body  else  knawF-^Hoi*  ahoold  I 

How  could  Gunga  Govin  ^ng  be  (Kghleneil, 
if  he  did  not  know  it? — There  was  a  conver> 
lalioQ  upon  it  between  Gunga  Goviu  Sing  auit 

Repeal  that  a 
Govin  Sing,  Pa,  n.-  -^  .  .  .  , 
nol,  Mahn  Rajah's  doors  are  open  for  bamu 
muts;  1  will  go,  and  having  nrilteu  a  great 
deal,  will  present  an  arzee  against  you  to  iba 
Maha  Rnjdh.  Gunga  Govin  ^ng  said,  What 
will  be  tile  elTect  uf  your  giving  an  arsee  ?  at 
tost  you  will  he  put  on  your  oath  on  it  in  the 
English  Durbar.  Do  1  forbid  you  pviug  im 
an  arzee  ?  whatever  tialance  is  due  from  you 
on  account  of  the  revenues,  I  will  imprison 
you,  and  gel  from  yuu  ;  or  else  lei  Moonahy 
8udder  O  Deen  come,  we  will  settle  it  among 
ourselves ;  if  not,  and  you  wish  to  be  a  great 
man,  go  and  take  a  false  oath  before  Maha  Ra- 
jah. I  said.  Give  me  my  dismission,  and  f 
will  go  to  the  Moonshy,  and  I  and  the  Moon- 
shy  will  come  together.  He  said.  You  are  at 
liberty  to  go  or  stay ;  why  do  you  want  dis< 
mission  from  me  r  get  dismission  from  Mr. 
Coitrell.  Tbe  uext  morning  1  cauaed  the  arzea 
to  be  written. 

Did  you  ever  acquaint  Gunga  Govia  8\ag 
that  you  had  actually  lodg«il  It  P — Gvw^  ife.-^ 


. — I  said  Id  OungQ 
rupees;   if  you  da 


1167] 


IS  GEORQE  III. 


hui>hpd,  and  t  1ai))t1inl.  We  itaid  in  upec- 
Ulinn  of  the  MfHinxh  v'li  cnminK' 

Did  you.  rI  any  'lime,  acknowlpi!^  yonr 
■enl  la  be  pul  in  iiir  gmt  arm  before  mLi. 
nemeN?— Friim  thai  lime  I  liife  cuiniilainni, 
(hal  Mr.  Fodki- vauaeil  me  to  |>ut  my  ifal  to 
Uk  ariee  by  force. 

Hon  oneii  did  ynaga  to  fiait  Mr.  Fowhi; 
senior  b«-^ire  llie  Umtc  arzee  was  aeairrl  ani! 
wiine»-eil?— AtloKt^ilier  I  went  almiil  (Ijrte 
time*  to  ti«  hniite ;  nheo  I  came  frmu HougL- 
ly,  I  liu  mit  ivinemhrr, 

WItrn  was  the  finl  time? — Eirry  tl)in^ 
WBt  from  (be  eail  of  Cbyle  Ui  ilir  7ili  of  By- 

KnoKin|{  Mr  FoHke'ibnuMtobetculdier- 

Bol*  harminiil-,  hon  came  ynu  lo  gn  lo  ji  ?  ~ 
jilia  Kiijah  loiJ  me  to  yo,  and  be  ncuuciled 
tohiin 


Did  you  ever  tcti  a 
ffivei.  tHr  -u:ns  ...en-i-m 
hail  t,'iT('it,  I  Kiiniild  liai 
had,il  I  liadimif 


biidy  that  yna  hai.1 
in  the  r>iEil?— If  I 
ihould  I  My  I 


rtotJ 


Eiciuiioed  by  the  Court. 

Was  any  ibm:,-  iHiil  almiil  mrrying  ihe  arzee 
to  council F — Mr.  Fniibe  deiiired  me  lo  go; 
tiitu  [I]  aaiil  lo  Ruy  Hada  Clium  and  youn); 
Ur.  l-utike,  Aa  yau  bare  cauaeii  me  lo  vriit 
thia  arxee  by  thriw,  and  you  will  (end  it  ta 
council,  bavini;  my  lurii  jdiumab,  I  tviil  go  ta 
Ihe  council  bernre  it. 

Did  you  e'er  deiiire  of  Mr  Fonke, 
Rijah.'that  the  arxce  aliaald 
the  council? — At  the  lime  I 


>r  Mali^ 
riie<l  Id 
le  out  or  31r. 
Fonke  senior's  ronm,  I  laiil  lo  Roy  Ratln 
Chnrn  anil  youn^  Hr.  F'lU'ke,  Gire  me  back 
that  arzee  and  I'util  which  Mr.  Fowkt  hai 
cauaeii  me  lo  liiro,  or  1  will  iraniediaiely  go  to 
the  council  bud  complain. 

Did  you  ever  a»k  Mr  Fowke  to  return  the 
•rzee? — I  drm:inded  il  ol'  liini  I  lie  De\t  ilay,  iu 
the  roviD ;  AInha  Itajah  «m  ibcrc,  Roy  Itaila 
"■       I,  and  Mr.  Fo»ke. 


Trial  qfjotepk  Faa^  taid  othert,  [  I  IBS 

with  two  Ensliah  tranalaie*  of  tbeamwt.  I 
am  aecTFtary  lo  ihe  revenue  conueil.  It  if  eot. 
tomary  to  remnre  papen  from  one  offiee  w 
aniithiT,  when  they  are  lent  by  miatake.  h 
ahould  have  been  leat  oritfinally  to  mv  office 
PmentioK  an  arzee  it  the  rooile  >if  initilatinf 
an  enqiiirv.  1  haie  known  cetMiirei  bihI  pa. 
niiihmFiiti  inflicted  by  the  board  in  cuii!H>f|anM* 
nfarzeii.     I  bate  known  esaiiiiorl 

both  on  oath  and  wiihitnt ;  llie  pnrlin  aratnad 
exmniiied :  I  believe,  I  hare  known  the  pai^ 
accuaed  emmined  onuiib.  Tbraubjeclof  At 
arzee  was  proper  mailer  lo  be  eii(|uiml  jnM  it 
my  deparlnieot :  I  aliude  lo  Ihe  lai^e  arzee. 

Mr  Aitriol.  Vnung;  BIr  Fowke  railed  h 
n*  one  m'Tniiig  at  brtaktiiat,  and  tfavc  mr  I 
letter  aildressvd  lu  the  goiernor  K>'<>eral  hJ 
council ;  whiHi,  as  the*  werr  to  cii  that  man- 
PAired  mii;hl  be  (lelivereil  to  lino. 
Tii'at  letter  cunttiued  these  papers.  I  drlivrrel 
lliem  to  the  council ;  the  governor  ^neral  •■■ 
present.  I  received  no  iiriler  mprdiae 
them,  till  Mr.  Pouke  had  aeol  •  Keconil  Ittitr 
to  ibe  hoard,  applyinir  for  oriifinul  papen  ht 
had  before  delivered  in.  )  waa  then  direclcl 
lo  send  theae  papera,  exceplini;  tlie  I'ettii^ 
whicli  wat  ordered  to  be  translateil,  a*  tbs  wi- 
Efinsl  papers  which  Mr.  Fowke  appheil  for  Jul 
Iwrn  recordnl  ia  the  revenue  department;  tti 
to  deoire  Mr  Sumner  to  alteni)  the  boanl  wiik 
aJI  the  paper*  applied  fur  by  Mr.  Fom  ke ;  llr, 
Sumner  sccordinffly  attended  the  board  ;  ul 
received  further  intlractions  lo  rarry  ibttB  w 
Hr.  Fowke,  at  the  chief  jutlice'a  Louse. 


DiU  y 


Wu  the  pen  En);li«h  ii 
■uHindoataniie 
aicca  dewat  am 

Halt  yon  an.^ 


It  lo  liave  that  arzte  de- 
-r  did. 


-I  n 


r  Persian? — Il  was 
silver  ink'Slaiidj  the 
in.1  wire  both  silver 
toihinkihiil.MrKowke 
IT  ol  ynur  comini;? — The  ni^ lit  before  the 
draught  of  the  iirzoe  hail  been  wrote  at  Maha 
Itaiah's,  lie  sent  to  call  me. 

fVhfu  did  he  send  locall  ynu  ?— In  thfeven- 
im;,  when  1  was  ^'""'4  to  t[et  my  disinis>iiin, 
Mi>b3  Rnjah  said,  Mrile  an  ^irzee.  and  carrv  il 
to  Mr.  Fouke ;  Ruy  R^di  Churn  will  gu  wiili 
you  ;  an  liircarrab  of  Rida  rburu't  ihe  next 
day  calleiJ  me  to  c«  lo  Mr.  Fuwke's,  when  1 
was  al  Mr.  Cuiirell's. 

Were  ihe  sums  in  Hie  furd  in  word*  at 
lennlh,  or  iu   lii-urps  7— The 


ords;  Iheti 


'  in  Rgi 


IVhlt  son  of  ligur 
Is  Penian. 

Hr.  5amner.  I  receiveil  two  arzeti  encloted 
im  Ibii  letter,  aigaed,  Joaeph  Fawhe ;  togctbar 


[Mr  Auriol  says,  the  lelter  waa  dated  Ihi 
I8ih;  and  he  received  il  on  the  3ath,  lheil«t 
ihe  parlies  were  hefnre  khe  chief  justice.] 

Q.  ta  Mr.  Sumner.  Ho  ynu  know  lliit 
paper  ?—A.  I  received  thia  paper  the  aJ  J 
June,  of  &ir  John  Doyly  ;  I  received  il  at  ic- 
crelary  to  the  revenue  department. 

Sir  John  lioyly.  I  believe  thia  lo  be  iht 
paper  I  tent  to  .Mr.  Sumner,  by  order  of  ibe 
council.  I  received  the  paper  from  the  a«- 
vernor,  or  one  of  the  secretaries,  and  delivenJ 

Comaul  O  Drcn.  Tiiia  is  the  true  arzee.  'I 
it  the  arzee  I  delivereil  to  tbe  governor,  M  if 
liver  10  the  council.  Il  wai  not  my  cutlom  It 
affix  my  seal  to  arzeet :  I  did  to  tliose  of  Mr. 
t'owke's  and  Maha  Rajah  Niindocomtr'*.  U 
"as  nut  mv  custom  lo  write  niv  name  I" 
arzees :  the  Moonshy  wrote  it.  |  aealed  ihi* 
liecause  the  cenllemen  deaired   il.     Mend  Ut 

oiber  arzees  I  have  ifiveo  in  to  the  cninmilKf. 

and  see  how  many  nf  them  have  my  an!*  ti 

ttieni.      Ask  Mr  Collrell  for  my  arzeca,  ta* 

see  how  many  of  tliem  have  my  aeals. 
I>u  ooi  you  teal  all  arz<«t  ? — 1  never  f* 

il  no  C.  arzees  :  but  I  do  on  daikhauslt  ipi*- 

]H>sals  to  frnverniDeDI.] 

Why  did  Tou  put  TonrMsl  to  ymtvtlti 

VII.  thcHull  we.'— If  1  b«l  MM  fu  m/mI 


1 109]    Jar  a  Coiupiruy  agaiiut  Warrtn  HaiHi^*,  eiq.    A.  D.  177& 


[1170 


to  it,  Maha  RaJAb  would  not  bate  (pven  credit 
to  ic  I  ba? e  put  my  seal  oo  the  arzeea  of 
Maba  Riyah  and  Mr.  Fowke,  and  oo  all  tbe 
arzees  in  their  pocaeaeion. 

Why  did  ^oa  put  your  aeal  to  tbe  arzees 
■Kaiuat  GovioSingf — To  pre? ent  their  beiog 
c^ahged,  as  a  mark.  It'  tbe  goferoor  tells  me 
to  put  my  aeal,  I  put  it.  1  auould  of  my  own 
accord,  to  koow  my  ovrn  paper,  lloy  Rada 
Cburo  would  not  have  taken  it  if  it  was  not 
lealed.  That  I  sent  to  Yar  Mahomed  was  not 
•ealed  ;  1  did  not  intend  that  should  be  deli- 
vered ;  therefore  I  did  not  seal  it ;  (the  large 
•rzee)  Mr.  Fowke  desired  me  to  seal  it. 

Detendant's  Couusel  sliews  him  a  paper. 

Do  you  know  this  arzee? — 1  delivered  two 
or  three  arzees ;  one  from  myself,  the  other 
two  from  the  zemindars.  I  will  send  for  the 
copy,  and  tell  you  whether  I  delivered  it  or 

BOt. 

Don't  ^ou  koow  your  Moonsby's  hand- 
writing ? — No. 

Can't  you  write  Persian  ? — I  can  read,  but 
not  writ**  w«!l. 

Did  your  Moonsby  ever  write  in  yonr  pre- 
tence ?-— Ye8,  always. 

Are  tiie  seals  to  the  great  and  little  arzee 
yourt*  ?  —  Yes,  they  are. 

Mr.  Fowke  admits  the  Letter  enclosing  them 
to  be  his 

Mr.  William  Chalmers  proves  the  translste 
of  the  itrzees  marked  A.  and  B.  also  of  that 

irkeil  D. 


The  Governor  General  ezamioed. 

Are  iiieite  arzees  uf  course  sent  .upon  the 
conhulutiuu? — i  cannot  say  of  course;  but 
tbene  are. 

Are  they  sent.^ — Not  yet;  but  they  are  to 
be  sent. 

Q,  to  Mr.  Sumner.  Are  these  srzees  trans- 
■ttted  to  Eiii^lsud  ? — ^They  are  upon  record, 
and  will  be  sent. 

Mr.  Fowke's  Letter  read. — Arzees  read. 

Mr.  E/liot  ex|)lains  his  sense  of  the  word 
*  barraniut:'  *'  An  account  of  the  receipts  of 
money  improperly  received,  which  may  be 
cither  true  or  false,  fttrming  an  accusation,  or 
reflecting  a  di*<t(race,  on  such  person  by  whom 
tbe  money  is  said  to  lie  received.*' 

Captain  Camac.  A  harramut  is  a  paper  de- 
livered in,  either  before  or  after  an  auroeen  is 
displaced ;  when  it  is  delivered  before,  it  is 
meant  to  get  him  displaced ;  if  after,  to  accuse 
bim  of  money  received  in  his  office ;  is  often 
«za«erated  ;  it  may  be  either  true  or  falt»e. 

Mr.  Htdjcarn.  An  accusation  that  may  be 
either  true  or  false. 

Mr.  DucareL    The  same. 

Kewdemawaz  sworn. 

Whose  servant  are  you  P — I  am  ComanI  O 
Deeri's  Moonshy. 

Do  you  know  Maha  Rajah  Nondocomarf — 
Yea. 

VOL.  XX. 


Were  you  ever  at  bis  bouse  ?— Yet.  I  was 
never  but  once,  which  was  upon  the  occasioi& 
of  this  arzee;  I  went  with  Comaul  O  Deen. 
He  went  into  tbe  Dewan  Connah :  I  staid 
without.  He  sent  for  me;  1  went  and  paid 
aaladn  to  Maha  Rajah ;  who  said  to  me. 
Come,  and  sit  near  me.  When  I  had  aat 
down,  be  gave  me  pen,  ink,  and  paper ;  and 
bid  me  write  out  the  foul  draugrht  of  an  arzee. 
I  wrote  out  a  foul  draught  according  to  what 
he  told  me.  When  I  had  wrote  out  the  foul 
draught,  be  took  it  into  bia  hands,  and  theft 
looked  at  it,  and  gave  it  to  Doman  Sing; 
whoae  name  I  waa  not  then  acquainted  with, 
but  have  since  learnt  it,  and  told  him  to  copy 
it  over  on  another  paper.  When  Doman  Sing 
had  wrote  it  over,  Maha  Rajah,  having  altered 
it  wherever  he  aaw  a  amall  difference,  told  me 
to  write  it  out  fair.  Then  Comaul  O  Deen 
said,  I  have  the  disorder  of  the  piles,  and  a 
pain  in  my  belly,  let  me  go  away ;  my  Moon* 
shy  will  stay,  and  write  out  the  arzee  accord- 
ing to  your  instructions.  C.  O  Deen  thea 
said  to  me,  I  am  going  tmroe,  do  you  atay  and 
write  out  the  arzee  according  to  Maha  Rajah's 
ioatructions.  He  went  away ;  I  ataid  till  about 
a  par  and  a  half  of  the  night ;  Maha  Rajah 
was  sitting,  and  I  was  sitting  writing  tbe  arzee. 
When  I  had  wrote  it  fair,  I  gave  it  into  Maha 
Rajah's  hands.  Maha  Rajah,  having  read  tea 
or  twelve  lines  of  it,  said.  This  is  the  fair  copy 
of  the  arzee  I  bid  vou  write ;  it  is  wwy  well. 
He  said  to  Yar  Mahomed,  Go  with  the  Moon- 
shy,  and  get  Comaul  O  Deen  to  aeal  the  arzee. 
We  then  went  both  together  to  Comaul  O 
Deen*s  house.  He  was  silting  smoking  hie 
hooka.  Yar  Mahomed  salamdl:  1  likewise 
went  and  sat  down.  Yar  Mahomed  sat  near 
C.  O  Deen  ;  I  at  a  diatance.  Yar  Mahomed 
said,  Maha  Rajah  has  sent  this  arzee  to  you  ; 
having  coosidervd  of  it,  put  your  seal  to  it. 
Comaul  O  Deen,  having  read  it,  said.  There  is 
00  agreement  between  Maha  Rajah  and  me 
for  putting  my  seal  to  it.  If  I  should  put  my 
seal  to  the  arzee  now,  and  aboold  be  called  oa 
to  prove  the  circumstances  in  it,  I  shall  not  be 
able  to  prove  it.  1  will  by  no  means  put  my 
seal  to  it :  whatever  I  have  wrote,  I  wrote  to 
please  Maha  Rajah.  Yar  Mabonied  then  an- 
swered, Maha  Rajah  is  the  noiaalar,  he  baa 
sent  to  you ;  you  may  either  put  your  seal  on 
it  or  not,  aa  you  please.  During  the  converse* 
tion,  Comaul  O  Deen  gave  him  bia  hooka  to 
amoke,  and  he  soon  went  away. 

How  long  have  you  known  Mr.  Fowke  ? — I 
have  known  him  only  since  the  disputes.  1 
never  went  to  Mr.  Fowke's  except  the  day  of 
the  dispute,  when  I  weiit  with  Comaul  O 
Deen. 

Relate  what  passed.— Comaul  O  Deen  went 
up  stairs.  I  staid  below.  In  about  three  or 
four  gurries  Mr.  Fowke  came  down,  and  be- 
hind him  Maha  Rajah,  and  then  Comaul  O 
Deen.  1  donU  exactly  Ax  the  uumber  of  gur- 
ries. 

When  did  this  happen  P— It  waa  next  day 
after  the  arzee  ivai  brought  lo  Comaul  O  Dean. 

4F 


1171]  15  GEORGE  in.  Trial  of  Joseph  Fawke  and  oiherf^  [llTl 


Mr.  Fowke  and  Maha  Rajah  got  into  their  pa-  |     When  yoo  were  before  the  jiNtieei,  wcreywi 

lanqiiinfl.     Cnmanl    O    Deen    stood  opposite  j  asked,  whether  j^ou  had  been  Bt  Mr.  Fowlw^Br 

Muba  Riijah,  and  said  to  him,  For  God's  sake,        '  ....  *  .  m. 

give  me  back  that  false  paper  of  barramuts, 

ifvhich  you  hare  forcibly  caused  me  to  write. 

I  cannot  prove  what  is  wrote  in  thdse  papers 

•gainst  the  gentlemen.     He  then  called  out 

Dnoy  on  the  gentlemen  of  the  Andaulet.     He 

eaid,'  his  life  and  honour  will  be  affected  by 

this.     Maha  Rajah  gave  no  answer.     Comaiil 

O  Deen  then  tuok  the  collar  of  hisjammah, 

and  went  to  go  into  his  palanquin.    Then  Yar 

Mahomed,  Nettoo  Sing,  and  others,  took  hold 

ofComaul's  hands,  and  said.  Where  are  you 

going?    He  then  got    his    hand  away   from 

theirs,  and  got  into  bis  palanquin.      When  he 

got  out  of  the  lane  which  leaiis  to  Mr.  Fowke's, 

a  hircarrah  went  and  stopt  his  sawarry,  and 

•aid,  Where  are  you  going  ?  come  back.    And 

they  kept  disputmg  in  this  manner,  till  they 

got  to  the  Bitah  Connah  of  Rajah  Rajebullnb. 

He  then  got  rid  of  them,  and  went  along  the 

high  road. 

Were  you  ever  examined  concerning  this  be- 
fore?— 1  was;  at  the  Chief  Justice's,  and 
once  before  the  Audaulet 

Do  you  know  Ooolaum  Hussin  ? — Yes. 

Do  you  know  whose  servants  they  were  that 
•topt  Coniaul  O  Deen  ? — They  belonged  either 
to  Muba  Rajah  or  Mr.  Fowke. 

Do  you  know  whose  servants  Yar  Mahomed 
and  Nettoo  Sing  are  ? — ^They  are  servants  to 
Blaha  Rajah. 

Did  Comaul  O  Deen  make  any  objectiona  to 
the  alterations  in  the  arzee  made  by  Maha  Ra- 
jah ?•— No,  he  said  nothing.  He  went  away 
while  the  fair  copy  was  writing. 

Did  Comaul  undersUnd  the  contents  of  it, 
after  the  alteration  ? — I  do  not  know  whether 
he  did  or  not. 

What  time  of  the  day  was  it,  when  yon 
went  with  Comaul  O  Deen  to  Mr.  Fowke's? — 
It  was  about  a  par  and  a  half  of  the  day. 

How  long  did  you  slay  there  ? — I  cannot 
exactly  tell ;  it  might  be  about  three  or  four 
gurries. 

Did  you  hear  any  noise  up  stairs,  at  Mr. 
Fowke's? — How  should  1  hear  any  noise  in 
the  upper  apartments?  J  was  down  below. 

[Mr.  Farrer  produces  a  paper,  and  asks  whose 


— I  WHS  not  asked  as  to   mj  beiog  at  Mr. 
Fowke's,  before  the  chief  justice. 

Where  did  you  ||^o  atler  yea  left  Mr. 
Fowke's?— I  went  with  CouAura  palan^aii 
on  foot,  to  Rajah  Rajebullub. 

Hussein  Alii  exmmioed. 

Whose  servant  are  you  P — I  •m  CoDiamals 
Comaul  O  Deen. 

Do  VQU  know  Yar  Mahomed  •nd  Kewdo^ 
nawazr— Yes. 

Did  you  ever  see  tbem  at  Comaul  O  Deoi^ 
house  P— Yes, 

Relate  what  passed. — It  waa  about  oae  fir 
of  the  night  when  Yar  Mahomed  and  Kev^ 
demawas  came  to  Comaal  O  Deen'abaoflii 
1  don't  remember  the  da^ ;  it  mav  be  a  iMBdi 
or  a  month  and  a  halt  ago.  iVo  or  thne 
days  before  the  disputes,  I  met  Kewdereavn 
on  the  stair-case.  He  said,  Comaal  O  Deaii 
going  to  seal  a  paper  ;  do  yoa  briog  the  mss 
dewat,  and  the  box  where  the  oeal  ii.  I 
brought  ihem.  I  did  not  carry  them  into  thi 
room  where  they  were :  I  ga^e  them  both  ts 
Hutto«>.  He  took  them,  aad  atood  with  tkca 
on  the  stair-case.  I  told  him,  Wbeo  they  ol 
for  them,  do  you  give  tbem.  I  went  in  whm 
Comaul  was  aitting,  and  saw  Yar  MaboflMi 
sitting  near  him,  and  Kewderuawaz  at  a  db- 
tance.  About  a  quarter  of  a  gurry,  or  net  is 
much,  Yar  Mahomed  went  awajr.  Tbm  I 
went  out,  and  said  to  Huttoo,  Perbapa  tbel^ 
siness  for  which  these  tbinge  were  wanted  vi 
not  be  done;  let  us  take  them  away  at^ais. 
I  took  them;  and  put  them  Id  the  Toiia 
Konn«h. 

Did  Comaul  O  Deen  call  for  the  seal  whils 
Yar  Mahomed  staid  ? — No. 

Dill  he  seal  the  arzee  1* — No. 

if  he  had  done  it,  should  you  hare  seeokf 
— 1  must  have  seeu  it;  the  seal  was  io  ay 
possession. 

Were  you  ever  at  Mr.  Fowke's  with  Comasi 
O  Deen  ? — Yes,  1  was  there  the  day  of  thedii- 
putcx ;  it  was  three  or  four  days,  1  caaiMt 
exactly  tell  which,  after  that  1  was  at  Hr. 
Fowke's. 

Relate  what  passed. — I  do  not  know  wbit 


writing  it  is  .^]— Mine.     1  wrote  it  in  Comaul's  >  passed  above  stairs.     At  the  door  way,  first  Mr. 


presence.     It  is  a  paper  about  the  Andaulet. 

Who  difl  you  give  it  to  ? — I  gave  it  to  Co- 
inaul  O  Deen  ;  he  is  my  master.  I  gave  it 
into  bis  hands. 

Q.  to  Comaul  O  Deen,  Do  you  know  this 
paper?— /I.  Yes.  I  gave  it  to  Roy  Rada 
Churn ;  it  is  a  durk.  Rada  Churn  said,  it 
would  have  no  effect ;  and  therefore  it  was  not 
•eale«l. 

Kewdcrnaaaz^s  examination  continued. 

Is  that  Comaul  O  Deen's  seal  on  the  arzee  ? 
*i-It  is. 

Did  you  see  Comaul  O  Deen  afterwards  P— • 
When  he  had  gone  from  the  cutcherry  to  his 
awn  houae,  I  (ud  not  see  him. 


Fowke  came  out,  and  got  into  his  palanqoii ; 
then  Maha  Rajah  came  out,  and  got  into  bif 
palanouin.  Then  Comaul  O  Deen,  addresao^ 
himself  to  Maha  Rajah,  said,  I  cannot  prorc 
the  false  Barramuts  you  have  made  me  mrtt 
out :  this  is  very  bad  business,  and  I  shall  bt 
ruined ;  get  me  the  papers  back  from  Ifr- 
Fowke.  Maha  Rajah  gave  him  oo  answer. 
Then  be  began  to  tear  his  jamma,  and  call  od 
Duoy  00  the  king,  the  company,  and  aodM- 
let ;  and  said,  See,  they  have  caused  me  10 
write  this  paj^er  forcibly.  W'hen  he  attempt'' 
to  get  into  his  palanquin,  Yar  Mahomed  sarf 
Nettoo  Singr  held  his  hands.  They  are  servasH 
to  Maha  Itajah  N undocomar.  Comaul  O  Dcea 
himself  from  them,  and  got  idIo  kit 


1 17S]    for  a  Compiracy  against  Warren  Hasiingiy  tiq.    A.  D.  1775.  -  [1 174 


palaoquio.  At  he  went  oat  tif  the  bme  to  come 
<m  the  great  road,  two  hiroarraha  atopt  the 
Dalaoquin,  ami  aaid.  You  muat  oome  back. 
He  went  on  in  hia  palanquin.  I  l«fl  htm :  I 
had  busineaa  in  the  Bazar.  1  could  not  (fo  so 
last.  1  saw  as  far  as  Rajah  Rajebullnb's  Hiah 
Connah. 

Do  you  know  whose  hircarrahs  they  were  ? 
— ^They  came  out  of  M  r.  Fowke's  house.  I  do 
not  know  who  they  belonged  to. 

CroiS'ExamifUitian. 

Hare  you  charge  of  Comaul  O  Deen^s  seal.' 
«-The  seal  is  always  in  my  possession.  When 
Comaul  goes  out,  or  to  the  Durbar,  he  puts  his 
small  seal  upon   his  finger,  and  a  bundle  of 

Japers  into  his  cummerband.  When  he  comes 
ome,  he  pulls  off  his  cloaths,  and  puts  the 
ring  into  the  small  box  again  ;  and  that  box  is 
■nder  my  care.  Whatever  he  has  is  under  my 
care. 

In  wliLt  language  did  Corocul  O  Deen  ad- 
dress Maha  Uajah,  when  getting  into  his  pa- 
lanquin at  Mr.  Powke's  ?— In  Moom.  What  I 
beard,  I  remember.  1  was  about  two  yards 
distant  when  bespoke  lo  Maha  Rajah. 

Did  you  tell  any  bnily  what  passed  ? — I  told 
it  to  the  grand  jury  ;  to  no  one  else. 

Did  you  not  mention  it  to  Mr.  Durham  ?—! 
don't  remember  that  I  did.  Comaul  <>  Deen 
asked  me,  You  was  there,  did  you  bear  what 

Est  P  I  suid,  Yes,  1  was  there,  and  beard  it. 
e  wrote  out  a  paper  of  wbat  past,  and  1  wit- 
nessed it.  Comaul  said,  I  have  wrote  down 
what  passed ;  do  you  wiuiesK  it.   I  witnessed  it. 

Did  you  read  it  bef'oie  you  witnessed  it  P— 
1  did. 

Jn  what  language  was  it  wrote  ? — In  Persian. 

Do  you  understand  Persian  ? — Yes. 

What  were  the  contents  of  this  paper  ?— He 
first  wrote  and  prepared  the  paper,  in  which 
was  written,  **  Let  those  who  are  Mussulmen 
Qpon  their  oath  of  God  and  PropheU,  and  those 
that  are  Gentoos  on  their  oath  and  Water  of 
the  Ganges,  and  their  conscience,  if  they  know 
any  thing  of  this  paper,  let  them  witness  it.*' 
He  first  wrote  it,  and  then  shewed  it  to  me  and 
others. 

Q.  to  Mr,  Elliot,  Is  it  customary  to  draw 
oot  such  impersl* — A.  It  is.  I  scarce  ever 
knew  a  cause  in  a  country  court,  in  which  a 
nuruthal*  was  not  produced  on  one  side  or  the 
other. 

Keemageet  examined. 

Do  you  know  C.  O  Deen  ? — Yes. 

I>o  you  know  Mr.  Fowke?^Yes. 

Were  you  e?er  at  Mr.  Powke's  house  with 
C.  O  Deen  P — No,  never.  I  never  saw  C.  O 
Deen  near  Mr.  Puwke's. 

Relate  what  you  know  respecting  a  fray 
which  you  saw,  between  Comaul  O  Deeu  and 
others,  in  the  street. — I  was  going  on  the  roail 
near  the  Hish  Connah  of  Rajsh  iCijebullub ;  I 
naw  Comaul  O  Deen  in  his  palanquin,  with  his 

*  Frovnsirat'i-hdlf  Pert,  the  statement  of 
in  writing. 


I  collar  torn.  There  was  one  hircarrah  running 
by  C.  O  Deen,  and  cryinir,  C.  O  Deen,  su>p 
your  palanquin.  C.  O  Deen  did  not  atop  bis 
palanquin.  The  hircarrah  ran  up,  and  took 
hold  of  it;  and  having  taken  hold  of  it,  said. 
Where  are  you  going  P  Maha  Rajah  calls,  aud 
the  gentlemen  call  you.  Comaul  O  Deen 
called  out  Duoy  on  the  king,  council,  audau- 
let,  and  governor  ;  they  have  taken  a  writing 
from  me  by  force,  and  now  they  send  a  hir- 
carrah to  make  a  disturbance.  Having  said 
this,  and  disengaged  himself  from  the  hircar- 
rah, he  went  on. 

Do  you  know  whose  hircarrah  he  was  P— > 
What  do  I  know  of  the  hircarrah  P 

Mahomed  Ghote  Newag  examined. 
Whose  servant  are  you  P^N(>l>ody'B, 
Do  you  know  Comaul  O  Deen  ? — Yes. 
Do  you  know  Mr.  Powke?— Yes. 
Did  you  ever  see  C.  O  Deen  at  Mr.  Fowke'b; 
house  P — Yes,  1  saw  him  there  the  day  of  the 
quarrel ;  it  is  about  three  months  ago. 

What  past  there  P — First  Mr.  Fnwke  came 
out,  after  him  Maha  Rajah.  I  was  standing 
below.  Behind  Maha  Rajah  was  C.  O  Deen. 
■When  C.  O  Deen  came  out,  he  addressed  him- 
self to  Maha  Rajah,  and  said.  Those  falfie  papers 
of  barramnts  yon  have  canseil  me  to  write  give 
i  me  back  again ;  I  am  a  poor  man,  I  cannot  do 
j  this  business,  it  will  niin  me.  Maha  Rajah 
I  gave  no  answer.  C.  O  Deen  got  in  to  his  pa- 
lanquin, and  tore  the  collar  of  his  jammah,  and 
crie^  out  Duoy  of  the  Audaulet :  when  two 
men  laid  hold  of  his  hands,  and  stopt  him.  He 
did  not  mind  them.  They  went  on  disputing 
as  far  as  Rajah'  Rajebiillub's  Hish  Connah. 
As  they  were  going  there,  a  hircarrah  from 
some  distance  behind,  cryed  out.  Bring  back  the 
palanquin.  He  came  up,  and  seized  the 
bearers,  and  stopt  the  palanquin ;  and  said^ 
Come  back.  Comaul  O  Deen  then  calleil  out 
Duoy  of  the  Council  and  Au<laulet,  and  got 
away.    Where  he  went,  I  do  not  know. 

CroU'  Examination. 

Whose  servant  did  you  say  you  wercP — 1  am 
a  atudent ;  employ  my  time  m  reading ;  am 
nobody's  servant.    1  never  was  a  servant. 

How  long  have  you  lived  in  Calcutta?^ It 
f*  about  eight  or  nine  months  smce  I  came  to 
Calcutta. 

Where  do  you  live  P — I  live  in  the  Mutchee 
Bazar,  in  a  place  I  have  hired  of  my  own.  I 
give         rupees,  six  annas,  per  muuih  for  it. 

Do  you  know  Moonshy  8udfler  O  Deen  ? — I 
have  liVAfd  of  his  name.  I  do  not  go  back- 
wards and  forwards  t(t  him.  He  somelimes 
tiroes  to  the  Durbar;  I  goto  the  Durbar:  I 
have  seen  himgoiug  there  in  his  palanquin.  I 
never  s|K>ke  to  him.  He  never  sent  any  of 
his  people  to  me.  As  1  know  the  name  of 
M(»onshy  Hndder  O  Deen,  1  do  that  of  Comaul 
ODeen. 

Did  you  atop  when  you  heard  Comaul  O 
Deen  cry  out  Duoy  i — Yes.  lie  called  to  the 
peoplf  lo  l>e  witness. 

Did  any  conversation  pass  l>etwcen  you  and 


I  lib]  15  GEORGE  III.  Trial  qfJoiepk  Fimie  and  oihertf  [UT6 


Commal  O  Deen  P — I  did  oot  tpeak  to  him  on 
the  day  of  the  dispate,  or  since. 

Ha? e  not  you  ntcntA  a  paper  P — ^No. 

Have  yoti  not  si^fned  a  surutbal  ? — No. 
C.  O  Deen,  when  he  called  out  Dnoy,  said, 
Ya«  will  all  be  called  on  at  the  Audaulet.  1 
TCceited  a  aummooa  to  appear  here ;  a  peon 
^?e  it  me,  and  to  five  othera.  I  never  told 
any  body  my  name,  or  where  I  lived. 

Where  were  you,  when  the  summons  was 
Ipren  you  ? — At  my  own  house. 

When  did  you  fint  see  Comaul  O  Deen  P — 
When  be  began  to  cry  out  Duoy. 

Beinf(  shewn  the  paper  called  the  surutbal, 
mnd  asked.  If  his  nsme  is  to  it  in  bis  own  hand, 
he  says.  Yes,  and  calls  it  a  Dewan  Potny.  At 
last  he  said  it  was  a  surutbal.  Then  he 
called  it  a  Recidaad,  and  said.  If  yon  had  asked 
me  if  I  had  signed  a  Recidaad,  or  any  paper 
concerning  this  business,  1  should  have  an- 
swered I  had.  Being  asked,  If  the  pa|»er 
which  be  calls  a  Recidaad  is  not  a  paper,  he 
•ays  it  is. 

Kewder  Naraz  re-examined. 

Do  you  know  the  last  witness?---!  certainly 
do.  lie  is  my  own  brother.  He  is  a  witness 
to  what  passe«f  in  the  dispute  with  Comaul  O 
Deen  at  Mr.  Fowke's  bouse. 

Are  you  own  brothers? — We  had  the  same 
father  and  mother ;  look  at  his  face  and  mine, 
we  are  like ;  but  he  is  a  fool,  and  has  denied 
it  tbrunifb  fear.  He  knoiis  nctbing  of  business, 
and  never  did  sny  in  his  life.  I  am  tbrced  to 
^ve  him  victuals  and  clothes.  1  was  a  servant 
of  Comaul  O  Deen's  at  Calcutta ;  he  came  to 
me ;  be  was  present  with  me  when  the  dispute 
happened;  Shake  Mahomed,  Hussein  Ally, 
Msbomed  Gose  Nenaz,  Mushurer  Rabroaun, 
and  Keemageet  were  there  likewise.  At  the 
time  of  my  father  and  mother  I  maintained 
him  ;  and  if  out  of  six  brothers  one  happens  to 
be  9enMble,  would  he  not  maintain  the  otbeis? 
BIy  brother  knows  Comsol  O  Deen  throu$*h 
my  means.  He  lives  with  me  in  mv  apart- 
ments at  Comaul  O  Deen's  house.  iFle  is  a 
nan :  if  he  has  made  himsrif  witness  upon  any 
business,  he  understamls  it ;  why  should  he  not 
know  truth  from  falsehood  ? 

Q  from  Mr.  Fatrer.  1\  hether  you  bid  your 
brottier  go  to  Mr.  Fuwke's  house  that  day?  or 
whether  any  body  else  tn  ^our  koonledtre  bid 
bim  go? — A.  Nobody  biifhim  go.  l\v  went 
of  his  own  accord.  Hussein  Alii  and  1  are 
Comaul  O  Deen^s  servants.  We  neiit  by  his 
dirvctinns. 

Is  it  cnstomary  for  you  to  go  with  C.  O 

l^*n.'^-W'her«*er  he  carries  me  wiih  hiai, 
Igo. 

Huiuin  Aiu  re-examined. 

l>o  you  know  Mahomed  Co<e  Newaz? — Yt^. 
His  brother  and  he  liw  with  lue  m  Comaul  C> 
Dccn*s  bouse.  He  was  with  us  at  the  time  of 
the  dispute  at  Mr.  Fowkt*s  bouse. 

Is  be  a  sensible  man.  or  a  fool  ? — He  is  not 
a  sensible  iiim«  wmI  j  ol  nol  ^uite  aa  idcoi. 


I 


li  be  meh  an  idcot,  u  not  t»  luitw  hmh^ 
ther  P— No,  I  think  not.  If  he  was,  he  woaU 
run  about  naked. 

Does  be  smoke  bang  ?— Not  that  1  Icmw. 

Is  he  more  sensible  at  one  time  than  la* 
other? — Yes.  But  I  never  sawr  bim  in  audi  i 
state  as  not  to  know  bis  own  brother :  or  est  is 
know  who  is  his  brother,  if  the  quiHiaa  ii 
asked  him. 

Jiluthurcr  Rhamaun  examined. 

Do  you  know  Comaul  O  Deea  and  Mr. 
Fowke? — I  know  them  both. 

Were  you  ever  at  Air.  Fowke*a  when  C.  0 
Deen  was  there  ?^I  was.  It  may  be  absot 
two  months  w  two  months  and  a  half  ago. 

Relate  what  you  saw. — 1  waa  Mandinf  M 
the  door,  and  aaw  Mr.  Fowke,  Maha  Vbj/ik 
Nuodocomar,  and  Comaul  O  Deeo  ooine  oaL 
Comaul  O  Deen  said  to  Miha  imah,  Givevt 
back  that  paper  which  you  have  forcibly  caowl 
me  to  write.  1  have  never  ^neo  money,* 
caused  any  to  be  lo^^n  to  any  body.  I  kaav 
nothings  uf  the  contents  ol  the  paper;  (itt 
it  me  back  aj^ain.  Tlien  Comaul  O  Dtsi 
called  Duoy  upon  the  (▼uvermir  and  {renikMra 
of  the  conncii,  and  suid.  Give  iDe  hark  tW 
pa|»€r.  When  they  did  not  ^ive  him  back  ibt 
pitper,  he  tore  his  clothes,  the  r«»llar  of  his  js» 
niah,  and  made  a  threat  piece  of  wuik:  asJ 
caileil  out  I'l  Gentnob  and  MiisMilmrn  inkrsr 
witi.ess.  He  cot  ioto  his*  ow  n  paUiM}i;m  tind  «fsl 
an  ay.  .A  hircsrraii  ran  aftt-r  tlie  palan^ais, 
took  hold  rf  It,  and  sHid.  Maha  iCajsh  ao't  Vr. 
Fowke  Cdll  vou  ;  vou  must  ctMUt*  Uick.  C  0 
Deen.  C.  O  D^en  went  lu\«ard»  the  flfotcraw^ 
bouse,  and  I  weut  b\  the  court- houbc  to  vj 
owu  house. 

CroU'  Kxaminat  ion . 


Who  bill  you  ;r«i  to  Mr.  Kuwki's  ihat  ir.nni» 
ini;  ? — Siimeho.!\*s  vakeel.  1  am  tjktr!  «f 
F\znllah  Issalhin  rif  H^iiirh.!  Ii  i<i  ii>\  l-ihi- 
nes«  to  i;o  tn  evt  ry  b':d\  's  iluriiar.  J  i:i  •  (•••l^> 
particularly  to  Iiin. 

DitI  vou  s::rn  the  siiruihal  :  —  |  i«it:i€M«4 
the  suru'h;il.  an'l  s-ijriei  it  lu  iite  atie  oiM 
ot  thati^.iv.  1  i!i>l  nut  >ei  tlu  ^uruixal  la  OJ 
hanil  At  the  time  lit-  iTifil  \^^  nv. 

What  time  ot  ilie  lUv  was  it .' — I  cannot  n- 
actly  tejliihst  ho^jr  of  the  day  it  mjs;  but 
kiclieve  thf-re  wa^  three  or  t<»iir*i;urrii»  «>i  i^ 
day  reuuiniiij.  W  hen  :t>e  disptitt  hj^ipeac^ 
tlu  re  Here.ab'>nt  >ix  i^urries  t»f  liit*  da\  ailfaac- 
•"il.  I  ^i&roetl  the  suruihai  at  mv  own  bnuff- 
('«i:raui  t)  Deen  broutrhi  it  to  me'hiiiitelt.  ctf- 
neil  me  to  rvsd  and  si^n  it,  and  went  away. 

"*t/A.'i>'jL  >-i./ir  O  Dcci  «*xanniotd. 

O-*  \i-!i  know  t  oiinul  O  Oeen  ? — Yes.  I 
hx^s  K::iinr.  iiiiii  nir^re  or  ii^s  ttian  '20  \rsfi; 
Wvcr  IS  f.  \i\eniWu.\i  betwir'n  u<. 

Di  j  iie  cvcftc'!!  youan_\  thini^  about  arzKf' 

'  — Oae  ciny  in  lue  U)onih  ul  Rysaak.  CiHnauld 

Hc'^n  t<^id  mo  »o  much  ou  the  bu$ioes*iil  i^ 

T^cka  Collir.PS.  that  the  dispute  which  vi> 

j  Uj'orc :  Mahi  Kajaii  wants  me  to  wriieaa  v* 


P*": 


]     for  a  Con.^piracy  ogainit  Warren  Hailhgs,  esq.     A,  D.  1775. 


wxf,  an  J  thai  ibere  may  be  luch  a  mcaDln^r  put 
■u  Ihsl  arzee  by  wbicb  the  GoTernor  and  Wr. 
Jobo  Graham  mangels  bad  name:  hebasde- 
aired  tne  to  write  it ;  but  1  will  not  da  it ;  and 
1  (fill  not  bring  so  bad  n  name  iinnn  myself'r 
you  are  myfrirnd,  and  tbcrefure  1  havecom- 
■ouuicsted  it  to  you.  Thia  was  In  Ihe  nighl, 
upon  the  busiuess  of  arzees,   he  told   me  to 


that  in  Byaoak?— It  wu 
'  I'ourtb,  1  do  not  reraem- 
all  that  passed  upon  Ihe 
rritod  goes  lo  viail  another, 
— ihjects ;  if  yon  mention 
'  ■"  all.  Again,  ibere 
eighth  By  Baa  k ; 


diey  talk  of 

»ay  particular  subject,  1 

was  B  GOoiersaiion 


Comaul  O  Deen  cnme  to  me,  anif  eaid,  I  bave 
been  at  Ur.  Povrke'ahonse,  to  get  back  Ihear- 
Kecswhieh  I  gaie  against Gung«  Gorin  Sing. 
U«  baa  uol  given  me  back  Ibe  anee:!.  He  baa 
cauced  me  to  pnl  my  senl  by  force  lo  an  arzee 
on  tlie  huhiueM  of  tbe  tecka  collariea,  and  he 
baa  made  me  algn  a  furd  ;  but  aflertvards  I  told 
bitn,  Do  noi  du  so,  When  I  became  my  own 
maaier,  I  said,  Sir,  do  not  ilo  so.  Then  Mr. 
Fooke  said,  Do  not  be  in  s  hurry,  Maha  Ra- 
jah will  be  here  lo-morrow,  and  tbeii  we  will 
•etile  il,  don't  niiike  a  diiiurbaNce.  (Comaul) 
]  am  now  ^nine  In  Msba  Rajah's,  if  he  will 
procoie  me  back  my  arzeea  and  papers  very 
well;  and  If  not,  to-morrow  I  will  make  ■  dia- 
turbance;  ur,  1  will  destroy  myself.  You  are 
■B]r  friend,  a cquainl  Mr.  Bsrwell  and  Mr.Van- 
siitartwilh  it.  Having  said  tbi*,  be  said,  lam 
immediately  going  to  Maha  Rajah.  I  will 
come  Imck  again  at  night,  and  tell  you  all  the 
patticutars.  Hewenlaway.  Hecamebackst 
nighl.  I  »peab  from  KUecs,  it  roighi  be  aboiil 
five  or  six  gurries  alter  Ibe  night.  There  wan 
tbis  canversaliun  between  us;  seeming  pleased, 
be  said,  "  Maha  Rnjab  will  give  me  back  Ibe 
«r«ei*  and  all  Ibe  pajiers ;  he  has  lold  me  lo  come 
lo-tnorrow.  Do  you  now  bear  all  ibe  particu- 
lars :  the  arzees  which  I  gave  against  Gunga 
Covin  Sing,  and  deposited  iiilb  Roy  Rada 
Cburn.  with  the  knowledge  of  Maha  Rajah, 
vpoa  this  ciindiiinn  Moonsby  Suddar  O  Deen 
is  Eone ;  if  my  dispute  with  him  can  be  aellled, 
i  will  lake  back,  and  I  am  lo  give  him  6,000 
rupee*:  4,00u  rupees  lo  Maha  Rajah,  and 
S,000  rupees  lo  Rada  Churn.  Tn  o  days  ago 
I  desired  Maha  Rujab  to  give  them  back  again, 
but  Mr.  Ponke  sujs,  Write  out  an  arzee  on 
the  business  of  llie  lecba  cflllariea,  and  Uien 
TOa'U  get  back  yoar  arzees  against  Gunga 
bovin  Slog.  I  (C.  O  De^n)  said,  Maha  RsjaJi, 
how  can  I  write  this  ?  Maha  Rajah  said.  It 
does  not  signifjf ;  do  you  uue  tiling ;  do  you 
wileon  one  subject;  having  shewn  it  to  Mr. 
Fowke,  that  siury  of  yours  shall  be  lorn  ;  and 
you  will  receive  back  the  arsees  against  Gunj^a 
Gavin  tNDg  ihat  are  with  Mr.  Puwke.  I  said, 
I  have  the  disorder  of  tbe  piles,  and  a  pain  in 
Iny  lielly  i    I  will  go  ;    my  moanshy  will  re~ 

Maid.    JUalia  Hajah  caused   ibe  moonshy  lo 


wrile  the  dictates  of  his  own  heart ;  and  in  Ibe 
night  Alaha  Rajah  sent  it  by  Yar  Mahomed 
for  the  purpose  of  getting  my  seal  upnn  it.  I 
lold  bim.  There  was  no  agreement  between 
Maha  Rajah  and  me  Ibal  1  isbiiuld  put  a  seal 
lo  it.  I  did  not  (lut  ■  seal  to  it.  Yar  Halionied 
went  back  again  upon  that  business.  Mr. 
Fowke  baa  to-day  forced  me  lo  put  my  *eaj, 
and  lishcd  up  a  book  lo  strike  me,  ai.d  woa 
very  angry  with  me  ;  for  which  reason  1  seal- 
ed II,  and  gave  it  lo  him.  He  took  out  a  ford, 
In  which  wa«  wrote  llie  names  of  Mr.  Harwell, 
the  Governor,  Mr.  Vantittart,  Cantoo  Bahno, 
Rajah  Rajebultub ;  iIkeg  tiames,  and  cerlaiu 
sums,  were  wrote  in  the  furd,  and  desired  roe 
to  put  my  diiskut  lo  it."  1  asked  him  what 
duakut  keir  he  had  put  upon  it :  Comaul  O 
Deen  said.  In  some  places  I  wrote  Rusaan  ne- 
dum,  and  others  Uailum.  And  be  lold  me  a 
great  deal  about  his  being  in  a  great  roeaiuce 

Gunniisan  Doss,  beiog  asked  as  la  Ihe  dif- 
ference belweeu  Duskut  and  Diiskut  Kier  ; 
says,  "  Dusknl  generally  among  great  men  lo 
ioftriors  means  a  mark  of  sulheuticalion,  wiih- 

Moonthy  Sudder  O  Deen.  It  may  be  either 
a  signing  i.r  a  single  leller ;  or  anj^  mark  they 
chuse  lo  make;  Ihe  same  fmin  an  inferior  to  a 
anperior,  as  from  a  guperior  to  an  inferior. 

Are  llie  two  Persian  words  menlioned  br 
Comaul  O  Deen  a.diiskul?— Yei.  For  which 
reason  1  asked  him  what  duskut  he  bad  put  lo 
il;  and  undoubtedly  I  ihought  when  he  lold 
roe  what  it  was  be  had  put,  1  LiMughl  il  a  du»- 
kut.  *>  After  haiingnroie  ihem,  I  (C.  O  Deen) 
made  a  disturbance.  All  this  I  tnhl  lo  Nuodo- 
cooaar ;  who  said,  To-moirow  you  shall  gel 
back  again  all  your  papers  and  aizees," 
Sudder  O  Deen  cross,  ex  ami  oed. 


what  passes  in  the  court ;  saime  are  good  men, 
some  Lad  ;  and  bave  told  me,  at  diffrreut  timet, 
Cninaul  O  Deen  gave  such  and  such  an  evi- 
dence. Nobody  came  to  my  huuse  to  inforro 
me  nf  bis  evidence. 

When  did  Comaul  O  Deen  Brsl  inform  you 
of  any  disputes  between  bim  and  Uunca  Covin 
Sing  r — He  lold  me  of  it  when  I  came  from  my 

Did  Comaul  O  Deen  desire  yon  lo  olitain 
from  Gunga  Govin  Sing  any  sum  of  monej 
which  he  had  upon  him? — C.  O  Deen  aaid  lo 
me,  I  have  on  your  accounl  deposited  arieet 
against  Gunga  Guvio  Sing  ;  do  you  get  tbe 
business  settled  forme. 

Did  you  settle  it? — I  did. 

On  whatiermsF  What  sura  of  money  waa 
paid  lo  ComaiilP — When  I  came  home,  Co- 
maul complained  much  against  G.  G.  Sing; 
and  he  afterwards  lold  me,  He  ia  now  in  my 
bis  IVieod  and  mide-,  il'^<itt;». 


power ;  you  at 


1 179]  15  GEORGE  III.  Trial  qfJateph  F&uke  and  others^ 


[1180 


settle  it,  wety  well ;  ifoot,  there  will  be  a  dis- 
pute ;  1  will  injure  him  ? ery  much.  He  be^^n 
to  talk  angrily  ;  and  1  said,  Disputes  are  Dot 
IJTood:  why  should  there  be  disputes  between 
friends?  Such  con?ersatioD  passed  etery  day. 
They  were  both  my  friends;  for  which  reason 
I  told  them  it  was  better  to  settle  it ;  and  about 
the  6th  day  I  settled  it,  for  10,000  rupees. 

Was  10,000  rupees  the  whole  paid  to  Co- 
maut  O  Deeo,  either  io  money,  or  any  other 
consideration  ?- — Coma ol  O  Deen  claimed 
526  000  rupees  ;  G.  G.  Sini;  said,  1  hafe  writ- 
ten off  this  to  your  rereuue  account :  you  hare 
no  claim  upon  me.  I  told  this  to  Comaul  O 
Deen  ;  who  then  said,  I  am  much  in  arrears, 
on  account  of  the  tecka  collarips ;  and  my 
character  will  go  ;  if  I  can  get  10,000  rupees, 
I  shall  escape.  I  then  told  Guuga  G.  Sing, 
You  are  my  friend,  and  he  too ;  it  is  not  well 
to  quarrel  among  ourselfes;  and  now  the  times 
are  such,  that  it  behoves  every  ^ood  man  lo 
avoid  having  any  complaint  against  him  ;  it 
is  necessary  f«ir  you  to  give  C.  O  Deen  10,000 
rupfH^.  Then  Gunga  G.  8ing  said,  You  say 
this  to  prevent  quarrels  ;  it  does  not  siirnirv  ; 
what  you  say  is  very  well :  you  tell  me  to  give 
10,000  rupees ;  the  remaiinog  1G,000  rupees 
shall  be  written  off  on  his  land  revenues. 

Did  ComanI  O  Deen  mention  any  other 
arzees  than  those  against  G.  G.  Sing?--- He 
said  somfthine  almnt  having  given  a  duskut  fur 
the  Audaulet  of  Hidgelee  to  Maha  Rajah. 

When  C.  O  Deen  spoke  to  )ou  about  the 
book  being  held  up  to  him,  was  it  abont  G.  G. 
Sing?— It  was  to  seal  the  arzee  about  the 
tecka  collaries.  He  told  me  nothing  of  the 
contents  of  the  arzee,  that  was  wrote  at  Nun- 
docfimar's  when  he  went  away  and  said  he 
was  ill,  which  was  carried  to  his  house  to  he 
sealed,  and  about  which  Sir.  Fowke  held  up 
the  book. 

Was  it  that  arzee,  or  any  other,  that  Mr. 
Fowke  made  him  heal  ? — From  his  telling  nie, 
J  know  it  VI as  that  arzre. 

Which  Mr.  Fowko  was  it,  that  bid  him  not 
luake  a  disturbance  ?---I  did  not  ask  which  ; 
be  said  Fowke  Sauh. 

Did  you  ever  advise  Comaul  how  to  act, 
when  he  went  to  Mr.  Fowkf'»?-  — No,  never. 

Did  you,  in  your  own  name,  or  io  an^  other, 
ever  pioniise  Comaul  O  Dei>n  anything,  for 
giving  the  evidence  he  has  given  ?  or  told  jiiui, 
that  advantage  would  result  to  him  from  it?--- 
No,  never. 

Did  \ou  ever  desire  him  to  write  an  arzee 
against  Mr.  Fowke  i*"-No,  never. 

Air.  Ilmthigs  examine*!. 


mutsuddies,  for  the  grant  of  the  lecka  collir- 
ries,  or  the  adjustment  ofaoonants  relative  Is 
them;  I  am  not  certain  which.  These  wrre 
salt  works,  not  originally  included  in  the  lease 
of  the  farm  of  Hidgdee,  but  worked  by  other 
fanners,  by  people  brought  from  other  parti, 
and  afterwards  given  to  the  farmer  of  Hidge- 
lee, to  prevent  competition.  I  toM  him,  I 
would  not  receive  a  verbal  complaint ;  if  bede- 
sired  me  Io  take  cognizance  of  it,  he  anil 
commit  his  complaint  to  writing,  and  deliver  it 
in  M  riting.  He  did  so ;  bnt  in  terms  so  brief 
and  general,  tiiat  I  returned  it  to  bim,  teHis^ 
him,  that,  as  he  had  stated  it,  it  did  notamonst 
to  a  complaint ;  that  I  would  have  noUiing  li 
say  to  it ;  but  if  he  wished  I  really  would  tike 
notice  of  it,  he  must  mention  the  facts  by  vbick 
he  thought  himself  injured,  in  writinff,  and  le- 
late  their  circumstances.  I  think,  while  I  wsi 
talking  to  him,  Mr.  Vansitlart  arrived  is  tbe 
apartment  where  we  were  conversing.  1  nU 
him  what  had  passed,  ami  what  I  h^d  ben 
Haying  to  Comaul  O  Deen  ;  be  repeateilthe 
same  injunction  to  him.  Comaul  O  Dees 
said.  He  would  write  down  tbe  complaial,  tsi 
make  it  fuller  and  more  circumstantia) ;  tel 
that  he  had  no  Mooufthy  with  him.  1  told  bin, 
Mine  should  write  it,  if  he  would  dictate  iL 
He  agreed  to  it,  and  wrote  the  first  ar»i^ 
Hhicli  has  been  read  ;  it  was  then  brought  it 
me,  I  believe  by  Comaul  O  Deen,  and  I  Uirf  il 
before  the  council.  In  conversation  bHiws 
Ci»maul  O  Deen  and  me,  other  pariicutars  nnj 
have  hap|»ened,  which,  if  there  were,  I  camil 
recollect,  and  have  totally  forgot. 

Did  ComanI  O  Deen  ever  tell  yoo  tbatthoe 
were  falsities  in  the  arzee,  to  which  he  esoU 
not  swear?--- No,  uever.  1  andertiood  «bit 
was  written  ;  and  believed  it  to  be  true,  as  6r 
as  I  could  believe  a  single  witness  ;  I  put  seve- 
ral que^tions  lo  establish  my  belief,  so  far  as  it 
lay  it  before  the  ouncil. 

What  directions  did  you  uive,  as  to  the  dnw- 
ing  up  of  the  arzee?  or  what  did  \ou  sty  os 
the  occ:ision ? — I  only  said.  All  cirruiiistanoei 
must  he  related.  I  believe  I  ini<>|it  sav,  If  it 
is  true,  as  you  have  said,  that  Mr.  Fotil^e  \(Ai 
you  it  would  be  l>etter  for  you  to  make  decU- 
ration  ;  and,  if  not,  you  \tou!d  be.  piiDr»lMtl: 
this  is  material  to  the  complaint,  and  should  be 
miutioned.  1 1/elicve  1  ini;rhi  huve  said  ^,1k- 
cause  I  think,  in  like  circumstances,  1  sbaitf 
do  so  now. 

Did  the  arzee  contain  nothing  more  thauikt 
accosation,  as  related  by  Comaul  O  Dftu:— 
The  circumstances  put  in  I  he  arzee  did  out  is 
the  least,  1  believe,  varv  from  the  accusauoi 


I  in  essential  {mints ;  only  iu  a  dilFerent  maaiMr 
Do  you  know  Comaul  O  Deen  Cawu.'—  .  of  Vf laling  the  same  lacU:    they  appeared* 
Yes,  I  do.  me  the  same. 


Did  be  make  a  complaint  to  you,  in  the 
month  of  December  last? — Yes  ;  i  will  endea- 
vour to  relate  it  hat  passed  :  Comaul  O  Deen, 
in  the  month  of  December,  complained  that 
Mr.  Fowke  bad  altempteil,  by  promise  and 
threats,  to  extort  from  him  a  declaration,  that 
he  had  giren  bribti  to  English  gentlemen,  aad 


Had  you  not  connections  w  ith  Maha  Rfjak 
Nuuilocuiiiar  ?— I  certainly  had  ;  thai  u  I* 
say,  I  euiployed  him  on  niany  occasioBS;  I 
patron izcf I  and  countenanced  him,  it  is  «tl 
known.  I  never  had  an  Ojunion  of  his  rinst 
or  integrity.  I  believe  he  knew  J  had  sol.  I 
beg  leave  to  add,  that  when  i  employed  bittii 


* . 


1181]    for  a  Conspiracy  against  Warren  Hastings,  esq.    A.  D.  1775. 


[1 189 


an  iDstrumpiit  of  ^nfernment,  I  mififlit  bare 
other  motivvs  than  u\y  reliance  on  the  raaa'i 
integrity  ;  inotivea  whicli  did  aot  depend  upon 
me.  I  nii}r|it  have  other  inotifea-^I  had — 1 
eonsidered  it  as  a  point  of  duty,  which  I  could 
not  dispense  with  ;  1  have,  till  lately,  concealed 
the  motives,  because  1  thought  it  my  duty  ; 
but  I  think  it  nece$sary,  for  my  own  character, 
to  declare,  that  1  had  the  orders  of  my  supe- 
riors to  employ  this  man.  He  never  was,  in 
any  period  of  my  life,  in  my  friendship  or  con- 
fidence ;  never. 

Did  not  you  say,  that  you  would  be  revenged 
on  him,  and  would  ruin  him  P — I  never  men- 
tioned revenfife,  or  that  I  would  ruin  him.  I 
am  clear  I  did  not  mention  these  words,  be- 
cause it  is  not  in  luy  disposition. 

Did  you  never  teU  Rajah  Nundocomar,  that 
you  would  withdraw  your  countenance  and 
protection,  and  would  not  be  his  friend  P — My 
firieodsliip  he  never  bad.  1  certainly  did  use 
expressions  which  im^died,  that  he  was  neither 
to  expect  my  protection  or,  countenance ;  and 
dismissed  him  my  house. 

Did  you  ever  say,  that  you  would  conduct 
yourseif  to  him  as  he  deserved  ? — 1  never  made 
ape  of  the  expression. 

Did  you,  directly  or  indirectly,  cnnntenance 
or  forward  the  prosecution  against  Malia  Rajah 
Nundocomar  P — I  never  did  ;  I  have  been  on 
ny  guard  ;  I  have  carefully  avoided  every 
circumstance  which  might  appear  to  be  an  in- 
terference in  that  prosecution. 

When  did  you  first  bear  of  Comaul  O  Deen*s 
complaining  against  Mr.  Fowke  P  *—  That 
morning  1  examined  into  it.  He  came  with 
hia  complaint,  and  broke  in  upon  me  very  al»- 
niptljT.  He  told  me  his  story,  and  I  put  many 
ouestiona  durinff  the  relation  ;  and  afterwards 
I  doubted  it.  \Vhen  he  first  related  it,  I  asked 
him  questions,  to  clear  up  those  doubts.  1  bid 
bim  be  cautious  in  what  he  related.  I  observ- 
ed, be  seemtrd  much  agitated  with  passion,  or 
bad  much  the  appearance  of  it.  And  I  advised 
bim  seriously  and  repeatedly  to  weigh  what  he 
was  about,  before  be  persisted  in  an  accusa- 
tion, which  might  lie  dictated  by  prejudice,  in- 
terest, or  present  passion.  He  persisted  in  his 
atory,  affirmed  the  same  facts,  with  much  ve- 
lienicnce,  in  such  manner  as  to  induce  me  to 
give  a  degree  of  credit  to  it ;  but,  as  I  was  a 
perty,  I  told  him,  I  could  not  retlress  it :  that 
was  the  reason  I  assigned,  and  directed  him  to 
Bake  his  application  either  to  the  chief  justice 
or  to  one  of  the  judges  of  the  supreme  court 
He  aaid  he  would  go  to  the  chief  justice,  and 
deiiied  I  would  procure  him  an  introdnction. 
1  sent  a  chubilar  with  him,  to  prevent  any  de- 
tention or  prerention  he  might  have  met  with 
froflB  the  chief  justice's  servants.  I  also  wrote 
a  note  to  him,  which  I  sent  by  one  of  my  own 
afeivuitf. 

Wheo  waa  it  that  you  interroQfated  C.  O 
Dceo  reepecting  his  complaint  P—  Between  the 
enmination  at  the  cliief  justice's  house  and  the 
Holiday,  when  we  determined  to  prosecute.  I 
**      ^  him  two  daya  aaoccMivelyi  and 


urcfed  him,  by  the  arguments  which  I  thought 
most  likely  to  have  weight  with  him,  to  declare 
the  truth  that  paased  between  him  and  Mr. 
Fowke.  He  wasstrictly  consistent  when  he  told 
the  story,  repeated  always  the  same  facts, 
varied  only  in  the  mannei^  of  telling  them,  and 
introducing  immaterial  circumstances ;  he  did 
not  vary  in  the  sense :  he  did  not  repeat  the 
same  words,  or  make  the  same  arrangementa ; 
the  material  facts  were  tlie  same. 

In  what  Isnguage  did  you  examine  him  P-~ 
In  the  Hindostanny. 

Did  you  ever  examine  any  other  of  the  wit- 
nesses?—-No,  never. 

Did  you  ever  see  Comaul  O  Deen's  moon^ 
shy  P — I  never  aaw  him  but  at  the  chief  jus- 
tice's. Comaul  O  Deen  always  persisted  in 
the  sam^  story  of  the  furd ;  it  was  on  that 
point  chiefly  that  I  examined  him,  because  it 
was  less  capable  of  evidence,  and  1  wished  to 
be  convinced,  as  far  as  1  could  be,  from  the 
man 's  manner  of  relating  it.  1  was  thoroughly 
satisfied  in  ray  own  mind,  when  I  commenced 
the  prosecution,  that  the  story  waa  true:  and 
I  have  bad  no  reason  since  to  alter  my  opinion. 

Was  Nundocomar  neter  in  your  private 
friendship  or  confidence  P — There  was  never  a 
perio<l  in  which  he  was  in  my  private  friendship 
or  confidence :  I  may  except  the  small  time, 
till  I  had  acquired  an  opinion  of  bis  conduct. 
There  are  some  in  this  settlement  that  know 
on  what  terms  we  were  before  1  went  to 
England. 

Would  you  have  employed  him,  had  you  not 
had  the  orders  of  your  superiors  for  so  doing? 
— I  believe  I  should ;  but  1  never  should  have 
shewn  him  that  degree  of  countenance,  or  con- 
tinued it.  I  might  have  employed  him  for  a 
particular  purpose.  I  was  directed  to  employ 
nim  in  a  particular  service,  and  to  make  it 
his  interest  to  exert  himself.  I  never  had 
ordefs  to  give  him  particular  countenance  and 
proleciinn. 

At  what  time  did  yon  employ  him  particu- 
larly P — It  was  alMiut  the  removal  of  Mahomed 
Reza  Cawu,  and  the  making  new  arrange- 
ments. His  interest  and  inclination  were  con- 
trary to  Mahomed  Roza  Cawn's,  and  he  waa 
thought  fittest  to  destroy  the  influence  of  Ma- 
home<l  Reza  Cawn,  till  the  new  arrangementa 
should  be  confirmed. 

Mr.  George  Vaniittart  examined. 

Were  von  at  the  governor  general's  when 
Comaul  0  Deen  made  his  complaint  ? — I  was« 

Relate  what  you  recollect  ot  it. — Mr.  Hast- 
inij^  was  in  the  south-east  room  of  his  house  ; 
Comaul  O  Deen  waa  there,  and  others,  when  I 
went  in  :  Mr.  Hastings  told  me  that  Comaul  O 
Deen  bad  been  complaining  of  him,  that  Mr. 
Fowke  had  threatened  him  with  punishment,  if 
he  did  not  deliver  an  account  of  barramut^ ; 
that  he  had  been  relating  every  thing  very  cir- 
cumstantially by  word  of  mouth ;  but  had 
given  in  a  petition,  very  short,  and  of  no  kind 
of  consequent.  He  desired  me  to  explain  to 
Comaul  O  DeeOi  tbit  if  what  he  hftd  related 


15  GEORGE  III.  Trial  qfJatepk  Fa/nke  ami  aUerSf  [IIM 


1183J 

▼erbally  wat  tnie,  and  be  meant  to  oomplaiDi 
lie  should  be  as  circumstaotial  in  his  petition  as 
be  had  been  in  bis  verlial  relation ;  and  parti- 
cularly, that  be  should  mention  the  ctrcaro* 
atauce  of  Mr.  Fowke  bavuig  threatened  him 
with  punishment,  if  be  did  not  give  in  the  bar- 
ramut  paper,  or  aoconnt  of  bribei :  it  was  on 
the  subject  of  tecka  collaries.  The  goyemor 
then  turned  to  Comaul  O  Deen,  and  himself 
told  him  to  the  purport  be  bad  been  desiring  me  to 
tell.  Cnmaol  O  Deen  said.  He  would  go  home, 
and  write  such  a  petition :  the  goTemor  said. 
It  was  unnecessary  he  atioold  go  home,  that 
he  might  dictate  it  to  bis  Moonshy  ;  be  wonid 
order  his  Moonshy  to  write  what  ComanIO  Deen 
dictated.  He  then  left  the  room.  1  repeated 
over  again  to  Comaul  O  Deen,  in  Persian,  to 
the  same  purport  as  the  governor  bad  been 
telling  him  in  the  Hindostan  language.  I  Mr- 
ticularly  asked  him  if  the  circumstance  of  Mr. 
Fowke's  threatening  him  with  punishment  was 
true,  and  particularly  charged  him,  that  be 
must  write  nothing  but  what  was  strictly  true. 
He  said  that  circumstance  was  true;  pro- 
mised he  would  not  write  any  thing  but  what 
was  so ;  be  then  went  with  the  Moonshy,  I  be- 
lieve into  the  south  veranda,  and  I  returned 
home :  I  believe  1  did  aUy  till  it  waa  wrote. 

Did  C.  O  Deen  ever  give  you  any  reason  to 
think  his  complaint  not  true^-Never ;  his  as- 
sertions have  always  been  that  it  was  true. 

Where  were  you  on  the  80tb  of  April  ? — ^At 
the  chief  justice's. 

Did  you  ever  hear  Mr.  Fowke  say,  that  be 
used  threata  to  make  C.  O  Deen  sign  the  pa- 
per ? — No ;  he  said  be  lifted  up  a  volume  of 
Churchill's  Voyages:  I  think  tne  reason  he 
gave  for  it  was,  that  C.  O  Deen  went  into  his 
room  when  he  was  lying  on  the  bed,  and  was 
troublesome  to  him.  I  believe  it  was  to  get 
back  his  arzee.     1  cannot  say  that  certainly. 

Do  you  remember  any  thing  else  that  passed 
at  the  chief  justice's? — 1  remember  Mr. 
Fowke  speaking  to  Mr.  Barwell,  with  great 
▼ehemence,  **  Can  you  say  upon  your  ho- 
nour and  your  oath,  that  you  did  not  receive 
the  45,000  rupees  f"  Mr.  Barwell  replied, 
upon  his  honour  and  his  oath,  he  did  not. — I 
am  generoJly  called  Hoshia  Jung  by  the  black 
people,  it  is  a  title  I  have. 

Did  Moonshy  Sudder  O  Deen  ever  call  at 
your  bouse?-- -Yes. 

When  was  it  ? — On  the  Tuesday  or  Wednes- 
day before  the  Thursday  of  the  examination. 

What  time  of  the  day  ? — I  believe  about 
seven  or  eight  o'clock  in  the  evening.  He  ac- 
quainted nie  that  C.  O  Deen  had  called  on 
him,  and  told  him  that  Mr.  Fowke  had  used 
him  ill  that  morning ;  that  he  had  obliged  him 
against  his  will,  to  write  an  account  against 
Mr.  Barwell  and  mc,  of  bribes  pretended  to 
have  been  received  by  us ;  that  he  was  deter- 
mined, however,  to  get  back  what  be  had 
written,  or  would  complain  to  the  governor. 

Did  he  mention  nothing  of  the  governor's 
name  ? — 1  do  not  recollect  that  he  did-*-l  am 
aot  sure. 

§ 


Crotf-JSroMflialMm* 

How  long  have  yoo  koown  C.  O  Dcta  F— I 
hftd  an  acqiiuntanee  with  him  ahool  IS  yen 
■go,  and  not  after  till  177S. 

How  came  yon  acquainted  with  htoif— I 
know  him  aa  being  membert  and  hem  fmscr. 

Do  yon  know  w  any  complafaits  being  pct- 
ferred  against  him  ?'— i  do  not. 

Had  you  erer  any  particolar  eouveraatiM 
with  bim  at  your  honae? — I  think  be  bia 
called  on  me  ;  but  whether  I  had  any  partiea* 
lar  conversation  1  do  not  reooltcct. 

Did  you  never  torn  him  onl  of  the  nMNB,  ii 
a  man  not  worthy  to  be  credited  ?— No,  never. 

What  is  your  opinion  of  bim  ?— I  never  bai 
reaaon  to  put  confidence  in  bia  credibility,  ar  M 
doubt  it.  I  thought  him  a  creditable  nian,aii 
never  beard  any  thing  amiaa  of  him. 

Do  you  remember  any  instance  of  a  cbm* 
plaint  of  bia  which  was  found  to  be  tptMindltnf 
—No;  though  I  have  frequently  tieerd  of  ae* 
cusations  against  bim  in  the  farming  bofiBCSi; 
the  only  one  I  can  recollect  made  bv  bin,  «ai 
against  an  English  gentleman ;  and  that  I  k^ 
lieve  to  be  true. 

Did  you  believe  ComauPa  aoemation  la  It 
true  ? — I  did ;  else  I  should  not  hare  joined  mf 
name  in  the  prosecotion. 

Waa  it  not  yonr  doubt  of  hie  credit  thai 
made  you  tell  bim  to  write  only  what 
— No;  from  the  nature  of  his  story  ; 
ftom  thinking  bis  credit  doubtful. 

How  long  have  you  known  Mr.  Fowke?— 
I  have  known  him  10  years. 

What  is  vour  opinion  of  bia  character?--! 
have  ever  looked  on  Mr.  Fowke  as  strieil^ 
honest,  and  of  strict  honour,  according  to  ba 
own  principles ;  but  I  believe  the  violence  if 
his  temper  may  in  some  points  lead  him  oat  if 
the  road  of  honour  without  he  himself  kno^ 
sensible  of  it.  Procuring  accusations  1  tbisk 
one  of  those  instances  that  may  lead  him  out  ti 
the  road  of  honour.  I  should  l>e  embarruK^ 
to  put  any  other  case,  but  accusations  agaiaH 
the  governor  general  and  those  immedaatdj 
connected  with  him. 

Is  Air.  Fowke  in  the  Company's  aervice?— 
No,  he  is  not;  1  believe  he  is  employed  by  ge- 
neral Clavering  ;  he  is  iu  office. 

Did  you,  or  did  you  not,  receive  the  13,000 
rupees,  on  account  of  the  tecka  cullarirs,  tf 
mentioned  in  the  funl  ? — I  never  received  ibn 
sum,  or  any  other  on  that  account. 

Moonshy  Secrat  Alii  Caicn  examined. 

Whose  servant  are  you? — I  am  in  tbe ser- 
vice of  the  Company  ;  but  remain  about  ikt 
governor. 

Did  you  ever  write  an  arzee  for  Comaul  0 
Deen  by  the  governor's  order  ? — Yes,  I  diJ. 

Relate  the  circumstances.-  — Aa  I  go  evcrf 
day  to  pay  salam  to  the  governor,  thai  dsy.i* 
1  was  standing  in  the  outward  room,  I  «* 
called,  and  went  in.  The  governor  wassiniif 
at  his  writing-table,  and  Cumaul  O  Deea  w 
at  a  small  distance  from  him.  Another  pffMS. 
Cantoo  Baboo's  deputy^  was  ibere,  asd  ibc 


I1S5] 


Trial  ofjotepk  Fowke  and  others. 


A.  D.  1775. 


[1 186 


governor's  aurizbe^y.  Tii«  n^ofemor  called 
ne  to  him  ;  ihpn  he  took  the  arzee,  and  ^ave 
ii  mc  to  copy  it  fair ;  and  went  out  with  Comaul 

0  Deen,  at  some  distance  from  him.  When  I 
benfan  to  write,  Comaul  (>  Deen  said  to  nie, 
Write  what  1  dictate.  He  then,  lookin^ron  the 
other  arzee,  bei^an  to  dictate,  and  I  to  write : 
when  I  had  wrote  it,  Comaul  O  Deen  read  it 
over;  inwards  the  latter  end  there  appeared 
■omethiun^f  confused  ;  he  put  it  ri^ht,  in  order 
to  present  to  the  governor.  When  J  had  wrote 
it  fair,  I  ^ave  it  to  the  g;overnor.  Comaul  O 
Deen  followed  me.  The  i^^vernor  htf^^n  to 
read ;  and  1  explained  it  in  places  he  did  not 
nnderstand.  When  the  arzee  was  read,  the 
governor  looked  at  Comaul  O  Deen,  and  said, 
You  say  one  things,  and  write  another.  Co- 
maul O  Deen  answered,  I  have  written  what  I 
before  said.  The  arzee  remained  witli  the  go- 
vernor ;  I  and  Comaul  went  away. 

Gunga  Govin  Sing  examined. 

Did  you  give  directions  to  Comaul  O  Deen, 
to  oonoplain  against  Mr.  Fowke  ? — I  did  not. 
Did  Comaul  O  Deen  ever  shew  you  an 
,  complaining  of  Mr.  Fowke? — I  saw  an 
in  his  hands,  at  the  governor's  house ;  I 
do  not  know  whether  he  put  it  into  my  hands ; 

1  did  not  read  it. 


Had  you  ever  any  dispute  with  Comaul   O 
Deen  ? — There  was  soinctliinfiT  of  a  dJMpute  be- 
tween me  and  him,  about  96,000  rupees. 
Mr.  Alexander  Eiliot  i*xamine«l. 

Do  you  remember  what  passed  at  ilie  Chief 
Justice's,  reK|iectinar  a  htwlk  which  Mr.  Fowke 
lifted  up  to  Cuiuaul  O  Deen? — Mr.  Fowke  ac- 
kuuw|eil<j;ed.  that  he  hud  lifted  a  volume  of 
Churchill's  Voyaifes  a^^uinst  Comaul  O  Deen, 
I  do  noi  remember  why,  on  the  mornini;of  the 
day  he  came  fur  the  arzee.  He  said,  Comaul 
(>  Deen  was  tca/ing  him  ;  and  I  thiuk  said, 
seized  on  his  legs  ;  1  am  not  sure ;  in  conse- 
quence of  which  he  lifleil  up  a  volume  of 
CMiurchill's  Vuyutrt's ;  it  was  sumeiliiug  about 
the  arzee. 

Do  you  remember  any  thing  that  passed  be- 
tween Mr.  Harwell  aud  Mr.  Fowke  at  the 
Chief  Justice's  ? — Mr.  Harwell  s|>oke  to  Mr. 
Fowke  with  some  warmth  aliout  his  conduct 
in  this  aflair  ;  and  Mr.  Fowke,  ap|>earing  to  be 
ttOffry,  asked  him  if  he  could  give  his  honour 
and  oath  that  he  had  not  received  the  45,000 
rupees.  Mr.  Bar  well  said,  he  would  give  his 
houour  and  oath  he  had  not.  Mr.  Fowke 
then  said.  He  must  ac(]uit  him;  that  is  the 
way  I  generally  wipe  oA*  accusations  against 
myself.  ■■ 

Veriiict  on  this  Prosecution,  Not  Guilty. 


558.  Tlie  Trial*  of  Joseph  Fowke,  Maha  Rajah  Nundocomau,  and 
Roy  Rada  Churx,  for  a  Conspiracy  against  Richard  Bar- 
well,  esq.  one  of  the  Members  of  the  Supreme  Council  for  the 
Province  of  Bengal.  At  Calcutta  or  Fort  William,  in  Bengal 
aforesaid:  15  Geouge  III.  a.  d.  1775.  [Subjoined  to  the 
preceding  Report.] 


••  Tcwn  of  CnU\  The  jurors  for  our  lord 
€Mita  and  P'aclory  (iha  kinf;,  upon  their  oath, 
of  Fort  WiUiam  f  present,  I'hat  Joseph 
in  Bengal^  to  wit^  )  Fowke  of  Calcutta  treu  ■ 

tieman,  Maha  KHJah  Nun- 
docomar  Behader  late  of  CJalcutta  inhahitaiit, 
ami  Roy  llada  Churn  of  the  same  place  inlia- 
bilBDt,  all  of  whom  are  subject  to  the  jurisilic- 
tioB  of  the  Supreme  Court  of  Judicature  at  Fort 
William  in  Ben^l,  beinc  persons  of  evil  name 
and  fame,  and  dinhonesi  reputation,  wickitlly 
devisiDiTt  and  unjustly  intendini^,  tf>  deprive 
Richard  Bar  well  esquire,  one  of  the  members 
of  the  council  for  the  province  of  Bengal,  of  his 
good  name,  credit,  and  reputation,  and  to  re* 
pri^eent  him  as  an  unjust  and  dishonest  person, 
and  anfit  to  lie  trusieil  wiih  the  hif^h  office  and 
aaibority  which  he  hoUls  in  the  said  province 
of  BeoKal,  and  thereby  to  brimif  him  into  the 
ill  opiaioo,  hatred,  and  contempt,  of  alt  his  Ma- 
jcety'a  anl^cts,  both  in  India  and  Great  Bri- 
faim  did,  oo  the  19ih  day  of  April,  in  the  15th 

*  See  the  two  Caict  imuMdiatcly  preceding. 
VOL.  XX. 


yearof  the  reii^n  of  our  sovereiflfn  lord  Ceor^a 
I  lie  3d,  by  the  orace  nf  Clod,  nf  Great  Britain, 
France,  and  Ireltind,  kinif,  defender  of  the 
fuitb,  and  su  forth,  at  the  ttiwn  of  Calcutta,  and 
factory  of  F.irt  William,  fraudulently  and  uu- 
lawfully  conspire,  ciHiilHne,  and  airree  amonff 
themsc'lves,  falsely  to  chui^'e  and  accuse,  the 
said  Uichard  Bar^teli,  for  tliut  Iip  had  Ciir- 
ruptly  and  colliiKlvely  received  !<everBl  stuns  of 
money  from  one  Coiuuul  al  Dcnii  AlU'c  Cawn, 
in  the  nature  of  bnl)vs,  or  for  services  rrndered 
by  him  to  the  said  Comaul  a  I  Dren  A I  Ire  C:i\«  n, 
by  virtue  of  his  office,  and  the  authority  o-'  his 
station  in  this  province,  and  by  that  m'^ans  to 
represent  the  said  Richard  Harwell  as  i;*ti|(y  of 
wilful  bribery  and  corruption  in  his  i.ffice  and 
duty  :  and  the  jurors  aforesaid,  u|ion  their  oath 
aforesaid,  present.  That,  according;  to 
the  said  considracy,  combination,  and  ^^  ''""■'' 
a^^eement,  ttiesaul  Joseph  Fowke,  Mr  ha  Ua- 
jab  Nnndocomar  Babader,  and  Roy  Rada 
Cham,  did  at  several  times,  make  use  of  per- 
suasions, promiset,  and  threats,  to  prevail  on 
the  said  Comaul  al  Deen  AUee  Cawn  to  accoM 
4U 


1 187]  15  GEORGE  UI.  Trkl  ofJaqA  FmU  amd  Mtrs,  [1181 

the  said  Richard  Barweil  of  bafinfr  receired 
the  said  sunui,  and  of  being  guilty  of  the  said 
offence  of  wilful  bribery  and  corraption  ;  and 
the  jurors  aforesaid,  upon  their  oatb  aforesaid, 
do  furthfr  present,  that  also  the  said  Joseph 
Fowke,  IV] aha  Raji^h  Nundocoinar  Bahader,  and 
Roy  Rada  Churn,  on  the  said  19th  day  of  April, 
in  the  year  aforesaid,  according  to  the  said 
coiiffpira<'y,  combination,  and  agreement  be- 
tween themNelves,  before  had  as  aforesaid,  did 
make,  frame  and  write,  and  caused  to  be  made, 
frame<l  and  written,  a  certain  writing  or  paper, 
purposing,  that  sums  of  money  had  been  so 
paid  anti  received ;  to  wit,  to  Warren  Hastings 
esq.  15,000  mpeeH,  to  Richard  Barweil  esq. 
45,000  rupees,  to  Hoshyar  Jung,  thereby  mean- 
ing George  Vansittart  esq.  12,000  rupees,  and 
other  sums  of  money  to  other  persons ;  and 
did  falsely  and  wickedly  prevail  with  and  force, 
by  intreaties,  menaces,  and  other  unlawful 
means,  the  said  Comaul  a1  Deen  Allee  Gawn, 
to  write  words  on  the  said  pa|)er,  purporting, 
that  he  acknowledged  to  have  paid  the  said 
•urns  to  the  said  persons:  whereas  in  truth 
and  in  fact  the  said  Richard  Barweil  never  re- 
ceived an  V  such  sum  of  money  ;  and  the  said 
Comaul  al  Deen  Allee  Gawn,  at  the  same  time, 
and  immediately  thereafter,  and  also  since  that 
time,  declared  the  said  accusation  to  have  been 
false,  and  violently  extorted  from  him  as  afore- 
said, to  the  great  damage  of  the  said  Richard 
Barweil,  to  the  evil  example  of  all  others  in  the 
like  case  offending,  and  against  the  peace  of 
our  said  lord  the  king,  his  crown  and  dignity.'* 
Signed,  Ja.  Prftchard, 
19th  Jane  1775.  Gl.  of  the  Grown. 

W,  M.  Beckwith, 
Gl.  of  Indictments. 


Comaul  O  Deen  Catcn  sworn. 

Q.  Are  you  acquainted  with  NundocomarP 
•~"^«  Yes. 

Did  vou  ever  make  application  to  him  for 
monevr — 1  have  often. 

Did  yon  in  the  month  of  Chyle  last  ? — Yes  ; 
I  burrowed  3000  rupees  of  him  in  that  month. 

Relate  the  conversation  that  passed  between 
you  and  Nundocomar. — When  I  returned  from 
Houghly,  1  went  to  Nundocomaf's  house:  he 
was  not  at  home :  I  sat  down  in  the  Dewan 
Gonnah,  and  Malta  Itnjah  came  soon  after:  J 

five  him  a  gold  mohur :  he  asked  me  whether 
had  heard  what  passed  between  the  governor 
and  council  about  harramut,  and  the  Muony 
Begum :  1  answered,  1  have  not  heard  all : 
BluTia  Rajah  said,  Mr.  John  Graham  is  my 
enemy,  and  1  am  his :  I  was  not  an  enemy  to 
the  governor:  the  governor  has  told  me,  I  will 
think  much  about  you,  be  upon  your  guard.  1 
thereupon  consulte<l  with  Mr.  Fowke:  Mr. 
FoMke  ansv%ered  me.  Do  you  get  barramuts 
against  the  governor,  Mr.  Barweil,  Mr.  Vansit- 
tart^and  other  gentlemen ;  and  i  will  procure  for 
you  the  placeof  tlieaumeen  of  thekhalsa;  I  then 
gave  him  the  barramut,  on  account  of  Munny 
Segum,  and  1  ba? e  proved  the  goveraor  to  be 


in  the  wronir  to  the  coiMlal*  Nimdi 
aaid  to  me.  Do  you  get  barinuButt  for  the  per* 
gunnab*  of  uysadel«  Aviogoo,  Tundook, 
and  whatever  places  yon  can  get  them  fiwa. 
1  then  answered.  You  have  told  me  of  gcitii| 
barramuts  against  the  governor  mod  oih«  gOH 
tiemen  ;  hot  on  bearing  this,  the  people  ifiak 
ill  of  you ;  you  waa  before  in  Iriendahip  with 
the  governor,  and  now  yon  talk  of  getting  bv- 
ramnts  against  him ;  and  there  is  now  a  frkad* 
ship  between  Mr.  Barweil  anil  Mr.  VaaaitlBrt; 

Sou  are  going  bark  wards  and  fbrwnrda  to  thor 
ouses:  P(f  ondocomar  said,  They  send  oflnii 
caH  me ;  therefore  I  go :  I  then  said,  I  hna 
given  nobody  any  thing,  on  account  of  Hi^ 
gellee.  What  do  1  know,  what  has  been  dm 
at  other  places  ?  There  was  other  eonvefialiifc 

f massed,  but  I  do  not  remember  it  novrhi 
aughed  and  said,  go  and  get  the  nipett  jh 
wanted  to  borrow  from  Roy  Rada  Chun,  mk 
when  the  Burdwan  man  gets  his  kellant,  1  wi 
talk  to  you  further  on  the  subject. 

When  did  you  see  Nundocomar  agaiaf-^ 
was  either  on  the  30  Phaugooo,  or  Iho  Id 
Chyle. 

Did  you  see  Mr.  Fowke  loon  after  UmII^ 
Yes ;  a  few  days  after  I  Went  to  Mr.  Fo«h6 
with  Roy  Rada  Churn. 

On  what  occasion  ? — Maha  Raiah  had  Iril 
me,  You  have  had  a  quarrel  with  Mr.  Fowke; 
go  and  be  reconciled  to  him,  and  hjr  fail  wmm 
get  introduced  to  the  general,  colonel  Moomb, 
and  Mr.  Francis :  I  said,  Tliere  is  no  gml 
things  in  being  reconciled  to  Mr.  Fowke ;  ai 
you  get  your  kellaut,  I  would  not  be  iatn- 
duced  to  the  gentlemen  :  I  will  notW  to-dij.l 
will  go  to-morrow.  Tlie  next  day!  weatwtt 
him  to  Mr.  Fowke's :  1  offered  Mr.  Fo«lnt 
nuzzer  of  5  rupees,  which  be  did  not  take:  It 
told  me  to  sit  down :  he  got  up  and  nect 
into  his  bed-cbaniher :  he  then  called  roeistv 
him,  and  Hoy  Kada  Chom  and  I  went  n 
together:  he  said  many  kind  tilings  tone, 
that  he  had  heard  of  my  |iraise  of  Maha  Rajah: 
he  also  said.  You  u  ill  be  ou  good  terms  «ak 
Maha  Uajah :  I  will  get  the  business  of  Pir- 
nea  for  you,  and  \«  hatever  Maha  Rajah  biii 
you  do,  do  it :  he  then  gave  me  beetle,  ottv, 
4£c.  and  my  dismission. 

When  did  you  go  again  to  Maha  R^iahP— 
Two  days  after,  in  ihe  evening  ;  1  did  bH 
choose  to  go  sooner,  because  I  heard  bad  wsi^ 

What  bad  words  P — Al>out  the  harramut 

What  did  you  go  for  ? — 1  went  to  get  af 
dismission  to  goto  Houghly. 

What  passed  that  evening? — Maba  Buk 
asked  me,  Where  is  the  small  arzeeyoam 
lore  gave  in  to  the  governor  against  Vr. 
Fowke?  I  said,  I  have  it:  MabaRajahsndi 
Bring  it  to  me  to-morrow  evening,  chat  1 0if 
see  it :  when  I  have  seen  it,  I  will  then  gn* 
you  your  dismission :  I  went  home  ;  my  dl 
moonshy  was  gone  to  his  house  ;  at  as«i 
whatever  I  remembered,  1  cauaed  to  bt  vitB 
by  my  new  moonshy. 

*  A  small  district  coDiifling  of  •cvenlfAl*' 


1 189]      'Jhfr  a  Conifhracy  agaiiui  Richard  Banoell,  e$f.     A.  D.  177S. 


[1190 


Why  was  the  old  moontby  gone  from  your 
hoose  r— The  eraeo  was  io  Ibe  potweewoQ  of 
my  old  mooDiby. 

What  did  you  do  with  whet  you  bkl  your 
new  mooDshy  write? — I  kept  the  paper  newly 
written  in  my  poaaef^ion  till  the  eveninic :  I 
•caled  it,  and  carried  it  to  Maba  Rajah.  Maha 
Rajah  read  it,  and  kept  it,  then  gave  me  my 
dianiasion  for  Hooghl^. 

Why  did  you  imairine  that  Mr.  Fowke  and 
tkc  Maha  Rajah  wouM  ask  you  for  harraniuta  P 
—They  talked  to  roe  about  harramuta ;  there 
waa  a  cntcherry  of  harramuta,  tor  all  tlie  je- 
nindars :  1  alone  do  not  know  this ;  all  Cal- 
0Qtta  knowa  it 

You  aay  yon  went  to  ask  your  diamitsion  for 
Hoaghly:  when  did  you  return? — I  went 
In*  Houghiy ;  while  1  waa  there,  I  heard  that 
M oonahy  hudder  O  Deen  waa  coming :  hear- 
ing that,  I  returned :  I  believe  about  the  last  of 
Chyle. 

When  did  you  aee  Maha  Rajah  again?— 
When  I  went  for  the  arzee  hack :  aUiut  the 
4lh  or  6th  Bysaak. 

What  then  passed  P — I  aaid  to  Maha  Rajah, 
Moonahy  8udder  O  I>een  is  come  hack,  and 
tho  buainess  with  Gunga  Goviu  Sinjf  is  set- 
tled :  irive  me  the  arzee  hack  again :  then 
Maha  Rajah  aaid,  What  has  been  done  about 
the  rupees  you  spoke  iu  Roy  Rada  Churn 
•bout?  I  anawered,  I  have  not  got  the  rupees 
lirom  Gnnga  Govin  Sing ;  and  i  will  now,  if 
yea  pleaae,  give  it  you  in  writing,  that  when  I 
lecei^e  them,  1  may  give  you  the  sum  pro- 


(Comanl  O  Deen  here  says,  that  he  has 
not  bis  recollection  about  him  to-day,  and  ac- 
ewinta  for  it  as  follows) ; 

My  vakeel  has  been  tied  up  by  Ramch under 

.8ein  for  money,  and  great  disgrace  has  liillen 

OB  me:  I  am  the  renter  of  Hidirelee,  i  let  it 

te  farm  out  again  to  Bussunt  R<»y,  and  gave 

■eottrity  to  ffoverninent :    Bussuut  Roy  pavs 

Ihe  rent,  and  Ramchunder  ISein,  dewan  of  the 

Jkbalsa,  baa  tied  up  my  vakeel  viithoul  Mr. 

CottreH'it  order,  or  without  his  being  acquainted 

■with  it:  Rumchunder  8ein  is  a  luuuuddy,  and 

I  mm  a  man  of  reputation ;  ihe  lying  up  my 

vakeel  ia  the  same  as  tying  me  up. 

What  did  Maha  Rajah  say  was  done  with 
the  araee  ?— Maha  Rajah  aaid,  I  have  it  not, 
Mr.  Fowke  has  it :  I  then  said,  I  deposited  it 
with  Roy  Rada  Churn ;  why  has  Mr.  Fowke 
got  it? 

What  answer  did  Maha  Rajah  niake  ? — He 
Mid,  What  doea  it  signify  to  you?  come  to- 
Morrow:  when  1  went  the  next  day  to  Maha 
Bajah'a,  he  told  me,  Mr.  Fowke  says,  the 
leijj^e  araee  which  vou  gave  to  the  Governor 
in  the  month  of  Pons,  complaining  against 
^m}  if  you  will  write  thus,  that  you  did  not 

£'ve  in  the  araee  on  vour  own  accord,  but  by 
e  direction  of  Mr.  John  Graham  and  the  Go- 
vernor: write  in  this  manner:  Mr.  Fowke 
havinir  read  it,  will  remember  vou  in  his  heart; 
ha  wul  know  thai  yoo  are  bit  owd  miQ :  1 


then  replied  to  Maba  Riyah,  Shall  I  tell  a  lie? 
Maha  Rajah  aaki,  It  must  be  wrote:  it  waa 
necessary  for  me  to  get  back  the  arzee  againat 
Gunga  Govin  Sing ;  and  I  said,  Very  well,  1 
will  write  it  when  I  get  home.  I  came  to  my 
own  house,  and  wrote  in  auch  manner,  aa  in 
aome  nMaaure  to  comply  with  his  desire,  and 
at  theaame  time  to  aave  myaelf  harmless,  and 
left  room  for  my  own  conscience :  1  took  it  to 
Malia  Rajah's ;  he  was  out:  I  sat  down  in  the 
dewan  oonnah :  Maha  Rajah  soon  came,  and  aa 
he  waa  getting  out  of  his  palanquin,  I  gave  him 
the  arzee.  He  read  it,  and  laughing,  aaid, 
Thia  is  nothing;  in  the  evening  bring  your 
Moonshy  with  you :  I  became  angry,  tore  the 
arzee,  and  went  home ;  every  body  knows,  I 
am  a  paaaiooate  man  when  I  hear  a  lie.  In 
the  evening  I  returned,  and  took  mv  Moonahy 
with  me  to  Maha  Rajah'a :  I  sat  still  in  silence: 
Maha  Rajah  cauaed  draughta  to  be  wrote  out 
by  my  Moonahy  and  hia  own,  Domaun  Sing ; 
be  then  altered  them  with  his  own  handa,  and 
told  mv  Af ooushy  to  write  out  a  fair  copy ;  I 
also  told  him  to  do  it ;  I  acquainted  the  Maha 
Rajah  that  I  had  a  great  pain  in  my  belly,  and 
desired  to  go  home.  Maha  Rajah  aakol  me  if 
my  pain  waa  very  great :  I  said,  Yes,  and  got 
my  dismission.  When  one  par  of  the  night 
waa  past,  my  Moonshy  and  Yar  Mahomed 
came  to  one :  Yar  Mahomed  said,  ftlaha  Rajah 
has  sent  this  paper,  put  your  seal  to  it :  I  said, 
No;  there  la  no  agreement  between  Maha 
Rajah  and  me  about  sealing  it.  I  then  gave 
Yar  Mahomed  my  hookah  to  amoke;  he 
bmoaked  a  little  and  went  away.  In  the  morn- 
ing 1  went  to  Maha  Rajah :  he  said  to  me, 
Rada  Churn  ia  gone  before,  with  the  arzee ;  do 
you  follow  him  to  Mr.  Fowke's:  I  went  from 
Maha  Rajah  to  Mr.  CottrelPs ;  and  as  I  rame 
out  from  Mr.  CottrelPs,  Rada  Churn's  hir- 
carrah  came  to  me,  and  sai'l,  his  master  waa 
at  Mr.  Fowke's  house,  and  called  uie  thither: 
I  then  went,  young  Mr.  Fowke  and  Rada 
Churn  were  sitting  in  his  room  (young  Mr. 
Fowke's  room).  After  the  usual  compliments, 
Rada  Churn  went  into  old  Mr.  Powke'aroom; 
he  came  out  again  iu  about  two  gnrrya.  A 
little  after,  Acoor  Munnab  came  lo  me,  and 
aaid,  Mr.  Fowke  called  me.  I  went :  ftlr. 
Fowke  was  sitting  upon  the  bed,  with  his  feet 
hanging  down ;  and  ordered  me  a  chair,  to  ait 
oppoaite  to  him.  Two  writers  and  two  Ben- 
galiea  btood  behind  me.  One  of  the  liengaliea 
was  Acoor  Munnali,  and  I  know  one  of  ihe 
writers.  He  then  took  out  the  arzee  from  off 
the  bed,  near  the  pillow,  and  abked  me  if  I  had 
given  that  arzee.  J  said,  Sir,  that  is  not  an 
arzee ;  it  is  a  jabob  sawaud :  I  wrote  it  ac- 
cording to  the  pleaaure  of  Maha  Rjah.  Then 
Mr.  Fowke  put  on  an  angry  face.  I  said. 
There  is  wrote  in  this  the  words,  '  ^urry  peri- 
vium,  adawlut  booster,  and  ershaud  mea- 
hawiid ;'  t.  e.  *  Protector  of  the  poor,  distri- 
bntor  of  justice ;'  and  *  it  is  ordei-eil.*  I  aaid, 
Who  is  the  giver  ef  onlers?  Mr.  Fowke  then 
angrily  told  me  to  seal  it.  1  waa  afraid ;  and, 
patting  the  end  of  my  jamma  aboiu  my  Mck| 


1191] 


15  GEORGE  III.  Trial  ofJouph  Fmke  and  othen, 


lim 


said,  Sir,  for  God's  sake,  do  not  re(|iiire  roe  to 
f)o  such  business.  He  then  took  up  a  large 
fM>ok,  and  said,  God  damn  you,  you  son  of  a 
bitch.  1  siiid.  Sir,  well,  gife  it  me,  and  1  will 
seal  it.  (C.  O  Deen  here  describes  the  book.) 
Mr.  Fowke  laid  down  the  book,  and  1  sat  down 
on  the  ground :  the  tears  ran  down  roy  cheeks, 
and  I  quivered  and  shook  through  anger  and 
fear.  1  then  sealed  it :  he  took  it  of  me ;  and 
then  took  out  a  furd,  and  asked  me,  Have  you 
given  Mr.  Barwell  in  three  years  45,000  ru- 
pees, at  the  rate  of  15,000  rupees  a  year  ?  I 
said,  I  had.  Did  you  give  Mr.  Hastings 
15.(X)0  ni|>eet?  I  said,  I  had.  Did  you  give 
]Mr.  Vansittart  12,000  ru|)ees?  I  said,  Yes. 
Did  you  give  llajah  Rojebullub  7,000  ru|>ees  ? 
1  snid,  Yen.  Did  you  give  Cantoo  Baboo 
5,000  rupees?  1  said.  Yes.  He  said,  sign  it; 
and  then  put  the  (urd  into  my  hands:  1  looked 
at  it,  and  saw  the  five  names,  with  the  different 
sums  opposite  to  each.  The  ink -stand  was 
lying  on  the  bed,  and  I  put  iny  dusket  on  it — 
\«-riiing.  '*  Russum  Rudum  'and  Dudam." 
When  1  had  signed  the  arzee,  Mr.  Fowke  bid 
me  tell  tlie  pec»ple  behind  me  to  witness  it.  I 
snid,  Very  well,  let  them  do  so.  1  then  gave 
him  the  furd,  and  he  told  me  to  go. 

Where  did  you  go? — I  went  out,  wiping 
my  face,  and  stood  upon  the  stair-ca«e.  There 
was  a  man  named  Samnheer  lieg  standing 
tliiTC :  I  said  to  him,  8ee  what  violence  has 
been  used  with  me.  He  answered,  I  see  the 
consequence  ;  but  know  nothing  of  the  cause. 
I  said  to  him,  I^t  me  fetch  breath,  and  1  will 
make  you  acquainted  with  the  cause.  Then 
Jioy  llada  Churn  and  young  Mr.  Fowke, 
liol(lin){  each  other's  hand,  came  and  stood 
upon  the  landing-place.  I  said  to  them,  Tell 
]VIr.  Fowke  to  jrive  me  back  all  the  papers 
ivliioli  he  has  bv  force  caused  me  lo  write,  or  I 
■uill  spoil  myself  (arah  kurra)^  and,  tearing 
my  I'lotlM's,  ijo  immediately  to  the  council. 
They  then  said.  Don't  be  anjrry  ;  be  a  liu!c 
cool,  and  we  will  speak  to  Mr.  Fowke.  They 
went  to  him  ;  and  in  about  one  and  a  half  or 
two  giirrys  came  out  again.  Young  IMr. 
Fowke  had  ihe  cover  of  a  Irtter  in  his  hand, 
nnd  said  to  m<*.  Your  papers  are  all  in  this;  I 
)iH%e  l)rtiii<r!itilieniout,  but  will  keep  them  with 
inc  to-day:  You  come  to-morrow  ;  Maha  Ra- 
jah will  likewise  coine  ;  and  whatever  Maha 
J{ajali  pit  as(-u,  and  shall  be  agreeable  to  yon, 
shall  1)1*  (lone.     I  then  came  awny. 

After  yon  came  away,  what  did  you  do?— - 
When  finir  uinrrys  of  the  day  were  remaining, 
J  went  u\  Mnonshy  Sndder  O  J)een,  and  said 
to  him,  Mr.  Fov%ke  has  by  force  caused  me  to 
put  my  seal  npon  an  nrzce,  and  to  sign  a  furd  : 
1  am  going  to  Maha  RHJah  ;  I  desire,  if  you 
have  an  oppo'tunitv,  that  yon  will  troand  ac- 
quaint Mr.  Hiirwefl  and  Mr.  Vansiltart  of  all 
the  circumstances. 

What  was  he  to  acquaint  them  with  ? — Of 
these  circumstances.  I  went  to  Maha  Rajah's; 
lie  was  in  his  inner  apartments :  I  went  and  sat 
down  with  Samsheer  Beg;  we  said  our 
prayers  together.    I  then  went  to  Roy  Rada 


CharD,  and,  talking  to  hiia,  took  m  |iilk>w  aad 
sat  down.  Maha  Rajah  csme  oat  into  the 
dewao  connah  :  I  went  and  sal  dowo  by  him ; 
1  then  related  to  him  all  these  circamilaiices. 
Maha  Rajah  oonsoled  me,  and  said  to  me,  Ds 
you  be  content ;  1  will  go  in  the  roomiog,  ui 
get  you  back  your  arzee.  He  gave  me  scttJi, 
&c.  and  my  dismitsioo.     I  went  awav. 

Where  did  you  go  to  next? — 1  went  ti 
Moonshy  8udder  O  Deen,  and  told  him  aH 
these  things.  The  next  morninfr  I  wentti 
Mr.  Fowke's :  Maha  Rajah,  Roy  Rada  Chut, 
and  old  Mr.  Fowke,  were  in  the  room :  1  slosd 
upon  the  staircase,  and  did  not  go  in,  through 
fear.  Soon  after,  Mr.  Fowke  came  oat ;  Iha 
Maha  Rajah  came  oot,  and  Rada  Churn.  I 
addressed  myself  to  Maha  Rajah,  and  sni, 
Sir,  what  have  you  done  for  roe  r  Maha  Rijik 
said,  What  can  1  do  for  you  ?  I  have  talkfdi 
great  deal  to  Mr.  Fowke ;  but  he  dues  nt 
mind  me.  Saying  this,  they  went  down  snin 
to  their  palanquins :  just  as  they  were  seitinf 
off  in  their  palanquins,  1  began  to  tear  bj 
clothes,  and  called  out  Douy .  I  then  got  wm 
my  palanqnin :  hircarrabs  laid  hold  of  it,  lid 
scuffled  with  my  people ;  and  w  ent  on  in  thtf 
manner,  scuffling,  till  I  got  to  the  Bitah  Cn- 
nah  of  Rajah  Rajebuliub.  1  went  and  con- 
plained  to  the  Chief  Justice. 

Did  you  go  no  where  else,  before  you  wot 
to  the  Chief  Justice? — Yes,  I  went  to  thefs* 
vernor's. 

What  did  be  say  to  you? — He  said,  IfhH 
can  I  do  ?  They  are  three  gentlemen,  I  an  bit 
two :  1  can  do  nothing  for  you  in  this.  Y« 
must  go  aud  complain  in  the  King's  Adavkt; 
I  cannot  do  you  justice. 

Whose  hircarrabs  laid  hold  of  your  'pain* 
quin  ? — How  should  1  know  ?  Do  1  wntedovi 
their  names?  How  can  I  tell? 

Do  yon  know  whether  they  belonged  to  Mr. 
Fowke,  Maha  Rajah,  or  Rada  Churn  ?— I  h 
not  know  whose  they  were.  Why  should  tbrr 
belong  to  any  body  else  but  one  of  tben^ 
Thev  called  me  to  come  back  ;  sometimes  Sli- 
ha  kajah,  sometimes  Mr.  Fowke,  and  iobm- 
times  itada  Churn,  wanted  me. 

Why  did  you  call  Duoy,  when  Mr.  Fowke 
and  Maha  Rajah  were  gettintr  into  their  pabft- 
(]nins?--l{ecause  they  hftd  taken  from  roe,  kf 
force,  a  false  barramml.  Why  should  1  nil 
call  out? 

In  what  language  was  the  furd  writteor— 
In  Ferfiiau. 

Had  you  ever  seen  the  hand- writing  before? 
—  No. 

Did  you  form  any  opinion  then  whose  tf 
was? — No. 

When  Mr.  Fowke  asked  you,  if  voo  )d 
paid  the  sums  of  money  to  Mr.  Harwell,  »fcj 
did  you  say— ves?— 1  said  »o,  because  I 
knew  he  wanted  barramuis,  and  in  saying  v  I 
should  get  free. 

Did  you  ever  gife  I  hose  sums  to  Mr.  Btf- 
well,    or  any  other  sums    of   money.'— Nti 


never. 


Had  you  ever  any  quarrel  with  Mr.  Fowb' 


^me 


VBS]     Jor  a  Coitspiracyagfitiut  Richard 

—Thatduy,  and  ooce  befurein  Ihe  monlli  of 
Paoi.  Tlicre  wu  nodiierl  quirrel:  Dnniassy 
Gbote  complaiiml  to  llie  general,  aoU  llie  ge- 
nertl  rtl'crrfd  hii  camplaint  to  Mr.  Fnwke. 
ItarnRSBy  iihote  told  Mr.  Fonrke,  that  t  liaiH 
lakcu  llie  farm  at  a  very  great  cx|ieiice:  on 
whieb  Ur.  Fowke  saitl  to  mt- ,  Do  jrnu  lell  Inie 
what  TOO  liave  ^ii-eii  tn  llie  Eu^li>li  gentlemeo, 
aoil  wW  to  the  Muisuildies  ;  it'  you  do  uut 
tel).  yuu  shall  be  piinisheil- 

What  answer  Jjtl  you  give? — I  iaiil,  1  hare 
not  7 iren  aa^  body  say  thing' :  wbat's  Ihe  use 
orielliiiEB  lie? 

la  consei|iieiiceorihU,  what  did  you  do? — 
1  had  miniberlegs  Ibnu^bla  in  my  oivii  nilod  ;  ' 
but  I  went  and  gtte  tlie  small  arzee  to  the  ^o- 
teroor.  aiiri  nroteout  a  little;  for  ihia  reason, 
that  Ihr  [;<)tc'riinr  was  a  great  man,  and  Mr. 
Fowke  at)  Eiiglisliman  ;  and  that  it' I  « rule  a 
great  deal,  he  might  be  angry. 

When  Mr.  Fowke  asked  you  to  tell  him 
what  sum  you  i^ave  to  (be  Ei)(;li9h  gentlemen, 
tlUI  he  not  say  homethini^  to  you  about  taking' 
•o  oath  ?— No,  he  did  not. 

What,  not  when  Mr.  Fowke  was  examining 
Ifae  coraplaiut  of  Bsrnany  Ghose? — No. 
Ctimaul  0  Dcm  cross-examined. 

Did  RIaha  Rajah  lell  ynu  to  ^et  false  barra- 
inulf?-'ne  did  not  fell  me  either  true  urfal&e; 
be  told  me  (u  bring  barramuls. 

Did  he  lell  ynu  to  bring  barramuti  agninil 
any  parlicular  peojile,  or  only  against  those  lo 
whom  ynu  had  given  money  i*— He  nanrteil  the 
ge*ernor, Mr.  Harwell,  Mr.  Vaasitiart,  ifaeMut- 
Buddies,  and  other  people.  He  lold  me  to  i;et 
whalcfer  linrramuts  1  could  find,  from  Flidge- 
lee,  flee,  and  named  I  he  namea  as  hefnre.  I 
did  out  mean  10  lodge  a  complaint  agaiiisl 
Gunga  GoTiu  Sing  ;  and  Iberefore  why  should 
I  write  every  thing  that  was  true?  I  had  a 
claim  against  him  for  36,000  rupees. 

Dill  ynu  offer  Maha  Rajab  any  money,  pro- 
vided he  sbonld  recover  this  sum  ?— I  told 
Rada  Churn  that  I  wouUI  give  4,000  rupees  in 
ftlaba  liajah,  and  3,000  rupees  to  himself, 
provided  he  could  recover  the  whole  amouni. 

Waathe  H'h'>le  26,000  rupees  (boaa  Jide) 
due  10  ynu  ? — Ilwiis;  but  (junga  Gavin tiing 
has  lold  me,  that  he  has  brought  the  money 
due  to  me  for  the  tecka  collaries,  lo  account  of 
moDEy  due  from  me  lo  the  revenuea. 

■■  it  not  customary  wiib  you,  when  one  ru- 
pee is  due,  to  demand  four? — 1  am  a  liirmer: 
ihis  is  a  Bengally  dispute.  Among  ourselres 
ve  sty  filly  diffeient  kiod  nf  tilings.  There 
was  at  that  lime  no  complaint  loili;ril  ;  when  a 
complaint  is  ludged,  and  we  are  piii  upon  our 
oalhs,  »e  say  whatever  is  true.  Ten  of  my 
under-tenants  may  come  to  me,  and  1  will 
tay  lo  one,  ^'ou  are  indebted  lo  me,  1,000 
rupees:  he  will  say.  No;  1  only  owe  ynu  one 
hundred.  Till  Ihis  day  il  never  was  in  ihe 
cnsloni  in  Bengal  for  uemindars,  or  farmers, 
but  lu  say  some  lies  and  some  truths,  when  tliey 
■re  not  put  upon  their  oslhs. 

nUf  did  you  damaud  more  than  was  really 


His,   I  judged  a  sum  to 
Gl.  (i.  Slug  laughed, 
fuol  ?  you  hate  no  Bdoh 
,  Ifyou  have  any 


Bamelhaq.      A.  D.  1775.  [1194 

due?~.By  my  a 
ihal  amount  was 

and  said.     Are  yi 

claim,  you  muslmsbe  it  ooBussuni  Roy, 

How  much  did  you  aelually  receive  from 
GungaGovinSiiig? — By  the  means  of  M»on- 
shy  Sudder  O  Ueeo,  I  got  10,000  rupees.  I  lold 
Mounsby  Sudder  O  Deeo,  Whatever  is  due,  do 
you,  upon  your  religion  and  conscieuce,  ad- 
judge lo  me.  And  I  lold  G.R.Sing,  Do  you, 
asaKiadoo,  upon  your  religion  ind  conscience, 
pay  mp  what  is  due. 

Was  10,000  ru(>ees  the  whole  yon  received 
in  money  or  otherwise  ? — 1  only  got  10.000 
rupees.  I  have  lettled  every  thing  from  tbe 
'  t  of  Assin  to  the  end  ofBliaudun. 

What  became  of  the  other  IQ  000  rupees  ? 

W  halever  was,  Bussnnt  Roy  kuowa  ;  I  do  not. 

Was  it  wrote  nS'.  on  account  of  revenue?— 
GuDga  Govin  Ming  told  me,  that  (vhatever  re- 
'e  would  settle  with  Buuunt  Ruv.  I 
got  10,000  rupees,  which  1  Ihought  a  great 
deal :  it  is  now  public,  and  all  Ihe  mercbanti 
come  to  me  for  money.  The  claim  ihal  wag 
upon  me  from  Ihe  reveuue,  was  ended  on  Ihe 
last  of  Bhaudun:  from  that  time  lo  ihts,  (here 
has  been  no  claim  on  me,  on  account  of  reve- 
O.  G.  Sing  shewed  me  many  papers, 
and  made  many  demands.  I  do  not  kuow 
nhat  was  aelually  due. 

Did  Guiiga  Covin  Sing  lake  the  16,000  ru- 
pees 10  settle  Ibe  accrmots  P— God  knows  :  I 
st^illeil  lliem  on  his  conscience,     1  wis  cleareil ; 
and   be  was  satisfied  in  respect  to  all  claims,    ' 
except  as  1 1. 

Who  was  to  pay  wliatever  was  due  before 
Bhauduo,  on  tbe  setllemenl  of  Ihat  account  ? 

Were  ihe  claims  made  by  Gungil  Covin 
Sing  on  your  own  account,  or  of  tfivernment? 
—I  had  none  bnl  rrvenue  accounts  wiih  hilt). 

When  was  ihe  firsl  day  yfiu  went  lo  Mr. 
Fowke'i?-— It  was  when  I  went  with  Rada 
Churn,  towards  the  last  of  Chyle. 

The  first  lime  you  went  In  Mr.  Fowke's 
Louse,  did  you  see  him? — I  did  ;  and  offered 
him  a  nufzeen  of  Ave  rupees,  which  he  wnuld 
DM  u<-ce[it.  It  was  the  first  time  after  llie  af- 
fair of  Barnassy  Chose,  about  tbe  end  of  Chyle. 

Did  you  see  young  Mr.  Fowke  ibat  day  ? 
—  I  saw  him  iu  his  own  room :   1  did  not  speak 

Did  you  at  this  lime  tell  Mr.  Fowke  senior 
what  had  passed  hetxeen  you  aud  Msba  Rajah 
Nundocnmar  ? — No. 

lu  tbi;  arzee  you  carried  lo  Maba  Rajab, 
what  part  did  Maba  Rajah  strike  onl  f  The 
arzee  afterwards  sent  lo  Mr.  Fowke? — How 
should  I  know  what  he  struck  uul  ?     I  did  not 

Did  you  hear  the  whole  dictated  tu  the 
Moonshy  ?— Have  1  nol  ears  P  \\\iy  should  I 

Did  you  make  any  objeclions  ?— No.  What 
objections  could  I  make  ?  He  lold  me  to  bring 
my  Muunshy,  lo  writ«aiuiUv». 


GEORGE  III.  Trial  of  .hifph  Ftmke  and  olArrt, 


[im 


Wh™  ftid  ytm  go  next  to  Mr.  Fn»ke'a  ?— 
The  next  tliy.sflfr  I  hiulbernal  Atr.Collrair 

What  (ime  nC  ili«  >lay  w(b  it!' — 1  bkd  no 
watch  i  more  or  tei«  ihsn  one  jtur. 

Did  you  go  iulo  Mr.  Fuwkf  cfnior't  ra 
— Wbeo   AcDor  MumiRh   cftlleJ  me,   llii 


Were  there  any  body  el«ef — Acour  Miinnah, 
■Dollin'  BeagYlly,  anil  two  irriiera,  came  Hlter- 


Did  lh»e  people  come  in  ilirerlty  nller  liim  ? 
•^By  the  time  I  had  sat  down,  lliey  c4me  and 
■lood  behind  me. 

Did  they  iiiiy  BB  long**  you  didf— I  haie 
already  tuld  you,  nliilsi  niwlerale  cunversalinD 
laated,  lliev  wera  ibere.  When  I  was  on  the 
ground,  I  know  not  wliether  ibere  were  Tour  or 
ten  in  the  room. 

Wben  did  you  fall  un  llie  eround  7— When  1 
Btkeil  Mr.  Fowke  who  wa«  (lie  Gurry  Punrsr, 
Adaulet  Bootlrr,  &c.  and  h  heu  he  was  ang^ry  : 
1  ihrn  went  down  on  the  ground,  putting  (he 
and  ul'  my  jammah  round  my  neck,  at  I  hare 
•Irenijy  ahewn. 

What  Iheii  passed?  What  naade  you  go 
down  on  (he  ground  P — Mr.  Fowke  look  np  a 
book,  and  mlleil  out,  GikI  damn  you,  you  ion 
•I'  a  Mich  ;  when  he  told  me  in  aeal  (be  arie^ ; 
OD  wliich  I  aaid,  Oife  lime,  and  I'll  aeal  i(. 

Da  you  alwava  ail  whru  you  li^o  and  ieal  f 
— ^melimet  wlieu  1  am  aiaDiling,  and  lorae- 
limeaaitiing. 

What  passed  when  ynu  were  down  on  the 
gp-ounil  i* — I  cried,  ahooL,  aud  pul  my  seal  lu 


ti«'l 


1     I    H 


n  great 


Du  you  reiTollect  any  thin);  tlinl  pMsrd  at  ibe 
time  f — I  put  my  seal  lo  Ihe  arzee,  and  signed 
the  furd.  Mr.  Fowke  ihtn  bid  me  go  :  nhst 
more  should  I  remember? 

Do  you  remember  the  peuple  that  were  in 
the  room  at  Ihe  lime?_My  head  was  dowD- 
warda ;  alter  he  hid  me  seal,  I  <;oul(I  not  lell 
who,  or  how  cao  I  now  tell,  who  aiands  twiiiad 
me? 

Did  any  bo.ly  el*e  speak  lu  you  ? — No. 

Did  they  do  any  thing  else  ?— No. 

Waa  the  dnor  t.hut  P~No. 

When  vou  went  out,  did  you  see  the  people 
ntnlionril,  or  knaw  them  ? — No, 

How  Ionic  do  ynu  iliink  you  were  in  Mr. 
Fawke'n  room?  (Mr.  F.  senior.)— I  had  no 
Walcb  ;  itHiut  one  or  iwo  if  urrya. 

Were  ynu  in  Mr.  F.iwke'a  room  more  than 
one  lime  ihat  day  ?-Nu. 

Waa  the  duiir  atanding  wide  open,  when  ynu 
went  iuf— B"th  wlirn  I  weni  in  am" 

When  you  weol  into  Mr.  Fu>vke-s 
many  people  were  iliere  P  — 1  told  y> 

II. w    many    people   »>-re   (here 
'  dill  jou  ubMrre  i»e»eral  ? — When     1 

weni  lU,  tlirre  Here  mwiy  j  wfaeu  I  caw«  out, 
Ibere  ttere  taw. 


[Beiu)f  further  interriwaiefl.  be  cause 
exHUily,  bun  many  al  eiiher  time.] 

Uo  you  know,  or  think,  thai  the  lour  pi 
two  Kriagies  ami  two  Bengallya,  were  i 
you  K»  guards? — No. 

Did  vou  erer  altempi  to  go  mway  befote  |i 
■ctiiallydidgoP— WheuMr.  Fuwkeioliln 
go,  I  did  go. 

Uid  you  wiile  any  thing  on  Ibi 

Did  you  erer  write  yonrname  ot 
—  I  did  nul  write  any  thing;    Ihe  Mag 
wrole  my  name  j   I  did  not ;   I  da  n 
what    Mooiiaby   wrote  ;    it  waa  all    \ 
Alalia  lt.ijiih'1  house. 

Did  Mr.  Fowke  eier  thnaten  yoi 


le  ?— No. 


aure  that  yniing  Hr.  Fowkfld 
Rada  Churn  Here  in  the  loain  when  belt 
ened  you  T — .1  cannot  lell  ;  1  did  noi « 
did  you  firal  see  the  furd  y 


ofr— 1  I 


t  ihal  ti 


1  heard  af  barrftmuda,  but  not  then 
mtDlioned  in  the  furd. 

U'bs  the  liird  ahewn  immediatriy  wbaill 
went  down  on  the  grvund  ? — Alter  I  iHtd  t 
llie  ar/.ee  aud  luld  Ihe  Fringiea  to  be  witn 
ihe  furd  na»  immediately  produced. 

Did  any  Ihini;  itileneue  be(we«ii  ypnrtL- 
ing  thearzeeond  Ihe  production  of  Ibsfiirdfl 
I  aaid.  lei  thetn  be  wiloeaaes  ;  be  ihai 
duced  (he  furd. 

Do  you  recollect  what  you  wrote  «.  , 
furd  1*— I  wrote,  "  ftussutn  Nullum  ami  D 


any  tiling  else  wrote  on  the  funi ' 
45.000  rupees. 


Was  th 
—Ye.. 

Mr.  Harwell 

Mr.  Hailin|;a 

Mr.  Vanaitlarl    13,000 

R.  Rnjebulleeb    7.000 

Caolou  Bihou      3,00U 

IV ere  (here  no  ollwr  words  whaleeerw. 
fun)  T — I  aaw  no  more. 

Was  Iheie   any  ibtag  uf  lA.OOO 
year? — He  lold  ma  ihal  by  word 

Al  the  liuie  you  wrule  this  uu  tl 
there  any  body  in  the  room  f — I  dan'l 

Were    you    friuhleneil  ? — Vea ;    «Im 

eiihl  I  hare  been  down  f 

When  Mr.   Fowke  aakcd, 


n  Ihe  s( 


Barwell,  Jic.  did  he  bid 
It  bid  me  >ay  yes. 
Who  had  the  pen  and 

the  furd?— .Jl  V 


Whose  bend-wriling  I 
ihould  1  know  P    How  can  1  g 
ike  any  body 'a  hand 


that  day  ?—t 

which  was  lij 

Did  you  ueser  My  that  you  guoMed  wfefcfl 


1 197]    frr  *  Con^piraef  agdmt  Richard  Bamdl,  etf.     A.  D.  ITIS. 


[1196 


wrote  the  fard  ? — I  don't  remember  that  e? er  I 
did. 

Did  you  erer  lee  Rada  Cham  write  ?— He 
has  wrote  a  thoasaad  timet  before  me. 

Did  the  Go? emor  General  ever  aay  to  yon 
these  words,  **  They  are  three  gentlemen,  I 
am  but  two ;  I  cannot  redress  you ;  you  must 
^  to  the  AdawlciP''— Yes ;  the  day  1  went  to 
complain. 

^A  paper  being  shewn.) 

Can  yon  form  any  judgment  whose'writiog 
this  is  T — I  can't  tell ;  yon  may  call  my  Moon- 
shy.  1  told  liim  to  wnie  such  an  arsee,  or  re- 
quisition, for  the  Adawlet  of  Hidgelee. 

Did  you  ever  see  any  other  arzee  on  any 
other  day  at  Mr.  Fowke's  house  ? — I  nerer  did. 

Are  you  very  certain  ? — Except  that  paper,  I 
never  did ;  what  more  can  I  say  P  1  am  on  oath. 

Had  yuu  any  reason  to  think  that  Mr. 
Fowke  expecledf  you  that  morning  ? — What  do 
I  know,  whether  he  ex(iected  me  or  not  P  A 
hircarrafc  came  for  me ;  I  went. 

Had  you  told  Hada  Chnm  the  night  before, 
that  yon  would  next  day  go  to  Mr.  Fowke's  ? 
—No. 

Did  you  never  at  any  time  tell  Rada  Chorn 
that  yon  would  go  to  Mr.  Fowke'sP— No.  1 
toM  Maha  Rajah. 

Meonshy  Sudder  0  Deen  sworn. 

Are  you  acquainted  wiik  Comaul  O  Deen 
Cawn  ? — Yes. 

IVbat  passed  between  you  and  him  in  the 
month  of  Bysaak  last  P — He  spoke  to  me  two 
or  three  limes,  I  believe  about  the  3(1  or  4th  and 
glh  of  that  month. 

vVbat  did  he  say  to  you  P  relate  it.«^He 
told  mc,  that  Maha  Rajah  had  said  to  him,  that 
he  must  write  an  arzee  on  the  subject  of  the 
tecka  collaries;  be  would  not  give  it  him;  he 
would  not  bring  so  much  shame  upon  himself, 
ilaha  Itajah  also  told  him  to  get  a  barramut 
■niost  Mr.  Harwell :  he  gave  him  a  denial : 
toio  is  all  that  passed  the  first  meeting  between 
Conanl  O  Deen  and  me. 

Did  Comaul  O  Deen  mention  any  other 
— ae  than  Mr.  fiarwell's? — I  well  remember 
Mr.  Harwell's  name :  I  do  net  recollect  any 
ether ;  at  that  time  he  did  not  mention  Mr. 
Haotings's  •ame. 

Slite  whsit  passed  on  tlie  8th  Bysaak.— 
When  about  4  gurriea  of  the  day  were  remain- 
iBf^,  Comanl  O  Deen  came  to  my  house,  and 
Mi4,  that  be  had  been  that  day  at  Mr. 
Ftfssikia's;  end  that  Mr.  Fowke  had  by  force 
esfioad  him  to  oeol  a  paper  account  ot  tecka 
iwliwiea,  and  4iad  mane  him  sitni  &  funi :  he 
Mrid,  be  aealed  the  arzee  and  signed  the  furd. 
Wbee  he  had  j^t  into  his  own  management, 
(he  dhrpetod  with  Mr.  Fowke;  and  it  was 
^ree4  upon,  that  in  whatever  manner  Maha 
Ri^h  ihoold  settle  it  in  the  morning,  so  it 
VbotiM  be.  If,  says  he,  Mr.  Fowke  will  give 
me  beek  my  areee  and  papers,  it  is  very  well ; 
If  not,  1  will  ruin  myself.  You  are  my  friend, 
CoonmI  O  Deen  said  to  roe,  It  is  proper  yoo 
rtwrid  eeqnaint  Mr.  Barwell  aQd.Hr.Viiiiit- 


tart :  he  then  said,  he  was  going  to  Maha  Ra- 
jah's, and  would  come  back  at  night,  and  ac- 
quaint me  with  all  the  particulars :  be  came 
back  again  afler  6  gurries  of  the  night  were 
passed,  .and  told  me,  that  Maha  Rijah  wonkl 
give  him  back  all  hispapera:  he  said,  De 
you  now  hear  the  particulars. — **  I  gave  in 
arsees  against  Gunga  Govin  Sing,  and  de« 
posited  them  with  Roy  Rada  Chnm,  with 
the  knowledge  of  Maha  Rajah,  and  aaid. 
Let  these  arzeea  remain  aa  a  deposit:  if, 
upon  the  return  of  Moonshy  Sudder  O  Deen, 
the  difference  between  Gunga  Govin  Sing 
and  me  shall  be  aettled;  I  will  then  take 
back  the  arzeea,  and  give  4,000  rupees  to  Maha 
Rajah,  and  9,000  rupees  to  you :  it  is  now  two 
days  since  I  made  a  demand  on  Maha  Rajah 
for  the  arzees ;  and  Maha  Rajah  said,  Tliey 
were  with  Mr.  Fowke:  he  (Maha  Rajah)  tbes 
said.  Do  yon  write  an  arzee  so  as  to  give  a  bad 
name  to  the  Governor  and  Mr.  Gmham :  I  said. 
How  can  this  be?  But  Maha  Rajab  said,  Do 
one  thing,  write  a  story  about  the  tecka  colla- 
ries ;  and  when  I  have  shewn  it  to  Mr.  Fowke, 
1  will  get  you  back  your  arzeea  against  Gunge 
Govin  Sinji^:  1  then  told  Maha  Rajab,  that  I 
had  a  pam  in  my  belly,  and  wished  to  go 
home ;  1  told  him,  my  moonshy  waa  there  to 
write ;  I  went  home ;  Yar  Mahomed  came  to 
me  at  night,  and  brought  the  arzee  about  the 
tecka  collaries,  and  t(Md  me  to  seal  it :  I  an- 
swered, There  is  no  agreement  between  Make 
Rajah  and  roe,  that  1  should  seal  it."— Co- 
maul O  Deen  said.  That  he  had  been  at 
Mr.  Fowke's  that  day,  and  that  Mr.  Fowke 
was  very  angry  with  him,  took  np  a  book  to 
beat  him,  and  had  caused  him  by  force  to  seal 
an  arzee,  and  sign  a  furd :  I  asked  Comaul  O 
Deen,  what  signature  he  had  put  upon  it ;  he 
answered.  In  some  I  put  *  russnn  nudun,'  and 
some  *  dadam.'  Afterwards,  when  he  became 
his  own  master,  he  made  a  disturbance  about 
it,  as  before  related :  he  told  Maha  Rajah  of  all 
this,  and  Maha  Rajah  Raid,  He  would  give  him 
back  the  paper.  This  is  all  thatComanl  O  Deea 
told  me. 

When  did  Comaul  O  Deen  say,  Maha  Ra« 
jah  would  give  back  the  paperap — On  the  mor- 
row-morning. 1  likewise  remember  asking 
Comaul  O  Deen,  whose  names  were  on  the 
furd  ?  And  he  told  me,  Mr.  Harwell,  Mr. 
Hastings,  Mr.  Vansittart,  Raja  Rajebnilnby 
Cantoo  Baboo.    So  much  I  remember. 

You  say  that  Comaul  O  Deen  desired  you 
to  acquaint  Mr.  Barwell  what  had  passed.  Did 
yon  P— J  told  Mr.  Vansittart  that  day. 

Did  you  ever  acquaint  Mr.  Barwell  P — ^There 
were  but  4  gurries  of  the  day  remaining :  I 
acquainted  Mr.  Barwell  of  something ;  but  he 
does  not  know  the  language ;  1  told  him  but 
little. 

You  speak  of  an  arzee  preaented  by  Coanul 
O  Deen  to  Rada  Chum  against  Gunga  Govin 
Sing :  do  you  know  any  wing  of  the  dispute  P 
—1  beard  of  it  when  I  returned  to  Calcutta. 

Was  this  dispute  aettled  by  your  mean?-* 
Yes»  it  was ;  they  both  agreed. 


HSU] 


15  GEORGE  HI.  Trial  of  Joseph  Fateke  and  otheH, 


[1209 


Did  Comaul  O  Deeo  acquaipt  yoa  with  any 
€]uarrel  he  had  with  Mr.  Fowke  id  the  month 
of  Poos?— He  did. 

State  what  yoo  know  rftpectin^  it. — Co- 
loaul  O  Deen  told  me  this :  that  Barnatsy 
Ghose  had  lodgtrd  a  complaiot  against  him  on 
account  of  the  tecka  collaries  to  the  liberal : 
the  general  had  referred  it  to  Mr.  Fowke :  that 
BarnasMy  Ghose  and  he  had  conversed  on  the 
sabject  before  Mr.  Fowke ;  whatever  questions 
Mr.  Fowke  asked  him,  he  answered :  that  Uar- 
nasav  Ghose  had  told  Mr.  Fowke  that  he  cfot 
the  business  by  givin|ir  n»any  bribes ;  and  Mr. 
Fowke  said  to  liim,  Tell  me  what  you  have 
giveu  to  the  different  people :  Comaul  O  Deeo 
answered,  That  he  had  not  given  any  thing  to 
'any  body.  Comaul  O  Deen  came  to  me  ano- 
ther day,  and  said.  That  Mr.  Fowke  had  called 
on  him  that  day,  and  told  him,  to  tell  truly 
what  he  had  [^iven  to  the  gentlemen,  and  what 
to  the  matsuddies ;  it'  he  did  not,  it  would  not 
be  well  for  him,  and  he  should  be  punished.  So 
much  1  remember. 

You  say,  the  dispute  between  C.  O  Deen 
and  G.  G.  Sing  vi  as  settled  by  you :  how  much 
did  you  settle  to  be  paid  on  balancing  the  ac- 
counts ?•  - 1  ordered  10,000  rupees. 

How  much  was  demanded  by  Comatil  O 
Deen  P— '26,000  rupees. 

After  having  ordered  10,000  rupees,  how 
was  the  remainder  settled  ? — Comaul  O  Deen 
made  a  claim  of  26,000  rupees :  G.  G.  Sing 
aaid,  That  amount  was  due  from  C.  O  Deen, 
on  account  of  revenues ;  and  that  C.  O  Deen 
had  no  claim  upon  him :  I  told  C.  O  Deen 
what  claims  were  made  on  each  other:  C.  O 
Deen  said,  he  should  be  ruiued ;  many  de- 
mands were  making  on  him  on  account  of 
tecka  collaries ;  if  he  could  get  10,000  ru- 
pees, his  character  would  be  safe  :  1  then  said 
to  G.  G.  Sing,  You  are  two  frieuiis  ;  this  is  a 
bad  time  to  breed  quarrels  :  a  man  of  reputa- 
tion will  now-a-(Jays  rather  suffer  a  small  loss 
than  enter  into  quarrels ;  it  is  become  uccl's- 
sary  to  pay  Comaul  O  Deen  10,000  rupees: 
Gunga  Govin  Sing  said,  It  is  very  well,  tiie  ! 
iO,(X)0  rupees  shall  he  paid  hini,  and  the  16,000 
rupees  shall  he  carried  to  account  of  revenues  :  ] 
do  you  teli  him  tliat  I  uill  (rive  him  10,000  ru-  | 
pees :  1  then  told  Comaul  O  Deen ;  and  he 
agreed. 

Do  you  know  whether  the  10,000  rupees 
were  paid,  or  not? — Yes;  1  paid  them. 

Do  you  know  if  the  16.000  rupees  were  car- 
ried to  account  of  the  revenues? — I  did  not 
see  the  books  :  if  they  were  not  carried  to  ac- 
count of  revenues,  why  should  C.  O  Deen  be 
silent? 

How  long  have  you  known  Comaul  O 
Deen?— I  have  known  him  20  years;  he  is 
my  friend  ;  and  1  believe  him  to  l>e  an  honest 
man,  and  to  be  trusted  upon  oath  :  if  a  Mussul- 
man takes  an  oath,  he  must  be  beli*'ved :  if  he 
swears  iaisely,  he  must  be  ruined  here  and 
hereafter,  and  will  certaioly  go  to  hell. 

Do  you  believe  that  Comaul  O  Deen  would 
iwear  ten  times  to  a  falsity  ?-  No.    1  believe 


in  my  own  mind,  that  »  Mussnlman  who  un- 
derstands the  Koran  will  not  take  a  false  oath. 

Did  yon  ever  bear  of  a  HittniliiiaD  taking  a 
false  oath? — I  say,  lluit  a  MuaauUnaB  who  is 
acquainted  with  the  Koran  w9l  not;  ollicn 
may. 

Do  you  think  that  Comanl  O  Deeo  will  not 
swear  falsely,  merely  fnim  his  kuowledge  sf 
the  Koran  r—  1  suppose  he  will  not  oo  that 
account ;  but  he  is  my  friend,  aod  I  know  bioi 
to  be  an  honest  man :  1  lielieYe  be  woald  ast 
speak  falsely  in  common  coavefaation ;  I  al- 
ways found  him  to  speak  the  truth »  when  att 
on  oath. 

Moonshy  Sudder  O  Deen  crosa-ezamiDcd. 

Did  Comaul  O  Deen  tell  ^eu  that  Mr. 
Fowke  lifted  up  any  thing  besides  a  book 7— 
No. 

Did  he  tell  you  any  thing  about  a  |nIIow?— 
No. 

Why  did  you  tell  Gunga  Govin  Sing  ibat  it 
was  necessary  to  give  Comaul  O  Deeu  16,000 
rupees  ?- --Because  they  are  both  my  fntak, 
aod  I  wished  to  settle  the  dispute. 

Are  you  in  any  employment?— I  have  as 
settled  wages  ;  but  1  stay  about  Mr.  Barwdl^: 
Mr.  Graham  recommeuded  roe  to  him  vbm 
he  went  away. 

What  wages  did  you  receive  from  Mr.  Gn* 
ham  ?— When  at  Burdwan,  Air.  Graham  gait 
100  rupees  per  month.  ADer  that,  I  bad  as 
settled  wages :  he  gave  me  what  he  pleased. 

How  long  did  you  stay  at  Burdwan  T — Absil 
three  years. 

How  long,  in  the  whole,  did  you  live  wilk 
Mr.  Graham  ?— £ight  years. 


Second  Day. 
The  Governor  General  sworn. 

Did  you  ever  receive  fionr*  Comaul  O  Decs 
the  sum  of  15,000  rupees,  directly  or  indirect- 
ly !' —  1  never  did  receive  that  sum,  or  a  pro- 
mise of  it,  nor  any  other  sum,  directly  or  in- 
directly. 1  do  not  believe  1  ever  saw^CoansI 
O  Deen  till  he  came  to  make  his  complaint: 
he  might  have  altendeil  in  the  course  of  baii- 
ness  ;  but  i  did  not  recollect  his  fa<:e. 

Did  you  ever  tell  Mr.  Fowke,  that  he  mij^ 
get  rid  of  his  scruples,  if  he  meant  to  be  sentii 
— Never,  in  the  sense  which  I  understand  Mr. 
Fowke  has  given  to  them.  1  knew  Mr.  Fovkt 
to  be  a  man  of  great  singularity  :  I  might  ban 
said,  I  cannot  serve  you  unless  j^ou  part  with 
this  singularity.  1  might,  out  of  ddicscyi 
have  said,  You  must  part  with  scruples ;  htf 
that  I  ever  meant  or  said  any  thing  abich 
could  imply  such  a  meanings  that  he  must  part 
with  his  integrity,  his  virtue,  or  his  boooor,  I 
most  solenmly  deny.  1  have  never  betrait^ 
such  a  hcentiousness  of  sentiment,  even  to  iff 
most  intimate  friends ;  and  1  was  not  on  leflsi 
of  confidence  with  I^fr.  Fowke  at  the  tine  ii 
which  this  conversation  is  said  to  have  bshbI 

Did  you  not  promise  that  you  noukl  icni 


1901]    for  a  Compiraey  agni/iit  Richard  BanoeUf  esq.      A.  D.  1775* 


riSQg 


hit,  Fowke?— -]  did;  and  I  servod  him.  I 
belief  e  it  was  owio^  to  my  not  having  served 
liim  to  the  extent  ul'  his  wishes,  eten  to  the 

gratification  of  his  private  resentments,  that  he 
as  heen  so  inveterate  in  his  enmity  tu  me. 

Do  yon  remember  the  time  the  complaint 
was  made  to  you  by  Comaul  ODeen  ?— In  the 
month  of  December. 

What  was  the  complaint  ? — That  Mr.  Fowke 
had  heen  very  urgent  with  him  to  declare,  that 
be  had  given  brit^  to  the  English  gentlemen, 
and  to  the  mutsuddies.  The  complaint  was 
made  to  me  verbally.  1  desired  to  have  it  in 
writing. 

What  more  passed  ?— I  have  said,  that  1 
desired  him  to  deliver  his  complaint  in  writing. 
I  am  not  certain  whether  he  brought  it  to  me 
that  day  or  not :  it  was  short,  and  1  did  not 
think  it  sufficient  for  a  complaint.  I  told  him. 
That,  if  he  wished  I  should  take  public  notice 
of  what  he  complained,  his  paper  should  con- 
tain the  whole  of  his  iujuriet.  Mr.  Vansittart 
waa  there,  and  said  the  same  words,  or  to  that 
effect.  Comaul  O  Deen  took  my  Moonshy ; 
they  sat  down,  and  drew  out  his  complaint. 
Be  laid  it  before  tiie  board. 

Did  Comaul  O  Dcen  ever  make  any  other 
complaint  to  vou?-- He  complained  tome  in 
Jlpril  last  He  came  to  me  one  morning  in 
great  agony,  and  the  collar  of  his  jaiiimu  was 
fom  :  he  complained  that  Mr.  Fowke  had  com- 
pelled him  to  sii;u  an  arzee,  misrepresenting 
the  contents  of  the  former. 

Do  you  remt-iuber  any  particular  conversa- 
tion between  5Ir.  IV-irivell  and  Mr.  Fowke,  at 
the  time  of  the  examination  at  the  chief  jus- 
tice's ?— Some  words  of  heat  passed,  resppct- 
ing  the  furd.  Mr.  Fowke  addressed  Mr.  Bar- 
well  with  much  vehemence  both  in  counte- 
nance and  expression;  and  said,^*  Mr.  Bar- 
well,  will  you  declare  on  your  honour  and 
your  oath,  that  you  never  received  the  45,000 
rupees?'*  They  were  mentioned  so  pointed, 
that  I  believe  them  to  be  the  very  words :  I 
will  not  say  positively  tlity  are  the  exact  words. 
llr.  Barwell  replied,  lie  could  declare,  u|>on 
bis  honour  and  his  oath,  that  he  never  had. 
There  were  many  more  words  passed. 

Are  you  acquainted  with  Comaul  O  Deen  ? 
— -I  know  him  only  from  circumstiinces  hy 
which  1  am  nearly  affected.  I  have  heard  no- 
tbiog  particular  of  his  character.  The  cause 
of  his  coming  to  Calcutta  was  to  answer  to  a 
ooniplaint  made  by  sir  Edward  Hughes,  for 
want  of  provisions  to  supply  his  ships  at  In- 
gella.  I  desired  the  chief  of  the  Committee  of 
Revenue  to  send, for  him  :  I  do  not  know  whe- 
ther he  appeared. 

Did  you  say  these  words  to  Comaul  O 
Deen,  **  They  are  three  gentlemen,  lam  but 
two"? — I  do  not  recollect.  I  believe  I  did  not 
make  nse  of  these  words,  because  I  did  not 
think  h'.s  complaint  a  matter  cognizable  hy  the 
aouocil. 

Were  ever  the  contents  of  the  furd  men- 
tioned  in  council,  or  any  where  else,  that  they 
eame  fl^m  Mr.  Fowke P—>1  believe,  from  no 

VOL.  XX. 


other  than  Comaul  O  Deen.  or  from  those  1 
understood  he  had  spoke  to  of  it. 

Had  }ou  ever  any  conversation  with  Comaul 

0  Deen? — I  conversed  with  Comaul  O  Deen 
on  the  day  in  which  I  sent  him  to  the  Chief 
Justice.  On  the  close  of  the  examination,  the 
judges  delivered  it  as  their  opinion,  That  there 
were  grounds  for  a  prosecution.  He  was  al- 
lowed till  the  Monday  to  declare  whether  ho 
would  prosecute  or  not.  I  saw  Comaul  O  Deea 
on  the  Saturday  and  Sunday:  on  Satuntay  I 
examine<l  him,  and  cross-  examined  him,  anil 
put  questions,  to  sift  the  truth  ;  and  warned 
him  as  to  the  consequences  of  a  false  com- 
plaint, of  the  certaint^r  of  detection,  and  itt 
effects ;  which  I  told  him  would  be  infamy  to 
him,  and  injury  to  me.  He  persisteil  in  it  re- 
peatedly, with  circumstances  which,  to  my 
judgment,  convinced  me  there  were  grounds  for 
a  prosecution.  I  had  the  precaution  to  ask  the 
Judges,  J  think  the  Chief  Justice,  Mr.  Hyde, 
andMr.  Justice  Chambers,  Whether  I  might, 
with  propriety,  see  and  question  Comaul  O 
Deen.^   To  which  they  replied.  That  I  might; 

1  accordingly  saw  Comaul  O  Deen  on  the 
Saturday  and  Sunday. 

Did  yoii  interrogate  him  thus  from  any 
distrust  }ou  had  of  his  character,  or  from  any 
doubt  of  his  complaint?— Neither  from  any 
distrust  in  the  character  of  the  man,  or  cir- 
cumstances in  the  story  ;  but  from  this  prin- 
ciple, that  I  would  rather  ha^c  submitted  to  tho 
injury,  if  1  had  not  had  the  strongest  groundi 
for  my  own  conviction. 

Had  Mr.  Fowke  any  employment  imder  go« 
vernment?— No. 

Hi»w  long  have  you  known  Mr.  Fowke?— 
I  have  seen  him  some  years. 

Did  you  know  him  on  the  coast?— I  did 
not  know  him  on  the  coast.  I  do  not  know  his 
character :  I  might  have  heard  of  him  ;  but 
nothing  that  made  any  impression  upon  my 
memory.     What  I  know  of  him,  I  know  since. 

Did  you  ever  know  him  guilty  of  any  dis- 
honest or  dii»honourable  act? — It  is  a  difficult 
question.  I  will  n(»t  pretend  to  say  that  I 
know  him  guilty  of  either:  unless  I  could 
prove  such  acts,  1  should  not  care  to  mention 
them  in  a  court  of  justice.  He  has  had  dis- 
putes, and  those  disputes  have  lieen  referred  to 
me ;  but  people  that  dispute,  are  apt  to  place 
dishonest  motives  to  those  with  whom  they 
dispute.  I  always  considered  him  of  a  violent 
and  morose  temper;  and,  white  under  that 
iutluence,  too  apt  to  insinuate  actions  in  which, 
he  is  concerned  to  base  and  bad  motives  in 
others.  I  do  not  recollect  any  dishonest  or 
dishonourable  acts  ;  but  he  is  violent  to  the  last 
degree.  The  disputes  were  personal  quarrels ; 
I  believe  never  determined.  1  acted  as  a  me- 
diator, never  as  a  judge. 

Mr.  Barwefl  sworn. 

Do  you  know  Moooahy  Sudder  O  Deen? — 
I  do. 

Do  Yon  remember  any  conversation  that 
passed  between  you  OAd  him  ? — Yes.    He  gave 

4U 


1503] 


IS  GEORGE  m. 


Trial  of  Joseph  Fov-it  ani  othtM. 


[\Wk 


\ 


I 


tnailF  liii  cimplKint  uf  «ioleiice  by  Mr.  Fowke 
and  AUlia  Rajah  NDn<tocua»r,  vliich  1  unikr- 
Xooil  irai  the  making  him  prefer  a  com- 
plaint, in  wliich  ibe  |{OTernor  geueral  and  my 
name  irere  menlioned,  thai  papers  Ijad  been 
tkken  from  liiin,  nbich  he  desired  lo  be  return- 
ed, I'rom  which  ruin  would  be  Ibe  cunseqiience 
of  their  being  del  ire  red  in  to  the  bflarri.  I 
wu,  at  the  period  ortlme  Cnmaiil  (>  Dfen  first 
went  (o  c'lmpialii,  at  my  gardens.  Mcmnsliy 
Snditer  O  Deen  did  not  inenltuo  lo  me  aoy 
■nms  :  the  Srst  I  heard  of  it  was  when  I  at- 
tended the  jnil^,  on  a  lummons.  The  manner 
In  which  tlie  complaitit  wdi  mentioned  wea 
general. 

Do  you  remember  what  passed  heli 
and  Mr.  Ponke,  at  the  examination,  oeiure 
the  judges  r — As  soon  as  Mr.  Fowke  made 
hii  appearance  before  the  judges,  he  dedaimi^d 
a  good  deal  on  the  goodness  of  his  character, 
lorij:  established;  thai,  on  the  ehar((e  of  such 
■  man  as  Coinaul  O  Ueen,  who,  lie  Eaid,  wib 
the  scum  of  the  earth,  and  deserTsd  no  credit, 
his  character  should  atand  superior.  In  the 
course  of  this  decUroation,  there  were  many 
contradictions.  1  was  of  opinion  at  that  lime, 
and  am  at  present,  Mr.  Fonke  professed  much 
candour.  In  pronf  of  this  candour,  I  caw  (wo 
papers  produced,  which  had  hern  delivered  in 
»»  the  Toluntary  act  of  a  man  who  had  posi- 
tively declared  they  were  the  papers  he  askeil 
back  ;  that  ihey  were  false,  aud  must  not  be 
delivered  In  lo  tbe  gorernor  geoeral  and  coun- 
cil. In  the  course  of  the  (leclamHtton,  Mr. 
Fowke  further  said.  That  he  prided  himself  in 
tbe  couduct  be  had  laken  up  ;  end  that  it 
■hoiild  be  his  pari  to  bring  every  rillaiu,  roifue, 
or  rascal,  or  words  to  that  effect,  to  justice.  I 
did  not  expert  that  he  would  lake  upon  him, 
before  the  tiibunal  uf  the  justices,  to  judge  of 
the  conduct  of  myself,  lie  applied  directly 
to  me,  and  said,  '■  Sir,  can  you,  upon  your 
honour  and  your  uath,  declare  that  you  never 
reeeired  45,000  rupeea  from  Cumaul  U  Deen  V 
I  was  so  much  hurt  by  this,  aud  contras  a  liule 
IrHtated,  that  1  interrupted  Mr.  Fowke,  and  de- 
nied the  receipt  of  the  money  in  the  talemo 
manner  he  bad  caDeit  u|K)n  uie,  There  was 
more  altercation  between  us ;  but  he,  at  last, 
leemeH  aatislieil  with  my  reply :  he  expressed 
himself  to  that  effect.  This  eilrsordinary  call, 
nl  the  perifltl  it  was  applied,  had  such  on  efl'ect 
upon  my  mind,  that  I  iteclared  publicly  and  po- 
sitively, before  many  other  gentlemen  con- 
eemeil,  thai  I  would  prosecute  Mr.  Fowke. 
On  this,  some  remark  was  made  on  liio  tin. 

^ictireiiesa  uf  the  assurance,  and  the 

of  such  a  pii{>er  as  the  f-ird  absolulf  ly  discll 
Cd.  As  I  was  only  offended  at  tbe  <|ueBiion 
which  had  been  put  to  pie,  and  which  seemed 
lo  coolirm  the  evidence  of  Coinaul  O  Deen  in 
eo  strong  a  manner,  1  was  rendered  wavering 
by  the  assurance  of  Blr.  Fonke,  imajjiping 
there  might  possibly  be  aome  mistake,  and  it 
mij^t  bfl  «  moju  uUtiily  wgvs-tu  by  a  block 


that  Cematil  O  Deen  i  tessed,  at  the  close  of  the  evening,  that  1  would 


neigh  all  ilieae  cireunislanct^  in  mv  minil) 
that  a  public  assurttnce  I'rom  Mr.  Fowke QiKhl 
satisfy  me ;  and  it  was  not  my  hitentioa  lo  have 
proseculnl  Ibat  (fnillcman.  I  neillter  triud 
bail,  nor  wai  boinid  orer  to  prosecute.  Ikt, 
contidrring  sll  circomstaoc«s,  cimsidering  ibit 
Mr.  Fuwke  was  under  prosecution,  h  might 
possibly  be  imputed  to  other  inatiTes,  if  I M 
not  gi*e  him  an  opportunity  of  •oquHliug  him- 
self lo  the  pobtic  ;  iotluenced  by  theae  rvuest, 
I  directed  my  counsel  lu  priMecute,  and  left  Ac 
iiroof  to  the  evidence  there  misht  be  pitNltind 
before  the  court.     Yet,  though    I  htt*e  duns 

was  j  this,  I  cannot  end  without  remarking,  thalwtt 
I  out  consistent  with  the  good  of  soctdy,  eribs 

you  profession  of  candour  and  atieation  lo  the  vd- 
~~  fare  of  the  community,  ibat  ■  pntate  gtHk- 
man,  nnl  iiosaessed  of  any  public  Iruti,  sbvaM 
declare  that  he  has,  and  proposes  to  hriil,  n 
office  for  the  iutestigBlittg  and  rednnnng  nf 
Krievaucea;  and,  whaleter  may  be  IhedMa- 
inlnaliou  of  the  jury  touching  tim  innoceDCs  rf 
Mr.  Foiikerespeclmgthefunl,  I  flatter  mysdf, 
some  effictual  means  will  be  taken  by  thnn.K 
pot  a  stop  to  all  offices  of  inquisition  but  oUl 
the  law  autliorizes. 

Did  you,  or  did  you  not,  crer  receive  Ibi 
45,000  rupei-s,  or  any  part  of  it? — I  did  am 
recrive  the  money,  or  any  part  of  it ;  nor  nc 
banefited  hy  auy   donation    from   Coniaol  0 

Do  you  recollect  any  thing  iKiit  pastti!,  it 
spcctinir  a  book  which  Mr.  Fowke  liti.  J  i];i  i" 
strike  CNmiaul  (I  Deen?— What  I  r.  p:..i!"1  .i 
the  evidence  given  on  the  first  day  bi-lKTr  lli 
judges,  and  of  Mr.  Fowke' s  speech  :  n  n.Miir- 
chired  on  the  complailiaDt's  aide,  Tii  n  I't  ■■ 
fusing  lo  ouiheDticale  the  furd  prufiriK,  t'.>  i-i 
best  of  my  reeotlectiin,  Blc,  Fowkt  -y-.r.ic 
him,  end  Med  up  this  book,  puttiui;  iKii-i't  j 
aposturclostriheComanlO  Deen.  .'Mi  i  >- 
on  the  other  side,  said.  The  loaii  ».l^  ^• 
and  troublesome;  that  he  made  sur:-  - 
•entations  about  the  papers  whidi  li.i<!  ,' 
hvered  in  to  the  gntcrnnraud  cnurici!  ,  .j'  i  >i' 
Fuwke.  not  being  satisfied  with  hii  n  il...i  ii:i- 
tinnt,  retained  llie papers, and  ordir.,!   i.^m  i; 

So  about  his  business;  that  Com.nil  U  \!f-.- 
id  this  in  great  distress  ;  sud  snon  a'.:-,  r.  i-.  I 
understood, returued  with  Mr.  Prsi^-  [-  l<<>>kr. 
to  ■laina  respileuf  aday  ort»o  fot  iIk  rii/n'T 
of  the  papers.  Tbe  diaturhance  tiiai  n-.-ni  i.. 
tbe  street,  1  believtr,  is  publicly  kiiu»ii  tu  ci«.i 
inhabitant  in  the  town :  it  was,  of  consequeac. 
a  declared  une  of  the  tpiirehensinn  the  bi>i 
was  in  for  the  deliiory  of  those  paprrs  ;  whit* 
howeirr  were,  in  despite,  delivered  in  to  ibi 
publio  Imard  ;  as  to  our,  it  veeius  of  ■  ualuic 
that  I  think  might  be  in  some  degrecadmittf '  \ 
that  his  character  bad  been  scandalised  by  tbti 
man,  and  this  he  thought  a  prn)>er  mode  ts  ts* 
Biore  it.  \'our  lordship  anil  ibe  jury  wUI  jodp 
liow  justifiable  these  means  were,  in  mliiag 
that  the  free-will  of  a  man,  wbidi  b<  Banting 
deslweit  wa*  agaiiwt  ii,  ^ 


Wkeoi 


tb]     /or  a  Conifiraes  against  Richard  Bar^tll,  esq.      A..  D.  1T75.  \\^^ 

he  cilled  Die ;  when  1  weni  in,  Mnba  Rnjah 
desired  rae  to  sit  near  bilu  ;  he  gaie  me  a  pieca 
of  paper,  and  bid  me  write  uul  a  I'uul  draught 


Crott-JEramiiii 


What  da  yoa  undentsud  to  be  tlie  ciom  of 
Wr.  Fowlte's  linini;  up  the  book  ? — I  onder- 
nood  Mr.  Povke's  reaaou  for  VitXiag  up  the 
%Mk  WAS  ta  Ket  rid  of  ■  idbd  Ihat  ivaa  trouble- 
Mme.  Mr.  Fuwke  did  confess,  (bal  Mr.  Fran- 
cis Piiwke  died  him  for  a  rcapile  from  preient- 
jnetbe  papers. 

nid  you  ever  hear  of  ihe  ford  fiom  snj'  olher 
pertoabetidciCutnaulO  Dceni" — locicr  heard 
vi  tiie  furd  but  I'rDio  Coinsul  O  Deeu  atid  such 
U  he  bad  lold  it  to.  The  stroDg  pretanptian 
I  bad  at  first  to  believe  the  eniiUencB  uf  the  furd 
wtA  from  tlie  iiucsiian  put  to  me  by  Mr.  Fonbe, 
Mid  bis  public  declaration  respect  lug' the  powers 
he  proposed  to  execute  in  the  invesligatioD  of 

Q.  b>i  tke  Jury.  Did  Mr.  Fowke  deny  the 
exiMeni;?  of  tha  ford  before  he  put  the  question 
U  yoD,  and  betbreyou  declared  you  cuutd  oat 
proaecule  him,  or  after? — A.  I  do  nut  recollect 
UiU  Kir.  Fowke  before  denied  the  existence  of 


•Md  I  would  prosecute  him  ;   it  was  uot  denied 
Iwlbre  (bo  quesliou  was  asked  me  ;  that  wu  in 
the  morning,  the  other  in  the  al'iernoon. 
Mr.  Elliot  sworn. 

I>o  you  remember  any  particular  convena- 
tion  between  Mr.  Harwell  and  Fowke  at  the 
chief  justice'!?-- -Yet;  Mr.  Barwell  Epeaking 
to  Mr.  Fowke  respecting  his  coiuluci  in  this 
affair :  Mr.  Fowke  asked  him,  with  a  degree 
of  passion.  If  he  could  give  him  hi»  honour 
mad  his  oath,  that  he  Had  not  receitei)  the 
45,000  rupees  f  Mr.  Barwell  answered.  That 
be  could  give  him  hin  honour  and  oalh,  he  had 
not :  on  wbioh  Mr.  Fowke  then  said,  He  must 
■oquit  him  ;  as  he  always  himself  took  ihti 
netbod  uf  wipio^  away  accuBStioos  brought 
^^nst  bUD  ;  and  be  thought  that  every  gen- 
l^naa  should  do  the  laroe. 

Do  yuu  tetoemher  any  thing  particular  that 
jiuted  respecting  Mr.  Fowke's  lifting  up  abook 
M  strike  Comaul  O  Uceu  ? — Some  questions 
being  put  to  Comaul  O  Deen  by  oue  of  the 
judges,  I  do  not  recollect  which,  wilh  a  view 
In  ■sceclsio  the  liu;t  of  Mr.  Fowke's  having 
lifted  up  a  great  huok  ;  Mr.  Fowke  said,  He 
would  save  ihem  Ibal  truuble,  by  informing 
ihem,  that  (be  book  he  lifted  up  was  a  volume 
of  Cburchill's  Voyages ;  that  he  did  it  because 
Coroant  O  Deen  was  troublesome,  look  bold  <if 
bis  leg<,  and  demanded  back  the  urzee  which 
be  h*d  before  given. 

Keaidemaaaj  sworn. 

Were  you  ever  with  Comanl  0  Deeo  at  Mr. 
Fawfce'abDutef-— I  was. 

Did  you  ever  write  ait  arzee  by  the  direction 
•fHaba  Rajah.'— Yes. 

Relate  the  circu instances. — One  day  Comaul 

.  O  D««o  look  me  10  Maba  Rajah's  house:   he 

went  aod  sat  down  with  Maha  Rajah;   1  staid 

VilbsiiU  ■l»uitHoortlufieguru»iiliui*v4i 


of  at 

write  out  a  draught : 

fair  draught,  I  gave  it  Id  Maba  Rajah  ;  Muh» 
Kajoh  gave  it  to  Doman  Siug,  and  hid  hint 
write  it  over  again  ;  1  did  not  know  his  name 
then  :  Duman  Sing  wrote  it,  and  gave  it  to  < 
MahaRgjah;  Maba  Rajah  then  s.iid  to  me. 
Do  you  write  a  fair  copy  of  iti  Comaul  O 
Deen,  addretujng  the  Maha  Rsjah,  said.  That 
he  had  a  tiain  in  hia  helly,  and  desired  to  gn 
home  ;  lliat  he  left  me  to  write  wlialever  the 
Maha  Kalah  might  order,  and  bad  me  slay, 
saying.  Do  you,  hafii^  wrote  the  fair  copy  of 
the  draught,  follow  me:  he  then  went  aivay  : 
I  staid  there  one  half  par  of  ihe  night;  when  I 
bad  u  iiile  a  fair  copy  of  the  arzee,  I  gave  it  to 
Blaha  Rajah :  Maba  Rajah  teud  it ;  and  when 
be  Itad  BO  done,  he  said  it  was  well,  and  bid 
Var  Maliomcdgowilbmelii  Comaul  O  Deen: 
Yar  Uihnnwil  bdiJ  I  came  away  from  Maba 
Rqsli's  together,  and  weut  lo  Comaul  O 
Deen's;  Yar  Mahomed  sal  near  Comaul  O 
Deeu,  and  said,  Haba  R^sh  had  sent  bim  ; 
do  yun  put  jour  «eal  to  this  arzee  :  Comaul  O 
Deen  then  look  the  arzee,  and  read  it ;  and 
said.  There  was  no  agreement  between  the 
Maba  Rajah  and  him,  that  Ite  should  seal  il ; 
he  said,  ile  never  would  seal  it ;  that  he  caused 
il  lo  be  written  only  for  ibe  Blaba  Rajah's  plea- 
sure ;  and  if  heTealler  be  sbonid  be  called  upon, 
he  could  not  prove  it :  Comaul  0  Deeu  said. 
How  can  I  seal  it?    Yar  Mahomed  then  said^ 


gave  Yar  Mahomed  his  hooka  lo  ;moke  ;  bo 
soon  after  went  away  ;  and  when  be  had  got 
on  the  stair-case,  I  aba  went  away :  Comani 
U  Deen,  when  Yar  Mibomed  was  eoin^  away, 
asked  me,  Wbaldo you  ibink  would  havebeen 
the  consequence  had  1  put  my  Eeal  as  (labs 
Rajah  desired  ;  I  answered,  It  would  be  very 
had ;  whalsrer  you  do,  look  to  the  conse- 
quences. 

U'ere  you  at  Mr.  Fowke's  wilh  Comaut  O 
Deeo,  the  day  the  disputes  happened? — I  was. 

Relate  them, — Comaal  U  Deeu  went  vf 
•lairs  1  I  staid  lielow  ;  about  two  or  three  (jor- 
ries  after,  at  first  Mr.  Fuwke,  then  Maha  Ra- 
jah, ml  al^er  Caiuaul  O  Deen,  came  down; 
Mr.  Fuwke  bad  got  into  his  palanquin.  Malta 
Rajab  was  gslling  ia,  when  Comaul  O  Deeu 
up  lo  bim,  and  said.  Get  me  back  ibni* 


g-entlemeu ;  1  cannot  bv  any  means  provo 
them  ;  this  wilt  be  very  bad  btiib  for  you  and 
me ;  but  mure  so  for  me,  both  my  honour  and 
fortune  ivill  be  affected ;  for  God's  sake,  get 
me  Ihem  again  ;  and  begged  by  (be  Duuy  of 
llie  Company  and  the  conned  for  them  agato  : 
I  saw  Uiis  ;  when  Maha  Kajsh  gate  bim  no 
aniwer,  he  then  cried  out  again  Duov,  and  atr 
tempted  to  get  iaio  his  palanquin  :  Yar  Maho- 


1207] 


ISGEOIIGE  III. 


Tna!  rfjtiirph  pMfke  and  cthrrt. 


[lad 


I 


I 


e  dilFnfjBfrpd  liimnelf,  tnd  gM 
.  din :  nbrn  he  htil  goi  DUI  of  the 
l*ne  which  leaits  rrom  Mr.  Koi>Iif'»  hnnie  mi 
to  Ibe  irtMl  roid.  n  tiifCHrrah  vime  up  to  liini, 
•o4m1iI,  WbtTe  Rre  yuii  j^oiii);?  vnii  inii«t 
(um  b4ck ;  Hr  Powke  sntt  Ulalia  Knjah  call 
you;  hiving iliteiif!Bceil  himself  t'lom  llie  hir- 
Mrrah,  he  Hrni  ii>  the  gutcnior'a :  i  slaiil  be 
lov ;    CuniBut  t>  liiita  weal  up  to  acquaint 

Whose  seiTBtils  nerc  Yir  Mihomc'l  an-l 
Ncllon  Siui;?— I  now  Lrar  tliey  >re  AIuIib 
Kiiiah'a. 

Dill  ynii  kunir  whose  hirearr*h  it  wan  that 
Mine  uptoC.  O  Deen?— Idiil  nnl  kuowtli«n; 
1  since  liear  he  was  Malia  R»jah*«. 
ifu»rin  J//i*worn. 

Whoteserranl  are  ynu  ? — Comaiit  O  Deeo's. 

What  is  joiir  eiujiloymotl  ? — I  am  his  coii' 
■unia ;  all  Hie  expeucefl  or  hit  houie  and  liia 
Wardrobes  are  under  niy  rhnrge. 

Have  yuii  the  cirttoify  al  Itia  seal  ?— Yes. 

Can  it  be  U'^eil  withnat  your  knowlrdice  .*— 
When  he  Koeg  to  Datlier,  he  takei  ihetmill 
■eol  upon  his  (in^er ;  when  it  ia  in  my  pos- 
Hniflii,  he  caiinot  uie  it  willioui  my  |intiiy  j 
it  ia  slwaya  in  my  possenion  but  u  hen  he  i;oes 


Wear  on  hia  finKerP— It  is. 

Do  ynn  know  Var  Mahomed  f— Ye*. 

Wlio<e  Mrmut  it  be  ?— I  hear,  Malia 
Rajah's. 

Did  yoii  erer  lee  him  at  Cotnaul  O  Deen's 
house? — Yea;  that  night  hebniughiilie  paper 

Gife  an  accnunl  what  passed. — As  he  and 
Kewdernawaz  were  goiu^  up  slaiis,  Kewiler- 
cawai  said  lu  me,  Brin^  the  ainu  dwuii  and  the 
bui,  in  which  (he  teal  ia,  |)erhapii  ih<^r«  will  be  a 
paper  tl>^  be  sealed.  I  went  and  urol  the  siua 
4miil,Rn<l  the  box  with  the  aeal,  and  gaveihem 
to  Butioo,  and  inid  him  lu  stand  with  ihem  on 
the  stair-case;  Iluttno  ia  Cuniaul  (>  Deeu'x 
cook:  1  then  weiit  to  where  C.  O  Deen  nas 
Bitting,  and  Halked  up  and  duwn  the  Teraods: 
1  did  bot  hear  what  conrersalion  passed  between 
Cnmaul  O  Deeo  and  Ynr  Mahomed.  C.  O 
Ueen  me  him  his  hooka  to  smoke,  and  h  hen 
he  liBiTilone,  heweninway;  1  followed  :  Hut- 
loo  llien  naidiome.  Do  yon  want  the  aiuadwuit 
•nd  (he  seal  i  I  said,  the  busjoeas  for  which  it 
waa  Kanled  perhaps  will  not  be  done;  I  look 
the  siuH  riwbit  and  the  box  away,  and  pot  them 
in  tlieir  jvoper  place,  in  the  Juaba  connah  :  I 
■hen  went  to  my  own  apartment, 

Do  yon  know  Mr.  Fo«k«f— Yea. 

Were  you  tter  wiili  Comaitl  O  Deen  at  Mr. 
Fowke'B  houte  F — I  was,  alioiit  two  or  three 
days  alUr  Ihia. 

8talewhalpHSseil.--WhatpaKa«laulofdc)on 
I  know  :  Mr.  puwke  fir^t  csme  oul,  then  Malia 
RHjoh,  and  then  Coiiiaul  O  Dten  :  Comaul  O 
Dein  KBid  10  »aha  Uajah,  Tlie  t'alie  burraraut, 
viifclj  ^ou  liarcowsed  me  to  ffrile  S];tuui  lite 


gentlemen,   I  cannot  prore:  thia  will  be  very 
had  lor  me  ;  L'ive  me  the  papen  hack  :  whe- 
ther Malia  Rujah  |{are  him  any  answer  or  i»«^ 
I  did  nut  hear :  Comaul  <>  Dees  then  wr«  d" 
collar  Af  hii  jummub,  and  began  Ij        _      ' 
Duiiy  upon  the  king,  the  company,  aiid  11 
court ;  lie  went  lo  i;et  into  hia  palaiiqiiin,  ■ 
Yer  Uabumed  and  Ileitn  8>i>l'  lai<l  hold  off 
hands:  hedi-engnged  himieJI'frnn^  ttirin,a 
crying  Out  Diioy,  (pit  Into  hit  palanmiin.  a 
weninwny;   when  llie  palanquin  had  COtj 
of  the  lane  n|Kin  the  gp«tii  riad,  lliere  were  1 
hirtarrahs,  one  laid  bold  of  tl>»  palanqniii  j 
fore,  and  the  olher  was  Iwhinit :  ' 
time  at  a  distance,  nnd  did  not  tiifa 

la  cuiclierry. 
ju/Oi)trii  again  called. 


..Whei 


I,  this  is 


^-kedir 


Did  Mr.  Fowke  *ay  any  tiling  lo  ]raa  d 
dny  abiiiit  hribes  * — Nnl  that  Jhv  -  we  I  ' 
I  he  I'uid,  biittaid  niilhing^Dboiii  Dribeabi 
fli'w  ill  a  passion,  afler  1  sealed  the  nrtM,4 
was  down  on  the  grifunii. 

Did  Mr.  F<mke  e.er  direct  vna  U 
thiii^'  purlicolar  upon  the  faru  f-'-tle  irid  aol 
If II  me  whjt  irarticiilarwoida  to  write:  I  wi* 
'  Kussan  ueedum'  and   ■  Dndum.' 

Didyoii 

-Yes,  "" 

What  did  you  see?-  — I  waa  golntr  on  It* 
mad  near  the  Bitah  Connah  of  Rsjah  It*y- 
hitltuh:  I  saw  Cnniaul  O  Deen  in  his  (nilanijuiB 
wilh  the  collar  of  his  jamiiiali  torn;  uhifcarTtb 
from  Miind  ciilli>d  uiil,  Cnniaiil  O  U>  en.  imp 
yuur  piilani|uin.  C.  O  Deen  did  not  miiil  him, 
and  went  on.  Tlie  hirearrah  rati  up,  -.-rit  hclil 
of  his  palanquin,  nulled  it,  anil  said,  Whne 
are  yon  going  P  Maha  Rijiih  calls  vmi,  ini 
Saulieiills  y<iU.  The  palanqitin  stoii't"-!),  anJ 
CoMiuMi  U  Dreo  cnlhd  uiil,  Dnoy  upon  itja 
king,  llie  company,  the  audalet,  and  thr  (^o- 
•emor ;  and  taid,  Tliey  have  tniiiied  nir  br 
force  10  write  out  a  paper,  and  now  hsie  ntit  s 
hircarrali,  and  are  luakinij;  dispulea :  hafiaf 
ilisengagrd  from  tbe  bircarrab,  be  went  es. 
This  ia  all  I  saw. 

Muthurtr  Mahomed  ty am. 

Do  you  know  Comaul  O  UeDnT— .Vet. 

Doyuu  know  Mr.  Fo-ke.'' 

Do  you  ki 

Did  you  ii< 
One  day  I  saw  hint  there. 

How  luog  since  f--It  may  be  twa,  W 
quarters,  or  two  hiitf  mouths  ago. 

Itelaie  whai  paised  wlieu  ynu  saw  raifusl 
O  Deen  come  out  of  Mr.  Fowke't  h-mo^-- 
Mr.  Fowke  nine  ihU  lint,  ikcBlUlnfi^'ik 


KOO]    far  a  Conspiracif  againH  Richard  Barmlly  esq.     A.  D.  1775. 


[l«lfl 


and  Comaiil  O  Deen.  Comaul  O  Deen  said 
to  Maha  Rajab,  Gi? e  me  back  again  the  false 
papers  which  you  have  caused  me  by  t'orce^  to 
write :  I  hate  gif en  no  one  any  money  ;  give 
me  back  the  papers:  he  then  called  out,  Duoy 
upon  the  king,  the  council,  and  the  company, 
and  tore  the  collar  of  his  jammah :  he  got  into 
bis  palanquin  ;  and  when  he  bad  got  upon  the 
^^at  road,  a  hircarrab,  or  hircarrahs,  ran  up, 
aftd  laid  hold  of  his  palanquin,  and  said,  Maha 
Rajah  calls  you,  and  Mr.  Fuwke  calls  you, 
turnback.  They  disputed  for  some  time;  Co- 
Manl  ODeen  then  went  away  to  the  governor; 
and  1  came  by  the  council- house  to  my  own 
bouse. 

CroU'  Examination, 

Whose  servant  are  you  ? — I  am  the  servant 
of  Tyzulla  Salem,  his  vakeel. 

How  came  you  to  go  to  Mr.  Fowke's  house  ? 
—-There  is  a  durbar  there;  every  body  goes 
lb«'re. 

'  Did  any  body  order  you  to  go  there  ?— Mjr 
jMirticulnr  business  was,  to  go  there  to  see  if 
aoy  complaints  were  lodged  aifainst  my  master. 

Were  you  up  stairs?— No;  I  was  at  the 
€iiter  gate. 

Di«|  \  ou  not  usually  go  up  stairs  to  the  dur- 
bar ?--*]f  1  had  heard  of  any  complaints,  I 
flboold  have  gone  up  :  1  had  heard  there  was  to 
be  a  complaint  made  against  my  master  by  one 
Permany,  and  I  went  thi-re ;  but  upon  enquiry, 
1  tbtind  that  the  complaint  was  not  there ;  1 
therefore  went  auay  :  nhen  I  had  business,  I 
eaed  to  go  up  stairs;  nhen  I  only  wanted  to 
nake  an  enquiry',  1  staid  below. 

Colonel  I'hornton  sworn. 

-  Were  you  formerly  acquainted  with  Maha 
Raiah  Nundocomar? — I  have  seen  him. 

Were  you  one  of  his  bail  ?«— I  was. 

Were  you  one  of  those  gentlemen  who 
Ibrnaed  the  processional  visit  to  Maha  Rajah 
NuDdocomar  ?  — 1  visited  him  ;  J  went  in  my 
ebaitp,  but  not  in  procession. 

Who  went  with  you  ?— General  Clavering, 
B^Uwiel  Monnon,  Mr.  FoMrke,  Mr.  Addison; 
and  I  believe  captain  Webber,  but  1  do  not 
porfeetly  remember. 

Do  you  remember  the  day  on  which  this 
risit  was  paid  ? — I  do  not  recollect ;  I  think  it 
mmm  the  day  after,  or  two  days  after,  the  exami- 
DaticNi  before  the  judges. 

Was  the  visit  made  before  you  gave  bail,  or 
afler  ? — 1  cannot  recollect. 

At  the  time  of  the  visit,  was  you  acquainted 
ivith  the  examination  ? — Yes. 

Upcm  what  occasion  was  this  visit  made? — I 
Dont'esa  that  I  thought  the  accusstion  against 
Maha  Rajah  unjust,  and  that  he  was  very 
anach  injured,  from  what  Mr.  Fowke  told  me ; 
Uierelbre  I  paid  him  a  visit. 

Do  yoa  visit  every  man  you  think  unjustly 
aeeiised  ?— -No. 

I>id  yoa  ever  visit  Maha  Rajah  Nundocomar 
ibcforaf— Yes;  and  bare  received  viiiu  from 


Did  you  ever  visit  him  in  company  before  f 
—No.  » 

Do  yon  think  that  bis  being  looked  n|>on  at 
an  injured  man,  was  the  general  reason  for  the 
visit? — I  do  not  know;  1  only  aoswer  tor 
myself. 

Were  you  present  at  the  examination  at  the 
Chief  Justice's? — 1  was  some  part  of  the  time; 
I  went  upon  what  1  heard  from  others,  not  be- 
lieving the  existence  of  the  paper. 

Were  an V  of  the  other  gentlemen  present? 
—Captain  Webber  was  present  at  limes ;  none' 
of  the  other  gentlemen  who  were  on  the  visit 
there. 

Did  you  ever  bear  the  gentlemen  at  any 
time  declare  their  reason  for  makiig  this  visit  f 
— No,  never. 

What  passed  between  Nundocomar  and  the 
gentlemen  during  the  visit?  -Nothing  butsa- 
UUDS  and  the  common  ceremonies.  * 

Cross-ExaminutioH, 

How  long  have  you  known  Mr.  Fowke?— I 
have  known  him  14  or  15  years,  three  ol  which 
he  has  been  in  India  ;  my  acquaintance  with 
him  preceded  his  coming  out. 

Do  yop  believe  him  to  be  an  honest  man  f— 
I  do,  from  my  soul,  believe  him  to  be  an  ho- 
nest man,  of  strict  honour,  and  1  think  iuca- 
paMe  of  telling  a  lie  on  an^  occasion  ;  1  never 
heard  any  thing  against  him,  but  a  great  deal 
to  his  honour. 

Fer  Court.  Did  you  never  hear,  before  or 
after  the  vibit,  any  reason  given  by  general  Cla- 
vering  ? — 1  did  not. 

Did  you  ever  hear  that  general  Clavering 
paid  any  other  visit,  before  or  since,  to  Maha 
Rajah  iNuodocomar. — 1  think  not;  I  do  not 
know. 

Capt.  James  Webber  sworn. 

Are  yon  acquainted  with  Maha  Rajah  Nun- 
docomar? — f  am. 

How  long  have  you  been  acquainted  ? — Since 
my  arrival. 

Were  you  bail  for  him  ? — I  was. 

Did  you  ever  vi^it  him  ?-— But  once;  about 
three  mootlis  a^o,  as  the  general's  aid  de  camp, 
and  attended  him,  as  my  duty. 

Who  were  of  the  parly  ? — The  general,  cot. 
Monson,  Mr.  Francis,  colonel  Thornton,  Mr* 
Fowke,  Mr.  Addison,  and  myself.  The  general 
called  on  me  at  my  house,  in  his  carriage  :  it 
was  but  an  hour  or  two  before  that  1  was  given 
to  understand  the  general  meant  to  pay  the 
visit. 

Did  you  ever  hear  the  general,  before  or 
since,  give  any  reason  for  making  the  visit  ?— t 
do  not  recollect  that  I  ever  did. 

Do  you  remember  the  day  on  which  this 
vibii  was  paid?---l  can't  recollect  whether  it 
was  the  day  after  the  examination,  or  vi  bether 
it  was  bef«>re  or  after  I  gave  bail.  .1  think  I 
recollect  it  was  after  the  first  examination. 

Do  vou  recollect  what  passed  at  the  visit  f— 
No.  1  believe  Mr.  Fowke  might  iuterpret  Ib6 
common  complimenta. 


ISl  I]  15  GEORGE  Ut.  Trial  ofJmpk  FiMkt  (uul  oikeri^         [UU 

Did  you  not  tUiak  the  ? iiit  aa  eztnuirdioary 
one  ?— No,  I  (Tid  not. 

Did  yott  ever  kaow  thew  tpenfleMMi  fty 
Maba  R^ijab  a  visit  before  ?— I  do  nol  know  if 
they  bad  been  tbere  before.  It  is  ny  dut¥  to 
go  on  visits  witb  the  genera] ;  I  generally  do. 

Did  you  know  tbe  character  of  Maba  Rajab 
Nundocomar  ? — 1  bad  beard  a  bad  character  of 
him;  but  I  thought  people  prejudiced.  I 
heard  Mr.  Fowke  speak  well  of  him. 

Did  you  ever  know  general  Glavering  pay 
Tisits  to  other  black  men  f — I  never  knew  ge* 
Deral  Clavering  visit  any  black  Doan,  except 
him  and  Mahomed  Reza  Cawn. 

What  do  yon  believe  was  tlie  reason  for  this 
Tisit?— I  believe  they  visited  Maba  Ra^ab 
Nundocomar,  because  he  had  been  formerly 
minister  of  this  country. 

Do  you  believe  they  had,  or  had  not,  other 
motives  f 

[The  above  question  repeated.] — I  believe 
they  had. 


Mr.  Francii  Fonke  sworn. 

Did  you  ever  see  your  father  lift  up  a  book 
to  Comaul  O  Deen  ? — I  did. 

Where  was  it? — In  my  father's  bed-chamber. 

Were  you  in  your  father's  bedchamber  before 
Comaul  O  Deen?  or  was  he  there  first? — 1 
was  there  first. 

Which  of  you  went  out  first? — Comau(0 
Deen  did. 

Upon  what  occasion  did  your  father  lift  op 
tbe  book  to  Comaul  O  Deen?— Comaul  O 
Deen  came  to  my  father's  bed-chamber:  I 
think  the  words  that  he  said  were,  <*  1  will 
write  it  over  again."  When  he  came  into  the 
room,  1  observed  the  end  of  his  jammah  over 
his  neckf  and  his  hands  in  a  supplicating  pos- 
ture. He  advanced,  repeating,  1  believe,  the 
same  words.  My  father  was  sitting  on  the 
bed  :  Comaul  O  Deen  threw  himself  at  his 
feet,  and  attempted  to  take  hold  of  his  legs. 
My  father  threw  himself  back,  or  rather  ob- 
liquely, on  the  bed ;  and  his  legs,  I  believe, 
passed  through  Comaul  O  Deeu's  arms.  I 
am  not  perfectly  clear  whether  my  father  bad 
the  book  in  his  hand  or  not:  I  rather  think  it 
was  lying  on  tlie  bed.  My  father  immediately 
lifted  up  the  book,  and  poremptorily  order^ 
Comaul  O  Deen  to  leave  the  room.     Comaul 

0  Deen  immediately  did  leave  it. 

While  Comaul  O  Deen  was  on  the  ground, 
was  any  paper  produced  to  him  by  your  fatlier  ? 
— Not  that  1  saw. 

Ifheliad  produced  any  paper,  should  you 
not  have  seen  it?— I  think  1  should. 

Did  you  see  your  father  and  Comaul  O  Deen 
the  whole  time? — 1  did. 

Were  you  near  to  them  ? — T  was. 

Did  you  hear  your  father  ask  any  questions 
while  Comaul  O  Deen  was  on  the  ground  ? — 

1  did  not. 

If  he  had,  should  you  have  heard  him  ?«-l 
think  1  should. 
Have  you  beard  aQ  that  Comaul  O  Dceo 


baa  said,  resfediog  the  ford,  while  he  wu  m 
the  ground  ? — ^Tbere  was  do  lord  produced. 

Who  did  yea  hter  first  mcntien  itf— I 
never  heard  of  it  till  ibe  day  of  the  emai- 
natioD  ;  1  tbeg  heard  of  it  fiirat  frooa  Consil 
ODeen. 

Had  Comaul  O  Deea  aaade  aoy  neiss  ir 
clamour  in  your  fiUher'a  honaa  raapediaf  sa 
anee  ? — He  had. 

Did  he  seal  any  arsee  in  yoar  fttber'a  ho«i 
that  day  f-^He  did,  in  my  vritiag-rooiB. 

Who  was  ia  tlftereum  at  the  tioie  year  ftlbtr 
lifted  up  ihe  book  ?— Bade  Cbnra,  aad  ae  ste 
evoept  myself. 

You  have  said  that  Comaul  O  Deen  saM 
an  arzee  in  vour  writing- room  :  were  tbcKisy 
threats  made  use  of,  to  Irighten  hha,  io  ofdcrit 
force  him  to  seal  it? — No. 

Did  be  ask  to  have  that  arsee  back  agaia?— 
He  wanted  to  have  it  ehaoged,  and  to  hsvc  it 
wrote  over  again. 

Did  be  give  any  reason  why  he  waatsA  to 
have  it  cnaaged,  and  wrata  oiver  agaia?— 
There  was  an  expression  in  the  hegioaiof  sfik 
[*<  ershaud  miahawud"]  which  he  objeeliil^ 
and  wished  to  have  it  wrote  over  again.  Jhm 
words  moan,  in  English,  **  It  ia  ordered,  w  n* 
quired." 

What  did  he  say  respecting  these  werdi.^ 
Looking  at  the  words,  he  aaid,  Wlio  onksM 
requires  ?  This  does  not  respect  tbe  araae  sal* 
ed  in  my  room. 

What  arzee  did  be  seal  in  yomr  roan?— Bs 
sealed  a  small  arzee,  which  he  aaid  vssthl 
real  arzee  he  delivered  to  the  governor.  Bi 
did  not  seal  tbe  great  arzee  in  mj  nom  ff^ 
sence.) 

Did  be  bring  the  fang  arzee  nmiy  seaMto 
your  father'*  house?--!  cannot  answer  ^ 
tively  to  this:  1  rather  think  that  I  reodktf 
the  mark  of  tbe  seal  upon  the  large  arzee. 

Let  us  know  all  that  you  know  respecttf 
the  sealing  and  signing  of  aoy  papers  at  joor 
father's  house,  the  day  be  Kfted  up  tbe  boskti 
Comaul  O  Deen. — Comaul  O  Deen  eanc  a 
raiv  fallier's  bouse  in  tbe  morning  of  tlic  M 
of  April.  In  my  father's  bed-chamber,  be  K< 
koowledged  his  seal  afiixed  to  tbe  large  ariH 
before  two  witnesses,  who  attested  the  ackoo«- 
ledgment  to  iL  lomy  writing- room,  be  sftx- 
ed  his  seal  to  the  small  arzee.  No.  2.  Thes 
were  present,  myself,  Roy  Rada  Churo,  nj 
Moonshy,  Geercustullab,  and  the  two  Polls* 
guese  writers  who  attested  the  long  ante. 
He  sealed  the  arzee  in  presence  of  these  twfi 
and  also  acknowledged  tlie  aeal,  which  tbrj 
attested.  My  father  ordered  these  two  antf^ 
and  the  translations  of  them,  to  be  mads  sfi 
and  directed  to  the  governor  general  wm 
council.  Comaul  O  Deen  objected  to  tkdr 
being  laid  before  the  governor  and  cooadl; 
and  desired  that  the  two  other  anees,  rcbtfl 
to  Gunga  Covin  Sing,  might  fiiat  be  aaal  iito 
council.  My  father  did  not  conaeot  lothii' 
Comaul  O  Deen  urged  him  for  soma  time:  m' 
afterwards  made  tbe  ol^iectiun  beforarotaliig^ 
to  that  cxpresaioD  ia  the   loag  anee.  0 


I 


is  13]    f&ra  C<m$pin«y  vgaaut  Ri<Aard  Bimoell,  aq.     A.  D.  1775* 


[ISI4 


•fked  my  fatlwr,  When  be  slioakl  be  called  be- 
fore the  couDcil?  and  asked,  Who  bad  ordered 
or  required  ?  who  he  should  my  ?  My  father 
answered  him,  by  asking,  Who  be  would  sav  P 
Comaol  O  Deen's  reply,  I  think,  implied  that 
he  would  make  use  of  the  general's  name. 
My  father  asked  him,  Whether  the  geaeral,  or 
he  (Mr.  Fowke)  in  the  general's  name,  had  or- 
dered or  required  him  f  He  said.  They  had  not ; 
but  urged  the  distress  he  should  be  under,  it' 
that  question  should  be  put  to  him  in  oounciL 
I  believe  he  repeatedly  urged  it.  My  father 
did  not  alter  his  intention  of  sending  the  papers 
into  council.  Comaul  O  Deeo  soon  afier  left 
the  room :  Rada  Ctium  want  out  likewise ;  1 
du  not  remember  whether  inuaediately,  or 
■ome  lime  after.  Rada  Chura  soon  after  re- 
tnrned  into  the  room,  and  said,  That  Comaul 
O  Deen  was  crying,  and  tearing  his  jammah, 
hecause  the  arzees  were  to  be  sent  into  council 
that  day.  Comaul  O  Deen,  soon  after  this, 
came  to  the  door  of  my  father's  bed-chamber, 
and  then  that  passed  which  1  hare  before  re- 
lated. 

You  hare  told  us  that  Comaul  O  Deen  left 
th€  room  before  you  did ;  did  you  see  him 
when  you  went  out  ? — Yes,  1  saw  him  in  the 
hall. 

What  passed  between  C.  O  Deen  and  you 
then  ?•— He  begged  of  me  to  intercede  with  my 
fkther  that  the  papers  might  not  be  sent  in  that 
flay,  repeating  the  difficulty  he  should  be  ex* 
poaed  to  from  that  exoression;  and  laying, 
That  he  would  bring  his  Aloooshy  tlie  next 
day,  and  write  it  over  again.  I  returned  to 
my  father,  and  urged  him  to  comply  with  Co- 
maul O  Deen*s  request,  which  for  a  long  time 
he  refused :  he  did  at  last,  rery  reluctantly, 
comply*  1  went  to  the  Portuguese  writer, 
took  the  corer  from  him,  as  it  was  folded,  and 
carried  it  into  my  writing- room,  where  I  lock- 
It  np.  1  do  not  know  whether  1  told  C.  O 
Hern  that  1  had  got  the  papers,  or  whether  he 
•aw  them  in  my  hand  ;  but  be  met  me  at  the 
door  of  my  writing-room,  and  thanked  me,  in 
very  warm  terms,  for  having  brought  back  the 
arscea.  He  itooped  down,  and  touched  my 
feet:  be  said.  He  would  bring  his  Moonshy 
with  him  fery  early  the  next  morning,  to  write 
It  onew.  He  asked  me.  If  he  should  go  in, 
Bod  lake  leave  of  my  father.  I  told  him,  not 
lo  ffo  ;  that  my  father  paid  no  great  attention 
lo  tbuse  ceremonies.  It  was  near  one  o'clock  ; 
I  was  goiiig  out  to  dinner.  Myself,  Rada 
Chttra,  and  Comaul  O  Deen,  went  down  stairs 
logeClier :  when  1  got  into  my  palanquin,  Co- 
maul O  Deen  came  to  the  duor  of  it,  and  again 
f^peated  his  acknowledgments  of  gratitude. 

Did  any  other  circumstance  past,  on  the 
IBiht  respecting  tlie  arzees? — There  was  ano- 
ther circumsianoe,  1  did  not  mention,  relaiing 
Id  the  arsees.  In  the  long  arzee  it  was  writ- 
ten, that  the  caom  of  Barnassy  Ghosevnd  Co- 
QMUil  O  Deeo  was  referred  to  my  father  for 
leciaioo :  I  tohl  Comaul  O  Deen,  that  the  ex- 
ptcasioo  WM  wrbo^ ;  that  it  was  referred  for 
•pqoiry  only,  in  which  be  acquieieed.    About 


the  time  the  small  arzee  was  sealed,  with  his 
aequiasocnce,  I  scratched  out,  in  my  writing- 
room,  the  word  in  Persian  which  signifies  *  da- 
ciaian  ;'  and  Comaul  O  Deen,  in  the  presence 
of  the  two  Portuguese  writers  who  hail  attested 
the  long  arzee,  wrote  w  itii  his  own  hand  the 
Persian  word  signifying  *  inquiry.' 

Did  you  ever  hear  Comaul  O  Deen  declare 
that  day,  that  the  long  arzee  uas  false  f— I  did 
not. 

At  any  other  time,  did  you  ever  hear  him 
declare  it,  at  your  father's  house  f — No,  never. 

Is  there  any  other  nuterial  oircumstanoe 
rekting  to  the  arsees  P — W  hen  Comaul  O  Deen 
WM  going  to  write  the  word,  he  asked  R<iy 
Rada  Churn  how  to  spell  it ;  Rada  Chum  told 
him  the  letters ;  he  desired  hiui  however  lo 
write  it  down  on  separate  paper,  that  he  might 
copy  it.  He  did  so ;  and,  when  he  had  written 
it,  the  ink  had  not  marked  well,  owing  to  some 
pounce ;  and  Roy  Rada  Churn  asked  him  if 
hashould  make  it  plaiu:  C.  O  Deen  gave  biih 
leave,  and  be  made  it  plainer. 

Crofi-  Examinaium. 

At  what  time  in  the  morning,  of  the  18tll^ 
did  Comaul  O  Deen  come  to  your  father'a 
house  f-— About  nine  or  ten  o'clock  in  the 
morning. 

Did  you  see  him  come  into  the  bouse  P— Jl 
cannot  say  that  1  saw  him  come  in. 

In  what  ^Mrt  of  the  houte  did  you  first  see 
him  ?— 1  think  I  first  saw  him  in  the  hall. 

Had  you  been  out  of  doors,  or  did«yeu  come 
out  of  your  own  room  P— -I  believe  1  had  eoi 
been  out  of  the  house,  and  might  have  been  ia 
my  own  room  P 

How  long  did  he  stay  in  the  hall  P- -I  really 
cannot  say. 

Did  von  stay  with  him  all  the  time  he  was  in 
tbehallP— 1  cannot  recollect. 

When  did  he  come  into  your  writing* room  P 
—After  the  attestation  of  the  long  arzee ;  he 
then  came  into  my  room,  and  sealed  the  little 
one. 

Where  did  he  acknowledge  the  seal  to  the 
long  arsee  ? — In  my  ftither's  bed-chamber  ? 

Were  you  there  at  the  time  ?— I  waa. 

Whether  did  Comaul  O  Deen  or  you  go  first 
into  your  father's  bed-chamber  at  that  time  P-* 
1  do  not  recollect. 

What  time  had  you  the  long  arzee  in  yoor 
hands P— -On  the  16th,  two  days  before. 

Who  shewed  you  it  ?—  -Rada  Churn. 

Was  it  then  sealed  P— I  cannot  positively  de- 
clare it  was  then ;  but,  I  think,  I  have  a  recol- 
lection that  it  was  sealed. 

Was  it  in  your  father's  house  that  Rada 
Chum  shewed  it  to  you  P— Yes. 

Do  you  know  what  Rada  Churn  did  with  it, 
afler  he  had  shewn  it  to  you  ? — He  left  it  with 
me.  1  translated  it :  I  began  to  translate  it  on 
the  16th ;  and  had  not  quite  finished  it  that  day. 

Aft«r  trauslating  it,  what  did  you  do  with  it? 
— 1  kept  the  original. 

How  long  did  you  keep  itP— 1  btlieve  l4iad 
it  in  my  possetsten  till  the  18tb. 


1219J 


15  GEOftOfe  IIL  Trita  t^fjfmjk  fVurfe  mAjMim^  [IJM 


vilio  would  not  stick  tt  aoy  thing  to  ean7  any 
poiut  ke  roiglit  have  at  heart :  from  thenoe  we 
went  and  ih!  down  with  R<*jah  Nundocomar; 
and  I  had  soon  an  opportunity  of  leeing  that 
Rajah  Nunducoinar  did  not,  thuu^  1  had  in- 
trvduceil  him,  consider  me  as  his  friend ;  for 
Mr..  Addison,  who  had  in  the  kileriro  entered 
into  conversation  wiih  him,  informed  the  gene- 
ral, that  he  only  wi^-hed  to  make  his  salam 
then,  and  would  wait  upon  him  on  business 
aootlier  time :  1  understood  what  Muha  Rajah 
meant  rery  well ;  and  what  passed  that  nay 
«vas  nothing  t>ut  general  conrersation.  The 
next  time  1  waited  upon  Mr.  Hastings,  I  made 
more  fMrticnlar  enouiry  respecting  his  wishes 
of  having  Rajah  Nuodocomar  introduced  to 
the  general ;  and  I  then  found,  that  the  story 
of  lUda  f/huru  was  a  fiction ;  and  that  I  hsid 
mil  been  desired  by  the  governor  to  intcodvoe 
Raimh  Nuodocomar  to  the  general. 

Did  you  ever  introduce  any  other  black  man 
to  the  general  ?— >!  am  not  sure  whether  1  in- 
trodocM  Rajah  Rajebullub  to  the  general,  by 
desire  of  the  governor ;  1  now  recollect  that 
the  goremor  had  first. 

Did  you  consider  this  as  an  introduction 
from  the  governor  general  ?— I  did  not  consider 
it  as  an  introduction  from  the  governor  general, 
but  by  his  permission. 

Mr.  "Ellioi  recollects,  that  it  was  not  the  same 
morning  in  which  be  saw  R^ah  Nundocomar 
at  the  governor's  that  he  introduced  him  to  the 
general. 

Greneral  Clavering  sworn. 

A  little  time  afler  my  arrival,  Mr.  Elliot 
came  to  me,  to  propose  himself  to  be  my  inter- 
preter. I  ac<|uainted  him,  That  1  understood 
there  was  an  interpreter  on  the  establishment, 
frho  was  then  with  the  army,  and  1  had  heard 
a  very  good  character  of  him,  and  therefore  I 
did  nut  chuse  to  make  any  disposition  of  it  at 
that  time,  but  would  wait  till  the  interpreter  re- 
turned to  Calcutta.  Mr.  Klliot  understood  it 
aa  explained  by  me,  and  was  pleased  to  offer 
me  his  services,  till  such  time  as  my  interpreter 
arrived.  From  that  time  I  am  nut  conscious 
that  I  received  any  Persian  letter,  or  petition, 
that  1  did  not  put  into  his  hands.  In  the  mean 
time,  divinions  in  the  council  had  broke  out. 
Mr.  Kiliot,  1  understood,  had  been  admitted  a 
private  secretary  to  tlie  governor.  About  a 
month  after  his  tendering  bis  services,  !^lr. 
Kiliot  came  to  me,  and  acquainted  mr,  that  he 
understood,  that  the  interpreter  to  the  com- 
mander in  chief  had  been  recommended  by  the 
governor  to  the  lute  commander ;  but,  on  my 
making  8oinc  diiiiculty  to  accept  an  interpreter 
tbat  might  have  been  recommended  by  the  ijo- 
ternor  lo  the  hite  commamler,  Mr.  Elliot 
ppened  himself  further  to  me,  and  told  me, 
lu  a  very  honouiable  manner,  that  1  must  be 
•ensible,  from  his  close  coiincction  with  the 
governor  general,  how  unpleasant  a  tbin«>-  it 
would  be  to  him,  to  accept  of  such  a  trust  from 
Bie. 

[i>Ir.  Elliot  here  wishes  that  the  general 


would  recollect,  whether  the  ocnaioa  of  lUi 
eooTersatiou,  was  not  a  letter  iccaTod  frooi  tW 
king  at  Delhi.] 

Mr.  Elliot,  faowerer,  atill  offered  to  tiandMt 
such  papera  as  might  be  nent  to  me.    1  aoeon^ 
ingly  did  send  them,  1  Miere«  «ll  to  bis. 
A&ut  the  middle  of  Janoary,  I  Was  Mnohed 
in  mv  palanquin  by  a  DnmbtT  of  petilionai^ 
who  bad  neariy  OYerKt  it ;  they  were  the  n^ 
lungies  of  the  24  pergonmho.     1  w&tmi  ajf 
polanqain  to  be  set  down,-  and  took  tlieir  pfO- 
tion  from  them :  1  read  it,  io  my  way  to  ihi 
council-bouse;  and  seeing  in  it  wliai  I  thaaafcl 
sonUe  Ycry  gross  abose  of  posrer,  and  thai  m 
several  petitions  which  I  bad  before  laid  bcfise 
the  council,  which  had  been  presented  ia  tie 
streets  to  me,  had  had  no  effect  in  itdiiwiiy 
their  grievances,  I  reoolfed  to  inquire  into  ihH 
myself,  as  well  as  I  oookl.     I  therelbre  HU 
my  servant  to  go  to  the  salt  coBtrsctoHa  Imk^ 
and  tell  him  to  be  with  me   at   ray  idaiB 
from  eonncil.    The  manner  in  which  tkecM* 
tractor  explained  hinoelf  to  me,  rendered  has- 
cessary  that  I  sbonld  hare  an  inter  pietai.  Hi 
man  teazed  me  with  evasiona  aM  contiafc" 
tions;   and  having  frequently  told  liia  dot 
there  was  now  a  court  of  justice  estabKsbsd  ii 
Calcutta,  where  snch  grierances  woaldle» 
dressed,  I  thought  he  would  do  better  to  fr- 
nish  me  with  means  of  redreoaing  then,  If 
mrocnring  them  their  foil  weight  and  iWI  fhy. 
1  then  sent  for  Mr.  Fowke,  who,  1  helieve,l^ 
fore  that  time,  had  not  been  above  three  «r  ta 
times  in  my  house,  nor  had  onoe  dined 
me  since  my  arrival.    I  refaieJ  the eony 
to  him,  as  a  person  of  whose  hoooor  and  ■ 
rity  I  had  the  highest  opinion  ;  morefroa|^ 
neral  report  which  hb  re  potation  bore  h  S^ 
land,  than  from  any  personal  acquaintance  on 
him  here.     He  was  acquainted  with  the  hi" 
guage  in  which  this  complaint  was  to  be  en* 
mined,  and,  as  1  imagined,  with  the  massfli 
and  customs  of  the  country.     The  coatraclBr, 
fearing  that  Mr.  Fowke'a  report  to  me  woSH 
not  be  so  favourable  to  his  cause  as  he  wiiM 
went  to  complain  to  the  governor  geiirrsl; 
when,  on  the  following  day,   1    presented  ibi 

fietition  to  the  council,  I  found  the  gnvrra« 
lad  been  apprized  of  the  reference  made  m 
Mr.  Fowke ;  and  reproached  me  warmly,  fv 
taking  up  a  business  in  which  he  was  so  I'mew- 
diately  concerned.  I,  at  first,  did  not  vsdff^ 
stand  his  allusion.  He  told  me,  '*  Yon  bb' 
kno^v  that  captain  Weller  was  connected  ^ 
me.'*  J  told  hiin,  that  f  had  been  int'irelj  si- 
inforined  of  it,  till  Mr.  Fowke  had  acqusialrf 
me  with  it,  upon  the  examination  of  ihe  wff- 
lungies.  Tlie  g-overnor,  on  tbat,  said  ntfv 
things  aprainst  Mr.  Fowke ;  and,  as  1  ssn  m 
occasion  why  Mr.  Fowke  should  havecoDceil* 
ed  that  circumstance  from  me,  I  refmd  1* 
comply  with  his  request  of  not  imstini^  svf 
more  petitions  to  Mr.  Fowke.  Some  tJ** 
after  this,  came  the  petition  of  Bamaasy  GteVi 
which  1  likewise  referreil  to  Mr.  Fowke.  iA>* 
having  previously  sent  to  Comaui  O  Diti* 
This  reference  produced  another  cotaptiiil  ^ 


^PPHJ     Jot  ■  Cmufirae^ agaiiui  likharil 

VMgonimor  g«Dci*l  tuiiiut  Mr.  Fotrkelihc 
arsee],  mjueitiDf  R^tiu  ihit  I  fvould  williilraw 
my  coafijvuve  rrom  lUr.  Tanki;  W,  ■llvati, 
tliBl  i  woulit  not  iiilTFr  Lim  la  examine  )>irti- 
<ii>M  bill  in  roy  (vncnce.  i(  llu*  <nDi|il«inl 
anil  tbe  jieliiioBit  ivliivli  xccom|i»ni«<l  U  were  to 
Wand  iipoQ  our  coiuiiltuinni.  il  hu  the  0|^''- 
nwaaf  lb*  cuuncil,  lliat  iUr.  t'owke  Rliunlii  t« 
daircd  lo  come  itiare  biiuadl',  to  rxplun  bi« 
wbolv  ooailucl.  I  Btaurcil  ijie  council,  llial,  if 
Mr.  Fowke  had  acted  iinprDptrly  iu  llie  bxmu- 

i^^^vU  If  ilhiWw  it.  But  Ibe  Koreraor  |[«ae- 
^^UM  cbooiinii  ihut  Mr.  Fowke  tbuuld  oome 
^Hb'to  «i|ilain  hii  conduct,  I  bed  no  oilier 
^^Eh  lefl  Iban  lo  exkininc  bin  myselr,  b|  biH 
^Bm*  I  daairwl  liiui  to  write  a  lelter  la  tbe 
Moocil,  and  lo  ifiTa  tbem  tbe  wtnie  ex|)lenBlieD 
which  bed  Mlietieil  ma;  aoi)  I  tliink,  but  am 
pal  imeilire,  llial  I  Iwik  bia  affidnrit  to  the  irulb 
of  the  ciiiileiile  of  ilje  letUr :  but,  >■  I  eiilt 
lbmq;bl  that  ibe  aakerlinua  made  by  Comeul  O 
Deeu  ihould  not,  fur  Mr.  Fonke'i  liooour  aad 
IBine,  etuid — 1  Jeeired  Mr,  Fowke  In  exaioine 
liie  owu  trriaui«,  wliu  bill  been  present  ■!  Ibe 
oxamiiutioii,  and  to  feed  ibfir  depotitioiit  iu  to 
ihecouiieil.  Tbejier«<>iiilb«ni«eltr«bein(raxe- 
tnined,  I  was  ot  opinion  tbil  all  tbe  annranaeK  of 
Cwnaul  O  Deen  were  entirely  Ulieand  ground* 
.  Itnliena,  my  fanian  inleriireier, 
•  la  ma  mau  afier  Ibiaj  aud,  Ifim  tbat 
■tw  ibie  (lay,  1  am  not  conteious  tbat  f  erer 
Mia  politiou  to  Mr.  Fowke.  All  \ny  Per- 
^•pen  1  bave  re^ulnrly  muI  to  Mr.  Ro. 
1  tbe  Bni[li*b  to  Mr.  EIUol.  Bl(. 
I,  about  tbe  SUIh  of  December,  ap- 
kd  MitcriiUeBiUui  of  the  kbiiha  recorcls, 
Ctha  iHKnUon  of  receifing  all 


UaraeU,  e 


A.  D.  1775. 


risrt 


•iU> 
loj'iDf  Hr.  Fowke.  i 


I   receifing  all  palitieni. 


Eitber  iir.  ElbM  or  Mr.  lioUrU  «ter 
all  pviiliniis  aeni  to  nie.  From 
k  IStk  at  N"veaiber,  to  tbe  Wib  of  Dacein- 
waa  ibc  outy  lime  in  wliicb  I  eeul  peliliona 
Ir.  Fo*kf. 
_JUi  regard  to  Haba  Itajab  Nunducomu',  wba- 
I  Korited  my  opioJuu  of  biin  from  Mr, 
jL  w  fpim  ulber  (uopie,  il  auDioelli  Iu  aay, 
laaaaiikfed  hiio  ul'  en  iiitriKuinc  (durac  ■ 
'  oerer.  upon  ajiy  occasiun  thai  I  know 
lail  biiB  wilb  ibe  ainallest  cuuSdciice. 
leii  Hocnied  of  fi>rgery  wa»  not 
Idl  late;  I  cannot  tay  eaaaly, 
■  Ibe  tStb  of  April.  A«  1  underalood, 
ly  vMited  (lie  Kovemor  (jreoeraJ,  1 
_  a  tlial,  if  lliere  were  any  kind  of 
I.  fur  it,  tbe  cutunutanceii  Inuit  be 
t  biiBi  M  iliey  bad  alt  been  ia  Ibe  de- 
of  Auilautet,  wliicb  wu  immB- 

onri  ul'  AuiUelet  a  court  of 
RljuritdiL-iiuii^.-.it  ia  aot. 
a  ilw  guteinur  ci-iwral  ul  in  ihatfleurl, 
'      '  .^1   do  yot  kmw  Uial  he 

iiaotweradby  IbtcouBM).    Itiipol.] 


Are  Ibe  prnceedioca  in  Ibe  ordinary  couiie  of 
buiineks  Uid  beliire  bim  ?— No,  I  do  uol  kuow 
tbat  ijiey  ate. 

How  oonld  ibere  lip  a  charije  of  felony  i»  a 
civil  rourl?  iir  buw  could  ibe  fOTernargeuernl 
kliowit,  if  there  wa«?---l  douotknow;  but  I 
bate  teaeoii  to  ibink  the  ^rernor  ceoer*)  did 
know  it.  In  tbe  mil*  which  Malia  Itajatl 
made  In  me,  I  look  lor  my  inlerpreler  the  urat 
)ierann  wbo  presented  biinself  In  me ;  but  tl' 
way*  Mr,  Robert*,  if  be  ^as  with  luc :  hi| 
general  conrenation  was,  tbe  declared  hatred 
thai  the  gorernor  had  ibewn  bim.  He  said, 
"  Uig  cneipiei  were  admitted  to  the  gateritor; 
I  am  (old,  Mohuii  Pertaud  ;  but  I  donotBuevt 
il  a*  s  fact."  My  answer  was,  That  no  iaa»- 
ecnt  man  need  fear  approKinii ;  b'Jt  would  be 
protected  by  Ibe  Eugl'sb  Uwa.  I  «nw  the 
Malia  Rajah  twice  wlfli  Mr.  Fonke :  once  by 
chance  at  Mr.  Fowke'sbouae,  where  I  cellnj 
ill  ;  and  at  another  time,  by  Ilia  own  aiipoiu^ 
meat,  -at  my  own  houie :  Ibeae  times  Wfre 
without  my  inlerpreler.  At  Mr.  Fowke'i,  m 
mochae  I  remember,  be  was giiiniianaccouiil 
of  his  long  lerrices,  ne  minister  ul  lliin  oouu; 
iry  i  and  I  remember  it  elided  wiib  a  tale, 
which  I  underEliod  ik  in  eonle  of  the  PeraJtn 
books ;  Ibe  purport  of  which  was,  "  A  numlwf 
of  people  Baying  the  aame  thing,  ihaugb  il  be 
001  true,  i*  U  leaat  believeil  to  be  true."  I 
understood  from  lliia,  be  meant  lo  recommend 
biuiielf  to  me-  I  remember  now — it  wa*  4 
etory  about  a  kid  beiug  *ai<i  Iu  be  a  dog  ;  ami 
Ibat  so  many  people  aaid  the  kid  was  a  dog, 
lUul  at  liiat  il  wa*  taken  fur  «  dog.  Tlie  othei 
couveraalion  waa  ia  my  own  room  ;  and,  e> 
much  01 1  recollect  to  olTer  Iu  give  me  a  mate 
of  the  counlrv,  o(  Ibe  miiiner  in  wbich  the 
KOiernroeol  of  it  would  be  best  ndminitlerej. 
I  beliere  1  desired  bim  lo  draw  up  bis  ibuutfbla 
I  paper,  t/i  ECt  rid  ut'  the  subject;  and,  iq 
in«equenceol  Ibi«,  in  alinut  a  week  or  tei) 


dayii  alletwenis,  be  did  bring 


1  ha 


tbiobi  ao 


il  to  tbie  day,  nor  du  I  kuow  what  I  have  done 
with  ii.  Maba  Rajah  bad  heard  that  col.  Mon- 
Min,  Mr.  Fowke,  and  my^rlf.  had  paid  a  *i«i$ 
|o  Mahuined  Rczji  C«wo  )  and  lielieTe  he  bad, 
aome  bow  or  other,  diwiivered  tbat  Mahomed 
Ri'ia  Cawa  bad  i^iten  ai  auoh  a  |>apvr  of  hi* 
ideas  of  the  goternmeoi  of  itiiecouuirf.  Ma- 
hotued  ReZB  Cawii's  paper  ]  delireted  into 
eounnil.  Ou  or  about  tbe  IDib  of  March,  Maba 
ftajsh  eeiit  a  letinr  lo  the  council ;  in  conee^ 
uueuce  of  which,  ibe  cuuniil  gave  directiunt  If 
their  atturaey  to  cuonnH  ihe  coun^rl,  wbelhcr 
an  action  might  ooi  lie  ogainet  the  goveritor 
general  ou  account  ul'  tbe  wvUer  cnulaioed  iu 
that  Idler.  Ai  1"  ihe  vitit.  Maba  Itejah  wa^ 
Bummotied  about  tbe  IQib  of  Aprd ;  aod  I  UDr 
deretood,  after  hnvinc  underijouea  ttry  lung 
and  exact  acnitiny  nf  hi*  coniluel,  iliece  wa* 
oM  found  auBicirnl  milter  lo  bold  lu  bail- 

Q.  bylht  Court.  Were  you  informnl  lbk( 
Um  juilgra  di-cUreil  lliere  wb*  not  lUlScient 
matiff  IU  bold  to  b^il  f—A-  I  »>). 

Cliuf  Jmtkt.    You  were  much  abuncd  hA 


15  GEORGE  III.  Trial  qfJoieph  Ftfit^  and  oikers.  [  IWk 

Ghone'g  complaint  ? — I  niiderttaiMl  thtt  Co- 
maul  O  I>eeii  bad  let  out  portions  ofsaltworb 
of  the  tecka  collariea  to  different  people,  aid 
afterwards  resumed  them. 

On  what  grounds  did  the  governor  t^enenl 
found  his  complaint  against  Mr.  Fowke?— 
That  he  exceeded  bis  duty  and  trost. 

Why  was  not  Mr.  Fowke  ezaniincd  bcfcrt 
the  council? — ^The  majority  of  the  eonncil 
acquiesced  with  the  governor  general,  tbltHr. 
Fowke  should  not  be  examined. 

In  what  manner  did  you  employ  hiB?— 
Only  to  receive  petitions  through  my  haodi. 

who  gave  voo  the  information  of  whit 
passed  at  the  chief  justice's  f—- Mr.  Fovkr, 
and  from  theoce  1  drew  tbe  inference. 

You  say,  that  if  there  bad  been  sniBcint 
matter  for  a  prosecution,  and  though  the  pft- 
secntors  did  not  desire  it,  you  wouhl  btn 
obliged  them  to  find  baity  or  committed  tbcoi 
that  night?— I  would. 

On  what  day  did  you  pay  tbe  visit  to  Mib 
Rajah  P— -The  day  after  tbe  examioatioo. 

In  what  light  did  yon  consider  tbe  proMC^ 
tinn  Against  himP—  J  understood  it  as  apn»- 
cution  to  frustrate  that  ordered  by  the  board. 

Are  not  you  first  in  eoundl,  next  to  tbef^- 
vemor  general  ? — 1  am. 

In  case  of  death,  resignation*  or  reoMnl, 
are  you  not  to  succeed  him  P— I  am. 

Wbnt  roaj  your  salary  be,  aa  second  ii 
council  ?— -leo  thousand  pounds  per  year. 

Don't  you  think  that  the  governor  gcoml 
might  be  discharged,  on  complaints  of  pcwh 
tion  from  hence  to  the  court  of  diredois  ?-4 
think  he  might. 

Do  the  letters  from  tbe  council  mentioB  fM 
the  prosecution  is  ordered  to  be  caxnii  M^ 
against  the  governor  general  ?— 1  believe  tb^ 
do. 

is  not  this  prosecution  principally  founded  « 
the  evidence  of  Nundocomar  and  Roy  Ridi 
Clinrn? — No. 

Did  you  never  authorize  Mr.  Fowke  to  oftr 
the  Kttllaut  of  the  Khalsa,  or  of  Puniea,  H 
any  hody  ?---No,  never. 

lias  not  some  of  Maha  Rajah's  family  bees 
appointed  to  the  first  office  under  goveromcsl* 
since  the  commencement  of  the  prosecntiM? 
— I  cannot  tell  that  any  places  have  been  giw 
to  Maha  Rajah's  family. 

Were  not  every  means  taken  to  afford  Nw- 
docomar  influence  P---1  never  did  ;  and  shtsld 
have  l»een  sorry  to  join  in  any  act  to  give  Nmh 
docomar  any  influence  whatsoever. 

Don't  you  know  that  any  one  of  Nundoc^ 
mar*8  family  is  provided  for? — ]  do  notkao* 
Maha  Rajah's  family  or  friends ;  1  do  sM 
know  that  any  one  has  had  preferment :  Rijib 
Goordasses ;  I  do  not  know  it ;  1  have  beat 
told  so. 

Mr.  Roberts  examined. 

What  do  you  think  was  the  general's opiM 
of  Nundocomar?-— 1  have  always  heard  ge- 
neral Claveriog  say,  that  he  tboogbt  Mate 
Rajah  Nundocomar  to  be  a  very  bosy, 
blesome  man. 


1S2S] 

imposed  on.  The  chief  justice  declared  that 
night,  that  he  did  not  think  there  was  sufficient 
matter  to  bold  Mr.  Francis  Fowke  to  liail. 

Will  you  inform  the  Court  wlio  told  you  so  ? 
— 1  think,  Mr.  Fowke  told  nie. 

Did  Mr.  Fowke  tell  you,  that  the  judges  de- 
clared him  innocent?-- -I  do  not  remember 
that  he  did. 

Did  not  Mr.  Fowke  acquaint  you  that  he 
was  ordered  to  attend  the  Monday  following ; 
and  that  the  parties  were  then  to  declare  whe- 
ther they  would  prosecute  or  not  ?— I  think  he 
did. 

As  a  justice  of  the  peace,  would  you,  in  a  mis- 
demeanor, bind  over  the  person  complained 
affainst,  if  the  opposite  parties  would  not  under- 
take to  prosecute  ?-— I  most  certainly  would. 

To  wnat  purpose  ?— I  would  do  it. 

Did  not  your  aid  de  camp  attend  on  the  Mon- 
day to  be  bail,  with  your  knowledge  for  some 
of  the  parties  ? — He  did. 

Could  ^ou  then  think  that  the  iudges  thought 
the  parties  innocent  P---I  did,  because  the 
judges  suffered  them  to  go  without  bail  that 
night. 

That  was  by  consent  of  the  prosecutors.  The 
examination  began  early  in  tne  morning,  and 
lasted  till  late  at  night.  Would  it  not  have 
been  severe,  when  the  prosecutors  did  not  desire 
it,  to  oblige  the  persons  accnsed  to  find  bail  that 
night?-— I  would  have  done  it  in  a  charge  of 
so  high  a  nature ;  though  the  prosecutor  did 
not  fksire  it,  yet  I  think  it  should  have  been 
done.  1  understood  that  there  had  not  been 
sufficient  matter  to  hold  parties  to  bail,  and 
consequently  I  was  to  understand  it  an  unjust 
accusation  ;  and  a  crime  of  so  black  a  die,  of 
accusing  Innocent  people,  and  particularly  such 
persons  as  the  ijovernor  general  and  Mr.  Bar- 
well,  that  they  would  not  nave  been  suffered  to 
go  out  without  bail,  had  there  been  any  reason 
to  suppose  them  guilty.  J  had  reason  to  con- 
sider this  as  nn  attack  made  on  Nundocomar, 
who  had  produceil  an  accusation  in  council, 
and  to  prevent  his  appearing  as  an  evidence  to 
maintain  his  charge,  it  was  on  that  ground, 
considering  hint  as  an  innocent  man,  and  the 
victim  of  state  policy,  I  went  to  see  him  :  I 
would  have  done  the  same  thintlf  to  any  other 
man  in  the  settlement.  Mr.  Fowke  certainly 
did  acquaint  me,  that  he  was  to  appear  before 
yon  on  3I(iuday  ;  but  1  did  still  imagine  there 
was  no  crround  to  suppose  him  guilty.  I  con- 
ceived, that  if  you  judged  there  was  sufficient 
matter  for  a  prosecution,  you  woulil  have  taken 
hail,  without  tbo  consent  of  the  parties  ;  and  1 
conceiveil  an  idea  that  the  prosecution  was 
done  to  frustrate  the  enquiry  in  council.  Mr. 
Fowke  came  to  me  in  the  month  of  April,  and 
told  me  Comaul  O  Dceu [Stopped.] 

Cross-  Examinu  t  ion . 

Did  you  give  Mr.  Fouke  any  particular  in- 
structions ? — 1  gave  him  instructions  to  enquire 
into  the  grourids  of  Darnassy  Ghose*s  com- 
plaint, and  report  them  to  me. 

Do  you  remember  the  substance  of  Bamassy 


WKKS]         TiiaU  of  It.  Smith  and  T.  B.  Hollit,  esqrs 

Do  ynu  recollect  llie  snbject-maltFr  of  niiat 
]iii<i5«l  at  llie  ri«il  paiil  lo  Malia  Rajah  ?■•-!  itii 
not  Tpcollect  any  convercaiinn  but  such  u 
mhrht  pasK  in  s  Tisit  of  compliment. 

0  by  Mr.  Jujf .  Umaulre.  Where  ire  the 
four  wrlien  lliat  were  nt  Mr.  Pnwke's  dial 
murnlna  P  Where  ii  Acconr  Itlunnuh,  Mr. 
Fowke's  moooaby  t  Are  ihey  alive  ? 


[18SB 


a  llni  ProsecutioD  was  u  fiit* 

FawKG,  Guilli/. 
-1,  Guiltii. 

"  I  Cuitly. 


559.  The  Trials*  on  the  Informations  which  in  pursuance  of  an 
Order  of  the  House  of  Commons,  were  filed  by  his  Majesty's 
Attorney  General  t  against  Richard  Smith  and  Thomas 
Brand  Hollis,  esqrs.  for  having  been  Guilty  of  notorious 
Bribery,  and  thereby  procuring  themselves  to  be  elected  and 
returned  Burgesses  to  serve  in  Parliament  for  the  Borough  of 
Hindon.  Tried  by  a  Special  Jury  on  Tuesday  the  12th  of 
March,  at  the  Assize  holden  at  Salisbury  fur  the  County  of 
Wilts:  Before  the  Hon.  Sir  Beaumont  Hotham,  knt.  one  of 
the  Barons  of  his  Majesty's  Court  of  Exchequer;  16  George 
III.  A.D.   1776. 


On  JiTiiiary  31,  1775,  a  comraillee  of  the 
Houm  af  Cumrnons  was  appointed  oiideT  Mr. 
Grenrille's  Act  (we  sl»t.  10  Geo.  3,  c.  16,  11 
Cea.  3,  e.  13,  and  Pari.  Hisi.  toI.  16,  pp.  003, 
*(  ttg.  Tol.  17,  i>.  ]061.)  10  try  the  matter  of  a 
Petition  of  James  Calthorpe  and  Richard  Bech- 
ftnf,  complaining  of  tbe  retnrn  of  Kicharri 
Nniilti  anil  Thomai  Brand  Hollis,  as  bure^sses 
to«er*e  in  parliament  for  the  bnrnugh  nf  Hin- 
•(•wi.  On  February  li,  the  chairman  of  the 
Cammitiee  inlnrmed  the  Houae  that  neither  of 
Ihe  pen;>n«rrliirneil  or  of  the  peiUioners  was 
iliily  elected  to  serve  for  the  aaid  borough,  anil 
be  MJhe  same  lime  arqnainled  (he  House, 


■•  That 


1  the  ci 


ie  of  ihi 


:  iifibe  peiilinn  of  Jnmea  Calthorpe. 
*9q.  ami  Richard  Bcckford,  esq.  il  haTine  "p- 
jwsred  10  tbe  ommillei-,  thai  the  most  Haicrant 
and  notorious  acts  of  bribery  anil  CDrropiion 
had  been  pinictiieil;  and  thai  a  very  coiisiilera- 
liia  majority  of  the  electors  of  the  boroucrh  of 
Hindon  hail  been  bribed  and  corrupted,  in  a 
very  grogs  and  extraordinary  manner  i  bd>I 
ifial  several  others  of  the  said  electots  had  been 
concerneil  as  at^nta lor  that  purpose;  thecom- 
tnillee,  desirous  tbal  the  House  may  adnpi  stKb 
measnrea  as  may  disco iiraj^e,  and,  if  possible, 
put  au  end  lo  a  practice  so  snbreniive  of  llie 
freedom  ol'  eteclious,  had  directeil  liim  lo  lay 

■  Taken  in  Shori-hnnd  by  Joieph  Giirni'y. 
itfiife,  Into  this  Rrjiiirl  I  have  iiicorporatfil 
frvni  lh«  Election  Catea  of  Mr.  Di>n|;l«s  (lord 
Glenbertie)  such  parltculnrs  as  I  thought 
IKonU  render  it  latiifaclory. 

t  Mr.  Thurlow. 


befbre  the  Hoii«e,  the  nhole  uf  Ihe  evidenee 
^iven  before  the  said  commiltee.  with  ibeir  opl> 
uiniis  thereupon  ;  and  heread  the  report  in  bii 
place,  and  afientards  ilebiered  it  in  at  the  table, 
where  the  same  was  read  ;  and  Ihe  reaolutioBa 
of  ihe  Commiilee  are  as  rollowelh : 

"  ReMlTed,  Thai  it  appears  to  Ibis  commif- 
lee,  ihat  Richard  8milh,  esq.  by  his  agent*, 
has  been  guihy  of  nolorinua  bribery,  inendea- 
vnurinf  to  procure  bimselt'  to  be  elected  and 
returned  a  bur^eu  to  serve  in  this  preienl  par- 
liameot  for  Ihe  borough  of  Htndou,  in  (he 
county  of  Wills." 

Tbe  like  reEoluliOD  respecling  Mr.  Hollis. 

"  Resntved,  That  il  appears  to  thii  commit- 
tee, ihat  James  CaUhorjie,  esq.  by  his  agentt, 
has  been  cfdly  of  notorious  bribery,  in  endea- 
vouring to  procure  himself  to  he  elected  and 
relumed  a  bnrg««!i  to  aerve  In  this  present  |iar- 
liameni  for  Ihe  sRid  borough  of  Hindoo. 

"  Resolfed,  That  it  appear*  lo  this  cotnmil- 
tee,  thai  Richard  Beckliird,  esq,  ha*,  by  bis 
agent,  endeavoured  by  promise  of  money,  to 
procure  himwif  fi  elected,  and  returned  a 
burgess,  to  serve  in  (his  present  parliameot  for 
tbe  ssid  borough  of  Hindon. 

"  ResnWed,  That  it  appear*  to  this  cnra- 
initlee,  tbal  tbe  rev.  John  Nairn,  of  Hindoo, 
Kasham  Niirn,  enj.  lale  of  Bury-streel,  St. 
Jamei's,  Francis  Wanl.ofSherbiinc-lane,  Lon- 
don. ~—  .Slevens,  a  butcher,  at  Salisbury, 
cnmnmnly  enlled  Jobber  Sletens,  &c.  (in  all, 
iliiriren,  specIHed  by  name)  have  ai;ted  u 
agenis,  and  have  been  necessary  lo,  and  con- 
ceroed  in,  Uie  oQlOTtutu  uAs  «S\itfKx^  wd& 
'■'4.    • 


1£27]  1«  GEORGE  IIL    TriaU  nfR.  Smith  and  T.  B.  HcOih  Ofn*    [ISB 


corraptioD,  tbat  have  bora  praotisml  at  the  last 
election  for  the  said  boroujjh  of  Hindoo. 

**  Resolved,  that  it  is  the  opinion  of  this 
aommittee,  tbat  the  House  be  moved,  for  leave 
to  brings  in  a  Bill,  to  disfranchise  the  said 
borough  of  Hindoo,  in  the  county  of  Wilts." 

On  the  8th  of  May  ful lowing:,  the  House  or- 
dered that  the  Attorney  General  should  furtb- 
with  prosecute  the  said  Kichanl  Smith,  Thomas 
Brand  HoUis,  James  Calthorpe,  and  Richard 
Beck  ford,  for  their  said  offences. 

In  Trinity  term  15  Geor^re  3,  the  Attorney 
General  filed  the  following  Information  against 
general  Smith.* 
••  Wiltshire, 

"  Be  it  remembered,  That  Edwrard  Tharlow, 
esquire,  Attorney  General  of  our  present  sove- 
reign lord  the  king,  who  for  our  said  lord  the 
king  in  this  behalf  prosecuteth,  in  his  proper 
•  ptrsoD,  eometb  here  into  the  court  of  our  said 
lord  the  kinir«  before  the  king  himself,  at  West- 
luinsler,  on  Friday  next  after  the  morrow  of  the 
Holy  Trinity,  in  this  same  term,  and  for  our 
■aid  lord  the  king,  gives  the  court  here  to  un- 
derstand and  be  informed,  that  the  borough  of 
Hindou  in  the  county  of  Wills  is  an  ancient 
borough,  and  for  a  long  apace  of  time  tiro  bur- 
gesses of  the  said  borough  have  been  elected 
and  sent,  and  have  used  and  beeu  accustomed 
and  of  riffht  ought  to  be  elected  and  sent,  to 
•erva  as  burgesses  for  the  said  borough  in  the 
pariiament  ok'  this  kingdom  (to  wit)  at  the  bo* 
lough  of  Hindoo  aforenid,  in  the  said  county 
of  Wilts :  and  the  said  Attome^r  General  of  our 
aaid  lord  the  king,  for  our  said  kM-d  the  king, 

S'veth  the  court  here  to  understand  and  be  io- 
rmcd,  that  ob  the  first  day  of  October,  in  the 
14th  year  of  the  reign  of  our  present  sovereign 
lord  GeoTj^  the  3il,  by  the  grace  of  God,  of 
Great  Britain,  Frsnce,  and  Ireland,  king,  de- 
fender of  the  faith,  &c  a  certain  writ  of  our 
■aid  lord  the  king,  under  the  great  seal  of  Great 
Britain,  issued  out  of  his  majesty's  court  of 
Chancery  (the  said  court  then  and  still  being  at 
Westminster  in  the  county  of  Middlesex)  di- 
rected to  the  sheriff  of  the  county  of  Wills;  by 
which  said  writ,  our  said  lord  the  king,  recit- 
ing,  that  whereas  by  the  advice  and  assent  of 
bis  majest}  *s  council,  for  certain  arduous  and 
urgent  ntfairs  concerning  his  said  majesty,  the 
state  and  ilefence  of  his  kingdom  of  Great  Bri- 
tain and  the  church,  his  majesty  ordered  a  cer- 
tain parliament  to  lie  holdenat  the  city  of 
Westminster,  on  the  :29th  day  of  November 
then  next  ensuing,  and  there  to  treat  and  have 
conference  with  the  prelates,  ereat  men,  and 
peers  of  his  realm ;  his  majesty  by  his  said 
writ  did  command  and  strictly  enjoin  the  said 
sheriff,  that  proclamation  being  made  of  the 

*  He  WAS  a  li^eneral  ofiicer  in  the  £ast  In-  ! 
dies.  Durioflf  several  years  he  was  a  member  of  \ 
the  House  of  Commons  and  a  frequent  speaker  j 
there.  He  was  particularlv  acti«-e  upon  mat- 
ten  relating  to  ibe  East  'ludiea,  u  lo  wbicb, 
aaa  ibe  New  Pul  Uistary. 


day  and  plaea  aforeaaM  in  the  aakl  ■kcrif'^i 
then  next  conotv  eourt  to  be  holden  aftsr  tbe 
receipt  of  tbat  bis  aaid  ma^y'a  writ,  tvs 
knights  of  the  moat  fit  and  disGreet  «f  tbe  aii 
county,  girt  with  aworda,  aud  of  every  citj  sf 
bia  said  county  two  dtizeui,  and  ef  evtry  bo- 
rough in  the  same  county  two  boryreset,  aflha 
most  sufficient  and  diacreet,  ficvly  aod  miU^ 
fereiilly  by  those  who  at  such  prodaoutiai 
should  be  present,  aooordiog  to  tbe  fonaof  the 
statute  in  that  case  made  and  provided,  Ibe  «ii 
then  slieriff  should  cause  to  be  elected,  aad  Ibe 
names  of  those  kniufhts,  dlizeDs,  mod  borgcsM^ 
ao  to  be  elected,  whether  they  sIhhiM  be  p^ 
sent  or  absent,  tbe  aaid  then  aheriff  absaU 
cause  to  be  inserted  in  certain  iadentorcs  is  bt 
tberetipon  made,  between  the  aaid  thco  shadf 
and  those  who  should  be  preaent  Bt  ■neb  ehe- 
tioo,  and  them  at  the  day  and  plaee  ■fcifini 
the  said  then  sheriff  shooM  cause  to  es 
such  manner  that  the  said  knights  for 
selves  and  tbe  oomooonalty  of  the  aais 
and  the  said  cittzens  and  hirrgt  ■oos  fir 
selves  and  tbe  cemmonalty  S[  the  aaid  din 
and  boroughs  respectively,  mi^t  have  fisn 
them  full  and  sufficient  power  to  do  ^  en- 
sent  to  those  things  which  th«n  and  ihoe  ky 
the  oommoD  couiwil  of  his  aaid  moiesty's  kii|- 
dom,  by  the  blessing  of  God,  shonld  bapptaH 
be  ordained  upon  tbe  aforeaaid  aJEairs,  so  Ibn 
for  want  of  such  power,  or  through  an  iHp» 
vident  election  of  tbe  aaid  knights,  ciUMH^  • 
burgeases,  tbe  aforeaaid  affiurs  might  in  Dt  wm 
remain  unfinished;   willing  neverthdcai^  AM 
neither  the  said  then  aberiff,  nor  any 
sheriff  of  this  his  majesty's   snid   ki 
should  be  in  sny  wise  eicdeil ;  and  the 
in  the  said  then  aberiff 's  full  coanty  a. 
diistinclly  and  openly  under  the  aaid  thcsibi- 
riff 's  seal,  and  the  seals  of  those  who  abeay  W 
present  at  such  election,  the  aaid  then  sbnif 
should  certify  to  his  majesty  io  hia  Chiarnj. 
at  the  day  and  place  without  delay,  rcfluuisi 
to  his  majesty  one  part  of  the  aforesaid  iada- 
tures  annexed  to  the  said  writ,  together  wiib 
tbe  said  writ ;  and  the  said  Attorney  Genifal a' 
our  said  lord  the  king,  for  our  said  lord  tbekis|. 
gives  the  court  here  further  to  understaarf  9tk 
be  informed,  that  the  said  writ  alWwar^  wi 
before  the  return  thereof  (to  wit)  (w  the  sa' 
1st  day  of  October  in   the  14th  year  iiv» 
said,  was  delivered  to  Thomas  Ktftooart,  n^ 
then  and  continually  from  thenceforth  nad  Mf 
at  anil  after  the  return  of  tbe  said  writ 
sheriff  f»f  tbe  said  county  of  Wilis,  to  be 
cuted  in  due  form  of  law  (to  wit)  at  the 
of  ilindon  aforesaid :    and  the  said  Ausiwy 
General  of  our  said  lord  the  king,  for  our  mf 
lord  the  king,  ^ives  the  court  here  I'urtber  » 
undersund  and  be  informed,  that  by  virtat^ 
tbe  said  writ,   the  said  Thomas  Estoourti* 
being  slieriff  as  aforesaid.  aft«*rwarda,  aarfb** 
fore  the  return  of  tbe  said  writ,  (that  istsvf) 
on  the  said  1st  da\  of  October,  io  the  14ih  jr^f 
aforesaid,  and  io  the  year  of  our  Lord  1714' 
Ibe  boroutrh  of  Hmdoo  aforeaaid,  io  ihf  ■i' 
ONiaty  of  Wilts,  made  hb  pcooept  ia  viiMf' 


»] 


jfer  Brihtfif  at  ikt  tUrtdon  ElecHoK, 


A.  D.  1776. 


Cieso 


•hM  wilhthcvmlorhmDffieeorcbcnlfnrilie 
•mJ  wtmxy  »!'  Witu,  airecWd  to  (lie  than  hailiriT 
of  the  bomtnrli  ot'  Himlnn  in  th«  nid  cniiiuy  of 
Wilts,  «f  and  Tor  ihf  cirction  tvhhlo  the  laid 
bomuj;li,  of' two  bnrKPas**  of  ihi>  barfltii;li  al'ur*- 
Mid,  according  to  Ike  rurm  nnd  vKrfA  iif  the 
mM  writ ;  koil  (be  cud  Arinriie^  GvnerRl  of 
««ir  Mill  luTil  (lie  It'ncT.  At  our  hIiI  lord  the 
kiny,  ^ives  tire  owirt  here  fiirlber  to  itmler- 
■l«n<l  nod  he  informed,  th«l  li_v  lirtiie  ot  the 
uiid  |>rece{it  ■llerwani*.  and  befora  ilie  return 
rimvul'  (lu  »1|)  on  the  imli  day  of  ODIober,  in 
the  t4il)  y-mr  atbreuid,  at  'tbe  Imroueh  ol' 
Htndnn  otnreMi.l,  in  Hie  taiil  cniinry  of  Wilu, 
the  etrctioQ  of  Imi  biirj^nfOB  lo  serre  ni  bur- 
(««wt  fnr  Ihv  uM  borough,  in  the  tlien  next 
parli*me»I  to  b«  balden  ns  aforcMid,  »■■  bid 
wmA  ande;  which  nid  Hrctiun  wav  the  fini 
asdlimelealionnf  burgBBiea  toaerre  m  bor- 
fMM*  fbr  ttir  laid  borooi^,  m  Ibe  nartiaraenl 
«fMl  htncdMti,  alter  the  ootAmillinir  e(  (he 
M*«nl  ofl^nres  tRnbader  Itrally,  oecundly, 
Mrdly,  andfoarthlv  ineirtkinod :  atfllliBuid 
4llmev  Uenecat  oi'  our  mrI  lord  the  kkof,  for 
««r  mill  htrd  the  king.  ei>e(  the  Canrt  here  r<ir- 
Iber  U>  nndertl^ind  and  be  hifbrmed,  that  before 
Ike  inmng  i0t  the  »aid  wrii,  a  general  election 
^fWprewMUiirca  lo  •er»e  in  parliameHt  for  (lie 
•nvral  eotinties,  citiei,  and  Imroiiphit  In  Ihi* 
ki(t|rd«m,  heing  expected,  James  CBliliorpr, 
'■^uire,  KichnnI  Hethftird,  etqiiire,  Riulnrd 
'~'iii1b,nauire,  and  Tiiomad  Brand  HuHin.nq.' 
-  >  ~r  eaodidate*,  (ImI  of  them  (»o  ime^il  be 
ihfHeo  and  rMurned  to  teTTe  a«  burfesiics  tbr 
■fee  Mid  imrmig^h,  in  (be  then  nvxi  |uir1iBtnetH 
ftr  Ihi*  fcinploin  i  and  ilie  aniij  Jurats  CsU 
IfcWff.  Itichard  Beekfor'l,  Richard  Snriib,  and 
Tbonm  Brand  H*Hiii,  rcmnioeil  and  eantinned 
frfidati  >  Inr  the  pnr|iM«  ntvmuiid.  uniil  and 
■triHlime  »f  Ilie  tald  eleclion,  lo  ini,  at  liia 
knvoth  or  llindm  afcrcnid,  in  the  aaiii  cmmiy 
ffWills:  and  tbe  laid  Altomey  LieDerat  el'nur 
■Bid  InnI  the  king,  fur  snr  Mi<i  lunl  (he  king, 
Crrpi  the  ranrt  here  funher  to  «n<lerMRiid  and 
h«  mfbrmrd,  that  ibeaatd  Kichard  SniUi  late 
■f  the  luid  bonnigh  uT  Hiodofl,  in  Ibe  aaid 
euatily  of  fVilU,  e«<fuire,  wcU  kaotring  the 
(Remiaea,  but  beiita;  >  perann  of  n  ilepraved, 
VCTTupt,  ami  tricked  mind  and  diipotilion,  and 
nnlawtidly  and  wickedly  intending,  ns  mncb  as 
ia  btm  till-  KNid  Itiebard  Smith  Iny.to  interrupt 
and  prrtcnt  ibe  li'ee  »nA  IndiflW-enl  ekclion  oi' 
bnn^aei  to  wr*e  for  the  avnic  boroD|th  of 
Hindon,  in  Ibe  Ihen  next  parliMneni  of  this 
kingdom,  and  hy  'A\rgA\  and  mnrapt  meam  to 
Bmeiiro  hliniieli  in  he  elected  a  lniii;ew  lo  aerrc 
br  ifae  mid  ImroiiKli  <n  'be  iben  next  parliS' 
ncBlof  ihii  kini;rio(ti,  before  ihe  fmid  election, 
ID  wli.  on  (be  ISlb  day  of  February,' in  the 
ISlttynrof  the  reiL'n  of  «iir  aorereiirH  lord 
Gearf^  the  3il,  anv  kiii^  of  Great  Britain,  Ace. 
It  the  boraiiirb  of  Hindoo  nforeaaid,  m  the  aaid 
mttrty  of  Wilo.  unlatrfnlly,  wickedly,  nnd 
Mmp1)y  did  tulicil.  ur^e,  and  Mdratour  to 
•MTttrit  TliHmaa  Moore.  Cbarle*  Nmp«un, 
}«*m  B«1d»yB,  Jnwviah  tiieaa.  Hobert  Tyley, 
Tbown  Farrell,  Jn.  Nurloii,  Joa.  Ouff,  Jgho 


Bdwarda,  Wlllisin  Stepbeui,  Joba  UaisbiDml. 
John  l^rkbuin,  Reoabler  lluivleo,  Jim.  Cbolsey 
the  yaao)pr,  Jolm  Diria  (lie  eldar,  Itivbard 
F.ri»<>ad,  Wilhura  CbereiDJI,  ttanuiel  Uorr, 
TkoniBi  Ilardrii,  Jinica  Eilwardu,  Jua.  L'linl- 
]iey  lliealder,  'I'bomas Siirucer,  Jaiura  Smai't, 
John  lUndall,  Gdwan]  itaogar,  Jubii  Dewy, 
Luke  Benlwit,  Pbihi>  Beckeu,  "Umiy  Uukea, 
Edward  BeckatI,  Isaac  Moody,  tVilliaui  Hack- 
er, J  iihn  Biab»|),  t^lwinl  Hullowday,  G«ur^e 
Spenfler  the  younj{rr,  Juhn  CbrrerHli,  Juba 
Diikei  llw  eider,  Jubn  Dukei  llw  younger, 
Itolvrt  Wyer,  Moam  tVrtks,  George  Uiikea, 
(irorge  llaywanl,  Edwanl  Trewlocki  Unilbei* 
Uaria.  Pbilip  BeckrU  (he  youag er,  IJeiiry  iet- 
rei,  John  liaHa  the  you>i|;rr,  WiUiam  Day, 
SaiDoH  CotUer,  Waller  l>eri:y.  Bdwanl  Sb«i^ 
gold,  Ue^jatnin  BeekeU,  Edward  Wbil«,  Jaba 
Elanper  the  ebler,  Sauiiwl  Faribinif,  Jolia 
Bo<4>e*theyou«ger,WilIiBi)i  Newtonlic eldan-f 
William  Newton  tbe  ytun^at,  Jatnr*  Percy, 
\Tj    Uiille    (lia    elder,    H«ury    UulTe  Uia 


ihe  younger.  WiUiun  l^mbe,  Jua.  Lanibe, 
tilwanl  While,  Itolwrl  Wyer,  MatlbewWbita 
the  yuuuger,  Maitbew  Hieveiia,  Williani  tVbile, 
Richard  Incmrn,  Frnoria  tUi^er,  WUIiaoi 
PertV.  filiaa  PiMwn,  Willii.ni  Cuff  ibe  ekier. 
Mallifw  H  bite  the  (Uer,  WiHiain  Slevcu, 
Ueorije  Kleecus,  John  liirccni  Uie  elder,  Jamea 
Metcaa,  Jolm  Sleti'iii  lb«  yautttitl,  Jobn 
WyfT,  Ueajatniii  Cliolaey  tbe  vlder,  William 
Kuiger,  FfWULi*  Cbetcrall,  Cbarits  Wyer, 
Jaaiea  Wyer.  JoIhi  White,  William  Wyer, 
Jamflt  Aoderaon  the  elder,  John  UociMIl,  Tbn- 
iMU  Wyer,  Luke  HerJi.-u  (be  aiibr,  Kugec 
HipendpT,  Robert  Utiy,  William  CtilT  ibe  y«un«- 
rr,  J£liBa  Mteevena,  Jaaiea  timix'ai,  William 
Gdliun,  Henry  IJiTa^e.  Jartii  GiUtert,  Tlia> 
MM  IVi-oy,  John  Haager,  fiilaard  Peicy,  \\H- 
lism  Percy  Ihv  younger,  RuUn  Gilbcit.  H'ij. 
ham  Dukes,  Thoiaaa  Dukr«,  Aoxcr  NurKin, 
Jaarph  Moody,  Jamm  Gilbert,  John  Umoe, 
Lxikc  Usid,  Nathaniel  PbilifW,  Josefib  Nurlua, 
Haniuel  Nurloa,  Jiiba  Rituoiw,  TIioimm 
HroukH,  (ianiiiel  Philitia,  Jotcph  tioamell,  Wii' 
liam  iiaDdall  lb«  ddrr,  Lube  SLtubhTaeuI  llw 
vounKiT,  Luke  Msiabmnit  llic  elder,  Jubn 
Manbicirwl,  WilUim  Saudall  the  yuun^r, 
Jame*  Burleigh,  Williun  Harden,  Naniuel 
Field,  John  Uralta,  Robert  Hanger.  'I'buiuaa 
lAnhain,  John  Riebardna,  WilhamSiieiidi^r, 
Ueiiry  (Ibuumr,  John  Penuy,  Riob^ird  iWiMi, 
WillianiNiabetk,Jaine>>UavieK,Jcwr|d.tblb*rt, 
Jamea  Ooueii,  Jamei  Wicr,  John  GiUhti,  and 
Jubn  Siemens,  reJ^ieMprely,  each  and  enery  of 
ihem,  Iben  aiid  Ibere,  and  until  and  at  tlic  Uinu 
of  the  aaid  election,  haiinii  a  lijjbl  to  *ale  U 
and  in  the  clcclioo  of  burgwae),  U  lerTe  ai 
burgeHeit  for  tbe  aanie  bumuiih.in  Lbe  ftarii*- 
meni  uC  ihia  kniKdinK,  (in-  bin  lli«BaHl  Richard 
Niidlli,  and  (he  niure  diMliially  to  wuipl,  corr 
rapt,  M  il  iimcara  the  uid  aricral  ficniwii  who 
had  a  n)[ht  tn  rate  ■■  afueaakl,  la  give  their  ra> 
»l>rcli>e  iuta«  lor  bim  llw  aaid  RicbanI  Siaiib 
iu  (be  aaid  dcciiuo,  be  ilis  ctid  Uidtftrd  liaiilk 


1831] 


16  GEORGE  m.     Triali  ofjt.  Smith  and  T.  B.  HolIU,  «jm. 


[W«l 


Jill  Iheo  and  there,  to  wit,  on  the  aaid  151h 
jay  ot  February,  io  Ihu  13lh  je«r  aroresBid,  at 
llie  iNirougb  ol  llinilon  aruresaiil,  in  the  eui) 
cnunl^  ot'  Wilts,  unlawfully,  wickedly,  and 
coiTuptly  Kite,  and  cause  and  procurt:  to  be 
IfiTeo,  to  llie  aaid  seTenil  |iecsoos  reapeclifely, 
tvho.lMtl  auch  a  ri(;ht  to  file  as  aforesaid,  a 
certain  euid  of  money,  to  wit,  tlie  inni  uf  liTe 

Kiineu  of  lawful  muncy  of  Great  Brilaio,  ai  a 
ibe  and  reward,  tn  eiigSKe,  corrupt,  and  pro- 
cure tlie  mid  leferal  persons  respeciirely,  so 
having  such  right  to  vote  as  afort-iaid,  to  (rive 
iheir  respective  voleain  the  said  election  of  bur- 
gesses to  Mrve  as  biir|[eaipeii  fur  the  aaid  borou^li 
in  the  then  next  psrliameot  of  iliis  kiogilom, 
for  him  (be  said  llichard  8iDitb,  in  ordw  that 
be  Ibe  i>aid  Richard  Hniilli  might  be  elected 
and  relumed,  to  serve  as  a  burgess  for  the  laid 
borough,  in  the  then  aaid  next  parliament  of  this 
kloKdom,  to  the  great  obatruclJOD  and  hin- 
drance of  a  free,  indifferent,  and  nobissied 
election  of  burgessea  to  serve  to  parliaaieot  I'ttt 
(be  aame  borough,  in  inaoifest  tiiilatiun  and 
aabversion  of  the  constilulion  ot  iliis  kingdom, 
and  of  the  liberties  and  privileges  of  the  sub- 
jects thereof,  to  tlie  evil  and  pernicinus  example 
of  all  others  in  Ibe  like  case  offending,  and 
•gainst  the  peace  ut'our  said  lord  the  king,  his 
vrown  and  dignity:  and  the  said  Attorney-Gene- 
ral of  unrtaid  lord  the  king,  for  our  said  lord 
the  king,  giveth  the  court  liere  further  to  un- 
derstand and  be  informed,  that  the  said  Richard 
■Smith,  beinssuch  person  ai  aforesaid,  and  un- 
lawfully and  wickedly  int<;nding  (as  much  a*  in 
liim  the  said  Richard  Smith  lay)  to  interrupt 
and  [irevent  a  free  and  indifferent  election  of 
burgesses  to  serve  for  the  said  borough  of  Hin- 
doo tn  the  then  next  parliament  of  this  king- 
dom, and  by  illegal  and  corrupt  means  to  pro- 
cure himself  to  be  elected  to  serve  ss  burgesg 
tor  the  said  borough  in  the  then  next  parlia- 
ment of  this  kingdom,  before  Ibe  said  election, 
(to  wii)  on  the  third  day  of  Oetubcr,  in  the  lltb 
year  aforesaid,  at  the  borough  of  Hmdun  afore- 
said, in  the  said  county  of  Wilts,  unlavvfully, 
wickedly,  and  corruptly,  in  the  presence  and 
bearing  of  divers  persons,  who  bad  then  and 
there  a  right  to  vote  in  the  election  of  burgesses 
to  serve  for  the  said  bornngh  in  the  parlia- 
ment of  Ibis  kingdom,  did  declare,  and  with  a 
loud  voice  publish,  that  he  would  give  to  each 
and  every  person  who  bad  a  right  to  vole  in  the 
•aid  election  of  burgesses  tn  serve  for  the  said 
borough  of  Hindoi)  in  the  then  next  parliament 
of  this  kingdom,  bribes  and  rewards  to  vote  in 
that  electioD  for  him  the  said  Ricbaril  Smith, 
nitl)  intent  unlawfully  to  tempt,  corrupt,  and 
procure  the  persons  having  a  right  to  vote  in 
that  election,  to  give  their  votes  in  that  elec- 
tion, tor  him  the  said  Rivhard  Smith,  that 
he  the  said  Richard  Smith  might  be  elected 
and  returned  a  burgess  lu  aerve  for  the  «aid 
borough  in  the  said  thru  next  parliament  of  this 
kingdom;  to  the  great  obstruction  of  a  free, 
quiet,  and  indifferent  election  of  burgesses  tn 
nerve  io  parliament  as  burgeasea  lor  the  same 
iiontagh,  io  inuuiint  violtuiou  and  subversion  ol' 


the  constilulioD  of  this  kingdom,  and  of  tbe  li- 
berties and  privileges  nf  the  suUjt^ts  Uiereof,  W 
the  evil  anil  (leruicious  example  of  all  olhen 
in  ibe  like  iiasc  offending,  and  against  thep« 
of  our  said  lord  the  king,  his  crown  aaddlni 
and  lite  said  Attorney  Geoeral  ufour  lud  iL 
the  king,  tor  our  said  lord  the  kiofCi  8^"*j| 
court  here  further  to  understand  andbeiB'' 
ed.  that  the  said  Richard  Sniitli.  ba 
person  as  aforesaid,  and  aifain  unl 
wickeilly,  and  (wrru|>tly  inlenditin  (■■ 
in  bim  the  said  Richaril  Smith  lay)to  inU 
and  prerenl  the  Iree  and  indifferrnt  eteclN 
burgesses  to  serve  as  bnrgewe*  fur  the  si ' 
rough  in  the  parliament  of  this  kingdom,  J 
by  illegal  and  corruptmrass  to  procuic 
to  be  elected  a  burgess  to  serve  an  a  Inu^ 
the  said  boroiigb  in  tlie  parliament  of  IbM  kf 
dum,  he  (he  said  Iticliard  Smith  wHvr  ~ 
and  before  the  said  elecliun  so  hat)  kod  n 
albresaid,  to  wit.  oD  the^th  day  of  April,  ii 
14th  year  of  the  rngn  of  our  lord  the  Mf  j 
king,  at  the  borough  of  Hindoo  aforesaid,  la 
the  said  county  of*  WilU,  unlawfully,  wickadlf . 
and  <M)ii-uplly  did  give,  sod  cause  and  ptvcan 
to  be  given,  to  divers  other  persuns,  oanwlii, 
Thomas  Moore,  Charles  Simpsnu,  Jobu  B>M- 
vrin,  Jeremiah  Luea§,  Robert  Tyler,  TbMOU 
Farrell,  Joseph  Norloo,  Joseph  Culf.  John  Ed- 
wards, William  Stevens,  Jobu  MaishfiHBi, 
John  Lirkham,  Renalder  Bon  lea,  Jo>i|>ii 
Chulsey  the  younger,  Joijn  Davis  (hs  ehkr. 
Richard  Erwood,  William  Cliiverall,  SatniKl 
Daw,  Thomas  Harden,  James  Kdwanli,  J^ 
seph  Chatsey  the  younger,  Thomas  SpemO', 
James  Smart,  John  lUndle,  Kilward  KaBfftv, 
John  Dewey,  Luke  Deckel,  Philip  BecMt, 
Henry  Dukes,  Edward  lleckel,  Isooo  Moodjr, 
William  Hacker,  Jubn  Bishop,  Edward  U«l- 
lowday,  George  Spencer  the  younger,  Jahs 
Cheverall,  John  Dukes  ihe  elder,  JotiD  Ooko 
the  younger,  Robert  Wyer,  ftloan  Weeb. 
George  Dukes,  George  Hayward,  £d*ud 
TrewTock,  Matthew  Davis,  Philip  Becket  tlic 
younger,     Henry    Jerret,     John     Davia   the 

Jounger,  William  Dsy,  Samuel  Collirr. 
Valter  Percy,  Bdward  Sheisolil,  Itrojaisiu 
Beckett,  Eilward  >\hile,  Jubn  llouprr  itx 
elder,  Samuel  Farthing,  John  Hooper  ibi 
younger,  William  Hooper  the  elder,  U~il' 
liara  Newton  the  ynuoger,  James  Porti. 
Henry  Huff  the  elder,  Henry  lluff  Ibi 
younger,  lienjamio  ChoUey,  the  yatuf*'. 
Joliu  Bell,  George  Spender  the  elder.  Jana 
Anderson  Ibe  ynunger,  William  L*inbc,  Jaot 
Laml«,  £dwBrd  While,  Robert  Xtjet 
hew  White  the  younger,  Malhew  Si 
William  White.  Richard  Ingrain,  rnw 
Ranger,  William  Percy,  Elias  FitmaD,  W 
bam  Uuff  tlie  elder,  Matlietv  White  tbecldlti 
William  Steevens,  George  Steevcfis,  Jika 
Slceven<t  the  elder,  James  Steevens,  JotuiSM^ 
verns  Ihe  elder,  Jamea  Sleeveaa,  iofan  B 
veens  Ibe  younger,  John  Wyer,  B< 
Chulsey  Ihe  elder,  William  Ranger.  1 
Chiverall,  Charles  Wyer,  James  Wyer 
White,  William  Wyer,  Junes  /    * 


1853] 


fifr  Bribety  at  the  Hindon  EUctitm* 


A.  D.  1778. 


ri2S4 


elder,   John  Berkett,    Tbomis  Wyer,  Luke 
Beckett  the  elder,    Aoger  Speniler,    Robert 
Diy,  IVilliem  Cuff  the  yoonger,  Elias  Slee- 
veoM,  Janief  Steevens,  William  Gilham,  Henry 
Sava^pe,  Charles  Gilbert,  Tlioanaa  Percy,  Jolin 
lUoger,  Edirard  Percy,  William  Percy  the 
younfter,  Robert  Gilbert,  William  Dukes,  Tho- 
mas Dukes,  Roerr  Norton.  Jos.  Moody,  James 
Oilberi,  John  Oane,  Luke  Mead,  Nathhiiiel 
Philips,  Joseph  Norton,  Samuel  Norton,  John 
Aaadaome,  Thomas  Brookes,  Samuel  Philips, 
Joseph  Scamell,   William  Sandall   the  elder, 
Luke  Maishiiient  the  youui^er,  Luke  Maish- 
ment  the  elder,  John  Maishment,  William  Sen- 
die,  James  Biirleisrh,  William  Harden,  Samuel 
Field,  John  Bowles,   Roliert  Ran^fer,  Thomas 
Lanham,  John  Rirhardaon,  William  S|iemler, 
Henry  Obourne,  John  Penny,  Richard  Pitt- 
man,  William  Nisbenk,  James  D  ivis,  Joseph 
Gilbert,  James  Gou^h,  James  Wire,  John  Gil- 
bert, and  Jotio  Stevens,  respectively,  each  and 
erery  of  them    then    and    there,   and    uutil 
aod  at  the  time  of  the  said  election  havings  a 
riff ht  to  vote  at  and  in  the  election  of  burg^ses 
to  ^en^  aa  burgesses  fur  the  said  boniugb  of 
Hindon  in  the  parlinment  of  thiskintrdom,  ano- 
ther iari^  sum  of  money  (to  ivit)  the  sum  of 
five  guineas  of  like  lawful  money,  as  a  brilie 
•nd  reuani  to  each  of  them  fhe  aaid  several 
persons  last- mentioned  having  such  right  to 
vote  as  aforesaid,  to  engage,  corrupt,  and  pro- 
cure the  aaid  fiersons  res|ieclively  to  give  their 
reepective  votes  at  and  in  the  then  next  election 
#f  burgesses  to  serve  as  burgesses  for  the  same 
boronifh  in  the  said  then  next  parliament  of 
this  kingdom,  fur  him  the  said  Richard  Smith, 
in  order  that  he  the  said  Richard  Smith  mighi 
b«  elected  a  burgess  to  serve  fur  the  said  bo- 
rough in  the  said  then  next  parliament  of  this 
kingdom,  to   the  forest  obstruction  and  bin- 
drsnceof  a  free,  quiet,  indifferent,  and  unbiass- 
ed election  of  burgesses  to  serve  in  parliament 
••  burircMes  for  the  same  borough,  in  violation 
and  aubversiou  of  the  constitution  of  this  king- 
dom, and  of  the  liberties  and  privileges  of  the 
tubjei^  thereof,  to  the  evil  and  pernicious  ex- 
ami»le  of  all  others  in  the  like  case  offending, 
•lid  against  the  |)eace  of  our  said  lord  the  king, 
bis  crown  and  dignity  :  and  the  said  Attorney 
General  of  our  said  lord  the  king,  for  our  said 
lord  the  king,  gives  the  court  here  further  to 
uaderstand  and   be   informed,    that  the  ^aid 
Richard  Smith,  IkMng  such  person  as  aforesaid, 
•nd  again  unlawfully,  wicked lv«  and  corruptly 
mtcnding  (as  much  as  in  him  the  saifl  RichanJ 
fimith  lay)  to  interrupt  aud  prevent  the  free 
and  indifferent  election  of  burgesses  to  serve  as 
bvtfpessef  for  the  same  borough  in  the  parlia- 
■MBIof  Ibis  kingdom,  and  by  illegal  and  cor- 
nipt  means  to  procure  himself  to  be  elected  a 
toi^gett  to  serve  as  a  burgeiia  for  the  said  bo- 
longh   in  parliament ;   he  the  said  Richard 
8mih,  before  the  said  election,  (to  wit)  on  the 
Ml  day  of  October,  in  the  fourteenth  year 
■Ibftaoid,  at  the  borooffh  of  Hindoo  aforesaid, 
fa  iba  aaid  county  of  Wilts,  did  unlawfully, 
^iMaMjf  aad  aonaplly  gife.  aud  cause  and 
VOL.  XX 


procnre  to  be  given,  to  divers  other  personsi 
namely,  Josepli  Norton,  Jos.  Cuffe,  John  F.d- 
wards,  labourer,  William  Steven*,  John  Alariih- 
man,  John  Edwards,  glazier,  John  liarkham, 
Renalder  Bowles,  Joseph  Cholsev  the  yonnif er, 
John  Davia  the  elder,  Richard  ferwcHid,  Wil- 
liam Chiverall,  Samuel  Daw,  Thomas  Harden, 
James  Edwards,   Joseph  Cholsey  the  elder, 
Thomas  Spencer,  Henrv  Obourne,  John  Pen- 
ny, James  Smart,  John  bundle,  Edward  Ran- 
ger, Stephen  Harding,  John  Dewey «  William 
Snook,  Harry  Jukes,  Edward  Reukeit,  Richard 
Pitman,  Thdma«i  Wter,  Isaac  Moody,  Witliam 
Hacker,  John  Bishop,  Edward  Halliday,  Wal- 
ter Beckett,  George  S|>ender  the  younger  Jnhn 
Chiverall,  John  Dukes  the  elder,  John  Dukee 
the    younger,    Robert  Wier,    M(»ses  Weeks, 
George    Dukes,  Thomas  Steevens,    William 
Spender,  John  Hart,  George  Hay  ward,   Ed- 
ward Tulick.  Mathew  Davis,  John  Ingram  the 
younger,  Philip  Beckel  the  younger,  Andrew 
(''arrett,    Henry   Jerrard,    William    Brooke*, 
John  GiM>ert,  John  Steevens,  Elias  Steevens, 
John  Davis,  Thomas  Howell,  William  Day, 
Walter  Piercy,  John  Beckett,  Edward  Nher* 
gold,  Benjamin  Berkett,  Edward  White,  John 
Hooper  the  elder,  Samuel  Fnrthini;,  William 
Newton,  William  Neshick.  Joha  Hooper  the 
younger,  William  Lucas,  William  Newton  the 
younger,  Jamea  Piercy,    Wdliam    Abraham, 
Henry   Huffe    the  elder,    Henry   Huffe    the 
younger,  John  Moore,  Benjamin  (/holsey  the 
younger,  John  Bell,  George  Spender,  Jatiiet 
Anderson,  William  Lainbe,  Joseph  Lamlie,  Ed- 
ward White,  Robert  Wyer,  Mathew  White  the 
younger,    Mathew   Stevens,  William  White, 
Uichard  Ingrain,  Francis  Ranger,  Elia^  Pitt- 
man,  William  Cuffe,  Mathew   White,  William 
Steevens,  George  Steevens,  John  Steevens  the 
elder,    James  Sieevens,    John    Sieevfus    the 
younger,  John  Wyer,  Benjamin  ChoUey  the 
elder,    William    llanger,   Thomas   Steevens, 
Francis  Chiverell,  Charles  Wier,  John  White, 
William  Wyer,  James  Anderson.  John  Beckett, 
Thomas  \Vier,  Luke  Beckett,  Rf»ger  Spender, 
Robert  Day,  John  Nairn,  William  Cuff,  Elias 
Steevens,  .James  Steevens,  Isaac  Savage,  Wil- 
liam Gilham,  Archibald   Hunter,  Henry  Sa* 
vage,  James  Lambert,  John  Stee^'ens,  James 
Cuffe,  Jprvoise  Gilbert,  Thomas  Piercy,  John 
Ranger,  Edward  Piercy,  Roliert  Gilbert,  Tho- 
mas Lanham,  Jos.  Gilbert,  John  Richardson, 
William  D  ikes,  RichanI  Smith,  Henry  Lam- 
bert, James    Warne,   Thomas  Dukes,  Roger 
Norton,  Joseph  >loody,  James  Davis,  James 
Gilbert,  Thomas  Philips,    John  Gme,  Luke 
Mesd,  Nathaniel  Philips,  Joseph  Norton,  Sa- 
muel    Nui-ton,     John     Rdiidsome,     Thomas 
Brookes,  Thomas  Harden,  John  Harden,  Sa- 
muel Philips,  Jos.  Scaminell,  William  Sandle 
the  elder,  Luke  Marshman  the  younger,  J  imcs 
Goffe,  Luke  Marshman  the  elder,  Joim  Marsh- 
man,   Richard    Harden,    William   SnoHle  the 
younger,  James  Burleigh,    William   IlHrden, 
Thomas  Field,  S:iinuel  Field,  Richard  Bivki  tt. 
and    Robert  Ranger,  respectively,  each  amt 
every  of  tham  then  and  there  respectively  bar* 


1SS5]  16  GEORGE  IIL    TriaU  ofR.  Smith  and  T.B.  Hottis,  esqrs.    [I8W 

Weeks,  Georife  Dukei,  George  HaTward,  E4- 
iranl  Treirlock,  Mattheir  Davis,  Pbilip  Beckett 
Ibe  yooDfrer,  Henry  Jerreti,  Joho  Davit  Ike 
jouDji^,  William  Day,  Samuel  Collier,  Wal- 
ler    Pierc^,     Edwaril    Sbergold«    Bci^ain 
Beckett,   Edward   White,   John    Hooper  iIk 
eliler,   Samuel    Farlbing,   J  oho    Hooper  the 
yoou^r,  William  Newtoo  the  eklcr,  WiHiaa 
Newton  the  younirer,  James  Piercy,  lieary 
Huffe  the  elder,  Henry  Huffe  tke  yooogcri 
Benjamin  Cholsey  the  yoiioger,    John  Bdl, 
George  Spender  the  elder,  James  AnderMe  the 
yonnger,  William  Larobe,  Jos.    Larobe,  E^ 
ward  White,  Robert  Wyer,  Matthew  Whytt 
the   yeunp^,    Mattliew    Steevens,     Willjui 
White,  Richard  Io(rram,  Francis  Raoeer,  If i^ 
liam  Percy,  Elins  Pitman,  William  Cuff  tW 
elder,    Matthew  Whyte    the    elder,    WilliMi 
Steevens,  Geonfe  Steevens,  John  Steevens  Ihi 
elder,   James   Steevens,    John    Steevens  Ihi 
younger,  Ji>hn  Wver,  Benjamin  Cholsey  the 
elder,    VVilliam    Ranger,    Francis    ChiferaH, 
Charles  Wver,    James  Wyer,    John  Whiles 
William   Wyer,    James   Anderson  the  cMiri 
John  Beckett,  Thomas  Wyer,  Lake  Berkett 
the  elder,  Roger  Spender,.'  Robert  Dsy,  Wil- 
liam CufT  the  younger,  Elias  Stevens,  JsMf 
Steevens,   William    Gilham,    Henry  Savafi^ 
Jarvis  Gilbert,  Thomas  Percy,  John  Raiigtr, 
Edward  Percy,  William  Percy  the  youager, 
Robert    Gilbert,     William    Dukes,    Tbom 
Dukes,  Roffer  Norton,  Josefdi  Moody,  Jaaci 
Gilbert,  John  Gane,  Luke   Mead,  Slatbaaid 
Philiua,  Joseph  Norton,  Samuel  Norton,  Jsha 
Randsome,  Thomas  Brookes,  Saomel  FhiXif^ 
Joseph    Scamel,    William  Sandall  the  eMv, 
Luke  Maishment  the  younger,  Luke  Blaiib> 
ment  the  elder,    John    Maishmettt,    WilliM 
Sendle,  James  Burlei(rh,  William  Harden,  Si- 
muel    Field,    John  Bowles,    Robert   Raocvff 
Thomas  Laiiham,  John  Richardson,  W  iiiiaia 
S|jen«ler,  Henry  Obourne,  John   Penny,  Ri- 
chard Pitlman,   William  Nisbeck,  James  Da- 
vis,   JoHeph  Gilbert,    James    Gough,   Jaoci 
Wire,  John  Gilbert,  and  John   Steevens,  rr- 
8|)ectively,  each  and  every  uf  lliem,  iheoaiKl 
there,  and  until  and  at  the  time  of  tbenhl 
election  so  had  and  made  as  aforesaid,  cUimiog 
a  ri^ht  to  vote  in  the  election  of  burges»esio 
serve  for  the  said  borough  in  the  parliaroebt  of 
this  kingdom,  a  large  8um  of  money,  to  sit, 
the  sum  of  five  gfuineas,  of  like  lawful  monrfi 
as  a  bribe  and  reward  to  engage,  corrupt,  iu 
procure  the  said  several  persons  so  clainiia|r  * 
right  to  vote  as  aforesaid  respectively,  to  gir* 
their  re8i>ective  votes  ai  the  said  election  of  biv^ 
gesses  to  serve  in  parliament  for  the  same  b»* 
ningh,  for  him  the  said  Richard  Smith,  ia  M** 
der  that  he  the  said  Richard  Smith  miicht  ^ 
elected  and  returned  a  burgess  to  serve  for  ikt 
said  borough  in  the  said  then  next  parliaaKit 
of  this  kingdom,  to  the  great  olwtructioQ  atJ 
hindrance  of  a  free,  quiet,  and  indifferent  rkc- 
tion  of  burgesses  to  serve  in  parliament  lor  tke 
same'  borough,  in  violation  and  subversioo  ^ 
the  constitution  of  this  kingdom,  and  oftbtk* 
bertiei  aod  privileges  of  the  lubjectt  thtnfd»  ^ 


log  a  right  to  vote  in  the  election  of  borgi 
to  serve  for  the  same  borough  in  the  parliament 
of  this  kingdom,  a  large  sum  of  money,  to  wit, 
the  sum  ot  five  guineas  of  like  lawful  money, 
as  a  bribe  and  reward  to  engage,  corrupt,  and 
procure  the  said  several  last- mem  ioned  per- 
aons  respectively  to  give  their  respective  votes 
ID  the  election  of  burgesses,  to  serve  as  bur- 
gesses for  the  same  borough  in  the  said  then 
next  parliament  of  this  kingdom,  for  him  the 
said  Richard  Smith,  in  order  that  be  the  said 
Richard  Smith  might  be  elected  aod  returned 
a  burgess  to  serve  for  the  said  borough  in  the 
said  then  next  |>ar]iament  of  this  kingdom ;  by 
means  whereof  the  said  several  persons  last 
above-named,  who  had  such  right  to  vote  as 
aforesaid,  were  respectively  tempted,  corrupt- 
ed, and  procured  to  give,  and  did  give  their 
totes  at  and  in  the  said  election  so  had  and 
made  as  aforesaid,  for  the  said  Richard  Smith, 
for  the  purpose  sforesaid  ;  that  is  tossy,  at  the 
borough  of  Hindoo  aforesaid,  in  the  said  county 
of  Wilts,  to  the  grest  obstruction  and  hindrance 
of  a  free,  quiet,  indifferent,  and  unbiassed  elec- 
tion of  burgesses  to  serve  in  parliament  for  the 
same  borough,  in  violation  and  subversion  of 
the  constitution  of  this  kingdom,  and  of  the  li- 
berties and  privileges  of  the  subjects  thereof,  to 
the  evil  and  pernicious  exsmple  of  all  others  in 
the  like  case  offending,  and  against  the  peace 
of  our  said  lord  the  king,  his  crown  and  dig- 
Di;y :  and  the  said  Attorney  General  of  our 
said  lord  the  king,  for  our  said  lord  the  king, 
ffives  the  court  here  further  to  understand  and 
be  informed,  that  the  said  Richard  Smith,  well 
knowing  the  premises,  but  being  such  person 
as  aforesaid,  and  again  unlaw! ully,  wickedly, 
and  corruptly  intending,  as  much  as  in  him  the 
said  Richard  Smith  lay,  to  interrupt  and  pre- 
vent the  free  and  indifferent  election  of  bur- 
gesses to  serve  as  burgesses  fur  the  same  bo- 
rough in  the  parliament  of  this  kingdom,  and 
by  illegal  and  corrupt  means  to  procure  him- 
self to  \ie  elected  lo  serve  as  a  burgess  for  the 
^id  borough  in  the  parliament  of  this  kingdom, 
the  said  Richard  Smith,  before  the  said  elec- 
tion, (to  wit)  on  the  said  8th  day  of  Ociober, 
in  the  14th  year  aforesaid,  at  Ilindon  aforesaid, 
in  the  said  county  of  WiltSf  unlawfully,  wicke<l- 
ly,  aod  corruptly  did  give,  and  cause  and  pro- 
cure to  be  given,  to  divers  other  persons, 
namely,  Thomas  Moore,  Charles  Simpson, 
John  Baldwin,  Jeremiah  Lucas,  Robert  Tv- 
Jey,  Thomas  Farrell,  Joseph  Norton,  Joseph 
Kirk,  John  Edwards,  William  Stephens,  John 
Maishment,  John  Larkham,  Renalder  Bowles, 
Joseph  Cholsey  the  younger,  John  Davis  the 
elder,.  Richard  Erv^ood,  William  Cheverall, 
Samuel  Daw,  Thomas  Harden,  James  Ed- 
wards, Joseph  Cholsey  the  elder,  Thomas 
Speucer,  James  Smart,  John  Randall,  Edward 
Ranger,  John  Deuey,  Luke  Beckett,  Philip 
Beckett,  Henry  Dukes,  Edward  Beckett,  Isaac 
Moody,  William  Hacker,  John  Bishop,  Ed- 
ward Hollowday,  George  Spender  the  younger, 
John  Chiverall,  John  Dukes  the  elder,  John 
Dukes  the  youogeff    Robert  Wyer,   Moses 


1937] 


Jhr  SrHery  at  the  Hitidm  BUttion. 


A.  D.  1776. 


.[1S98 


the  e? il  and  pernicioiis  example  of  all  otbera  in 
the  like  case  offendiogf,  and  against  th^  peace 
t>foar  said  lord  the  king,  his  crown  and  dignity: 
and  the  said  Attorney  General  of  onr  said  lord 
the  king,  for  our  said  lord  the  king,  gives  the 
court  here  further  to  understand  and  be  infortn- 
«d,  that  the  said  borough  of  Hindoo,  in  the 
•aid  coanty  of  Wills,  is  an  ancient  borough, 
and  for  a  long  space  of  lime  two  burgesses 
liaTe  been  elected  and  sent,  and  of  right  ought 
to  be  elected  and  sent,  to  serve  for  the  said 
borough  in  the  parliament  of  this  kingdom,  to 
wit,  at  the  borough  of  Hindoo  aforesaid,  in  the 
said  county  of  Wills:    and  the  said  Attorney 
deneral  of  our  said  lord  the  king,  for  our  said 
lord  the  king,  gives  the  court  here  further  to 
noderstand  and  be  informed,  that  the  said  Ri- 
chard Smith,  being  a  person  of  a  depraved,  cor- 
'Topt,  and  wicker!  mind  and  disposition,  and  un- 
lawfully and  wickedly  intending,  as  miich  as  in 
him  the  said  Richard  Smith  lav,  to  prevent 
mad  interrupt  the  free  and  indifferent  election 
<if  bnrgesses  to  serve  for  the  same  borough  in 
the  parliament  of  this  kingdom,  and  by  illegal 
mod  corrupt  means-  to  procure  himself  to  be 
elected  to  serve  as  a  burgess  for  the  said  bo- 
rough in  the  parliament  of  this  kingdom,  on 
the  8lh  day  of  October,  in  the  14ih  year  afore- 
said, at  the  borough  of  Hiodon  aforesaid,  in 
4be  said  county  of  VVilts,  unlawfully,  wickedly, 
ftod  corruptly  did  give,  and  cause  and  procure 
to  be  ffivea,  to  divers  persons,  namely,  Jere- 
nuiab  iiocas,  Thomas  Moore,  Charles  Simp- 
son, John  Baldwin,  Jeremiah  Lucas,  R(»bert 
Tyley,  Thomas  Farrell,  Jos.  Norton,  Jos.  Cuff, 
John  &lward)i,  William  Steevens,  John  Maish- 
jneot,  John  Larkham,  Renalder  Bowles,  Jo- 
seph Cholsey  the  younger,   John  Davis  the 
cider,   Richard  Erwood,    William  Chiverall, 
Samuel  Daw,   Thomas  Harden,    James  £d- 
srards,  Jos.  Cholsey  the  elder,  Thomas  Spencer, 
James  Smart,  John  Randle,  Edward  Ranger, 
John  Dewey,  Luke  Beckett,  Philip  Beckett, 
Henry  Dukes,  Edward  Beckett,  Inaac  Momly, 
IVilliam  Hacker,  John  Bishop,  Edward  Hoi- 
Jowday,  George  Spender  the  younger,  John 
Chiverall,  John  Dukes  the  elder,  John  Dukes 
the    younger,  Robert  Wyer,    MoMes  Weeks, 
George  Dukes,   George    Hayward,  Edward 
•IVf wk>ck,  Matthew  Davis,  Philip  Beckeu  the 
younger,    Henry   Jerrett,   John    Davies  the 
jouDtfer,  William  Day,  Samuel  Collier,  Wal- 
ter    Percy,     Edward     Shergold,    Benjamin 
Beckett,  Edward   White,    John   Hooper    the 
dder,    Samuel    Farthing,    John   Hooper  the 
Tounger,  William  Newton  the  elder,  William 
Kewton  junior,  James  Percy,  Henry  Huffe 
the  elder,  Henry  Huffe  the  younger,  Benja- 
■ain  Cholsey  the  jfounger,  John  Bell,  George 
Spender    the     elder,    James    Anderson    the 
jounger,  William  Lambe,  Joseph  Lambe,  Ed- 
ward White,  Robert  Wyer,  Matthew  White 
the    younger,     Matthew    Steevens,    William 
'White,  Richard  Ingram,  Francis  Rapger,  Wil- 
liam Percy,  Elias  Piltman,  William  Cuff  the 
dder,  Matthew  White  the  elder,  William  Stee- 
Pi   Osofgs  SMfenii  Jobs  Stser est  the 


ekier,   James  Steevens,   John   Steevens  th< 
younger,  John  Wyer,  Benjamin  Cholsey  Ih^ 
elder,   William    Ranger,    Francis   Cheveralli 
Charles  Wyer,    James  Wyer,   John  Whitep 
William  Wyer,  James  Anderson  the  elder,  Joha 
Beckett,  Thomas  Wyer,  Luke    Beckett  the 
elder,  Roger  S|>ender,  Robert  Day,  William 
Cuff  the  younger,  Elias  Steevens,  James  Stee- 
vens, William  Gilham,  Henry  Savage,  J arvis 
Gilbert,  Thomas  Percy,  John  Ranker,  Edward 
Penny,  William  Percy  the  younger,  Robert 
Gilbert,  William  Dukes,  Thomas  Dukes,  Ro- 
jBFer    Norton,    Jos.    Moody,   James    Gilbert, 
John  Gane,  Lnke  Mead,  Nathaniel  Pliilipa, 
Jos.    Norton,    Samuel    Norton,    John    Ran- 
some,  Thomas  Brookes,  Samuel  Phillips,  Jos. 
Scainell,  Wm.  Sandall  tl^e  elder,  John  Maisfa- 
ment  the  younger,  Luke  Maishmeot  the  eld^^ 
John  Maishment,  W.Sendell,  James  Burleigh, 
William  Harden,  Samuel  Field,  John  Bowles, 
Robert  Ranger,  Thomas  Lanham,  John  Ri* 
chardson,  William  Spender,  Heor^  Obourne, 
John  Peony,  Richard  Pitman,  William  Nis- 
beck,  James  Davis,  Jos.  Gilbert,  James  Godgb, 
Jaaies  Wire,  John  Gilbert,  John  Steevens,  re- 
sneotiveljr,  each  and  every  of  them  then  and 
tnere  having  a  right  to  vote  at  and  in  the  elec- 
tion of  burgesses  to  serve  for  the  same  borough 
in  the  parliament  of  this   kingdom,  another 
large  sum  of  money  ^to  wit,)  the  sum  of  five 
guineas  of  like  lawful  money,  as  a  bribe  and 
reward  to  engage,  corrupt,  and    procure  the 
said  several  last-mentioned  persons  respectively 
to  give  their  respective  votes  at  and  in  the  thea 
next  election  of  burgesses  to  serve  in  parliament 
for  the  same  borough,  for  him  the  said  Richard 
Smith,  in  order  that  he  the  said  Richard  Smith 
might  be  elected    and  returned  a  burgess  to 
serve  for  the  said  borough,  at  the  then  next 
election  of  burgesses  to  serve  in  the  parliament 
of  this  kingdom,  to  the  great  obstruction  of  a 
free,  indifferent,  and  unbiassed  election  of  bur- 
gesses to  serve  in  parliament  for  the  same  bo- 
rough, in  violation  and  subversion  of  the  con- 
stitution of  this  kingdom,  and  of  the  liberties 
and  privileges  of  the  sul>jects  thereof,  to  the 
evil  and  pernicious  example  of  all  others  iothe 
like  case  offending,  and  against  the  peace  of 
our  said  lord  the  king,  his  crown  and  dignity : 
and  the  said  Attorney  General  of  our  said  lord 
the  king,  for  our  said  lord  the  kinir,  giveth  the 
court   here  further  to  understand  and  be  in- 
formed, that  the  said  Richard  Smith,  being 
such  person  as  aforesaid,  and  again  unlawfully 
and  wickedly  intending,  as  far  as  in  him  lay, 
to  interrupt  and  prevent  the  free  and  indifferent 
election  of  burgesses  to  serve  for  the  said  ho- 
roogh  of   Hindon  in  the   parliament  of  tliia 
kingdom,  and  by  illegal  and  corrupt  means  to 
procure  himself  to  be  elected  and  returned  to 
serve  aa  a  burgess  for  the  said  boroui^h  in  the 
parliament  of  this  kingdom,  he  the  bai<i  llichard 
Smith,  on  the  10th  day  of  October,  in  die  14tli 
year  aforeaaid,  at  the  boroiiieh  of  Hindon  afore- 
aaid,  in  the  said  county  of  Wills,  uiilav^ fully, 
wickedly,  and  corruptly  did  lend,  ami  cauis 
•od  procort  to  be  ieoiy  to  dif  en  other  pcnoMp 


SiMwlb,, 


M^iM-  Bowleg  J«f.CholMr 
B  J>«riMtfaiMtr,.Highu4 
;Sr«obd.    WIImm  CbtfMaU,  SumhI  Daw, 

~  M«Bai«li^JanME4lrMB,J«.aMlMJ 

M«n  Th«a«w8«eiMrr,  JiHM*  Snart^Jahi 
_  iMI.  UwM  Kranr,  Jsha  Dmr,  Loka 
ANktti,  Philb  BMkwd,  Mmn  IMin.  Si- 
mrd  BMfcMI,  bue  t^Mtt,  wiOiam  Bvfcw. 
'.folM  Biilwp,  EdMrd  BMk«4aj,  Gni» 
AModtr  Um  TonivM-,  Jobs  ClMfmll,  JoKd 
BaiM  Um  aUcr,  Johk  Duhet  tha  jounnr, 
JWwrt  Wftt,  li«MB  Waika,  Gaam  iMaa, 
Cibift  lA^tranl,  fiilMiri  Tivwiach,  Malhaw 
Jka*M,  Pbilia  Ba^eU  iba  ^ongar.  Heary  Jcrr 
^■U,  Jolin  D»b  iba  jananr,  WUImb  Da;, 
Minnri  GnlUv,  Waltar  Pmj,  E4*«ri  Hwr- 
«ldd.  BaajaMB  Ucckait,  Alward  WMia,  Jalia 
Soapar  tha  aMcr,  BaiBual  Fartbiav,  Jaba 
Saapar  iha  jaangcr,  WiUinn  Hawtaa  Iba 
tUtr.  WiHiaM  Mcwtan  ib«  joaafcr,  JMMa 
Vinj,  Han/  Buff  tba  Mar.  Hnrj  Haff  Iba 

eiant',  BtMmin  Chalatj  Um  Mopgar,  Jaha 
*,  Gtwg*  Hfmin  Um  aldar,  Java  Aaiv- 
«mUi>- yanafar,  ff  ilia*  UiBba^  Jaa.  UnK 
Cd<nwrWbiia,Bob(itW«v.  Matbaw  Wliiia 
Ibaymianr.llubairSiaafaM,  WiUiav  fVhila, 
•ItiabanllBcraini  Fnoda  Ba^tar,  Williaa 
Vbrev,  Bliaa  PhUBU,  WilUam  CaAi  Uia  ddtr, 
MaiSaw  Wbytt  tta  aldar,  WHItaB  Saaf  aoa, 


I,  Joba  BitBWiM  tba  vanoRar, 
ioba  Wyer,  Ba^famlB  Cbalaav  tbariacr,  Wik 
lianilfaiig«-,FnnEiaCha*ctal,€har)«W«af. 
JaaM  W*«r,  Jaba  Wbyle,  WiHiaa  Wvcr. 
iaara  Andnwu  tba  •Mtn',  Joh«  BackM.  "Hia- 
■M*  Wnr,  Luke  B««keli  the  riiler,  Bo|[«r 
Bpauilcr,    RiAten    Dty,   William    Caffe   Ihe 


If  Percj,  JubD  Rangrr,  Edward  Percy, 
William  Percjr  Ihe  ynaagvt,  Ruberl  tiilbert, 
William  Duke*,  Thnitiaa  Uukca,  Roger  Nur^ 
(DO,  Joaffib  Hocriy,  JameaOiUwTtiJalin  Qaoe, 
liuke  Head,  Nathaniel  Pbllipa,  Joaeph  NartOD, 
Sara  eel  Nurum,  Jnbo  Raawime,  Thomaa 
Brookei,  Hainuel  Pbi1i|M,  J(iu)ih  Scai»ell,tVil> 
Haul  Saudall  ib«  elder,  Luke  HaiihYnein  ilie 


WilliaiD  Harden,  HamDcl  Field,  Jgba  Buwria, 
Robert  Ranm,  Thumat  Lanbam,  John  Ri- 
•banhon,  William  8|j*)HleT,  Hnry  Obonroe, 
Jofau  Penny,  Richard  PinmtD,  William  Nea- 
biek,  Jaiwa  D»i(,  Joaeph  Gilbert,  Jirata 
fiough,  Jamea  Wire,  Jubo  Oilbert,  aad  John 
Bleerena,  rtwpectifely,  each  and  efery  of  tbem 
then  and  Ibere  haTiny  a  right  to  *iilr  at  and  in 
iba  elpclion  dI  bargeaMa  to  aerte  in  psrhameal 
ftr  the  Mine  buniugh,  a  large  lum  of  inonry 
'     Mofhwfnli 

■lid  reward  la  engage, 
praoim  Ibe  mjd  •pteial  peraoM  ■■ 
w^kMiia§  «  pght  la  TClaw  akn- 


kingilem.  fortfcaartd  BiihiiBwIlli.  is  ai5 
tliai  be  the  mU  Biilartt^lb  n«kl  tealacHi 
■od  returned  a  bwgaM  li  aHM  te  tba  aUba^ 
fougb  in  tha  ibaa  mm  pMtiafM  af  iMi  k^  - 
doiDr  M  thepeatabtfraMf 
a  fiee,  indiPirwM,— d  a 

burgesaei  MaNva  il  pad _ .   — 

boroutrb,  iu  Tiafaitiaa  ami  tm%iwnmm  *f  At 
cofMiiiutianartbiabiag4MBi,aMdaClhaH 
and  pririlegaa  af  iba  a"^' "- ' 


«  tk*  pMaerf 
.a^jg^- 


our  uid  lord  iba  Uag*  kta 

At  the  *8Bji  tisic,  faa  filed  •  Nkalnlta 
mnlatit  niul«a#^  ■!■■■»  eaek  af  Um 
whum  the  Bou^frCAuMaa  ~ 
to  jirose^ute- 

Id   Hilary  Mm,  14  Oaa.S,  Iba  DaftidMB 
pleaded  Not  0«il|y,  aad  MHnayw  mmm  •■ 

PitOCEESIlfOS  OS  THE  TpiAI,  Ot  1^1 
iKFttSMATIOV  AOAUUII   B.lCMHi 

SmJIB,  MO'  .  ..  • 

Countcljbr  Of  Crem.-'llr.  BhL  Omf 
Mr.  ^.  BaBUi,t  Mr.  Fbpban,  Mr.  tkm 

Mr.  M»j«ey,»r,  BilBcr.{ 

Cou»,eljorti*  Dtft»dnt.r~Mt.aAaiim 
Ur.  Mao>BcbI.|Mr.BalL 

Mr.    Duller   apflnad  Iha  Iwfti wlla^i ■! 


«lh»   lliiiii^ 
mM  t»«MUDai» 


Hr.  IFUte  Bworn. 


ounstt/or  iht  Dt/endmul.    WaadMtJIli 
.u  aocieut  borough. 

Ur.  Salmm  aMont. 


Ur.  TikMM  KyMBwon. 

Thit  precept  waa  delirareil  Iohm;    Idd* 

verail  ii  U)  Mr.  Still,  Iba  bailiff  of  UindBa^ 

Hr.  Jama  Sliti  iwora. 

EiamiDrd  by  Hr,  Morris 

I  was  retaraiiig  officer  for  ibe  bataofh ' 

Hinilou. 


wanbaJudgaofB-B. 

iaiiiM  (Jan.  181^  onaiff  AaiirfM 


*  Al'ierwardia 

t  Altbiaiii 
ofC.B. 

t  Alierwai^ajiidg»ffM«r&ft.arf*M 
ol  C.  B. 

§  AtUuitiSM(UU)O.J.«C43.» 


mi] 


Jot  Bribenf  ai  the  Hindon  Eleeikn* 


A.  D*  177& 


Do  you  remember  wbo  were  cendidatee  at 
tliat  election  ? — James  Callborpe,  esq  was  do* 
minaied  by  four  of  tbe  electura ;   lie  was  oot 

Sreseot ;  Uichanl  JHecktiord,  esq.  waa  preaent ; 
tichani  Smith,  eiq.  and  Tbuuiaa  Brand  Uol- 
Ua,  esq.  were  tbe  candidaii^ ;  this  ia  the  original 
|»oll  taiken  under  my  iotpection,  and  aignal  bj 
me.    (It  is  put  into  court.) 

Francii  Meade  aworo. 
Examiued  by  Mr.  Popkam, 

Where  do  you  life  f — At  Hindoo. 

Are  yuua  voter  for  Hindon?— Yea,  efer  •inot 
I  have  beeu  of  age. 

Do  you  know  capt.  Nairn  and  parson  Nairn  ? 
r-ldo. 

Do  you  remember  their  coming  to  you  at 
imy  time? — Yes,  in    January,  1773,  at  Mr 
Liicaa's,  who  keeps  the  George,  a  public  house. 

What  did  thev  say  to  you? — Capt.  Nttirn 
•ent  for  me  and  hve  or  six  more,  and  told  ua  be 
IumI  a  gentleman  to  recommend  to  us. 

For  what  ?-  -To  be  a  member  for  tbe  town  ; 
Ihat  was  what  we  took  it  to  be. 

Mr.  Serj.  Davjf.  Don't  say  what  you  took 
h  to  be ;  tell  the  Cuurt  what  he  said. — A,  He 
aaid  he  had  a  gentleman  to  recommend  to  us  of 
n  large  extent  of  fortune;  that  he  would  not 
ba?e  him  fl.ing  for  Io,000/.  he  would  not  ha? e 
hiui  flung  lor  the  Indies. 

Who  were  iu  the  room? — William  Lucaa, 
John  Beckett,  Thomas  Howell,  myself,  and 
John  Hart ;  W iliism  Fenny  cauie  in  afierwarda. 

Mr.  ISerj.  Davy.    Was  capt.  Nairn  there?— 
JU  Ye»,  and  parsun  Nairn. 
]  Mr.  i^ophutn.   Then  it  waa  that  capt.  Nairn 
■aid  he  haU  ageutlemau  to  recommend  to  you  ? 
^A.  Yes. 

Did  be  say  f4ir  what  ?— He  said.  To  be  a 
Member  tor  the  borough. 

What  did  he  Kay  uf  this  gentleman  that  he 
Bieaut  to  recowuieud  to  you?— He  said  he 
would  lay  dowu  :i,OUO/.  one  tliouMiiid  iu  a  small 
trifle  ol  time,  one  thuuMad  at  the  next  fall  of 
tbe  year,  aud  one  thousand  just  before  tlieelec- 
tMo,  aud  he  would  not  stand  for  3,  4,  or  500, 
Of er  aud  abore  the  3,000. 

Waa  tbe  proposal  agreeable  to  tbe  people 
tbat  were  present? — Yes,  they  liked  it  fery 
well  >  vve  had  a  bottle  or  two  of  shrub  together, 
and  some  of  the  pe<»|>le  iu  the  room  weie  talk- 
ing about  captaiu  Gtiid  of  ^aliesbury  ;*  we 
aaid  we  would  be  higher  than  tlieiu,  it  should 
be  general  Uold. 

*  See  the  Case  of  this  B«Nn»ugh  in  vol.  2 
of  Mr.  Doui4las*s  Election  Ueports,  Case  10  ; 
and  tbe  Hupplenient  to  it  in  vol.  4  of  the  ssme 
work.  For  more  concerning  bribery,  »ee  Mr. 
PoogUa's  Note  (B.)  to  the  Csmc  of  iiaint  Ives 
in  vol.  S.  In  D«»diiigion*M  Uiary,  the  portrait 
ilniwa  by  an  euiiueut  practitioner  of  corrnption 
and  venality  lu  polished  *  Ui^h  Lite,'  and  the 
laogvjage  applied  by  him  to  corruption  and  ve- 
aalnjF  in  uacdocated  *  Low  L*te*  are  very 
ftiikiDg,  and  certainly  m%  km  bimiiiating. 


Mr.  Seij.  Davy.  Who  aaid  thatf-<--I  cannot 
recollect  which  of  the  company ;  we  drank 
general  Gobi's  health ;  then  capt.  Nairn  said. 
He  is  a  brave  general ;  he  baa  faced, tbe  mouth 
of  many  a  cannon.  The  company  aakei  capt. 
Nairn,  in  what  manner  and  how  the  money  wa« 
to  be  let  go?  he  said.  Once  in  a  fortnight  or 
thereabouu  he  would  send  somebody,  or  aonie^ 
thing  of  that  kind. 

Was  there  any  thing  more  passed  at  tbb 
time?— I  do  not  recollect  tbat  there  was. 

What  was  the  next  thiutf  yon  know  of  this 
business? — One  Francis  Ward,  esq.  coming 
down  from  L^mdon,  thai  was  some  time  in 
February,  I  think,  about  the  9th,  be  camo 
down  to  Hindoo ;  there  was  another  gentleman 
along  with  him  and  his  lady  ;  I  saw  him  at 
Lucas's,  the  George. 

Who  was  with  you  ?-- John  Beckett  and  tbo 
rest  I  nominated  before. 

All  tbe  aame  |ieople  as  before?— Yet»  to  iIm 
best  of  my  knowledge. 

William  Lucas,  John  Beckett,  Thomaa 
Howell,  yourself,  John  Hart  and  William  Pen- 
ny ?—  Yes. 

What  did  Mr.  Ward  aay  to  you  ?— Tbat  he 
was  come  in  behalf  of  capt.  Nairn,  or  hip 
friend;  and  he  had  brought  down  some  bank 
notes  which  be  wanted  to  get  changed ;  be  and 
Mr.  Hart  went  to  Shaftesbury  to  change  tbem» 
and  he  gave  lOf.  in  the  100/.  to  get  them 
changed. 

Did  he  say  what  he  brought  these  bank  ooiaa 
for  i — On  behall  of  capt.  Nairn  and  his  friend. 

What  did  they  do  with  them?-- They  went 
to  Mere  to  change  them :  they  could  not  get 
them  all  changed  there;  they  changed  somo 
at  Shaftesbury :  Thomaa  Howell  and  I  went  to 
Shatlesbory  ;  1  went  there  to  assist  in  getting 
the  notes  changed,  which  they  could  not  get 
changed  at  Mere. 

Where  was  Beckett  at  this  time?— He  staid 
at  home  to  draw  notes  of  hand,  the  notes  wera 
for  twenty  gumeaa ;  there  were  four  in  each 
note. 

How  many  people  were  to  sign  tbeie notes? 
—Four. 

Waa  this  settled  before  you  went  out?—* 
Yes,  for  Beckett  to  draw  the  notes,  that  waa 
settled. 

And  he  waa  to  draw  them  as  twenty  gumea 
notes?—  Yes. 

Where  did  yon  go  afUr  your  return  ? — We 
went  to  Lucas's  that  night ;  that  waa  tbo 
Thursday  niglit ;  it  was  Wednesday  night  wa 
aaw  Ward  tint;  it  was  Thursday  we  went  to 
bhaftesbury;  we  came  home  together  upon 
Thursday  night  from  Shaftesbury. 

Did  you  settle  any  thing  at  Lucas's  that 
night  after  your  return  from  ShafVeshury  ? — 1 
packed  op  the  money  in  |>apers,  five  guineaa 
in  a  paper. 

What  did  yon  determine  to  do  with  it  ?— To 
give  it  away  to  the  borougb-meo,  as  far  at  I 
know. 

What  waa  in  fact  done  with  it?— It  was  car* 
nod  to  aliltle  cottage^iouaabjr  Wanl. 


msfi 


16  6B0RGBm.    TrkA^R:Smiikmii^.B.MlJSi^sain.   [}Mk 


Wat  thalietiM  alLaflw'flB^lluityoaipcre 
ii  go  there  f — Yet. 
.  Wboee  houie  w»s  that  eottefe-hooR  P— 
Geoffe  Hay  werdPe. 

Wbea  was  it  yon  were  to  go  to  George 
Hayward'b  f— The  man  day,  the  FrMay  Bigrht, 
the  rotatmen  oame  there  aad  received  the  fivo 
f  hwaiapiece;  [  aappoae  it  was  nuNiey,  they 
iaok  the  paroeis  I  saw  made  ap  at  I^icas's. 

Was  It  a  pretty  hufpe  assemhly  at  Hay  watd  V 
—Yes,  a  good  dmui^  were  there. 

Was  he'  to  reeeire  any  thing  f— He  had  a 
Ipaioea  for  the  reot  of  the  room. 

How  naany  people  might  be  there  that  oight  P 
i*-8ix  or  seven  score  I  aoppose. 

He  yo«  reooUeot  any  persoiis  going  in  P«*- 

Yee. 

Name  any  that  yon  reeolleetP— I  wonid 
father  go  hy  the  copy  of  the  poll. 

John  Norton;  waa  he  oneP— I  won't  aay 
Ihai  all  1  shall  nominate  took  the  money  at 
Gfor^fo  Hay  ward's;  some  took  it  at  Lncu'S 
■pcMi  Sonday. 

You  rememher  being  at  Bay  ward^  at  this 
time  r— Yes. 

Who  did  yon  see  there  P— I  cannot  reeoQect 
•n  the  persons  thst  were  there. 

I  don't  mean  yon  should  reeoIlM  all  the 
Msens ;  1  ask  yon  now  simply  who  yon  saw 
thmP— A  vast  many  of  the  voters;  Mr.  Ward, 
Mr.  Hart,  and  John  Beckett  the  baker. 

Now  IS  John  Beckett  a  voter P— Yes,  and  so 
was  Mr.  Bart. 

Who  was  there  besides  P— Mr.  Hart's  wife. 

Mention  only  the  voters ;  who  did  yon  see 
^Jbere  besides  P— There  and  at  Locaa's,  1  eouM 
■ominato  aama. 

Recollect  as  wr  II  ss  yon  can  at  Hay  ward's  P 
—I  cannot  separately. 

Were  the  «me  people  at  Lucas's  that  were 
at  Hay  ward's  ?— Some  were. 

After  you  had  done  at  Havward*s,  you  went 
to  Lucas**!  the  next  ni^bt  P— Yes. 

And  the  same  kind  of  business  was  carried 
on  at  Lucas's? — Just  the  same. 

If  I  understand  you,  there  is  a  little  confu- 
sion in  your  mind,  about  u  hether  they  were  at 
Hay  ward's  or  Lucas's;  but  you  say  you  can 
name  some  that  were  at  one  or  the  other  places, 
but  you  are  not  certain  which  P — 1  can  nomi- 
nate pretty  nigh  an  hundred  voters  that  were  at 
both  places. 

I  see  your  anxiety  is  about  recollecting  all  of 
them  ;  that  is  not  material :  now  name  those 
that  you  are  sure  of  that  were  eitlier  at  Hay- 
ward  s  or  Lucas's? — Joseph  Norton,  Joseph 
Cuffe,  John  Edwards  labourer,  John  Mash- 
man,  John  Larkham,  Renolder  Bowles,  Joseph 
Cholsey  junior,  John  Davis  senior,  Richard 
Earwood,  Samuel  Daw,  Thomas  Harding, 
James  Edwards,  Joseph  Cholsey  senior,  Tiio. 
nss  Spencer,  William  Scammel  otherwise 
Target,  John  Dewey,  Luke  Beckett,  Philip 
Beckett,  Edward  Beckeft,  Richard  Pitman, 
John  Bbhop.  Edward  Halliday,  James  Gil- 
hart  ;  hot  1  iieliove  ho  was  not  polled  :  John 
Chivofelly  John  Pukaa  janiory  Robert  Wycr, 


Henry  Jeitwd. 

^^ere  tlMae  aavand 
named,  voters  of  HImIob  at  tkia  finwl-^-Th^ 


Gholaoy, 


tiiat  jon 


^  DM  yon  aeo  them  either  at  HnyfrmffWarih 

Oooffgonext  evening  P—  •  Yci^  oinar  nt  thaan 
orthootheroftheaaaloeQsL  .    •  ^  .      -* 

Chn  you  aay  wheOier  yo«  anv  thane  panm 
yoo  have  named  either  at  one  plana  ar  Ihs 
otherP— What  1  ieamt  ao  randy  Igrt  v»h«^ 
iMrtbe  liiit  from  John  BaalMtt ;  bnlwptafat 
ofthem  fbnr  in  enei^  aa  tlicy  worn  dnini  H^ia 
thonotea. 

Yon  left  off  I  belivo  with  Henry  Imrfi 
jp  on  to  namd  aonse  nsweP— »Jnlm 
junior,  Edwaid  While,  John  Hooper 
John  Hooper,  junior,  Henry _Ilalh 
Henry  Uoff  junior,  Beajanain 
Jamea  Wyer,  John  Ball,  Geo 
nior,  Winiam  Lamb,  Joaeph  ■■■■^,  .....^ 
Wyer,  Matthew  Stevena^  ^riHiana  WIMl 
Btiohard  iogram,  Fmnela  RnngcVf  wwa 
Pierev,  William  Cnflh,  aenior,  MnttlMfv  WMl 
the  dder,  Willhun  Slevena,  Ocbffn  8laraa| 
John  Slevena  Hagg,  Jaaaca  Stevonn  fii||^ 
John  Stevena  junior,  John  Wyer  the  snojai 
Benjamin  Cholsey,  William  ifaafer,  tmm 
Sievena,  Francia  Chiverall,  Clmrica  Wja% 
Jamea  Wyer.  ^  _ 

You  meotMNied  Jamea  Wrar  helbiv  P-«9hHt 
are  two;  one  na  ahoemaker,  theodioraii^ 
boorer ;  Jamea  AnderMn  aenior,  John  BsMI 
a  aeevyer,*  Thomas  Wyer  n  neevyer,  Ub 
Beckett  the  eMer,  Roger  Splender,  RobartB^b 
Robert  Taylor  otherw«e  SaaniU  Jnmaa  Olsw^ 
Blias  Stevens,  laaae  Savago,  Willmaa  Omm 
Edward  Pierey,  Thomaa  Picrcy,  WMt0 
Dukes,  Roger  Norton,  James  Gilbert,  Jfla 
Gane  junior,  John  Gaue  aenior ;  James  El> 
wood's  wife  came  for  him ;  Nathaniel  PbiKp% 
Joseph  Norton,  Samuel  Norton,  John  RsaM% 
Thomas  Brookes,]  Joseph  Scammell,  Wiffw 
Sandel  the  elder  and  the  younger,  h^ 
Marshman  senior. 

Was  the  other  there? — I  am  not  oertaia  Wf 
to  one.  There  was  John  Marshman  sesiir, 
John  Marshman  junior,  William  Uardm^  h- 
bourer,  Thomas  Field,  Samuel  Fiekl,  Joks 
Bowles,  Ohailiah  Ranger. 

Is  Obadish  Ranger  called  by  any  stiff 
name  ?-- Sometimes  they  call  him  Robert 

Were  those  persous  you  have  named  atcilba 
Hay  ward's  or  Lucas's?— Yes,  at  ooe  or  cth* 
of  ibem,  or  both,  to  the  heat  of  my  fcaio* 
led^e. 

Did  any  of  them  receive  the  money  P— Hi 
money  wss  put  in  psper,  they  took  ine  fMff 
off  the  board. 

When  did  you  first  see  general  SoMdi ' 
Hindon  ?— -May  be  about  a  week  or  a  fart^gll 
before  the  election. 

What  did  you  do  after  thia  hyaineas  at  09* 
ward's  and  Lucas's  P— Wo  had  a  bit  of  a  fV" 
ney  to  London. 


•  fibhi  trig; 


MS] 


^  "Briber^  ttt  tki  Hindm  tke&yk. 


A.  D.  me. 


[IflfS 


Who  went  to  London  ?— I  went  along  with 
r.  Hart. 

How  long  afterwards?— -I  cannot  rightly 
collect :  it  was  some  time  afterwards  we 
;nt  to  Mr.  Ward's,  at  No.  16,  in  Sberborne- 
le. 

What  was  your  conyersation  with  Mr.  Ward  f 
Sometbinir  about  guineas  instead  of  pounds, 
r.  Hart  told  me  be  bad  orders  from  tbe  town 
It  it  sbould  be  guineas  instead  of  pounds :  be 
TO  Mr.  Ward  a  paper,  but  wbat  was  in  it,  1 
n't  know. 

Wbat  did  Mr.  Ward  say  to  tbat  ?— He  said 
would  talk  witb  tbe  principsl  concerning 
it. 

Did  he  say  any  thing  about  tbe  sum  ?-— 
ml  it  sbould  be  3,000  guineas  instead  of 
Dnds. 

Mr.  8en.  Davy,  Was  the  sum  3,000  men- 
ned  ? — it  was  meant. 

Did  you  see  any  thing  of  tbe  principal 
>re?— 1  did  not:  he  said  he  would  apply  to 
!  place  of  meeting  over  Westminster-  bridge, 
»  Gun  tavern  or  Gun  alehouse,  I  think, 
■rd  came,  the  principal  did  not. 
Did  any  thing  material  happen  at  that  meet- 
\  f— No,  there  was  a  letter  came  to  us  to  ap- 
ut  a  meeting  in  Scnilaud-y ard,  1  think  :  we 
re  not  at  home  when  the  letter  came ;  the 
ct  morning  I  went  to  the  niace  where  this 
jtlemQD  was  to  meet  us,  ana  met  Mr.  Brown 
(he  Strand. 

Mr.  Brown  was  the  man  that  came  down 
b  Mr.  Ward  ?— Yes. 

Hr.  Serj.  Davy.    Is  every  gentleman  that 
s  an  company  with  Mr.  Waid,  at  any  time, 
upon  any  occasion,  to  be  considered  as  an 
Mit  of  sfeoeral  8niith  f 

tf  r.  Popham.  if  I  do  not  carry  it  to  Mr. 
ird,  from  Mr.  Ward  up  to  capt.  Nairn, 
I  from  capt.  Nairn  up  to  general  Smith,  I  do 
biog. 

Meade,  f  met  Mr.  Brown  in  King-street,  but 
ever  met  Mr.  Ward  afterwards. 
>id  you  write  any  letter  to  capt.  Nairn  about 

!>id  you  receive  any  answer  ? — Yes. 

[The  Letter  shewn  the  witness.] 

Meade.  This  is  the  letter  I  wrote,  this  is  the 
wer :  I  am  certain  tbat  is  tbe  letter  by  the 
Ciog  at  the  bottom  of  it. 

[The  Letter  read.] 

M  BuryHreet,  St,  Jama%  March  1, 1774. 
'  Dear  Sir ;    1  received  your  favour,  dated 

116th  instant,  and  am  very  much  surprized 
t  yon,  or  any  bo<ly  in  Hindoo,  should  doubt 

truth  of  wbat  1  formerly  told  you,  or  that  I 
sldoegiect  to  acquaint  them  immediately  of 
'  accident  or  any  intention  in  my  friend  to 
line  continuing  in  the  first  principle  in  which 
Mft  off.  You  may  be  assured,  and  1  desire 
I  will  let  the  rest  of  my  friends  know, 
i  km  scorns  to  put  another  man's  shoe  on  his 
t,  or  let  another  man  put  his  on ;  that  he  is 
liH  «f  honottc  and  large  property,  and  not  a 
t 


▼cry  great  distance  from  Hiodoo.  If  my 
agents,  as  you  call  them,  did  not  give  you  aaa-' 
tisfadory  answer,  why  did  not  Mr.  LucM»  ^  I 
desired,  write  to  me  P  And  1  request  it  may  be 
so,  that  1  may  know  the  wishes  of  the  town  | 
for  it  waa  their  interest  and  welfare  I  had  at 
heart,  and  the  motive  of  my  interfering ;  and 
shall  be,  while  with  troth  and  honour  I  can 
call  myself  their's  and  your  obedient  faithftil 
friend,  F.  Nairn.'' 

Was  there  any  uneasiness  in  the  town  at 
tliis  time  P-^Yes,  there  was. 

Wbat  was  that  about  ?— Because  Mr.  Nairn 
had  not  kept  his  word  according  to  the  time 
that  he  prodiised,  because  he  did  not  advance 
the  money  as  be  had  promised. 

Was  tbat  the  second  payment  ?•— Yes. 

About  what  time  was  tbat  uneaainess  in  the 
town  P — 1  cannot  recollect  now,  it  was  sotne 
time  in  the  winter. 

It  was  further  on  in  the  spring  than  the  other 
passages  you  have  been  speaking  of  P — Yes. 

What  was  the  next  thing  doneP — Some  ohn 
ney  to  be  given  away  at  Lucss*s. 

When  was  that  to  beP— It  was  on  Easter- 
eve,  1774. 

YifU  ssy  there  was  money  to  be  given  Awaj 
at  Locas'sP— That  was  the  report. 

Whom  did  you  hear  it  from  P — All  the  peo* 
pie  as  they  came  down  stairs  from  taking  tbe 
money. 

W  bom  did  you  hear  it  from  before  the  money 
was  given  away  P---Mr.  Lucas  ordered  me  to 
come  and  ffiaze  a  window  for  him,  before  they 
came,  to  get  tbe  room  for  their  reception. 

When  was  that  P— Tbe  Saturday  monmig^ 
the  day  before  Easter. 

Do  yon  know  any  thing  that  passed  upoe 
Easter- eve  P — Parson  Nairn  aaid  to  me,  go 
ronnd  to  all  those  people  who  have  not  received 
the  first  eight  guineas,  tell  them  they  shall  all 
come  in  on  Monday  night  and  receive  ten  gni* 
neaa  each. 

Did  yon  invite  the  people  P— Yes,  I  did  ge 
round  witb  a  lie  in  my  month  from  a  parson ; 
tbat  is  the  worst  luck. 

Wbst  was  this  money  for  P— I  don't  know, 
without  it  was  for  election-work. 

Wbst  did  psrson  Nairn  say  it  was  for  P— -He 
did  not  tell  me  what  it  was  fur,  to  my  know- 
ledge. 

What  passed  the  day  after  Easter- dsy  P— 
The  greater  part  of  the  i>eople  came  to  receive 
their  ten  guineas  each. 

Abont  how  many  were  there,  fifty,  a  hun- 
dred, or  twenty  P— Not  so  many,  1  went  up 
only  towards  tbe  conclusion:  on  Monday  night 
there  were  a  vast  number  in  the  yard  and  round 
the  house. 

But  you  cannot  tell  how  many  P— I  cannot 
tell  how  many  took  it. 

Did  you  go  up  into  the  room  P— 1  went  vp 
into  tbe  room  on  Monday  ;   they  would  not  let 
some  of  tbe  people  have  it  that  the  paraoA'Mnt 
me  to. 
. .  W.liy,  Jireald  thej  not  lei  then  hate  it  P«— 


trni^       wtiBOBiiB  in.  ivhfc v^Jb  mM  — i »ji 


•» 


Ha4  lilt  ran  tbe  «iM7  N-*8»  te  « I  kavir 


I  it  iImI  jfwi  ftnt  ift w  fWMfttl  flnMb 
M  HMm  r— 1  MiOTC  abMii  a  trade  fciftre  Hm 

.    WIm  M  g«Mnl  9mHk  am  eMoeto  Bra- 

iM  r-^I  fraS  Wt  At  b«NM  JNtiMn  Im  «MM. 

'  Wkt  4id  be  CMBC  tritii  wbea  joa  «air  Um  f 
— Panoa  Nora  and  ci|itab  Nam, 

Wara  y««  araamttrlw  ciUwr  af  Ihara  talked 
if  feMral  SWih  N-1  4M  Mt  baar  aitbaraf 

BMyo«aaa  tlMNS  caaraariiif  Hw  tewB  f — 1 
fajip^attddavBtlMiainis  IMoat 
SO  laia  9Mj  panMMtf  oavaai  aaraapt 
■iBcaa  %  wMva  Mmv  tMmifMB^ 
Weraoapiali  Nain  awl  panaa Namwith 
r-rYaa^  whaa  I  anr  draaa  waliuif  MiilM 


WMt  aaflM  #af  fplMra]  8bbnb  fvaaraliy 
Inairi  Ira  iofliBdaB  ai  tliiatiiBar-->OcMral 
eaUllliay  Mai  ta  aall  Uai  bafera  ka  eaara 
4aira. 

.  Plilha  aaraa  tortiw  aftar  km  cmm  4iomn  f 
«i-OaaoNUi,  TbooMa  Braakoa,  fatad  fkr  hiai 
^NHi  Iha  paH  ly  ilia  aaara  af  gaaiial  QM. 

WcTO  voa  praaaat  at  aay  tioM  wImi  aay 
talk  wia  had  ia  ika  praaaaoa  af  gcaaral  Badlh, 
aka«t  gMMiml  GaUr-^Nat  la  aiy  kaowMfa. 

Do  jaa  kaow  aay  iblog  aboat  roncb  daae* 
iiyal  Hiadaa  r— I  was'aat  atlMma. 

Cfoai-cxamiBad  by  Mr.  Bajaaat  Any. 

6a  wkca  yoa  arcat  la  Laoaa'a  to  friaaa  Ibe 
wbidow  OB  Eaater^Moaday,  Ibay  fraald  nat  lit 
tba  mea  bare  Ibe  money,  tad  a'rooiig  ibe 
rait  1  aoppoae  did  not  let  you  have  the  money? 
—1  did  not  fttk  for  it ;  1  did  not  inleiid  to  have 
it. 

Did  they  nerer  aay  they  would  not  let  yoa 
have  it? — That  must  have  been  a  miatabe 
vpon  the  cooitnittee :  I  said  they  wonld  not  let 
those  people  have  it  the  parson  teat  me  after. 

So  it  was  a  mistake  when  the  committee 
wrote  it  down,  and  you  swore  it,  *  that  they 
would  not  let  you  have  it,  and  it  was  a  damn*d 
tof^uish  trick  P^-^That  was  John  Beckett  and 
them. 

So  they  made  a  mistake  in  that?— They 
ini^ht  as  well  make  a  mistake  in  that,  aa  to  call 
me  John  when  my  name  ia  Francia. 

You  never  swore  before  the  comaiittee  that 
they  would  not  let  you  have  the  money  ?— I 
eanoot  recollect  that  I  did  ;  not  myself  in  par* 
ticolar. 

You  told  us  joit  now  they  would  not  let  the 
people  have  it  P--That  tvufi  one  and  all. 

I  ask  you  whether  yoa  did  or  did  not  swear 
before  the  committee  thai  they  would  not  let 
you  have  the  money ;  and  therefore  yoa  aaid  it 
waa  a  damn'd  piece  of  roiraery,  and  you  wouM 
bave  aothinir  to  do  with  itf— -I  saidbefbre  tba 
eororaittea  that  I  went  up  into  the  room,  aai 
ThomaiBpaawriakI  it  waa  a  daoMi'i  piaoi  af 


r,.— -iibiiil'^aa* 
iwaanr  alt  raaai,  aai  I  wa«Mi 
•ibii. 


iM  aot  let  tboaa  wbo  hai  airt 

m  let 
Tba 

Dii  jraa 
mistaka  ailbal^ 
Diiyaaaraat^ 
Yoogbaai  Ibat 
Yaa. 


laomP— Yea. 

Yaa 
fita  awaay  «a  wmj  baiy  N^Mh  bmI  wUa J 


waa  praaeaL 
Diiiaaai 


.h 


wbara  tbey  wara  gMmg 

--WbaraAay  bai^bami  gisiag' 
Dii  Ibay  ibaa  fiva  aaaar 
S  Ibay  bai  baaa  aieift 
'  t  Ibay  baiteait 


«£ 


Tbaa  it  ia  aat  Inm  Ibai  y^ft 
afbaia  Ibay  wanpvia|f 


fiat  bit  traa  Ibat  yaa 

tbey  waraciviaf  r— I  S4 
fivaaay  wbilatlwaathafak    * 

Coaaaqoemly  yoaaaaaat  tail 
yaar  awa  baawleigar— Hoc 

.Yoa  aaaaat  tellt  af  yaar- 
wbetber  It  waa  gifaa  atalirr-Nb 
what  tbaparaoa  toM 
BIO  Ibay  raaairai  iva 

Coasc^acatly  yoa  aaaatt  loiraay  wmfM 
roaeived«r  aawbai  yon  aay  moasy  **" 
time? — No. 

Noae  at  all  ?— No. 

Neither  the  first  five  guineaa  aor  tba 
five  goineaa  f — No. 

How  cama  you  not  to  bavoit?  Dacsaal 
did  not  have  it,  that  waa  tlic  reaaoo* 

Why  did  not  you  have  it  P— That  ia  ta  a^* 
self. 

But  I  will  know ;  at  leaat  yoa  aball  satt 
something. — I  did  not  ask  for  it. 

Nor  tbey  did  not  oflar  it  to  you  P— No. 

And  why  was  that?— 1  caaoot  tall. 

My  friend,  among  the  people  tbat  yaa  !•■ 
given  us  an  acoount  of  reoeivinigr  t|ie  asoaiy,! 
think  you  aav  that  Matthew  Wbito  juaisraai 
not  there  P— Not  tbat  I  can  reoollact  aaw; 

Richard  Pitman,  was  be  there  P— HawMili 
the  best  of  my  knowledge,  aai  oa  waradlii 
rest. 

Why,  here  are  a  vast  aomber  |  yaa aHpfii 
at  Ranger,  and  hare  are  thirteoa  aaara  tbstjfii 
awore  to  before  the  committer,  tbirteea  al«* 
line.--**!  caanot  recallaet  tbaan  aU  afaia* 

What  list  did  vou  awaar  Iroiu  iboa^-^' 
tbat  I  nominated  by  word  of 

You  atop  aow,  both  by 
at  Ranger,  and  omit  tbirtaaa 


E. 


Jhr  Brihtrif  at  the  Hindon  Election. 


A.  D.  1776 


[1250 


-If  Id 


I't  rKollecl  (hem,   I  can't  i 


ther 

Don't  yon  remember,  beliire  the  cominittee, 
nponthe  e rots- exauiiualioii,  you  wereeianiin- 
ed  touching  ihe  bu^inMi  ol'  the  malt-hoase, 
tltou^h  thai  doM  uot  coacern  geaeral  .Smith  f 

Voii  nere  examined  teiichinB-  the  buiinessof 
(be  malt'haiisef — Ve<;  liut  I  ilon't  hiiDtv  that 
I  hsTc  any  ri^ht 
liare  (rot  aa  order  to  atienil  Ihe  Home  of  Com- 


Did  you,  or  did  yoD  tic 
•ft*  any  muiiey  giren  s 
¥m.  Idtd,  andl  wilUwe 

Did  yon  never  see  a  i 
of  the  malt- bouse  f — ' 
Mw  the  bole  till  a 

Did  TMt  you 


,  say  that  you  never 
llie  malt-house? — 
f  it  agiiin. 

■  the  liole 


•lid, 


rim 


ir  allcrw  arils. 
I  say,  that  you  were  iiol  at  tlie 
n>mh>h»uwi'''~No,  it  was  at  a  houae  adjoimng' 
lo  t be  mH It- house. 

i  lliiuli  you  laid  you  came  into  the  room  at 
L«cu'a  atier  tbe  mancy  had  been  given  ?— 
After  some  hud  be.:ngivrii. 

1Vb<  any  money  given  while  ynu  was  there 
•t  iia-tet  ? — None  at  all ;  there  was  none  given 
wht^  I  was  iireHDi. 

.  Were  you  [.resent  at  the  makine  of  tbe  bar- 
gain about  BelliDg-  those  voiesf — 1  was  ibere 
»lien  Nuim  maiiu  the  |irnpo«al. 

Did  onl  you  agree  lu  iti' — 1  did,  along  with 
Ibe  rest  of  my  neie'hbours. 

You  were  oncnt  ilie  partie«  mnkinglhis  «nr- 
ra|it  agreenienl  lo  atll  Ihis  burough  ?— 1  cannot 
befp  ■(  now. 

Hr.  Pofkain.    lie  repents  ol'  it. 

Mr.  BeH.  Davi).  Then  you  are  ■  sa<l,  re- 
pealing' miserable  sinner,  are  you  F  You  made 
«  bargain  for  the  money  wiili  the  ttA  ot*  thetu. 
—A.   We  consented  to  it  all  ol'uH. 

Wiliiam  Penny  snoro. 
Eiamioed  by  Mr.  Moi/se^. 

Y.>uliveatHiniloDf-.Yei. 

Do  you  recnitect  bavinir  any  cnnvemfion 
with  captain  Nairn,  in  February  1773,  about 
the  election  ?-  -Yes. 

What  day  was  it?~I  oaonol  lelt ;  I  believe 
il  WM  en  a  Thnrtduy ;  Ihe  ca|ilaiD  came  lo  ray 
houae;  be  shook  bands  wiih  ine;  lieaskedme 
•otne  >|iiestian«  ;  then  be  urent  to  Lueas't,  and 
■ent  Th<M«Bs  liowell  lor  me ;  he  sent  a  aecond 
lime,  and  then  I  went. 

Wlto  it«re  there (*— Thomas  M.iwell,  John 
Hart,  Francis  JVlead.tlie  rev.  John  Nairn,  WJI- 
bMti  Lucas,  BTKlcapiain  Nairn. 

What  piusril  f — He  desired  me  lo  sil  down: 
then  oaptain  Nairu  HHid,  be  had  a  particular 
fri«ud  that  he  «hc>ulJ  be  iflad  lo  presi-nt  lo  Ihe 
bor»iit;h  ul'  Huidiin,  and  he  would  not  have  him 
deceived,  nut  for  the  Indies. 

What  pasted  then?— Then  he  snid.  his 
IriMtd  should  prnduce  5,0001.  and  that  he  would 
■M  stand  for  200  or  300  beyond  the:],i)00. 

Did  he    say  thin^  more?— Yes,  that  one 
laiid  should  lie  dialed  of  in  nrery  little 


lime,  but  he  must  pi  to  Loudon  first)  then 
there  wbj  some  money  broiii(hi,  and  let  ga,  at 
William  Lueas's,  at  the  Ueuriie'  when  he 
spoke  ibeso  words,  I  was  coniinc  from  him  ; 
he  desired  me  to  stop  and  drinkairinss  of  some- 
tiling;  he  ordered  &  butlle  of  ahrub  lo  be 
brou^fht. 

Have  you  told  us  nil  that  was  said  by  en  plain 
Nairn  beture  tbe  shrub  was  brought? — To  tite 
best  of  mj  remembrance. 

Have  you  lutd  ua  all  he  aaid  about  tbt 
money  f— One  thousanil  wu-i  to  be  letgoimtnC' 
diately  ;  one  thousand  at  Ibe  lall;  aud  aibuu>- 
sand  about  a  week  or  n  fortnight  befoie  iba 
election. 

Is  itiat  tbe  whole  he  said  about  the  money  .* 

—  Yes. 

IVlut  was  said,  in  answer  to  this,  by  any  of 
yoo?  did  Ihcy  refuse  it  or  accept  it? — They 
aecenied  his  propusul. 

VVosany  thing  more  added  to  the  proiHwnl; 
or  said  about  the  proposal,  before  the  ilinih 
was  railed  lbr?—N'itibHl  1  recollect;  us  soon 
s*  tlie  shrub  was  called  for,  the  convenaiiou 
about  the  luuuey  drop|bed. 

Was  any  Ihing  more  said  about  the  eterlion  t 

—  Notattbattime. 

Did  you'  hear  any  thing  more  said  hy  Nnim, 
who  WHS  tn  be  llieir  candidate ?- —The  capiain 
said,  he  did  not  know  the  names  of  all  iha 
voters  that  were  there  in  company  ;  be  desired 
his  brother,  the  rev.  Mr.  Nairn,  to  write  the 
names  down  of  lliiise  that  were  present:  then 
I  drank  some  shrub  by  his  desire  and  came 
away.  I  did  nut  stay  till  the  meeting  woa 
broke  up  ;  I  lel\  some  people  there. 

Did  you  drink  any  body's  health  there?--- 
^Vlien  Lucas  brought  the  bottle  ofshrub,  Meade' 
said,  Whose  healllr  shnll  we  drink?  Luca* 
said.  Captain  Gold :  Meade's  ansiver  was,  Ho 
would  not  drink  captain  Uold;  Then,  said 
Meade,  it  shall  be  general  Gold  :  Yet,  said  the 
captain,  be  is  a  lirare  fellow ;  he  has  faced  the 
mouth  of  many  a  cannon. 

Was  any  thing  more  said  aboiil  cnptaia 
Guld?--Not  that  I  heard;     I  kit   both  the 

aims  there,  aud  tiie  rest  of  ihe  company. 

Do  ynu  know  Mr.  Ward? — I  did  soon  sfler 

came  Irom  Lucas's. 

About  how  lung  alter  Ibis  was  it  yoa  met  bim 
at  the  Georgef— I  wasmcompany  with  hint 
at  the  George  the  first  time  I  saw  him. 

How  long  after  what  you  have  been  speak- 
ing of  ?■■- About  three  weeks,  or  between  threa 
and  four  weeks, 

Were  you  sciit  for  there,  or  did  ynu  go  ol* 
your  own  aocurd?---A  mcss.nge  came  lo  me 
that  a  Mr.  Ward  wauled  to  see  me  ;  1  went  la 
the  George. 

Whom  did  you  find  lhere?--This  Fr*di!ij 
Ward,  as  he  luld  me  his  name  was ;  there 
were  mure  peuple  there,   1  Ounot  lecolkct 

Keculiect  those  yon  bapjien  to  remember. — 
There  was  John  Hart  and  Thoniasliuwdl,  and 
Beckett  the  baker. 

How  many  miijlit  Ibere  be  ia  OAtaWt— -V 


18B1]  MQEOBGBltL    T^ki$^ R^atmM^T^JsLBMknfn.    [mr 


otfMi^  teU;  ft  gml  iBuiy'ptopli  OMM  iftar 


tlw  money 


Wbat  WM  doMr— Hwie  wm 
;l0tjKo»  I  Mieve. 

From  whoa  ood  to  wkon 
•  put  ?— From  Fnmm  'Wurd. 

How  did  be  begta :  did  bo  iov  lor  wbol  mv^ 
pooe  be  produoM  tbo  moMy  r— He  ieio  be 
•would  ikpd  fife  goiaeee  to  eajr  neigbbour  of 
mine  tbai  wis  4  Toter  in  tbe  bocongn  of  Hmh 
don. 

.    Wat  thtl  upon  year  eining  into  tin  room  r 
^IIwaoioinetiineaAer  Iwneinthnlinoai.   - 
:    Wbol  n%bt  Warden/ to  yon  to  toon  ••  yon 
etma  jnP— Heosked  me  bow  I  did, 
'.  You  nerereew  himbdbw,!  beliefo N«-No» 
we  hade  great  deal  of  dineoree. 

I  want  to  know  an  bo  aaid  abont  tbe  oloolieB. 
•—It  ii  tmnooiMeibr  me  to  reeoWect, 
.   WbatydidboMybewonkllendeorooflMney 
p  yonr  fnendir— Tbey  were  Ua  ftlandei  not 
naine:  be  pnlM ont fomie mon^* 

How  mneh  money  did  bo  ^M  ontr«*-I 
.cannot  tall ;  tbera  wem  eoean  m  papen»  and 
aomeloQee, 

Wbat  did  yon  eee  bim  do  witk  tbat  aaeney  f 
-  *— He  ddifercd  it  to  tboee  wbo  ligncd  a  note. 

Wefe-tberoagieal  nmny  ef  tbeee  premntr— 
»ee» 

-'  Did  yon  eee  n  great  nmnyaign  dm  MtoaN— 
Yce. 

.  And  of  eonrao  onw  a  great  many  raceife  tbe 
money?— rdid. 

:  How  lottg  migbt  tbie  omne^  be  gitiogt  and 
tbe  n^Ding  notes  laatP-^lt  migbt  end  at  abont 
teiglit  10  tbe  evening. 

.  ^boQ,  did  it  bigmr—- 1  imagine^  abont  one 
o'eloek. 

At  what  time  waa  it  yon  went  tbere  f — 
About  one  o'clock. 

Then  they  were-lbere  from  one  tall  eight?— 
Ye«. 

And  giving  money  all  that  time?— Yee,  ai 
fast  at  people  came ;  but  tbey  came  in  Tery 
alow* 

Wai  any  thing  raid  about  the  purpooe  for 
which  thai  money  wm  given  ?— No  more  than 
general  Gold'f  health  was  drank  at  thai  time. 

I  suppose  whenever  thejf  delivered  any  mo- 
neyhis  health  was  drank? — Yes. 

There  must  have  been  a  good  many  receive 
the  money  that  day  ?-  -  Yfie. 

This  was  at  the  George?— -Yes. 

When  did  you  leave  them  ?— Abont  nine  or 
ten  o'clock  I  went  away. 

Did  you  leave  Ward  there?— Yes. 

Ward  did  not  tell  you  who  he  was»  or  whom 
^  be  came  from,  did  he  ?— No. 

Yon  had  never  seen  him  before?— No. 

When  did  you  see  bim  again?— I  bate  not 
osen  Mr.  Ward  since,  to  my  knowledge. 

You  did  not  tee  him  at  Hay  ward's?— No* 

This  was  in  February,  1773?— Yea. 

Do  you  remember  any  thing  of  tbia  sort  in 
Eaater,  1774  ?— No. 

Do  yon  recollect  seeing  oarson  Nauru  abont 
Easter.  ir74?--He  sent  for  me  up  to  John 
Bodmtt*ani|tia8wa% 


Did  yon  gnlu-Yfli.  to  bn 
forme. 

Whom  did  yon  ibd  there  r-i^i 
bawaaV  bimeeir  when  I  went  «p 


mht 


Mm; 
Iha 


toara? 

that 

mgaoteofitodwiih 
Nairn  8aid>  the  beat  of  nay 
wiU  anmily  the  pear  thaft 
nferylnilntiauh  ... 
Wbat  did  yon  any  to  thnt  F-^ 
viend  waften  ummm 
r  Hh  told  me  hannvM  Ml 
1  dmimd  nim  to  wiito 
friend ; ;  I  onid»  Ynnr  Mand.  if 


crii- 


toUr 


it  k  bat  ft  dqp*to  tidn  to  go 


Did  yen 


Jul 


I  wna  gnnam  nwMBa 
by  tbe  lk»eide,and  nnid  te 
Hwr»  Aya^  yto  donH  knnev,  it  ia  Ml 
8nulh<  my  mwwnr  wna»  ThM  <lfNr*i 
Cbarica  Hmnphrica  baa  told  im  alin,r^  •■  ^. 
Did  any  thing  mere  paaa  niMMat  iNMMMM 
at  tbia  liM  r— Not  that  I  nM  fonannm. 

Tbere  wna  M -one  preaanl  hot 
there?..- John  Beckett  and 


»*  ■ 


Waa  any  thuiir '■^v*  ■**'  nhmatthe 
after  they  came,  in  ?..-Thny  anii,  Thamp 
was,  to  let  people  have  mean  hmmv. 

Whm  did  Nairn  aay  r.-ll  niMoM  b» 
feryaaon;  but  bo  moat  go  toL 

Did  be  mentkm  tbo  auni  that 
tribnted  ?— Not  that  I  raoaUaet. 
.  Waa  any  thing  naore  aaid  nbal  the  mm»? 
-..That  waa  all  that  paasad  then. 

Did  yon  eee  any  money  given  mtf 
Eaater  eve  ? — No, 

Did  you  see  any  money  diatribvrted  on  Esdn 
eve?— No. 

Do  yon  know  of  any  other  oocaaioB  wIm 
money  was  distributed  relatiTO  to  the  dfcnmf 
..•I  never  knew  any  pern  but  with  papen. 

Do  you  know  of  any  money 
papers  ?.->No. 

When  did  you  aee  general  Smith  ?~.I 
changed  a  word  with  bim  in  nay  U/hi 
Nairn  told  me  it  waa  general  Smiilil»  jaatiMi 
tbe  election  at  Hindon. 

What  was  he  doing  when  yna  nnw  hha?*- 
Parson  Nairn  came  and  abonk  mn  by  thtbtoi 
and  toM  me  that  waa  genemT  Smith. 

Wbo  waa  with  him  beaidaa  ahn  nr.  iii 
Nairn  ?-~A  fast  many. 

Did  any  body  apeak  to  ynu  nhnni  hhaH 
that  time  Seaidea  John  Nairn  ?— Nn. 

Did  yon  aee  any  thfaigof  Pnnabf  ••^NOi 

Can  you  reooUeot  aov  other  nnoana  of  dds 
that  were  preaent  at  the  (iann  nff  the  msaf 
given  by  Mr.  Ward  m  F^braaajt  IflSM 
can  reaaembor,  Daniel  Laaabort*  the 
oary,  caow, and raoaivnd  fttngnincnaftr 
ae|f  and  five  for  bbftthar;  wmI  Inn 
Newton,  8an«  and  William  Mtwto^  jan.  !«* 
oaivoit. 
(  Any  body  olaer-Notihid4 


j9f  onbtfy  id  in& 


Emshoiu 


A.  D.  1776. 


LI854 


DM-eztmiDed  by  Mr.  MamJUUL 

yoa  P— An*  iniilMkler  ooomionly 


ire  one  of  the  men  that  made  tbti  ber- 
int  for  captain  Gold  ?— A  bar|fkin  f 
I  barrio. — I  madenebamio,  because 
i8t  what  Nairn  pleaaed ;  1  could  make 
in. 

were  yoa  with  captain  Nairn  for  at 
when  tbe  captain  sent  for  yon  ?  what 
do  there? — How  could  I  roakeabar- 
the  town  ?  1  conld  not  make  a  bargain 
rif.  ^ 

when  Nairn  propofied,  as  you  said,  to 
riend  of  his  repreient  the  borough,  and 
IS  3,000/.  to  produce,  yoti  said  it 


Hig,  and  it  should  not  be,  I  suppose.—  ,  longf  there. 


y  suppose  what  you  plense. 

ras  it  so?— 1  asked  them  that  were 

w  they  liked  tbe  proposal ;  they  said, 

dl. 

ure  one  of  them  P— I  was  in  company 

ne. 

you  one  of  those  that  liked  itP— 1  was 

>mpany  certainly. 

lid  you  make  any  otyectioo  ?-~How 


no  mentioii  was  made  whvthe  penon  was,  for 
whonr  this  3,000/.  wat  to  be  distributed  ?— 
General  Smith's  health  was  drank. 

Was  ffeoeral  Smith's  name  mentioned  P-— 
General  Gold; 

And  that  was  mentioned  after  captain  Nairn 
had  sakl  they  shouki  drink  captain  Gold  P — 
Yes. 

After  this,  yo»  tell  ns^  Ward  cami  to  the 
George:  what  time  did  you  go  to  bimP— -It 
might  be  about  one  in  the  afternoon. 

You  swore  before  the  committee,  that  it  was 
about  seven  or  eight  in  the  evening  when  Ward 
came.  Was  it  ioP— It  might  be  seven  or 
eight  o'clock. 

Then  bow  came  you  to  say  it  was  one  P— 
I  was  there  in  the  day  time ;  I  did  not  sUy 


might  have  said  you  did  not  like  it ; 
upon  your  oath  make  any  objection  P 
not  End  fault. 

your  oath,  did  not  yon  approve  of  it  as 
the  rest  P-—1- asked  them  how  they 
e  proposal ;  they  said.  Very  well. 
\fwi  not  give  captain  Nairn  to  nnder- 
at  you  liked  it  very  well  P---1  am  upon 
1 :    what  I  have  told  you  is  truth  bi- 

you  did  not  give  captain  Nairn  to  nn* 
I  that  vou  apuroved  of  this  proposal  for 
0/.-— No  fartner  than  what  I  nave  told 

must  answer  yes  or  no ;  and  men  that 
answer  are  to  be  puni^ed.  Upon  your 
d  you  mean  that  captain  Nairn  should 
md  that  you  approved  of  the  proposal  P 
not  say  farther  than  I  have. 
t.  Come,  Sir,  give  an  answer. — I  leok- 
id,  and  aaid.  Gentlemen,  how  do  yoo 

proposal  P  And  they  said  they  hked  it 
ill :  1  did  not  say  1  misliked  it. 
vhat  1  ask  of  yoo  is,  whether  you  meant 
Nairn  shouki  understand  that  you  liked 
HMal  P— I  made  no  objection  against  it, 

the  rest  of  the  company  were  agree- 
it. 

you  liked  tbe  proposal  P-— I  made  no 
DS  to  it. 

rou  like  it  P-^1  did  not  make  any  reply 
it  or  for  it. 
did  you  feel  yourself  P  Did  you  like  itP 

not  say. 
t.    You  have  given  very  trifling  an- 

if  yuu  don't  inioiediateiy  answer  the 
I,  I  will  commit  you :    did  you  like  it, 
ou  not  like  it  P— Yes,  I  did. 
have  told  us  that  you  went  to  this  place; 


You  saki, « Th)e  first  time  I  went  to  him  was 
about  aetm  or  «ght  in  the  evening  :^  how  came 
you  to  differ  in  your  accounts  P  Which  is  the 
true  account,  or  is  neither  of  them  true  P— It 
is  truth  what  I  have  sp^e. 

It  cannot  be  all  truth,  because  they  are  dif- 
ferent stories :  wbal>  time  did  you  go  to  BIr. 
Ward  P->— It  was  in  the  day  time. 

IMd  yoi»  goto  htm  once  or  twice  P— Once. 

What  did  you  mean  by  saying  just  now  yoo 
went  at  one  o'chMsk,  and  again  at  eight  r— - 
I  was  with  him  twice ;  it  vita  all  in  one  after- 
noon. 

Then  yon  went  two  separate  times  to  him, 
did  vou  P— Yes» 

How  long  did  yoa  stay  with  him  the  first 
time  P— I  cannot  tell  rightly  how  kmg. 

Bow  came  you  not  to  say,  when  you  were 
examined  before,  that  you  went  to  him  in  the 
day-time,  about  one  o'clock  P— 1  was  with  him 
about  one  o-'dock,  and  I  was  with  him  at  aeveny 
eight,  and  nine. 

Do  yon  mean  that  you  staid  with  him  frt>m 
one  o'clock  to  seven  or  eight  P— No. 

You  have  said.  Hart,  Howell,  and  Beckett 
were  there  P— Yea. 

Did  they  receive  monev  P— Not  that  I  aair. 

Are  yoo  sure  you  saw  Lambert  receive  mo* 
nay,  or  did  Lambert  tell  you  so  P— 1  aaw  Lam- 
beirt  take  tbe  money,  and  I  saw  him  sign. 

Dante/  Lambert  sworn. 
Examined  by  Mr.  Buller. 

What  are  yoo  P— An  apothecary. 

Do  you  live  at  Hindoo  P — Yes. 

Do  yoa  know  Mr.  Ward  P— I  aaw  btm 
once. 

WhenP— Inl773. 

What  part  of  tbe  year  P — In  Feb.  1773. 

Had  you  any  conversation  wilh  him  then  P 
—Yes. 

Wliat  was  it  about  P--- He  desired  to  know 
whether  I  was  a  voter ;  I  tuM  him  I  hoped  I 
was.  He  asked  to  know  whether  1  would  re- 
ceive the  favour  or  not,  I  told  him  I  would,  i 
hope  it  will  not  criminate  myself,  my  receiving 
the  money  that  I  am  going  to  discover. 

Mr.  Sevj.  Dopy.  Yon  have  no  right  to  ask 
him  to  that 

L 


16  <i^£OBGE  III.    Ti^  ifR.  Smith  aai4  T.  B.  Bogi^  Ufn.    [1356 


1S55] 

Mr.  BuUer,    Whom  did  you  see  at  Lucai's, 
when  you  ivere  wi(h  Itfr.  Ward  ?— William 
Peimy. 
.  Whom  else  ?— -I  .cannot  reoolleot. 

Was  ir  at  Lucas's  that  yuu  sair  Mr.  Ward 
first?.  -Yes. 

Whom  did  you  see  besides  ? — Tbere  were 
Otbeis  thi^re. 

Tell  some  of  them.* -I  cannot,  I  do  not 
know  ihein. 

Was  Beckett  there?— Not  as  f  saw. 

Oi  VVilham  Bennett?— WilUam  Bennett 
came  in  afterwards. 

Wore  you  at  fiecketl*s  .upon  Easter-eve, 
1774 .-»— Yes. 

Wus  uiiy  money  civen  then  ?— I  suppose  1 
shall  hurt  mvs^lf'if  r  ifivean  answer  to  that. 

M  r.  Mu  Hsjield,  You  need  not  say  .any  tliiug 
of  any  money  i^iven  toyourSelf. 

Mr.  Serj.  Grote.  But  you  may  of  any  mo- 
ney trheu  tu  other  persons. — I  did  not  see  any 
iponey  pven  to  any  body  elM*. 

Do  you  remember  general  Smith  coming  to 
Hindon  ?---Yes. 

.  When  did  be  come? — On  the  27tb  of  Au- 
gust, J  774. 

Was  he  kuowo  to  be  a  candidate  before  that 
time  ?--.No,  a  general  Gold  was  known. 

Who  did  that  general  Gold  turn  out  to  be  ? 
*•>. General  Smith. 

flow  do  you  know  that?-— By  the  rererend 
Charles  Humphries. 

GeDeral  Smith  came  himself  first  of  all  on 
the  37th  of  Auirnst  t — Yes. 

Wiiiit  passed  then?- --He  went  to  the  Cross. 

Who  went  with  him?---A  great  crowd  of 
people. 

Mention  some  ---Il(»hin  Bennett  was  there. 

Were  the  two  Nairns  there  N--Yes. 

What  was  done  at  the  Crosn  ?— >8onie  words 
arose  at  the  Cross.  Bennett  said,  One  and  all, 
or  none  at  alt. 

Did  any  biuly  answer  that  ?---Yes  ;  general 
Smith  hiinspjf.  General  Smith  looked  round 
upon  parson  Nairn>  and  said,  it  should  be  one 
and  all. 

Wji.s  there  any  complaint  made  at  that  time 
by  any  voter  P---1  cannot  recollect  what  com- 
plaint. 

Was  there  any?---I  don't  remember,  not 
particularly  ;  lie.si<les 

Bt:si(les  \%  hat  ?--- About  one  and  all  they  hal- 
lowed out.  It  shall  l)€  one  and  all. 

What  was  clone  atlerw ards  ^  when  they  went 
from  the  Cross,  where  did  they  goi'---The 
voters  were  ordered  to  |)nblic  houses. 

To  what  |Mili!ie- houses  did  they  go?---Some 
were  ordeicd  to  one  puhlic^house,  some  to  the 
other. 

Did  general  Smith  go  to  any  of  those  houses  ? 
—Yes. 

Which  did  you  see  him  at?---The  White 
ITiirt. 

Whst  passed  ihero?- -general  Smith  asked 
them  tor  their  votes  at  the  next  election.  One 
ThoinAs  Kichardson  was  there,  and  said  if  his 
t'li'jmi  Nuirn  had  lieen  as  good  as  Itis  woid,  he 

fittid  not  bare  coiue  to  cauvas»  Oixeu. 


Was  any  thijig  said  wbtt  Nain's  word  wat? 
Was  it  explained  what  Nairn  had  aald  ?— No.| 

What  did  geneiml  I^Ub  ny  P-  Tbot  kedid 
not  know  but  they  were  all  easy :  apoo  wkich 
parson  Nairu  put  bis  bat  before  RicbardsQB'f 
face ;  then  captiiin  Nairn  and  aome  more  9i 
tbem  led  general  Smilb  out  of  the  room. 

What  was  Richardson  doing  when  br  polUi 
bat  before  bis  face?— It  was  while  he  wm 
speaking. 

Was  it  before  or  after  th^  bat  woo  pot  np, 
that  general  Smith  said  be  thought  they  woe 
all  easy  ?— Just  at  the  same  time. 

Were  you  at  Hindoo  on  the  8th  of  Odabff, 
1774?— Yes. 

Was  there  any  err  in  the  street  then  absil 
flr<*nersl  Smith?-— doe  and  all,  or  cbsM 
Ssnith.  was  the  crv  in  the  strrets. 

What  passed  after  that? — A  figure dreMsl 
in  disguise,  or  something  like  it,  that  appeared. 

What  disguise  was  it  dressed  inf — in  ws> 
men's  apparel ;  it  passed  by  my  Other's  dssr. 

Who  were  with  bar  ?*-«luhnStefens,  Hagf, 
and  several  others. 

Can  you  nM-ntion  any  of  the  other  perssi'i 
names? — 1  cannot  recollect. 

Was  Thomas  Spencer  with  her  ? — 1  briiere 
be  was. 

Where  did  she  go  ?-*-!  don't  know  ;  I  did 
not  follow  her. 

Was  general  Smith  known  to  be  a  candidsts 
before  the  time  he  came? — I  heard  so» 

It  was  the  talk  of  the  town,  was  it  P — No,  1 
beard  it  by  parson  Humphries. 

Was  she  m  any  disguise,  or  not  ?— It  was  in 
women's  ap'iarel :  I  thought  by  its  walk  thst 
it  was  a  man. 

Thomas  Douglas  sworn. 
Examined  by  Mr.  Serjeant  Grose, 

W'hal  arc  youP — An  officer  iu  the  excise  at 
Hindon. 

Are  you  a  voter  at  Hindon  ? — I  am. 

Do  you  remember  general  Smith's  coming 
to  Hindoo  before  the  last  general  election  .^— 
Yes. 

When  did  you  first  see  him  ? — It  rois^t  be 
about  two  or  three  months  liefore  the  electioo. 

Do  you  remember  in  what  month  ? — I  be- 
lieve it  might  be  in  August.  I  saw  him  ^ 
to  the  Cross. 

Where  was  he  when  you  first  saw  him?— 
Coming  iu  at  the  lower  end  of  th'j  town  is  a 
carriage. 

Who  were  with  him? — I  think  both  the 
Mr.  Nairns  were  with  him. 

What  passed  when  you  saw  him  at  the  Cross? 
— He  made  a  speech  at  the  Cross,  as  gentle- 
men generally  do  upon  this  occasion. 

Reprtsentini^  himself  as  a  candidate?- --Yes. 

Do  you  recollect  any  complaint  about  that 
time  in  the  torn)  in  your  presence? — Robin 
Burnett  at  the  Cross  said,  *  one  and  all.' 

Before  or  after  the  speech  ? — AAer  the 
speech. 

Was  any  answer  given  to  that?-— Gencrtl 
\*&\ii\V\!k  laivi^vt  ahoukl  be  one  and  all. 


fit  Brihtfy  ai  ihe  ZBrAm  BuUoh^  Jt  D.  177& 


iS57] 

Wiio  mtA  with  ^Mnl  (Bmkb  wImq  be  said 
thit  ? — I  think  the  Mr.  Nwnis  oa  one  lidk  of 
him,  emI  Burnett  ufton  the  other. 

Were  both  tiie  Niuras  near  bim  at  tbattime  P 
—-They  were. 

•  Where  did  general  Smith  f^  from  the  Cross  ? 
—I  think  he  weat  lo  Liioas*s ;  but  I  am  not 
certain. 

Did  you  see  bim  any  where  that  day  after- 
wards P — I  saw  him  at  James  Gaffe's,  the  White 
Bart,  upon  the  same  day. 

Can  you  recollect  what  passed  at  Gaffe's  P— 
Thomas  Richsrdson  was  alongf  with  us  at 
Cufie's,  he  told  the  general,  that  if  Mr.  Maim 
bad  been  ss  good  as  bis  word,  be  need  not  have 
oome  at  that  time  to  them. 

Were  those  the  very  words,  or  only  the  pur- 
port of  the  words  ?«— The  purport. 

What  answer  was  made  to  this  P<*-I  did  not 
hear  any  answer. 

Was  Mr.  Nairn  there  P^Yes,  wbUe  Mr. 
Aichardson  was  talking,  Mr.  Nairn  put  his  bat 
towards  Richardson's  race. 

What  was  done  then  ?— Nothing  more. 

Did  he  go  away  immediatelyP— He  went 
BOOD  afterwards. 

Char  lei  Simptan  sworn. 
Examined  by  Mr.  Serjeant  Heaih. 

Were  yoa  a  TOter  at  Hindon  at  the  last  ge- 
neral election  P — Yes. 

Were  you  at  the  house  of  general  Hay  ward 
io  the  month  of  Pebmary  1773  P— I  befieve  it 
was  about  that  time,  but  1  cannot  recollect  par- 
ticularly the  tavour  of  general  Gold  was  distri- 
buting. 
-  Dill  you  go  there  ? — Yes. 

What  time  did  you  go  there  P—- 1  cannot  re- 
cxillect ;  it  wss  in  the  evening. 

Did  you  see  a  great  msny  people  there  P— 
There  were  a  great  many  |ieople  at  the  door. 

Did  you  go  up  stairs  where  the  business  was 
transacting  ? — i  es. 

What  was  doing  there?— There  was  a  man 
sat  by  the  table;  I  was  to  set  my  hand  to 
m  paper,  which  accordingly  I  did. 

Mr.  Serjeant  Davy.  Yon  are  not  bound  to 
giTe  an  account  of  what  you  took  yourself— I 
wmw  a  man  there  sitting  at  a  table ;  they  called 
him  Ward. 

What  voters  were  in  the  room  when  you 
were  there  P— Francis  Mesde,  Thomas  Howell, 
John  Beckett  and  Joseph  Moody. 

What  did  Ward  do  ?— I  put  my  band  to  a 
paper ;  1  did  not  presume  to  read  it  orer  wbe- 
tber  it  was  a  note  or  what. 

At  whose  request  did  you  put  your  band  to 
the  paper  P— 1  cannot  tell  positively  who  de- 
aired  me. 

What  did  you  find  in  the  psper  P— Five  good 
golden  guineas :  1  carried  tliem  home. 

Did  any  body  else  sign  the  paper  with  you  P 
•— 1  don't  remember  any  person  did.  When  I 
bad  got  the  paper,  my  nosiness  was  done,  I 
woBt  away. 

For  wmit  purpose  did  you  take  tbi*  moory ; 


ntsi 


was  any  thing  nid  to  you  in  the  room  P— No^ 
no  more  than  to  si^n  the  paper. 

Do  Tou  remember  any  thing  passing  on 
Easter  Moodsy  1774,  the  year  ailerwards  P — 
At  the  George,  William  Lucas's. 

What  was  your  errand  there  P— It  n  as  for 
the  same  purpose  :  it  was  a  goneral  report  that 
the  office  waa  opened  at  Mr.  Lucas's. 

Difl  you  go  into  the  room  where  the  busi- 
ness was  transacting  P—  Yes. 

Did  you  see  any  votera  there P-—Tboniae 
Spienosr  the  carpenter,  and  Beckett  the  Inker. 

Was  any  body  distribuUng  any  thing  P— 
I  know  not  who  it  was. 

Was  there  any  body  P—  It  must  be  a  sub- 
stance, or  else  J  could  not  have  lifted  up  my 
hand,  and  bad  it  put  into  it ;  Tliomss  Wpencer 
ordered  oie  to  aign )  1  put  my  band  orer  the 
door  and  1  received  a  paper. 

Did  you  aae  who  delivered  it  to  yon  f— - 
No,  I  don't  know  whether  it  waa  man,  woBun, 
or  child. 

Where  waa  the  peraon  whose  band  delivered 
you  that  paper  P— Invisible  to  me. 

Was  he  m  the  next  room,  or  where  P— In 
the  fore  room. 

Did  you  see  any  body  else  take  the  money  P 
—No. 

What  did  they  give  yon  this  last  time  P— I 
carried  it  home,  and  1  found  five  golden  gui- 


Do  you  remember  general  Smith '«  coming 
to  Hindon  P — Yes,  1  think  that  was  ttie  S7th 
of  August. 

Who  was  in  bis  company  ?— The  two  Mr. 
Nsims. 

Where  did  be  goP— He  went  upon  the 
Cross. 

I  suppose  a  great  number  of  people  assem- 
bled P—«  A  great  ibany,  both  strangere  and 
votera. 

Did  Mr.  Nairn  say  any  thing  at  that  tiose  ? 
—Mr.  8mhh  got  up  and  made  his  dedaratioa 
that  he  came  to  offsr  bimkelf  aa  a  candidate 
for  the  borough. 

Did  be  say  any  thing  about  Mr.  Nairn,  or 
did  Mr.  Nairn  say  any  thing  at  all  P — He  hioked 
about  and  said  something,  it  should  be  cue 
and  ell. 

But  before  that?— I  cannot  recollect,  the 
inhabitants  cried.  One  snd  all,  or  none  at  all. 

Did  the  captain  say  any  thing  first  P— It 
was  he  desired  it  should  be  one  and  all. 

What  did  the  general  ssy  P-  He  said  it  wae 
his  desire  it  shoiild  be  one  and  all. 

Was  sny  thing  said  at  that  time  to  explain 
the  meaning  of  One  and  all  P--No,  we  knew 
what  it  waa  very  well. 

AAer  this  meeting  wss  over,  did  the  general 
come  where  you  were  P— He  went  from  the 
Cross  down  to  the  Geoi)^  ;  he  came  through 
the  town  afterwards. 

Did  you  know  who  general  Gold  wss  before 
general  Smith  came  P — He  was  called  general 
Gold  ;  we  were  very  uneasy  to  know  who  he 
was ;  and  it  proved  to  lie  Richard  Smith,  esq. 
who  lif  ei  at  GhiitOD  Mge  uear  Uuogerford. 


1259]  10  GEORGE  lH 

Andrew  Farrai  sworn. 
Eiamined  by  Mr.  Popham* 

Are  you  a  Toter  at  Hmdon  ?r— Yeo. 

How  long  have  you  li?ed  there  P— Elefen 
years  last  August. 

Do  you  remember  any  thing  about  the  dis- 
tribution of  faTOurs,  or  any  thing  of  that  sort  ? 
—Yes. 

When  was  it?— On  Eastc^  e?e  irr4;  I 
never  receifed  any  before  that. 

Where  did  you  receive  that  ?— At  Lucas's, 
at  the  George. 

What  did  you  receive  that  for  ?— To  vote  for 
general  Smith,  as  I  apprehend. 

Was  general  Smith's  name  mentioned  to 
you  ?— Not  as  I  appreiiended. 

How  came  you  to  mention  general  Smitli*s 
name  ?-— It  was  reported  such  about  the  town. 

Was  there  any  other  name  mentioned?— 
Not  at  that  time. 

What  did  you  receive  ? — Five  guineas. 

Who  was  there  besides  ? —Beckett,  Thomas 
Howell,  Thomas  Spencer. 

Did  you  see  them  receive  any  thing?— No. 

They  were  in  the  room  ?— -Yes. 

Were  there  other  people  there  voters  of 
Hindon  ?— Yes, 

Where    did"* you    receive  this    money? — 
Throagh  a  hole  in  the  upper  part  of  the  door. 
'    Did  you  see  the  person  that  gave  it  you?— • 
No. 

Did  you  sign  any  thing? — ^Yes,  some 
tvriting  that  was  upon  a  paper  :  I  did  not  read 
it. 

Did  those  people  yon  have  named  receive  it 
likewise  ?— Yes. 

Did  they  sign  the  paper  at  the  same  time  ? 
— No. 

Who  did  then  ? — James  Wyer  a  grocer, 
Thomas  Peuny  a  car^ienler,  and  Harry  Savage 
a  breeches-maker. 

Did  you  see  them  receive  the  money  ? — I 
saw  them  put  their  hands  up  to  the  hole. 

Was  any  thing  said  about  voting? — After 
I  had  signed  the  paper,  Thomas  Howell  bid 
me  put  my  hand  up  to  the  hole  of  the  door ; 
I  iiid\  and  received  a  paper. 

What  did  he  say  more? — Nothing  more  to 
tlie  best  of  my  knowledge. 

Do  you  remember  when  general  Smith  came 
to  Hmdon  ? — I  was  not  at  home  then. 

Did  you  come  home  while  general  Smith 
was  at  Hiudvn  ? — No  ;  1  met  him  u)K)n  the 
road. 

Were  you  at  Hindon  when  general  Smith 
was  there  at  any  time  ? — Yes,  about  a  week 
before  the  election  ;  I  was  not  at  home  when  he 
came  to  liindon  first ;  as  1  was  coming  into 
tovvo  in  my  return  he  was  going  out. 

Jeremiah  Lucas  sworn. 

Examined  by  Mr.  Moyscy. 

Do  you  remember  when  general  Smith  came 
just  before  the  election  ? — Yes. 
You  saw  him  ? — Yes. 
Where?— At  Mr.  Lucas's. 


Trials tfB.Snm  and  T.B.Hoais^fi4rf.    [ISGO 


Wbaft  paswd  .when  yo«  flaw  hin  then  f—l 
did  not  speak  to  him. 

What  was  said  to  htm  ?— He  went  up  to  tW 
Cross ;  and  as  he  was  going  np  the  inkabhssii 
cried,  One  and  all. 

What  did  the  general  nay  to  that ?— He 
stood  upon  the  Gross,  aad  be  repcHUed  iht 
words. 

He  said,  One  and  all  ?-^Ye8. 

Did  be  say  that  more  than  oaee  ?— I  imft 
remember  that  he  did. 

Was  it  constantly  lakl  by  the  r&ltn,  Qm 
and  all  ?— Yes. 

And  did  he  constantly  oaake  that  answ«ls 
them?— Yes. 

Mr.  Serj.  Davy,'  Did  he  naj  it  OMre  tks 
oooe.°— il.  No. 

Bf  r.  Moytey,  Did  he  constantly  make  thit 
answer  when  they  constantly  aaid  it  P — A.  Ysa 

Did  you  say,  One  and  all? — No. 

Repeat  again  what  general  Smith  asid.— 
General  Smith  was  up  at  the  Croaa,  and  the  is* 
habitants  cried,  One  and  all.  He  stood  ai  tW 
Cross,  and  repeated  those  words.  One  and  si; 
and  he  did  not  know  but  what  they  weiesl 
made  easy. 

Were  yon  at  the  George  upon  Eastar  Moi- 
day  ? — Yes, 

Some  money  was  given  you  ?-^Yes. 

Who  were  present  then  ? — Thomas  Spenev 
carpenter,  John  Beckett  a  baker,  and  ThsMi 
Howell.  1  do  not  remember  any  body  cbe: 
it  was  upon  a  Monday  or  Saturday. 

There  were  some  notes  giTen,  were  tkoe 
not  ?— Yes. 

Who  gave  notes?— We  pal  our  hands  tst 
paper. 

Who  put  their  hands  to  the  paper  at  tbessM 
time  ss  yon  ? — John  Baldwin,  Edward  Bs^ 
kett,  and'  Robert  Ty ley . 

They  all  received  the  same  money  asyos, 
five  gu'meas  ? — I  never  saw  theirs. 

George  Spender  sworn. 
£]iramined  by  Mr.  BuUer. 

Were  you  at  the  George,  at  Lucases  ?— Yd. 

When?— 1  cannot  recollect  what  time. 

How  long  before  the  election? — Soae 
lime. 

What  time  of  the  year  ? — I  cannot  uj 
exactly  what  month  it  was. 

What  was  done  there? — 1  went  up  iotoi 
chamber,  'lliere  was  a  gentleman  tlicre :  tbej 
told  me  his  name  was  Ward  :  whether  it  ni 
or  was  not,  I  do  not  know.  He  said,  liis  mosct 
was  out ;  but  he  would  borrow  some.  1  pat 
my  hand  to  a  paper,  and  he  put  a  paper  isU 
my  hand  which  contained  five  guineas. 

Did  any  body  elae  receive  any  thing  at  thai 
time  ? — My  son  was  with  me ;  1  beliefe  be  it- 
ceived  the  same. 

Was  it  mentioned  in  whose  favour  this  «tf 
given  ? — 1  donU  remember  that  it  was. 

Were  you  at  the  George  on  Easter  Moodaj ' 
— Y'es. 

Who  was  there  then  ?— Thomas  Speacer  tba 
carpenter  and  John  Beckett. 


i 


1361] 


fir  BriUry  at  Me  HmAm  N^ig^ 


A.  D.  177& 


[18GS 


What  is  Beckett  f— A  baker. 

What  was  done  Iheo?— 'We  aigned  a. note 
then. 

Was  year  SCO  there  P— Yes. 

Did  tie  receire  any  thing  P— I  soppoaa  he 
-did  ;  I  did  not  see  hini  receire  it.  We  both 
put  our  bands  4o  a  paper. 

Do  yoo  remember  when  general  Smith  came 
to  Hindoo  f — Yes. 

Did  jou  hear  the  cry  ^  One  and  all  P'— 
Yes. 

Did  you  cry, '  One  and  all  ?'— Yes. 

What  did  you  mean  by  that?— Thai  we 
alioold  all  be  satisfied. 

Had  there  been  any  uneasiness  in  the  town 
before  ?— I  cannot  recollect  any  uneasiness. 

Were  ^ou  at  Hindoo  on  the  Saturday  before 
the  election  P — Yes. 

Was  there  any  cry  in  the  streets  then  P— 
There  was  a  talk  of  Punch. 

Whom  was  that  talkof  Punch  among?— I 
cannot  say  who ;  one  neighbour  to  anotMr. 

Was  there  any  Punch  came  ?— In  the  eren- 
ing  there  was  something  went  about  in  dis- 
guise. 

What  did  that  something  do  ? — He  came, 
and  Elias  Stereos  knocked  at  my  door  with  a 
Jong  stick.  I  held  out  my  hand,  and  some- 
bod  v  put  a  paper  into  my  band. 

Who  pot  that  into  your  hand  P— The  person 
m  disguise,  to  the  best  of  my  knowledge. 

What  was  in  that  paper  r-^-It  contained  fire 
guineas. 

Reuben  Burnet  sworn. 

Examined  by  Mr.  Serj.  Grose, 

Do  you  lire  st  Hindoo?— Yes. 

You  are  a  roter,  are  you  ? — Yes,  I  TOtcd 
faMt  time. 

Do  yoo  remember  general  Smith's  coming 
to  Hindoo  ?— Yes. 

Who  came  with  him?— Mr.  Nairn,  the 
parson. 

Did  the  captain  come  with  him  P — I  cannot 
eay ;  ?ery  likely  he  was  there ;  I  saw  the  par« 
•on  there. 

Do  yoo  remember  their  coming  to  the  Cross  P 
•--I  do ;  1  saw  them  at  the  Cross :  when  gene- 
ral Smith  came  to  the  Cross,  he  said  he  came 
lo  ofler  himself  for  the  borougbi  and  hoped  it 
would  be  agreeable  to  all :  I  stood  by,  and 
oried,  *  Ooe  and  all.' 

Was  any  thing  else  said  but  <  Ooe  and  all  ?' 
•r^-Notbing  at  all. 

'  What  was  said  upon  that  P — ^The  general 
Idoked  upon  the  parson,  and  then  turneo  round 
aod  aaid  *  it  should  be  one  and  all.' 

Was  this  repeated  ?— No. 

Did  several  other  persons  cry  out  *  One  and 
•n  f— Yes,  there  were  a  great  many  voters 
loond  the  Cross,  they  all  cried,  *  One  and  alL' 

Were  there  any  words  followed  after  *  One 
smI  all  P'^-Nothing  mentioned. 

Thomas  Richardton  sworn. 

Examined  by  Mr.  Serj.  Heath. 
Were  you  a  voter  at  the  last  general  dectioD 
Ui  Hifldon  P—Ycs* 


Do  you  remember  general  Smith's  comiDir 
to  Hindoo?— Yes. 

Where  did  he  go?— To  the  Cross. 

What  did  be  siy  there?— I  did  not  heat 
him. 

Did  general  Smith  speak  to  you?— Yes,  at 
the  White  Hart. 

Who  was  in  company  with  him  ? — ^DanieV' 
Lambert  and  Thomas  Douglas. 

Was  any  body  else  in  company? — Yee^ 
one  or  two  more,  but  1  do  not  remember  who 
they  were. 

What  did  the  general  say  to  youP— He 
asked  me  for  my  vote  and  interest.  1  said,  iF 
Mr.  Nairn  had  done  what  he  ought  to  have 
done,  he  would  have  had  oo  occasion  to  come 
canvassing  the  town  that  day.   - 

Was  Mr.  Nairn  in  company  P-~ Yes,  both 
the  Naims :  the  parson  put  his  hat  up  against 
my  face,  and  said,  Hnshl  hush !  we  most  have 
no  more  of  that. 

What  passed  then?— The  general  was 
hustled  oflr ;  captain  Nairn  took  him  by  one 
arm,  and  aootner  person  took  Nairn  bv  his 
arm,  and  they  bustled  him  ofL  I  took  the 
general  by  the  arm,  and  said,  Please  to  hear 
what  1  have  to  say ;  but  he  went  off,  and  there 
was  00  more  conversation  at  that  time. 

Had  you  any  conversation  with  him  after- 
wards P — He  came  to  my  shop  another  day, 
and  there  he  asked  me  tor  my  vote  and  inte- 
rest :  1  told  him  as  I  did  before,  that  if  Mr. 
Nairn  had  dooe  what  he  ought  to  have  done, 
there  would  have  been  no  occasion  to  have 
come  canvassing  then. 

Who  was  in  company  with  him  P— Par- 
son Nairn  said  I  was  a  liar,  be  bad  pro- 
mised nothing:  I  told  him  be  was  a  liari 
he  bad. 

Waa  general  Smith  present  at  this  conversa- 
tion P — ^He  was;  he  went  back  a  little  from 
the  shop-door,  then  another  man  whispered  in 
his  ear,  and  he  came  back  and  whispered  in 
my  ear,  and  said,  Madam  Beckford  at  Foqi- 
hill  desired  her  trades-people  to  support  his  in- 
terest. 

Was  any  mention  made  of  what  money  yoa 
were  to  have?— No. 

Did  yoo  say  what  Mr.  Nairn  promised  P— I 
did  not  say  ferther  than  what  1  mentioned. 

Did  you  say  what  he  ought  to  have  done  P— 
That  would  have  made  the  town  easy. 

What  waa  the  conversation  that  passed  P— 
We  gave  one  another  the  lie,  and  then  said  no 
more. 

Had  Mr.  Nairn  promiaed  you  any  thing?— 
He  had  promised  me  nothing  in  particular,  but 
he  had  promised  that  every  man  in  the  town 
should  be  made  easy  alike. 

When  was  that  promise  made  P— At  tlie  first 
beginning  of  it. 

What  time  was  it  you  talked  with  Francis 
Meade  about  thia  money  P— At  Easter  tfve. 

Whit  did  he  desire  yon  to  say  to  them  P— 
He  desired  that  those  who  had  not  received 
money  shookl  sUy  till  Mooday,  and  to  those 
that  Md,  it  {hjllM  ^  flMd^  up  ttft. 


Wbo^asUifit 


Who  do;70«  Uunk  it 

Wm  il  «itlMr  he  or  eurtaoi  N«n^-I  A 

MtkllOW» 

imMifrmuft  177i»  iw»»y  a  it  B03  wmM 
Whit  wMi  Qmrn^-^t 


,    Mm  Bml^immmnh  .1     What  nid  dw 

EsL»|i«lhyMr.f^9a«i.  Sotoft? 

Ani<yM|JUvO^.«iHhi4MP«iM.Tia  Did  ho  mofco 

How  long  hrre  yoa  beoo  •  voter  F—Whii 
UMioorijo;  liyojoiotMio  liit  rioOJio- 
'  Doyoa  reflMmhar  any  omnm^t  Waf  !gi#«»f 

At  what  tiiBor*^UjpOi  FmwMoMli/l<ho 
Oooivo* 
DM.  jMi.iooaivettiyf— T«%  f  hod 

pftoerthoro. 

^o# wieb  did  il  lifiN 

1  hWAJtithMfhtho  holoooev  I 

DM  yoitoooUiopwiOothotfweiiyoaf-** 
lio. 

Did  yo«  toe  toy  hhdjf  di»imi#o  Itf— Yoi^ 

JiodoiMhliMMii  ttdomr^BodM  oid  Bolhrt 
i-t — 

\  DUkthofrigtoaMt^wilbiMir---^yotfr 

Wbofo  inooejr  WM  thiir— i  4Mi?t  kooov 
HMdhloMlellni^ 

Do  yo«  lOilihoK  Of  mhow  wicohpiif  Hoj 
Ihii  tMboP^.lVo^ 

Or  olaogr  olior  thtoof^NoC  npoo  thol  oo» 

€MOt. 

Whh(MOldkodroltooiho  OMdidato  lb«  Hiii. 
doo  ot  this  thoof **'Otwrol  Gold^ 

WhoMdi*irott  o«  thhl<WD» qnilMntooJ  by 
gootnd  OoMf— We  did  ool  oodoMood  mj 
hot  tfao»  it  iroo  gcinol^  Gold  ot  thU 

Who  did  gooml  Gold  torn  ool  to  bo  ot  that 
■or---OcMiol8aiilh^ 

Wao  apeoenl   Smith  oalled  by  onv  othor 
f-^Ooly  glionrolGohl  ond  geooiolStrilh. 


Oooi-eiaaiinod  h^  BIr.  Seg.  Bwoy. 

How  do  yoa  know  that  general  CroM  and 
gooerol  Sraitb  if  the  game  persoo  ?-^l  under- 
otood  it  to. 

Do  yoo  know  that  there  it  Oct  such  a  per- 
oon  ■•  geoerai  Gold  P — I  doo't  know. 

When  yov  heard  of  general  Gold,  yon  had 
not  heard  of  aoy  other  person ;  aAerwsrdi  go* 
neral  Gold  dropped  it,  and  in  hie  stead  oamo 
geoerai  South  ;  and  then  when  goneral  Smith 
came  you  did  not  know  but  it  was  the  same 
person :  that  was  all  you  knew  of  it  ?-^Yes. 

Mr.  Popham.  Did  captain  Nairn  or  parson 
Nairn  introduce  any  other  person  by  the  oame 
of  general  Gold  ? — A.  Wben  they  came  to 
town  they  proclooed  general  Smith. 

Thomoi  Fenny  sworn. 
Examined  by  Mr.  Morrii. 

You  live  at  Hindoo  with  yoor  fitther?-— 
Yes. 

What  is  his  name? — William  Penny. 

Do  you  remember  general  Smith's  coming 
to  town? — I  don't  remember  any  thing  of  his 
coming  to  town. 

Dojroo  remember  any  thing  of  his  being  at 
year  mtlMr%'r — Yes,  abooi  a  week  before  the 
omciion. 

WlNtteonveraotion  possed  thofoP«<»»S9aM  of 

die  f oton  md|  QttHmk^i 


Did  yao  sipryooio?*— Yoo> 
Who  sigood  with  yoQf*hM' 
RdhoiO  Wyor^  ooAJoImi  Wjmi^ 
They  joSnod  wtth  vo«  M  o  —a-o. 


-W^ 


Lddoi^  lfc»  WfcilrtBH 


DM  yo»9iO«f  OdiiP^lbr  llhi>«0lof<^1h| 
fireflmooo.  •- 
Hod  the^  ooythfaurf-wJ 

toUe,  Of  f  dhl,  oaowlAf '  wi 
of  brown  paper- 

Woto  yod  ol 
opoo  Easier  cfoP-^Yeo« 

Who!  pMod  thoRP-^-' 
there.  *« 

The  some  00  k  woo  0*  Ho)QM»d*o  r-^YhO 

Who ofoio the  piiio|iia  that  oigMdwUhyd 
■  there  f-*»Aodnlt,  Fiairaly  Hoary-  8taiO|^  ml 
James  Wyor. 

Who  were  Hierohoriioe^^llooim,  fl|pM 
and  How^. 

How  did  they  oet  P-^oba  Beckett  hq^  • 
wrilhig« 

What  did  Speoear doP— I  imogiaehili* 
the  notes  wo  signed. 

What  did  Howell  do?— He  was  there. 

But  did  he  act  at  all  P — I  cannot  reoMote 
that  he  did,  but  he  was  in  the  room  aloog  oilk 
them, 

T^omof  Afoore  awom. 
Examined  by  Mr.  Ifoyoiy. 

Do  you  remember  being  ot  the  Angd  it 
Hindon  just  before  the  election  ? — Yes. 

Was  general  Smith  there  P — Yes. 

Do  you  remember  any  cooTorBOtiMi  that 
about  the  election  ?— Yes. 

What  was  said  ? — I  asked  the  gencarol  oljf 
he  had  not  made  all  the  roters  olikeonoaadd; 
he  said  he  meant,  one  and  all,  oud  it  sbeoM  li' 
done  and  soon.  .  . 

Do  you  recollect  upon  what  day  this  oi|f 
—No,  it  was  some  time  in  September. 

The  September  jost  before  tho  eleeiisoP<^' 
Yes. 

What  was  said  besides  ?— Ponoo  Na^  Hfk 
me  by  the  hand  and  desired  me  to  piueetd  10^ 
farther,  not  just  then,  for  the  general  ani  bto 
would  wait  upon  erery  man  at  hip  owo  hitf 
that  had  abt  received  the  iovoOTi  ^^ 

DM  he  say  aoy  moreP^Mr;  Mmoi  INkJM. 

letfo  end  wool  owoy  direellf*^ 


Bws} 


fur  Bribery  at  the  Hindon  Election. 


V/u  Ihrre  any  ihinK  more  said  by  general 
Smith  at  ihal  limef— Not  as  1  remerobcv. 

Ytm  saw  Mr.  Nairn  atierwarilB,  did  aot  yuu  P 
— Yea,  opposite  the  barber's  shop. 

Wb«u  was  this? — Tha  Snlurday  b«fure  the 
clectioa,  wbich  nas  upon  s  iUund*y. 

How  soon  aller  llial  meetinj;  was  it? — 
About  a  week  nr  ten  days:  I  asked  him  ivhj 
hediti  nntmakellieo]  all  easy,  he  saiilil  should 
be  (lone  •luon. 

Did  lie  say  any  tliini; 

How  soon  ^fler  this  rt 
Punch  danced  ? — The  same  eTening,  I  believe 
1  did  not  see  Punch. 

Cross-examined  by  Mr.  Serj.  Dupy, 
^Tlio  tvas  in  the  room  at  tlie  An^l,  b«iideg 

Siu  ami  general  Smith    anil    Mr.   Nairn  f — 
eury  Huff,  John  Hooper,  Robert  ftawden. 
Who  besides  ?"These  were  some,  there  were 
others;    younif  Henry  HufTwas  there,  and  I 
believe  one  urthe  ISIevens's  was  there. 
Was  Penny  there? — I  believe  not. 
Or  Lambert  ?~  No. 
Or  Douglas?--!   don't    recollect  thai   he 

I  belicTe Sim pson  was  there,  tvas  he  not? — 
I  eanii'it  remember. 

Was  Andrew  Farrat  or  Spender  there  ? — I 

Or  Rofiert  Burnett  or  Thomas  RichardBOD  ? 
— Thoma»  nirhardson  was  not  there. 
Thomas  Penny  ?— He  was  not  there. 
There  were  a  great  many  people  there  P — 


A.D.  1776.  [1266 

general ;  and  ihervlbre  1 


Anil  ihta  was  «i 
great  many  peoph 


■-Yes. 
They  all  heard  it  theo  a 


hearing  of  i 


But  what  vraa  said  by  the  barher't  shop  no- 
body heard  hut  yourself? — I  don't  know  that 
■ny  body  might  ;  there  was  Lufce  Meade  stooil 
close  by  us;  whether  he  heard  what  we  said  I 
cannot  tell. 

He  was  near  enough  to  hear  without  listeo- 
ing,  was  be  ?— Y'f  s. 

Etiai  SCep/itni  sworn. 
Examined  by  Mr.  BulUr. 

I  any  time  lo  yonr 
Beckett   and    the 


Did  general  Smith  con 
boose  at  HindonP — Yea. 

Who  were  with  him 
Nairi 


What  was  said  by  general  Smith  to  you.' — 
He  asked  me  to  gire  him  my  vole  at  the  next 
elcclioo  ;  I  said  J  would  not  promise  him  ;  he 
Mikeil  me  tor  what  reason ;  I  said  because  he 
hail  aot  been  as  good  an  his  promise  ;  saiil  he, 
what  do  you  mean  by  that,  I  don't  know  what 
you  mean  by  it ;  the  general  popp'd  back,  and 
then  Nairn  said.  As  sure  as  God  is  God,  etery 
thing  shall  be  to  your  expectation. 

Which  Nairn  was  that  ?—The  parson. 

Did  yuu  tell  eenerat  Smith  what  the  promise 
wna  ihst  he  had  not  been  ao  good  asP--l  can- 
■ut  Hy  whether  I  did  or  not.    1  loU  Itim  tba 


town  were  uneasy 

should  not  promise  my  rote. 

Cross-examined  by  Mr.  MmsJieU. 

So  when  you  said  he  had  not  been  as  i;oodM 
his  word,  he  asked  you  what  you  tucunt  by 
lh«t?.-Thepaninndid. 

What  did  general  Smith  say  to  you?-— No 
more,  only  asked  lue  for  my  rote ;  and  when  1 
told  him  t  would  uoi  promise  him,  then  he 
struck  out  at  the  door,  and  then  it  was  parson 
Nairn  spoke  to  me. 

Mr,  Buller.  Was  it  to  general  Smith  or  lo 
Mr.  Nairn  that  you  saki  you  had  been  deceir- 
ed  ? — To  parson  Nairn. 

Was  any  ihiiiK^id  about  your  being  deceived 
berore  general  Smith  turned  out  P---No,  I  told 
Mr.  Nairn  the  luwu  were  uneasy :  he  asked  ma 
what  I  meant  hy  it  ;  I  told  him  it  was  report- 
ed that  SOOor  5,000  guineas  were  In  he  ijiTen 
al  separate  limes,  that  it  was  to  he  given  lo  the  \ 
town  all  in  general,  that  they  had  not  been  ao 
good  as  their  word,  and  therefore  1  would  not 
promise  my  vote. 

That  then  he  used  the  expression,  that,  as 
sure  as  God  is  God  every  thing  should  be  lo 
your  expectation  ?— Yea. 

Mr.  Serj,  Davy.  General  Smith  heard  OO' 
thing  of  what  you  had  said  about  being  deceiv- 
ed.'--.No,  he  was  gone  out  at  the  door. 

Was  it  bel'ore  general  Smith  went  awav  that 
Mr.  Nairn  said.  As  sure  as  God  is  Goil  you 
shall  have  no  reason  lo  complain  ? — No,  it  was 
atler  he  was  gone  out  at  the  door. 

Court.  Do  you  know  where  general  Smith 
went  when  he  went  out  of  the  bouse? — He 
weni  lo  every  voter's  house. 

Did  he  wait  (Tor  ( 
take  upon  me  to  say 
cause  I  was  in  the  finuse. 

Mr.  Serj.  Davy.  He  had  a  great  many  peo- 
ple with  him  IJesides  captain  Nairn,  had  he 
not )— Yes,  he  had. 

The  Evidence  in  snpimrl  of  the  Inforroatian 
being  closed,  Mr.  Serjeant  Davy  madeaSpeecll 
to  the  Jury  in  defence  of  his  Client,  but  did 
not  call  any  witnesses. 

After  Mr.  Baron  Hotham  had  summed  up 
the  Evidence  to  the  Jury,  they  returned  a  ver- 
dict, finding  the  Defendant  Guilty  of  the 
Charlie  alleged  in  llie  Information. 

The  remainder  of  the  Record  in  this  Case, 
as  regwrted  io  Douglas's  Coolroverted  Elec- 

"  Whereupon  the  Kaid  Attorney  General  ofour 
said  lord  the  king,  who  for  our  said  lord  ihq 
king  in  this  behalf  prosecuteth,  fur  our  said 
lord  the  king  prayeih  the  consideration  of  the 
court  here  iu  the  nremises,  and  that  due  pro- 
cess of  hw  may  he  awarded  against  him  the 
said  Richard  Smith  in  this  behalf,  lo  make  him 
answer  to  our  laid  lord  the  king  touching  and 
concerning  the  premises  aforesaid  ;  whetctw* 
lbe»iiet:iff^M'tb«Mi&«ttA^<:i«)iV4i'&^'««>-'<*^^'- 


«nid  Eiwui  "hinlnr,  CMnkv,  mhm  pr»- 
■Mb  Ibr- oar  iM  hri  lU^  in  tMi  to- 
r,dMhtlMKh*i  ThmiiR»lcl>jn;lhac> 
«  caOM  WonaMTMU  lird  Dm  kMV.N  tbe 
w«  of  IbB  MriBnliMi  or  ibi  U«Md  Tim 
Muy,  •rbmMcm  ta  ikdl  tbt*  bt  !■  Em- 
Jh<  bj' wbMB  tlw  Irwk  «r  tbc  mHUrwy  bs 
•tba  bMw  Iratin,  «ni  wba  um  aot  «f  (ba  Uv 
r  4nd  «r  Iht  mM  WdMrd  SoiA,  to  try  bbm 
4b^Mth  vbaAardMMid BUud  aiiOikt 
fMlqr  af  dM  movM  ifbmaM  ar  Mt:  bt- 
now  u  wdl  uewd  E4mrd  nariaViMfifaw, 
whmfnmtMmkttrmrmUi  lord  Ibc  Uw  in 
fUtWMT.  H  tba  ntd  Biefaaid  teMb.  im 
IbafwapOB  pM  dmntdTM  mMi  the  ndd  jnrv, 
ibeMOMday  b  girai  m  wall  M  lb* Mid  Ed- 
ward Thoriaw,  aiquira,  wbo  proMoaMb  ftr 
Mr  nid  bid  tba biBff  nilbia bdMir,  M  to  (h« 
wid  Ridud  Smilb )  it  wbkb  nil  tiow  (u 
«ii)  aa  Aa  aotava  af  tba  Purifleitiaa  of  Um 
■Waned  TufioHarjabiMiid,  bafen  an  add 
brdtbakuffu  WaHiniMHrcwa m wril ih» 
«U  SdwanTTbariMriMDoin,  wbopracoaMb 
4br  Mu- Hid  bM^tta  kinff  iD  &ia  bAair, « iba 
■aid  BiclMid  SaAh  bybiaattanHjaArM^i 
Md  tba  Aettf  «f  Aa  Md  cMo^  af  Wdta  r«- 
•  toroed  Iba  oaiMa  of  twain  jurora,  nooo  of 
wboin  Goaie  to  try  in  fiimi  aforcMid,  ibcrafiira 
Um  sberiff  at  tb«  aaid  codhij  of  Wiha  ii  com- 
Oiaiuled  tbathedooot  forbmrby  reiMworanj 
li|iert>  in  bu  bailiwicb,  but  that  he  distrain  iba 
jumn  lut  afbrenid  by  all  thdr  landi  ud  clut- 
iIm  in  bia  bailiwick,  n  that  neither  ihey,  nor 
any  une  for  them,  do  put  their  baodi  to  llie 
aaine,  ontil  be  ihall  bare  aootlier  GoninM4id 
fiwD  oar  laid  lord  the  kiay  for  thai  purpoae, 
«ad  that  ba  auwrr  u  our  aid  lord  tbe1[ii4(  for 
ttia  iMoe*  iberccrf*,  ao  tfait  ha  may  bare  their 
bodiea  before  our  mIJ  Imd  tba  king,  in  flftcMi 
4ayi  from  tba  feot  diy  of  Eaater,  whereaoeter 
be  ahall  then  be  in  £n);land,  or  before  tba  jiu- 
ticea  of  our  wid  lord  the  king  Hiigned  to  bold 
the  aMiaei  io  and  fortheuid  county  of  Wilts, 
if  they  (haU  come  before  that  time  (that  i«  to 
Bay  1  on  Saturday  the  9lh  day  of  Blarch  next, 
-at  New  Saruni,  in  the  aaid  ooanty,  aoccrdins 
to  the  form  of  the  ati  Urte  in  that  caae  made  and 
IHorided,  to  tn  iraoo  their  oath  whether  the 
Mid  Bicbard  Smilb  be  goili*  of  Ike  premiaca 
"  >riMM,iade&ult«f  the  jurorealbn. 


n  the  aaid  county  tiava 

Iba  bodiaa  of  tba  aame  juron  Bceordinrly  to  try 
to  form  aHuMalH :  tba  tame  day  U  giren,  ai 
waU  la  Iba  nid  Bdwaid  Tharlow,  aa^ aire,  wba 


'1967]  MGEdRGBUl.    t^tat^S.8mikndT,BinaKtimtn.   fMl 

BMaomadiftr  awjaU  lard  dM  Uh  ta  Aa 

EaUir,afWtbaMUBkhBidBiritt;  MwWk 

"  ItanAaftMte 

'sas 


wmM  Ibat  be  abauM  net  Ibrbaar  bj  rmao  of 
bd;  liber^  ia  hU  baBwicfc,  bM  «M(  be  abawM 
caoae  Un  to  oano  lo  anawar  to  oar  mM  lord 
tba  kiK  tooeUar  aod  eaDcamiaff  Iba  prenuMi 
'lAnaaSl.  And  mw  (that  te  to  nyVoa  Tbta- 
4ayiint  after  Iba  oetarc  oT  BiiDt  Hilary,  ia 
tba  MBta  tana,  before  aar  mM  bnd  Ibafa'ar  at 
Wartmtaalar  eHMb  Iba  aaid  fUabard  sSib, 
kj  Wmkm  Sidcwiok  bb  attorwy,  uul  bariat 
heard  A*  aaid  MbnMtioB  taad,  ba-aailb  tbai 
ba  ir  Not  OaMiy  ikmat,  wd 


Mke.wUpiiWaiMhlbt— M 
- '- ddibaktf.  ■aikaaf'-'  "=-'-' 


britbaUarbi  _     . 

SaAb  by  bb  attacM*  abraaaU  *- a^  Ik  eba- 
■Md  jMib«  aC  aaAa,  bofoi*  whaa  da  ail 
jmj  aama  la  tnr  ia  turn  afbrtaaii,  and  baa 
tboK  raeard  ba/b«lbrr  than  in  difae  ««rii| 

rbMaartaftnwafda,  on  iha  day  Mia 
ptaaa  tm  wilUa  mentioaad,   batbe  * 
Janta  Byn^bobHaaleir  BeaMMStBal' ~ 
kaigbt,  two  of  tSa boNM  of  hb  MpeanHii 
tfERbMoer.  JoatfcM  «f  wn-  eaMlerd  the 
•ii^ac4  to  Md  tba  iMina  in  and  lb 
aaoaiy  af  mUa  wiikb  nwniioMd,  acawte 
tolbafanardwMMe  ia  awcb  aMoMf 
udpntidad,aanaae  wdl  Un  wiikhi-aapH 


aariM  brd  Iba  Um  ia  Uib^di^  « Aa 
vUilaaMadBbhnTsMih  bjUaaaMV 
wilbia— ibaalt  and  the  jorara  wTtbepot 
wbnaar  then  b  matioa  witbia  owdr,  Uf 

oaDad,  aena  af  tban  Ao  wit)  William  B«aiNl 
orNartoaBa*aal,«Mira,IticbBril  Souitibj^ 
B^foH,  aMir^  Wilfiain  Hajter  »f  Nt-M 
Ttitfj,  cBHtta,  Tbonaa  Hoore  ofDaniofm, 
aaqiriK,  FtaaM  '^'i'*''  Astley  uf  Etaiff. 
aagriia,  and  Jafaa  ttkitelock  of  Eattndf, 
caqnira,  oana  and  ara  aworn  upon  the  ait 
_.  .. "^-reatof  the  aaid  jurt* 


■Dt  appaar,  ibaraftia  alhere  of  the  bj 


oin,  by  tlie 
Iba  nid  jaaOeea  are  anew  appointed,  mhm 
naoiaa  are  alEled  in  the  paooel  within  wriaa, 
•cconliug  to  the  form  of  tbe  statute  ia  wck 
caae  made  and  protided  ;  and  the  jonn  *i 
Btiew  appointed  aa  aftresaiil,  (lo  wii]  Junt 
HsDCOck  of  Smallbrook,  Edward  BracbatT 
Stockton,  John  Fenia  of  Warmiasier,  Jiki 
Ford  of  Fotleme,  John  Jerrard  of  F'uuthill  GH- 
ford,  and  William  LawrpQce  of  Altlerbory.  be- 
ing called,  likewiic  cotae  and  are  sHoto  ufM 
tba  aaid  jary ;  and  ltivreu|>oD  public  pradi- 
DMtion  bong  made  for  our  siid  lonl  ihe  bf, 
aa  the  custom  it,  thai  ti'  any  one  will  jnftn 
the  jtwtioea'  afbreaaid,  llie  kin|;'«  t^rjaOi  » 
taw,  the  king's  attoroej  genera),  or  liie  JH"> 
of  the  jury  aforesaid,  CODcerDint;  the  nailM 
within  contained;  he  slioulil  coiue  fonb,  m1 
should  be  beard .  sod  herFupun  Nuh  Gif. 
aeijeaolatlaw,  oflcrelhliinwpit'  on  lbs  MU 
ofouraaid  lordtbebiofl  to  doihis  ;  irbn«a^ 
Ihe  Court  here  proceedpth  lo  lake  ilie  oM  »■ 
^iieat  by  the jnrora  aforEKaid,  now  here  appW' 
ng  for  the  parpeae  aforeuid  ;  nbo  bM4 
eledad,  tried,  and  awtiro  to  speak  tk*  M 
OoocKning  the  matlen  wiiliin  coniaiiii<  aj 
nnto  their  oath  that  tbe  said  llictiaril  SbM  m 
Guijtj  of  the  premiaps,  in  ibe  intbtissii* 
within  specified  and  f  liarged  uptui  biMk  * 
manner  and  form  as  in  and  by   the  said  lalk- 

■still  !■  within  ■ll>gpJ  ^;n^  Lj^a  ' 


J 


laro] 


Jw  Bribery  at  the  Hindon  Election. 


A.  D.  vne. 


[1270 


Proceedings  against  Thomas  Brand 
Mollis,  Esq.  for  Bribery,  upon 
THE  Information*  filed  against 

HIM  BY  THE  ATTORNEY  GENERAL, 
BY  ORDER  OF   THE  HoUSE  OF  COM- 

MONS^  16  Geo.S.    a.  d.  1776. 

Coutuel  for  the  Crown, — Mr.  Sen.  Dary, 
Mr.  Serj.  Grose,  Mr.  Serj.  Heath,  Mr.  Pop- 
turn,  Mr.  Morris,  Mr.  Moysey. 

Ctmnulfor  the  Defendant, — Mr.  Mantfieki, 
Mr.  Buller,  Mr.  Batt. 

Mr.  Moytey  opened  the  loformation.  After 
which,  Mr.  Serjeant  Davy  stated  the  facts 
upon  which  the  charge  against  the  defeodaot 
vat  foanded,  and  then  the  Counsel  for  the  pro- 
•seatioB  proceeded  to  examine  the  witnesses. 

'  A  Copy  of  the  Writ  for  the  Election— of  the 
Rstani— ^  the  Precept— and  the  Poll,  were 
pradaced,  as  on  the  former  Trial. 

JVonca  Meade  sworn. 

Examined  by  Mr.  Serjeant  Groie. 

I>o  you  remember  Mr.  Hollis  coming  to 
Biadoa  ? — Yes,  a  month  or  six  weeks  before 
tbe  eleetion  he  was  with  one  John  Stevens,  a 


What  has  passed  concerning  Mr.  Hollis  and 
in  your  presence  P — I  was*  billetted  at 
Swan,  *the  aame  as  the  rest  of  the  Tuters 
I,  I  believe,  by  Henry  Huffe  and  old  Ben- 
jMaia  Cholsev;  Mr.  Sevens  said  he  had 
troorbt  a  gentleman  to  propose  to  the  borough ; 
I  IsM  bim  I  thought  he  had  no  right  to  pro- 
Me  a  gantleman. 

What  Stevens  was  that? — Jobber  Stevens. 
Did  you  ever  see  Mr.  Hollis  before?— No, 
irtioee ;  I  saw  him  at  this  time  at  the  Cross : 
Mr*  Hollis  said,  he  was  a  gentleman  of  honour, 
ttid  that  be  would  be  as  good  as  any  gentleman 
tkftt  should  come  to  the  borough :  then  there 
waa  a  cry,  '  One  and  all  :*  Mr.  Hollis  said,  It 
glinnid  be  one  and  all. 

Did  any  tbin^  else  pass  ?-~Nothing  more. 
When  was  this  ? — About  a  month,  or  there- 
abouts, before  the  election. 

Was  Mr.  Hollis  known  at  Hindon  at  that 
liaMf-.4>oly  hy  the   representation  Stevens 
If  e  of  him  ;  he  was  a  stranger  in  the  borougb 
that  time. 


£7 


Do  you  ever  remember  Mr.  Hollis's  saying, 
W9  aboold  be  satis6ed  ?— 1  think  Mr.  Hollis 


aos  but  I  cannot  be  certain  to  every  word 
tbfti  paased,  it  being  so  long  ago ;  he  said  it 
MJionld  be  one  and  all,  and  1  think  he  said, 
tlMj  should  all  be  satisfied. 

Do  yoo  know4if  anv  money  given  bv  Mr. 
JBolUs  or  SCavens?— Not  of  my  own  know- 


*Tbs  Information  was  the  same,  mutatU 
^Mf swrfiii wUh tiiat agamrt Smith.  Seep.lSST. 


Cross-examined  by  Bf  r.  Mansfield, 

You  were  a  witness  before  the  Committee  of 
the  House  of  Commons ;  have  you  been  a  wit- 
ness io  any  other  cause  relating  to  Hindou  ?— 
—Yes,  on  the  trial  this  moniing. 

Any  other? — 1  was  called  io  once  before  tlia 
House  of  Coromoos. 

Aye,  I  know  you  were  before  the  Commit- 
tee, we  have  an  account  of  that,  and  shall  never, 
forget  you.  You  tell  us  Mr.  Hollis  said,  he 
was  a  gentleman  of  honour,  and  should  be  as 
good  as  any  gentleman  that  should  come  to  the 
borough ;  then  there  was  a  cry,  *  One  and  all?' 
—Yes. 

How  came  you  to  say  Mr.  Hollis  said  so?— ■ 
Because  I  heard  him. 

Was  any  thing  said,  what  one  and  all  meant, 
anv  thing  said  about  money  ?— Not  a  word. 

You  think  there  was  something  said  about 
being  satisfied :  will  you  swesr  there  was  ? — I 
cannot  take  upon  me  to  say  so ;  1  believe  it. 

But  will  you  take  upon  you  to  say  it ;  or  that 
there  was  a  word  asid  about  satisnction  ?-r-i 
cannot 

Whom  did  you  vote  for? — Calthorpe  and 
Beckford. 

You  had  none  of  this  charming  money  ?— « 
Not  a  farthing. 

Daniel  Lambert  sworn. 

Examined  by  Mr.  Serjeant  Heath, 

Do  vou  know  Jobber  Stevens  ? — Yes. 

Had  you  any  conversation  with  him  about 
bringing  a  candidate  to  Hindon  ? — I  heard  him 
say  that  he  had  a  friend  to  bring  to  Hindon,  if 
it  was  agreeable  to  the  town. 

To  whom  did  he  say  so ;  Uf  you  or  to  any 
other  person  ?— To  other  persons. 

Were  they  voters  ? — Yes. 

Do  yon  remember  BIr.  Hollis  coming  to. 
Hindon  ?— Yes. 

Wss  Jobber  Stevens  with  him  when  ha 
came  ? — Yes. 

Where  did  he  go  when  he  came  to  town  ?— 
He  went  to  the  Cross. 

What  did  he  say  there?— I  cannot  tell;  X 
was  not  handy  to  him. 

Did  you  hear  Jobber  Stevens  ssy  any  thing 
to  him? — No,  I  saw  Stevens  get  upon  the 
Cross ;  but  I  did  not  hear  what  he  said. 

Were  you  billetted  that  day  ?— Yes,  at  the 
Red  Lion. 

Who  ordered  you  to  go  there  ?  -<-l  believe, 
one  Huife. 

Did  Hollis  and  Stevens  come  to  you  to  the 
Red  Lion  ? — Yes,  Mr.  Hollis  came  to  ask  our 
votes  for  the  genersl  election. 

How  many  voters  were  present?— Ten  or  a 
dozen. 

Do  you  remember  their  names  ?— No. 

What  answer  did  \hey  make? — They  said 
they  had  no  objection,  if  he  would  be  as  good 
as  any  other  gentleman ;  some  said  it  must  be 
'down  and  down.'  Mr.  Hollis  said,  he  knew 
the  meaning  of  it.   ^ 

Did  he  say  any  thing  besides  ?---Notlliat  1 
recollect. 


If713 

Was  aoy  thing  else  said  by  the  roters? — I 
cannot  say  there  was. 

Was  Air.  Hollis  known  to  the  town  before 
he  came  there  ? — No,  he  was  a  straucper. 

Was  there  any  mention  made,  when  it  was 
to  be  down  ? — Somebody  made  answer^  *  It 
most  be  once  within  a  week.' 

Did  Mr.  Hollis  say  any  thing  to  that? — No. 

Do  you  know  of  any  money  being  distri- 
buted ufton  account  of  the  election  ? — Not  upon 
Mr.  Hollis's  account. 

Cross  examined  by  Mr.  Batt, 

I  understand  you,  that  upon  the  Toters  say- 
ing to  Mr.  Hollis,  *  It  must  be  down  and  down,' 
he  said  he  knew  the  meaning  of.  that  expres- 
sion :  do  you  mean  to  swear,  thai  Mr.  Hollis 
said,  upon  that  being  said  by  the  Toters,  that 
be  knew  their  meaning? — He  said  so. 

You  are  very  sure  he  said  so  in  these  words? 
—He  said  so. 

Who  were  present? — Seferal  people  in  the 
room. 

Mention  some  of  them. — I  cannot  recollect 
who  were  in  tlie  room ;  there  was  one  James 
Gilbert  there,  I  believe ;  William  Prior,  I  be- 
lieve. 

Did  Mr.  Hollis  say  this  loud? — Yes. 

So  that  all  might  have  heard  it  that  were  in 
the  room? — Yes,  I  think  they  did. 

How  came  you  not  to  swear  this  before  the 
committee,  when  you  were  examined  upon  this 
subject  ?>—yery  hkely  1  was  not  asked  the 
question. 

But  you  were  asked  what  Mr.  Hollis  said  : 
How  came  you  M>t  to  give  that  account  to  the 
committee?— I  don't  know  that  i  was  asked 
the  question. 

Mr.  Batt,  You  were  not  asked  it.  Now 
you  were  asked  to  tell  every  thing  that  Mr 
Hollis  said,  and  you  made  use  of  no  such  words' 

Reuben  Burnett  sworn. 
Examined  by  Mr.  Popham, 

Are  you  a  voter  at  Hindon  ? — Yes. 

Do  you  know  Mr.  Hollis? — Yes. 

Do  yon  know  Jobber  Stevens  ?— Yes. 

Do  you  remember  when  Mr.  Hollis  and 
Jobber  Stevens  were  together  at  the  Swan  at 
Hindon? — Yes.  " 

How  long  was  it  before  the  election  ? — I 
don't  know,  it  was  a  little  while  before  the  elec- 
tion. 

Was  that  the  first  time  you  saw  Mr.  Hollis  ? 
—Yes;  when  Jobber  Stevens  first  came,  he 
said  he  had  brought  a  gentleman  to  represent 
the  borough  of  Hindon,  and  he  hoped  it  would 
be  agreeable  to  ail  friends.  Mr.  Meade  stood 
by  ;  he  said,  Has  the  gentleman  got  nothing 
to  say  for  liiuiself  ?  Fie  stood  back,  and  the  gen- 
tleman came  forward.  Mr.  Hollis  said.  Gen- 
tiemen,  1  came  to  represent  the  borough,  and 
hope  it  will  be  agreeable  to  all  friends.  Ed- 
ward Piercy  said,  Down  and  down:  Jobber 
Stevens  said,  in  regard  (o  down  and  down,  it 
would  not  be  wautdl. 


16  GEORGE  lU.    Trials  ofR.  SmUh  and  T.  B.  HoUis^  esjn.    [IIK 

Was  Mr.  Hollis  preMOt  at  that  tune?— Be 

was. 

Cross-examined  by  Mr.  BnUer, 

Were  there  many  people  then  at  the  tisK? 
—Yes,  ther^  might  be  half  a  aeore^  or  finrtea 
or  fifteen. 

All  talking  together  ?—-Tes9  when  the  g«- 
tleman  came  in. 

Was  Lambert  there  ?— 1  don't  reoottcct  hit 
being  there,  hot  be  might  be  there. 

What  house  was  this  at  P — ^The  Swan. 

What  was  done  with  Piercy,  when  be  oii 
Down  and  down  ?— Bec*lcett  said,  if  yon  dt  wa 

five  the  gentleman  liberty  to  apeak  ior 
will  kick  you  out  at  the  door. 

Was  not  Piercy  tamed  out  of  the 
upon  saying  it  tnust  be  down  and  dowaf-4 
do  not  know  that  he  was. 

Did  not  you  swear  before  the  eomnullH; 
that  Piercy,  when  he  said  that,  was  ord«ed  srt 
of  the  house  ? — No. 

Was  Piercy  ordered  out  at  all?— He  M 
ordered  out  at  the  time. 

When  ? — When  be  said,  Down  and  dsvBt 

Who  ordered  him  oat?— Thelandloid.  Jib 
Beckett,  because  be  did  not  gi¥e  the  gendmi 
liberty  to  speak. 

Where  was  Mr.  Hollis  when  this  was  Mi? 
—Id  the  same  room,  the  kitchen. 

And  most  therefore  hear  this.  Hew  ma 
was  he  to  Stevens  when  he  aaid  that  weoyMl 
be  wanting  ?-*A  little  distance. 

Did  Mr.  Hollis  bear  Stevens  say  thaiesdi 
not  be  wanted  ?— I  don't  know  that  he  did  bar 
it. 

Was  Mr.  Hollis  as  near  to  Sleveaa  asja 
was  ?— No,  he  was  not. 

Was  Mr.  Hollis  near  enough  to  Slevcsf  • 
hear  ?— He  might  be  near  enough :  he  nifk 
hear  it,  or  he  might  not. 

Stevens  was  his  friend? — Yes. 

Did  you  ever  see  Mr.  Hollis  there 
Jobber  Stevens  ? — No. 

Andrew  Fdrrat  sworn. 
Examined  by  Mr.  Moysey. 

Do  you  remember  when  Mr.  Hollis 
Hindon?— Yes, the  39th  of  August  1774. 

How  did  he  come  ? — In  a  post  chaise. 

Do  you  recollect  who  was  with  bim?-Wiii 
Stevens,  the  butcher. 

Any  body  else? — And  another  gentkflUi 
unknown  :  tliey  came  there  in  a  chaise. 

Did  you  see  him  when  you  came  ts  Ihi 
Cross  ? — Yes. 

What  passed  at  the  Cross? — Mr.  Holliiaii 
he  was  a  gentleman  recommended  by  Suvtft 
the  person  who  was  with  him. 

What  else  did  he  say  ? — That  he  cane  «• 
candidate  to  the  borough. 

Did  he  say  any  thing  more  ?— Yes,  br  td 
he  was  an  honourable  gentleman,  and  be 
always  behave  honourably  by  the  tovni. 

Was  that  all  he  said?— 1  don't  lei 
any  thing  more. 

What  did  the  people  aajr  f    Sots  fSt^ 


I 


1273] 


f^  Bribery  at  the  Hindon  Eledhn. 


A.  D,  1776. 


[1274 


cried.  One  and  all :  Jobber  Stereni  said,  they 
had  no  caute  to  dispute  that :  I  don't  remember 
any  thinii^  else  that  was  said. 

Was  Mr.  Hollis  present  ? — ^Yes,  dose  to  him. 
So  there  was  a  great  hollowing  of  One  and 
all.— Yes. 

Was  that  explained  ? — Not  then. 
Where  were  you  quartered  ? — At  the  Queen's 
Head,  William  Penny's. 

Were   there  many  people  quartered  there 
besides  you? — Eighteen  or  nineteen  voters. 
Were  you  at  the  8wan  that  day  ?-«-Yes. 
Was  Mr.  Hollis  at  the  Swan  ?— Yes. 
What  passed  at  the  Swan  P— Mr.  Hollis  and 
Mr.  SteTens  came  there. 

What  passed? — ^They  asked  the  Totesmen 
#i»r  thf ir  totes  and  interest. 

Which  asked  the  voters  for  their  votes  and 
interest  ?— Stevens  first  asked ;  be  said  it  was 
m  gentleman  that  he  recommended  to  the 
borough :  Franois  Meade  was  present ;  he 
said  he  did  not  know  that  he  bad  any  business 
to  recommend  a  gentleman  to  the  borough, 
and  asked  Stevens  if  the  gentleman  had  any 
thing  to  say  for  himself;  Mr.  Stevens  drew 
back,  and  said  he  had. 

Was  any  thing  said  ?— Yes,  the  gentleman 
•aid,  he  was  recommended  by  Mr.  Stevens; 
that  he  was  an  honourable  gentleman,  and 
wnold  always  behave  good  to  the  town,  and 
woold  be  as  good  as  any  gentleman. 

Was  any  thing  more  said  by  Mr.  Hollis  or 
Mr.  Stevens  ?— No,  not  that  I  remember. 

You  were  at  Salisbury,  I  believe,  just  after* 
wards. — Yes,  the  Friday  following. 
-Did  yon  see  Stevens  there? — Yes. 
What  did  he  say  to  you,  or  you  to  him? — 
I  was  coming  along  the  street;  I  saw  him ; 
1  asked  him  when  he  would  come  to  Hindon, 
Ihat  Mr.  HoUis's  friends  were  very  uneasy. 

What  did  he  say  to  that?— He  said  he 
«honld  be  there  in  a  short  time  ;  for  he  had  got 
every  thing  In  order  to  bring ;  he  said  ne 
•houtd  not  be  there  himself,  but  he  would  send 
some  friend  who  would  answer  the  purpose  as 
well ;  I  was  going  away ;  he  called  me  back 
again,  and  told  me  to  give  his  compliments  to 
Mr.  Lucas  at  the  George,  and  desire  him  to 
meet  a  friend  of  bis  at  the  White  Horse,  next 
night. 

Whom  does  the  White  Horse  betong  to  ?— 
One  William  Harding. 

Did  you  go  there?— Yes,  I  went,  and  deli- 
vered my  message  to  Mr.  Lucas,  and  he  sent 
ma  there;  the  next  evening  two  gentlemen 
came  in  a  carriage  to  the  W  bite  Horse ;  I  went 
to  the  White  Horse ;  when  1  came  to  the  back 
part  of  the  house,  there  were  a  great  many 
people  there;  it  was  a  back-house ;  sometime 
after  1  was  there  I  got  in,  and  went  up  into  a 
room. 

Whom  did  you  find  there?—!  found  one 
Barry  Hotfe,  a  baker,  there,  and  Jack  Stevens, 
a  brother  to  Jobber  Stevens,  and  an  unknown 
MaUeman  in  black.  They  ordered  Thomas 
Steveoi  Hagg,  John  Edwards  a  Uboorer,  and 
JaoMs  Lambart,  and  myself,  to  pat  our  naniei 


to  a  note ;  the  other  three  made  their  marks ; 
I  put  my  name:  the  gentleman  said,' it  did  not 
signify,  as  they  could  not  write  their  names, 
but  they  knew  what  it  was  for. 

How  much  money  did  you  get  ?— Fourteen 
guineas,  and  two  half  guineas. 

Did  they  all  get  alike?— Yes,  as  iar  as  I 
know. 

What  was  the  manner  of  giving  the  money  ? 
— ^Through  a  hole  over  the  door. 

Did  these  other  three  people  you  mention 
put  up  their  hand  to  the  hole  too  ? — Yes,  and 
received  the  money  in  the  same  way. 

Cross-examined  by  Mr.  Mansfield, 

Whom  did  you  vote  for  ?— Richard  Beckford, 
esq.  and  general  Smith. 

Did  you  ever  tell  any  body  what  you  would 
swear  concerning  Mr.  Smith  and  Mr.  Hollis? 

—No. 

Then  you  never  said,  that  yon  would  be  re- 
venged of  Hollis  and  Smith,  and  jrou  would  be 
damned  if  Beckford  should  not  sit  m  the  Honse? 
— I  never  spoke  such  a  word. 

You  know  that  was  sworn  about  you  before 
the  committee.— Yes,  but  it  was  very  false. 

There  was  a  false  thing  awom  about  you  P 
—Yes. 

But  every  body  at  Hindon  believed  you  said 
so. — No,  they  did  not. 

The  people  there  were  so  cruel  to  yon,  that 
they  believed  you  had  said  so?-— 1  do  not 
imagine  they  did. 

Yon  know  John  Fricker  ?— Yes. 

Had  you  any  conversation  with  him  about 
it  ? — Never  in  my  life. 

That  was  fol&e  too  that  was  sworn  about 
you  and  Fricker  ?— Yes,  it  was. 

Then  a  great  number  of  your  neighbours 
traduce  and  speak  ill  of  you,  and  all  without 
cause.  I  dare  aay  you  have  a  good  memory, 
and  let  nothing  slip  that  you  heard  said.  Now 
Mr.  Hollis  began  by  saying,  I  am  an  honour- 
able gentleman,  and  that  he  was  recommended 
by  Stevens  ? — Yes. 

You  know  he  was  recommended  by  Stevens, 
they  came  in  a  chaise  together,  and  before  Mr. 
Hollis  spoke,  Stevens  spoke ;  and  then  Bed^et 
desired  to  know  whether  Mr.  Hollis  had  not 
something.to  say  for  himself :  so  Stevens  makes 
a  speech,  recommending  Mr.  Hollis;  upon 
which  Mr.  Hollis  is  asked  if  he  has  not  sooie- 
thing  to  say  for  himself,  and  then  he  says, 
Gentlemen,  I  am  recommended  by  Mr.  Ste- 
vens ? — Yes. 

Mr.  Serj.  Davy,  Where  were  these  15 
guineas  given  you? — At  the  back- house bo- 
losging  to  the  White- Horse. 

John  Baldwin  swora. 
Examined  by  Mr.  Serj.  Davy. 

You  are  a  voter  at  Hindon  ?-^Yes. 

Do  you  remember  Mr.  Hollb's  oomiDg 
there  f—Yee. 

Who  cama  with  him  f— Jobber  Stevens,  who 
lifes  at  Salifbary. 


isi»3 


ISOBOBaSIlL    TrUt^a,atmmiT. 


WiMra  M.tbtj  f»fL~TlMrr  hmH  to  th« 

Crni  fini,  «i4  oAinraiid^  1  Mcftp  thay  ^MB^ 
t>  the  Owifi, 

Ym  4M*t  kMw  wiMt  pMMi  at  Iba  CVMi  N-* 
1  tei^  kBMrwiMft  Mr.  Halfii  Ml. 

That  WM  tlM  plMs  ar  Mleltiiif  •  I  beliaf  e.— 
Ha  toM  tlw  aaopla  thnr  tlMaM  ga  ta  Iba  aaoM 
thay  Mi  Inm  Inllalldl  ta  Iba  aatvday 


flvaar 
BaWaauMtatha^ 
— Mr.HaMwawl.ba 
lapai  ba 


il«atearit.»   Tbqrtrid 
tlMia  waaMba  aa  Ite 


Which  haow  waa  ya«  Mhttail  taf— Tha 
Raw  and  Crows. 

Who  caflM  to  yaa  at  tha  Rota  aoii  down  t 
—Mr.  HaUit 
IdidDatkoow, 

Was  that  tha  aaaa  da v  Mr.  HaUio  aaoaa  ta 
thatowafiratf-^lte. 

Whatdid  Mr.  Htdia  aa j f^That  ha 
taetoTan  the  toini;aod  hahapadha  thaaW 
Had  ftinds  ia  the  taav:  tha  vatnaaaid,  It 
■Mft  ha  aea  and  all;  JalAir Btapoai,  I  tMak 
it  vaa,  aaid,  thare  waa  aa  doaht 

Was  Mr.  HoUk  artacnt  whaa  that  waa  laid  r 
•v-Tasy  aaa  Joseph  Lanh  a  later  asid»  tha 
aoaacr  they  had  the  dese  tha  aoMr  it  woold  he. 

Did  tha  paaplaiay  any  thiayabaat  plsyiag* 
«pf— The  voters  tald  hm,  if  ha  trould  play- 
vp  there  woald  be  BO  fear  of  his  slociiba  |  Jo- 
aeph  LamKsald,  tha  sooaer  they  had  tha  dese 
thaessisrit  wooMbe;  Mr.  Uollis  or Staveas 
a^d,  there  woeM  be  aa  daobt  of  it 

Were  the  words  last  ■JeatioBod  sold  either  by 
Mr.  HolKs  or  Bteveao,  that  there  woold  be«o 
ionbt  of  it»  spake  louaediatcly  after  Luab's 
aayiofp,  the  sooaer  tha  dose  the  easier  he  woald 
have  It  f — 1  esanot  laeoUoot  ovcty  word* 

Do  yea  remeaiber  afterwards  beinff  at  tha 
Whlte^HorseF— Ido. 

When  was  that?— The  Satnrday  nigbtfol- 
lowiog  that. 

The  White-Horse  is  Rsrdiog's?— Yes. 

Who  were  pr«eeDt  then  ?— I  cannot  recol- 
lect. 

Who  drew  the  notes?— Those  who  were 
in  the  boose ;  there  was  Benjamin  Cbolsey  the 
elder,  Henry  Hofle,  Jacob  Stetens,  and  ano- 
ther roan  I  did  not  know,  who  drew  the  notes. 

What  notes  do  yon  speak  of? — I  don't  know 
what  the  notes  were,  I  never  read  them. 

Did  you  put  your  name  to  the  paper  ?— 
Yes. 

And  what  faToor  did  yon  receiTe  ?— The  &- 
vonr  of  15  guineas. 

How  did  you  recei? e  it  ?'-At  a  bole  or er  the 
door. 

Did  any  more  sign  that  note  besides  yon  ? — 
Yes,  three  more;  William  Brookes,  John 
Sterent,  and  Imuic  DotIs. 

Whom  did  you  rote  for  ?-*Hollis  and  Csl- 
thorpe. 

How  Wis  the  money  ffiTen  ?  Wasitconnted 
out  to  yoa,  or  how  P— It  wss  twisted  «p  in  a 
"  ofpaper«  and  pot  through  thia  holeintomy 


kwaaMbltaBd 


pliid,  there  waa  Badaaht  af  thsL 

aMTCBBaa  XJMaa 

EnauBod  by  Mr.  8eg.  Gnm 

Da  yen  waisBiksr  Mr.  BfOM 
HMMtaaf-^Na. 
Whea  M  yoBsea  him  r-^at  liB  jM 


Did  JOB  gala  tha  WhUa-hataar— Y« 
WhM/-Aj|     - 


Woaaay  hady  with  yMf^-A 
peaphn. 

iKd  yaa  leedta  aay  thiag  thaniP--A  m 
panad  Beta,  aad  flvc  guiMaa  asd  b  kBi(«ll 


did 


Did  JOB  pam  lor  a 


Mr.  Bail^.    YaBrehaifa  n  Hhs 


ttOBH, 


Mjm 


CrsBi  eamined  by  Mr.  B^t. 
Tharoappaam  to  ha 


in  the 


Mr.  fieri.  Davy..  There  mai 
peraoaa  daiaMBT  a  right  la 

Yen  neeifad  tha  Maas 
signaaotaf^Yca. 

Who  roosifod  aay  tfaiw  with  ywr--I  Ml 

iwe^Bosr  uiB  BsneDss  iBerB  wene  iBeiBBeo 

sides  oso signed  the BOte^  bat  I  aaBBaliaH# 
ber  either  of  them. 

Upon  whose  aoooont  did  you  reecifa  tUi 
money  ?— Upon  the  behalf  of  Mr.  Hollis. 

Mr.  BuUer.  Was  there  a  word  said  dbm 
Mr.  Hollis  ?— Yes. 

By  whom  ?— A  hundred  people  I  beliete, 

Do  yon  recollect  any  of  them  ?— No. 

Did  not  you  swear  before  the  ooeHaittM^ 
that  the  major  (lart  of  the  town  told  yen,  iha 
vou  wss  to  receiTO  the  money  at  the  WbiB- 
horse  upon  Mr.  Smithte  account.  Mr.  flsii 
wss  not  there?— No.  , 

Nor  waa  Stereos  there  i — No. 

Richard  Ingram  sworn. 
Eiammed  by  Mr.  Seij.  HcafAi 

Were  voo  at  thia  Wbite-horaer— YeOi 

What  for  ?— To  recet? e  a  fiiroor. 

What  were  you  to  raceire  tbmf— FMhI 
guineas. 

Upon  whoee  aoooont  ?— There  wasaa  HBi 
mentiooedl 

Whom  did  you  eee  there? — One  JbbS 
Datis,  one  Henry  Hulie,  and  BwgamJBflrf' 
sey,  thooe  I  remember;  thera  ware  sanii 
more  in  the  room,  but  I  doB*t  raesllaet  thua 

In  what  manner  waaitgif  aByBof-*- lbMl# 
a  bole  over  the  door. 

Did  yon  heor  Jobber  Slavaas  aqr  «qr  Mr 


Jbr  Bribeiy  at  th«  midim  EUetiom  A.D.  177d»^  [1978 


1277] 

abm^i  tlie  Wtiito-liora0F<^I  wm  in  compmy 
witb  Andrew  Farrnl ;  and  we  Btonped  at  Mr. 
Sltfenf't  shop;  aeoietbing^  paned  there  be- 
tween Stevene  and  Andrew  Farrat,  the  particu- 
lara  I  did  not  take  an  account  of;  at  parting  I 
iMard  Jobber  Stereos  say  to  Farrat,  Bid  Lucas 
be  at  the  White* horse  to-morrow  night. 

Samuel  Cofycr  sworn. 
Examined  by  Mr.  Pt^ham, 

Are  you  a  reter  at  Hindoo  f — Yes. 

•  I>o  you  remember  Mr.  Holtis  coming  there, 
and  Jobber  Stevens  P— Yes. 

Where  did  you  see  them  ?— At  the  George. 
-  What  did  they  come  there  for  ? — ^To  canrass 
the  borough. 

■  Did  they  canrass  the  borough  f-^Yes. 
What  was  said  and  done?—- They  came  to 

aak  for  their  votes. 

Do  you  remember  an v  thing  being  said  f — 
Yes,  the  voters  cried,  *  Une  ai^  alL' 

What  answer  was  given  to  it? — I  do  not  re- 
collect what  Mr.  Holhs  said. 

Were  you  at  the  White* horse  at  any  time? 
—Yes. 

•  What  did  you  go  there  for  ?— The  same  as 
the  rest  of  my  neighbours. 

Whst  was  that  for  ?— 1  went  there  for  fif- 
teen guineas. 
'  Did  you  receive  fifteen  guineas  ?— Yes. 

How  did  you  receive  it? — Through  a  hole. 

Was  any  body  else  with  yon?— Thomas 
Penny,  George  Hay  ward,  and  Thomas  Wyer. 

Did  you  sign  any  note  ? — Yes. 

Did  you  all  sign  it  ? — Yes. 

Did  they  receive  the  money  too?— They 
l^ld  their  bands  up  the  same  as  1  did,  to  the 
Me  of  the  door. 

•  What  did  you  receive  this  money  for?— 
Tber  did  not  tell  me  what  it  was  for. 

Whom  did  you  vote  for  ? — Foi^  Mr.  Hollis. 
•  Did  yoo  ever  see  Mr,  Hollis  at  Hindon  be- 
ftMTv  this  time?— Not  before  the  first  time  he 
fMme. 

Bot  he  won  yonr  besrt  at  once?— Yes* 

Thomas  Moore  sworn. 
Examined  by  Mr.  Moyutf. 

■  Do  you  remember  being  at  Salisbury  npon 
the  4th  of  September,  or  thereabouts  in  1774? 
-i-Yes. 

Did  you  see  Jobber  Stevens  there  ?— Yes. 

What  di«l  you  say  to  him,  or  he  to  you  ?— I 
■nked  him  if  he  could  help  me  to  the  favonr  as 
the  rest  of  my  neighbours  had ;  for  Mr.  Hollis, 
h»  naid  be  had  nothing  to  do  with  it. 
.  JM  you  go  to  him  for  that  purpose  or  meet 
hini  by  chance  ?— For  that  purpose:  I  hope  J 
Ml  BOt  to  convict  myself,  the  other  part  may 
Mid  to  condemn  myself.  He  said  ne  would 
wo  10  the  Three  Uons  and  meet  somebody 
licrii.  and  I  should  come  up  afkerwards  and  see 
hifli  there ;  that  is  the  greatest  part  I  can  re- 


AAer  yoo  came  out  from  the  Three  Lions, 
M  jron  see  Ste? ens  again  ?— YeSt  in  the 
■nnot-phMe. 


Have  you  a  ton  that  is  a  voter  of  Hindoo  f 
—He  went  for  a  vote. 

What  did  Stevens  say  about  yonr  son's  vote  ? 
—I  don't  ehnse  to  convict  myself. 

[Edward  Meade  was  called  upon  h»  Snbpceoai 
but  did  not  appear.] 

Thoma$  Penny  sworn. 

Examined  by  Mr.  Seij.  Doty. 

Were  you  a  voter  at  the  Hindon  election  f 
—-No,  1  did  not  vote,  but  I  was  deemed  a  vote 
before  the  election. 

Do  you  know  Jobber  Stevens  ? — Yes. 

How  long  have  yoo  known  him? — Eleven  or 
twelve  years,  or  more. 

He  IS  a  voter  St  Hmdon?— He  has  been 
formerly. 

He  lives  atSalisbury»  and  is  a  butcher?— 
Yea ;  I  remember  Jobber  Stevens  and  two  gen  • 
tiemen  ceasing  to  my  father 'a  house ;  my  fa- 
ther asked  Jobber  Stevens  what  the  gentl^- 
man's  name  was,  he  sski,  his  name  was  Hollis  ; 
Mr.  Hollis  said  be  came  recommended  by  Job- 
ber Stevens,  to  present  himself  as  a  candidate 
for  the  ensuing  election  for  Hindon^  and  the 
voters  said,  *  down  and  down.' 

Where  was  this  ? — In  my  father^a  fore* 
parlour ;  the  Queen's  head  :  Mr.  Hollb  said«, 
'  It  shall  be  down,  and  that  soon.' 

You  deal  but  in  sliort  speeches  at  yonr  bo- 
rough. Mr.  Hollis  said  he  came  recommended 
by  Stevens  as  a  candidate  at  the  ensuing  dela- 
tion, the  men  said,  *  It  shouki  be  dowo  and 
down,'  and  Mr.  Hollb  said,  *  It  shall  be  down, 
and  that  soon. '  W  hat  passed  next  ?— Nothing 
more  at  that  time ;  the  Saturday  following  1 
went  to  the  White  horse. 

What  passed  there?— I  and  three  more  gave 
a  note. 

How  man?  more  might  be  in  the  roomf— 
There  was  /obber  Stevens's  brother,  and  two 
more  there  when  I  went  in :  Samuel  Colyer, 
George  Hayward,  and  Thomas  Wyer  ioined 
with  me  in  a  note,  that  note  was  tor  00 
guineas. 

How  much  had  you  ?— Fifteen  guineas. 

How  did  yon  seceive  that? — ^Through  a 
hole  over  the  door. 

Do  yoo  know  who  that  came  from  ? — No,  it 
was  banded  through  a  hole  over  the  door  in 
loose  money. 

Did  you  sign  tlie  note  before  you  bad  the 
money,  or  after  ?— Before. 

Whom  did  you  offer  to  vote  for  ? — I  did  aot 
ofler  to  vote  for  any  body. 

Whom  did  you  engage  your  vote  for? — I 
kept  that  to  myself  till  I  came  to  the  Cross. 

In  whose  behalf  did  you  receive  the  fifteen 
guineas  ? — ^That  I  cannot  aay. 

You  knew  you  were  no  vote  then  ?— Ne^  I 
thought  I  was  a  vote. 

And  you  went  and  received  the  favour  f-^ 
Yes. 

Whose  favour  ?— I  cannot  say. 

Who  bid  you  go  to  the  White-boner — It 
was  reportecf  that  money  was  going  to  ptM 
there,  tbwffbre  I  went  to  the  White-hone^ 


r-    -I'V^rsn.      XL        ^'J 


1    « 


^i^^«>fi«      <      i  J«      IMfY'*^ 


'r«-» 


Mj-r  -    ;f'       /'..I*    aMK^  tf^-i^fl     b^  ">-«»?-? 

'-n    tiv^  ^^eW    ^'w  •?S(fBiiMCifn 

4««*  *t  ^•t*'^  r.   U^  •^90^~i  »'»  n«f     «ffi«»n   mil 
VM'*  M*4  vi#   irt«v  »ii4i:i    «  '.I**   -rv»  ki*A.vini  ' 


If*   •'' ■,    //'■   /     »'•■■  "•  '.  ■•■   '*"'    H-    ffv- 


■.4f* 


*i     ■.<♦      avf  f     •*/•/  ■*     '^  ■•'.     ' 


•     *9*^  •-.  I     '.\ 

7*,  ..^  .  ..4  t^f/  '.',  V. •**  *■'. /  '.'.  \  A*> 

/v,    *'^*    .f'*  -5   '.f  r^r*   ►*  .  '7  v^    »•.•  ,  J 

•-i;./'iF'*  '      '•',    I  ««?r.*  '.*'•  ''#  •*■    '   *  "  .  ', 
If', «  ■•*>■/  ''*»•-  /••«  ••'♦^  ;'  '      '  ','.••.*  f*.. 

■  /•'  •!  / 

/'f  I  ■ii/i  I  !«■  '<'«'*'  ''•«'  '^*'*  rfi''^'' '  '^^*  y\'. 

\\t.  )..  '«,    9,\t»\  t*  .V,'.  J.*«I  y'#«»  S*tr  til  '.Ir   !  „'  t'.  '' 

r.vufiiifiiil  liy    Mf    H«i|iiifil  ^>r'/»r. 

fl'i  ym  livi   ttt  Ifiti'l'iri  '      Y'h 
llff    you   rffiif  hiIh-i   Mr.   \lu\\iu'n  <;otriitj((  to 
lliiiil'fii  ■'      Yr «. 

WImii  wan  il  ^      fii  Aii(fii«l 

IVlioiii  tliil   liii   I'rtiiM   Willi  /      Wjtli  hiiUrilftr 

l{ll^v•'ll• 

IVlinrii  ilitl  yiMI  ihn\  iii*i<  liilii  nt  lliiiilot)  ? — At 

lIll*  f  !|IIM. 

WliAl  illil  lis  nny  Itiiro  r—Tlml  Ihi  was  coinis 


It-   --^ 

liir-y  -'irtwr     «iriii&   if  -lus 

v'l^n  c  «t^c  H^ :    le  «iat.  ^ 

nt  -titi>»  :  aii>*i    naiie  luxwu. 

vrnj^"     u»  lout.  ui'us  wuiia  ft  vee&  at  Mi 

Maiiie  ^i'  M0»  'u^n  Maoi   um   kt«  aaa  s 

"n'^r  vft  -  ^i***iH  ired  in  iis 
I ;     •!  ^*  ■iii'r*^.  in»i  wilt.   iamsL- 

»''  jl*  \\v^.  '  t:  ••.<  W  :  -*  H '*-%e  ? — I  fxai 
-r^".   H^i".   H--:-.   B*r  IT  z   Li.>s*v.  ii< 

V\  -,it  ii>.  -v*  ,>  #  !>tti  yjQ  •jO't  up  ib«r«.'— 
Tu*:rH  wt4  tni*  :^i:.*MnAQ  a  itnt:c^  of  oeKi; 
■.'.•••'«  ■***  ft  L'^  •:  put  f-  rr^  to  51  ▼n  II. 

li  'I  J  Of  J  *"^D  it  .'---Y«. 

li.'l  \rjy  Jk^-Jv  eae  s:^  wjih  yoo?— Y* 

!  K'JA^M  Wtiit^,   Kicriard  Ingraml^  and  Jaoa 

lihM^:   tii«:  |/ei.tifiiian  a»k^   me  to  driok  i 

I  'j\h%»  ot'p'ii.cii,  which  I  di<!  ;  the  note  vu fit 

into  a  hoir  '/\frr  the  dour,   aod  I  pat  ray  hlli 

tip  to  T^cf.ihf,  lh»;  favour. 

For  whom  i»tr«  you  In  receive  it?-— tf« 
lofjk  it,  that  it  wah  to  vote  tor  Mr.  Hollif. 

Hid  any  body  tell  you  wbom  it  was  tofil> 
for?-- -No. 

Wliat  wtiK  it  you  received  ai  the  hole  of  i> 
door  ?"-- Fifteen  quiueas  I  received  in  mybv^ 

Did  ttic  rc8t  receive  any  thiog  P-^Thcy  p^ 
tliiir  hand  to  the  bole ;  1  cannol  tell mhumj 
received. 


;•  :i.tr  g«cL<ttU 


iS8IJ 


fit  BriieiTf  at  the  Hiitdm  EUetiottt 


A.  D.  1776. 


CfMt-eiHDJBtd  by  Hr.  AlMufitU. 

Wbo  wfre  prtteot  at  the  Rote  lad  Croirn 
wbao  thii  ptiMJ  ttiu  jnu  hiTs  incntiDDed  i— 
Tbera  ««r«  aightMU  or  niDHMD  of  ut :  itier* 
wtu  one  Jotepli  Lamb. 

Who  ctac  f-'l  ematM  mwllKt. 

Not  reoollect  ODef---!  oanootny  i  cmn,  to 


Wu  Hiohard  Iii^niiilherfl?---lcaiiDOtny. 

Jvraviah  Lueao?— -I  nnnnt  raaollcct. 
■    Ya*  tan  r«coll«et  noua  but  Latub?-'-No. 

Can  yuu  retralltfct  any  iitlier  man  ibsl  uw 
thii  bidiliag  up  of  hands?— I  auppatt:,  cfery 
body  there  miul  lee  it. 

[£tiaf  Sinrruwn  unci)  npon  bis  nbptent, 
but  did  noiajipear.] 

Mr.  Serjeant  Davi/.  My  lord,  we  real  our 
caae  here  ud  the  part  uf  the  proaecullon. 

Ur.  Manijield  made  a  iipeech  U  the  jury  in 
behalf  of  ilie  derenilaui,  but  did  not  call  any 


Hr.  Baron  Hotham  then  •aaimcd  up  ihq 
cridence  to  the  jury,  wbo  hy  iheir  Tentict  pro- 
nounced the  defendant  Guilty  uf  the  charge 
•Hedged  in  the  iorormatian. 

Hr.  Callbnrpe  and  Mr.  BecLfurd  were  ae- 

Ob  Mimday,  Hay  !0,  being  the  lait  day  of 
Eaater  term,  16  Geo.  S,  Smith  and  Hoilis  wore 
brought  up  lo  the  court  of  King's- bench,  lo 
TOMi**  Ibejadgmentorihe  Court ;  but  aa  the 
jvdfM  were  (teiiroui  to  hare  longer  lime  lo 
nnaidEroTlhe  proper  |Kiniihment,  tt>ev  were 
MHtdMlied  lilt  the  next  term,  to  tfaa  Iktng'a- 


Prwvioua,  howeTer,  lo 
u«  the  ICIh  of  May,  the  new  eleelion  fat  Hin- 
doB  looh  place;  and  Mr.  Knilh  baTing  again 
dKlared  nimiclf  a  canrlldalv,  he  wm  returned, 
uifeihw  witli  Henry  Uawbino,  em\. 

On  &iturday  the  8lh  uf  June,  being  the  ae- 
cond  day  of  Trinity  term,  IG  Geo.  3,  Mr.  Smith 
Mid  Mr.  Hollia  were  again  brought  up  lor  judg- 


On  the  former 


r)n,  Mr.  Serjeant  Dary 


to  Uie  praiie  of  listing  reclaimed  hia  electors 
from  \\m  ioTeterate  al>uie  of  their  franchiiea. 

Racb  of  the  iarorinaliooB  conlained  aeveral 
cooati,  and  bolb  Smilh  and  Hollia  were  fiiund 
guilty  on  all  the  counts,  in  ibe  ioformaltoos 
ugaioat  them.  Host  of  the  counts  chawed 
Ihem  wilh  act*  of  bribery  coinmitled  iuOctober, 
1774,  ItDmedialely  hrfore  the  etectioD.  For 
ihose  acta,  iliey  were  liable  still  (until  October, 
1776)  to  actions  iin  the  sutute  of  !  Geo.  3, 
cap.  34,  and  lo  all  tile  penalties  inflicted  bv 
that  statule.*  Thecuunof  King 'a -bench,  in 
the  case  of  the  Kiog  against  Ueyduu,  or  Hay- 
ilon,  when  the  delenilant  was  fuund  guilty  on 
an  information  lor  bribery  jjrranted  by  theCinirl, 
respited  the  Jiidginenl,  till  llie  lime  within 
whicb  BcUoDi  on  llie  statute  might  be  brought 
*a*  expired,t  in  order  that  he  might  not  be 
iwice  piinished  for  the  tame  oRcnce ;  and, 
nearly  about  llie  same  lime.  In  the  case  of, the 


KJng  against  filt,  and  szaiDst  Mead,  they,  i 

Gstabliahed  it  as  a  general 

infurmatiooa  fur  bribery  in 


t  principle, 


:1  tie  end  of  the  li 
,ule,  for  proceeding  by  wi, 
t     Tills  rule,  howeTer,  could  only  operala 


two  yea 


H  counsel  for  Sir.  Smith,  bad  iolormed  the 
Court,  tlial  his  client  bad,  a  few  days  before, 
Iwen  re-electtd  by  a  ereat  majority  of  roIcesK 
lo  reprrsenl  the  borougli  of  Hindoo,  and  since 
tbcro  was  not  [aa  he  alleged)  the  least  shadow 
or  frelence,  fur  any  charge  of  bribery  a^iosi. 
bin  at  that  eledioo,  be  hoped  Ihst  wouliT ope- 
nla  with  Ihe  Courtin  miiigatioo  ortliepunish- 
mcnt  ihey  inigbt  ihinli  fit  tii  inflict  upon  him. 
He  said,  that  at  his  fiisl  election,  inslead  ol 
inlTOduciny,  for  the  first  lime,  cnrruption  into 
Ihe  borough,  Mr.  Smith  himself  hod  been  led 
nslr«j,  and  induced  to  Ihe  effence  of  wljicli 
the  rerdicl  of  a  jurv  had  found  faim  gwilly,  by 
ibe  estaUished,  ant)  almost  uniTersafpractioe, 
uncmg  the  rolcn  of  Hindon,  of  exposing  their 
•aSrages  lo  tale  ;  and  that  by  the  purity  witb 
lAieb  dte  lart  election  bad,  on  bit  pari,  beea 
•ondiMtcd,  he  nu,  in  tvine  me«Hve,  entitled 
SQL.  XX. 


iipoQ  information*  grsoteil,  by  the  discretion  i 
the  Ciiurl,  to  private  prnseculors,  and  cuuld 
not  sffent  iliute  filed,  ci  affifio,  by  the  Attorner 
General.^  The  reason  of  the  rule  it,  indecJf, 
tquslly  applicable  to  both,  and  in  esses  of  in- 
rormalions,  ci  (^tcio,  Ibe  Court  miglit  obtain 
the  same  end,  by  res[iiling  judgmeni,  ss  in  the 
caseof  the  King  against  HeydoD,  till  Ibe  ex- 
piration  of   the    t""    

llintigh  general,  w 
rertal;  for  in  ihe  case  of  Ihe  King  against  Pitt, 
snd  against  Mead,  lord  Mansfield  said,  "There 
may  possibly  be  psriicular  case*,  founded  on 
particular  reasons,  where  it  may  be  right  lo 
grant  informalioniE,  before  the  limited  time  for 
eommencing  tlie  prosecniion  [on  the  tlalute  uf 
9  Geo.  2,  cap.  34-1  <■  expired/'  [) 

Mr.  Justice  Alton  now  delivered  Ibe  judg- 
ment of  the  Court.  After  stating  Ihe  ifuatiSca- 
tion  with  which  the  general  rule  h4d  been  ac- 
companied in  tlie  above- menlMaed  case,  he  ob- 
served. That  there  was  a  very  great  difreronc* 
between  the  cases  in  Burrow,  (where  the  of- 
fence was  the  bribing  of  a  aingle  *oter,  and  the 
proaeentions  carried  on  by  private  penooa,  who 
might  also  have  sued  on  the  statute)  and  the 
present  instance,  whidi  was  that  of  a  genenl 
corruption,  and  llie  prosecutor,  the  Allurney 
General,  acting  under  the  ciprets  order  of  the 
House  of  Commons.  He  entered  largely  inti> 
ilie  nature,  enormity,  and  daogeroo*  tendency 
of  the  ofTeoce ;  Iskiug  notice  that  among  many 
evil  conse«)ifcuoea,  one  of  its  miost  iihvious  el> 
feels  WAS,  to  give  rise  to  the  crime  of  perjury, 

<  Vide  Dottglns,  vol.  1,  p.  410. 

t  3  Iturr.  135<).  X  Ibid.  p.  1340. 

§  For  the  difference  between  (liese  two  torts 
of  inlornMliou,  viifc  Blacks!.  Cumin,  vol.  i, 
p.  304,  410  ed. 

II  3  Burr.  p.  1340. 
4N 


12SS] 


16  GEORGE  lU.      Triah  ofR.  Smith  and  T.  B.  HoUis^  tiq.     [19| 


because  a  voter  who  has  sold  liis  Tote,  or  has 
been  even  promised  a  reward  for  it,  must,  if 
the  bribery- oath  is  tendered  to  him,  be  guilty 
of  perjury,  before  he  can  be  admitted  to  poll. 
He  traced  the  history  and  gradual  progress  of 
election-bribery,  and  of  the  diiferent  remedies 
which  the  House  of  Commons  and  the  legisla- 
ture had  provided  against  it ;  and  mentioned, 
(Mirlicularly,  that,  a  very  gross  scene  of  corrup- 
tion which  had  taken  place  at  Beverley,  in 
Yorkshire,  in  the  year  1727,*  had  given  rise  to 
the  statute  of  2  Geo.  2,  cap.  24. 

The  Judgment  he  delivered  nearly  in  the 
following  words : 

"  The  Court  has  taken  into  consideration  the 
imprisonment  you  have  already  undergone, 
and  they  adjudge  that  you  shall  pay,  each,  a 
fine  of  1,000  marks ;  and  that  you  be  impri- 
tooed  six  months,  and  until  you  pay  your  re- 
spective fines. 

**  As  to  you,  Richard  Smith,  the  Court  can- 
DOt  help  expressing  their  astonishment  at  what 
appeared  from  the  mouth  of  your  own  counsel, 
that  you  continued  so  boldly  to  persist  in  your 
attempt,  and  that  you  have  been  again  returned 
for  the  same  place.  They  therefore  have 
thought  proper  to  add  to  your  punishment, 
that,  at  the  expiration  of  the  term  of  ynur  im- 
prisonment, you  shall  give  security  fur  your 
good  Kiehaviour  for  three  years — yourself  and 
two  sureties — you  to  be  lioimd  in  1,000/.  and 
^ch  of  the  sureties  in  500/." 

In  consequence  of  this  judgment,  both  the 
defendants  were  conveyed  back  to  the  KJng's- 
^nch  prison,  where  they  continued  till  the  23d 
of  November  following,  t.  e,  for  the  space  of 
168  days,  or  6  lunar  months.t 

On  that  day,  their  fines  having  been  paid 
into  the  bands  of  sir  James  Burroiv,  the  clerk 
of  the  crown,  some  days  before^  Mr.  Hollis 
was  discharged  by  the  marshal.  Mr.  Smith 
was  brought  up  to  Westuiiuster-hall,  aud  in 
the  treasury- chamber  of  the  court  of  King's* 
tench,  was  bound  over  agreeably  to  his  sen- 
tence for  three  years.    This  passed  before  Mr, 

*  It  is  impossible  to  collect  any  thing  of  the 
particular  merits  of  this  case  of  Beverley  from 
the  entries  relative  to  it  in  the  Journals.  Vide 
Journ.  vol.  21,  p.  24,  col.  1.  1  Feb.  1727  8, 
p.  188,  col.  1,  2.  22  Jan.  1728-9,  p.  236,  col. 
1,  2.  25  Feb.  1728-9,  p.  249,  col.  2.  9.  p. 
S50,  col.  1.  4  March,  1728-9,  p.  259,  col.  1, 
9.     8  March,  1728-9.— Douglas. 

f  "  A  month  in  law  is  a  lunar  month,  or  28 
days,  unless  otherwise  expressed,  not  only  be- 
Qpuse  it  is  always  one  uniform  perio<l,  but  be- 


Justice  Aston  and  Mr.  Jattioe  Willes,  befcn 
the  other  judges  were  come  down.  Yd,  I 
presume,  it  is  to  be  considered  as  baving  hni 
done  in  court,  sioce  the  re«9Qgoizaiioe  wii«» 
dersigned  **  By  the  Court."  ** 

The  reader  will  remark  that  the  nne  ioci- 
(lacities  ensue  upon  a  conriction  on  a  proMCi- 
tion  for  bribery  by  way  of  iuformatioa  at  cob- 
mon  law,  as  when  the  proceedinir  ia  l^  aa  m* 
tion  under  the  statute;  the  disabling  wor4ii 
the  act  of  S  Geo.  2,  cap.  24,  sect.  7,  bciig  a 
follows: 

*<  And  every  |>erson  ofleiidiug  in  say  of  lit 
cases  aforesaid,  from  and  after  judgmnrt  i^ 
tained  against  him  in  any  such  action  of  dih; 
bill,  plaint  or  information,  or  suoimary  aeiiN^ 
or  prosecution,  or  being  any  otherwise  laaiiAf 
convicted  thereof,  shall  for  ever  be  disabled  M 
Tote  in  any  election  of  any  oieinber  or  na- 
bers  to  parliament,  and  also  shall  for  ever  k 
disabled  to  bold,  exercise  or  enjoy  any  offiei* 
franchise  to  which  be  aod  they  then  shill, « 
at  any  time  afterwards  may  be  entitled,  «  a 
member  of  any  city,  borough,  town-ooryonl^ 
or  cinque  port,  as  if  such  person  was  natsnlj 
dead.*'  Douglass  Election  Cutt. 


'*  1776,  17th  May.    The  Attorney  Gcsnl 
came  into  the  court   of    King's-beoch,  ai' 
moved  for  judgment  against  general  Smitk,ftr 
bribing  the  electors  of  the  borough  of  Bisda: 
Mr.  Justice  Willes  stated  the  evidence  sgiiHl 
him.    As  soon  as  be  concluded,  seijeaolDny 
and  Mr.  Mausfield  endeavoured  to  mitigate  Iks 
sentence,  by  shewing  how  much  the  gcaoil 
had  already  been  punished  for  his  oflfeooe,  Ai 
great  expence  he  was  at,  and  likely  to  be  M. 
In  answer  to  what  was  urged  in  his  favour,  lis 
Attorney  General  insisted,    that   the   msMt 
given  in  favour  of  him,  only  as^gravated  ks 
guilt.     Lord  Mansfield  then  t>egan  bv  eiprn^ 
ing  his  concern  that  the  defendant  had  brou^i 
himself  into  so  disagreeable  a  situation,  pursuci 
the  Attorney  General's  idea,  that  as  to  the  ex' 
pence,  the  general  brought  it  on   him^f  ^y 
procuring  a  return  by  corruption  ;    that  thi 
voters  being  willing  to  receive  brilHPs,  wv  v* 
justification  of  the  giver,  thai  such  punisbairrt 
should  be  inflicted  as  would  compel  the  casbi- 
date  to  be  honest,  that  the  present  case  wis  >-f 
the  most  serious  nature.       An   officer  of  1^ 
CiOwn,  00  behalt'r\f  the  public,    prosecoted  t) 
conviction.     A  man  endeavouring  to  «nt  icto 
the  senate  by  corruption  ;   this  crime  calN  f<' 
ample  punishment  by  way  of  example ;  it  ss 
Qiuse  it  falls  naturally  into  a  quarterly  division  }  the  first  instance  of  the  kind   heard  of,  ^ 
by  weeks.     [Thus  in  a  case  in  Dyer,  218  b.  {  should  be  maturely  censured,  as  it  wooM  h 


op  the  statute  of  enrolments,  the  six  months 
were  reckoned  of  28  days  each.]"  filackst. 
Comm.  vol.  2,  p.  141,  4to  ed.^There  is  ano- 
ther reason  why,  in  cases  of  punishment  by 
imprisonment,  the  computation  should  be  by 
lunar  months ;  namely,  the  fevonr  which  is  al- 
ways to  hifi  shewn  to  liberty,  where  the  terms 
ire  ambiguous  aod  doubtful. — l>oi|glas. 


impossible  to  preserve  the  constitution  (r(» 
ruin,  if  courts  of  justice  did  not  act  with  ri- 
gour, when  such  matters  came  before  tlwA 
His  lonlsbip  then  ordered  the  general  Iw  the 
present  to  stand  committed,  and  to  be  hr«a^ 

*  1  was  favoured  by  sir  J.  Barrow  witklkr 
account  of  these  rirrtimitinfrati   iDonfli* 


I 


1S85] 


Adimjor  Faite  Impritonmeiit. 


A.  D.  1T77. 


[W66 


up  the  first  day  of  next  term  to  receive  what-  1      **  The  day  foUowing;»  one  of  tbe  rolert  at  the 


«ver  sentence  the  Court  should  think  proper  to 
prooouDoe.  Mr.  Hollis,  the  other  candidate, 
standing  upon  the  same  i^oond,  was  dismissed 
in  the  same  manner,  and  both  sent  to  the 
King's-bench  prison. 

**June  8th.  General  Richard  Smith,  and 
Thomas  Brand  Hollis,  esq.  the  late  members 
Ibr  Hindon,  were  brought  before  the  court  of 
King's-bench,  in  order  to  receive  sentence, 
liaving  before  been  convicted  of  bribery  at  the 
Jut  general  election,  when  sir  Richard  Aston 
prefaced  their  sentence  with  a  pathetic  speech, 
ID  which  he  expatiated  on  the  enormity  of  the 
crime,  as,  by  violating  the  freedom  of  election, 
and  4SorruptHig  the  electors,  the  British  consti- 
iatioD,  the  most  perfect  in  the  world,  could  only 
b^  ondone,  that  the  crime  of  which  they  had 
been  guilty  was  aggravated  by  the  tendency  it 
bad  to  lead  the  ignorant  and  unwary  to  the 
commission  of  that  horrid  and  foul  sin  of  per- 
iory^  the  only  barrier  between  God  and  man. 
From  these  and  other  reasons  equally  forcible, 
lie  inferred  tbe  necessity  of  an  exemplary  pu- 
aithment,  and  adjudged  them  to  pay  a  fine  of 
1,000  marks  each  (Q66L  1%$.  4if.)  to  the  king, 
and  to  suffer  six  months  imprisonment,  aad.one 
of  them  (general  Smith)  at  the  expiration  there- 
of, to  enter  into  a  recognizance  of  1,000/.  him- 
odf,  mod  two  securities  in  500/.  each,  for  his 
good  behaviour  for  three  years. 


same  election  was  brought  before  the  same 
Court,  to  receive  sentence  for  wilful  and  corrupt 
l>erjury,  in  his  evidence  before  the  House  pf 
Commons,  when  he  received  sentence  to  stand 
on  and  in  the  pillory,  with  a  paper  on  his  fore- 
head signifying  his  crime,  **  Wilful  and  Cor- 
rupt Periury,"  twice  in  the  town  of  Htndon  on 
market- dkiys,  between  eleven  and  two,  the  first 
time  to-morrow  se'nnight,  and  the  second  tho 
Thursdav  following.  And  accordingly  on 
Wednesday  the  19th  following,  he  was  brought 
from  the  King's- bench  prison  to  Fisherton 
gaol,  Wiltshire,  and  on  Thursday  was  carried 
to  Hindoo,  where  he  was  placed  in  the  pillory 
for  the  first  lime.  He  was  met  on  the  road  by 
a  number  of  his  friends,  with  two  flags,  and 
blue  ribbons  in  their  hats.  The  populace 
treated  him  ver^  favourably,  their  attention 
being  taken  off*,  in  a  great  measure,  by  a  per- 
son mounted  on  a  stool,  who  sung  and  sold  an 
election  ballad,  much  to  their  entertainment. 
He  was  brought  back  to  Fisherton  gaol  in  the 
evening,  and  is  to  undergo  tbe  remainder  of 
his  sentence  the  Thursday  following." — Annual 
Register. 

See  more  concerning  these  transactions,  and 
the  borouch  of  Hindon,  in  Douglas's  Election 
Cases,  vol.  1,  p.  173,  vol.  4,  p.  371.  18  Pari. 
Hist.  575,  et  nq. 


560.  The  Trial  of  an  Action  brought  by  Stephen  Sayre,*  esq. 
against  the  Right  Hon.  William  Henry  Earl  of  Rochford, 
one  of  his  Majesty's  most  Hon.  Privy  Council,  and  theretofore 
one  of  his  Majerty's  Principal  Secretaries  of  State,  for  False 
Imprisonment :  Before  the  Right  Hon.  Lord  Chief  Justice  De 
Grey,  in  the  Court  of  Common  Pleas  in  Westminster-hall : 
If)  Geouge  HI.  A.  D.  1776.  [Published  from  Mr.  Gurney« 
Short-Hand  Notesjf 


Thur$day^  June  96. 

Counsel  for  the  Flaintiff. 

Mr.  Serjeant  Glynn,  Mr.  Serjeant  Adair,  Mr. 
]>avevport,  Mr.  AMeyne,  Mr.  Arthur  Lee. 

Counul  for  the  Defendant, 

BIr.  Attorney  General,  Mr.  Solicitor  Ge- 
Mrml,  Mr.  Serjeant  Davy,  Mr.  Wallace,  Mr. 
Serjeant  Walker,  Mr.  Dunning. 

*  I  suppose  that  he  was  tbe  person  men- 
tioned by  Mr.  Douglas  in  bis  Reports  of 
SIcction  Cases,  vol.  3,  case  26.    Seaford  Case. 

•f-  As  the  original  publication  contains  not 
tbe  speeches  of  the  Counsel,  or  the  Lord  Chief 
Justice's  charge  to  the  Jury,  1  have  inserted  in 
nolct  the  report  given  of  them  in  the  Morning 
Chrooicle  newspaper  of  June  28th,  1776.  In 
tbe  Annual  Ref^iter  fur  tbe  year,  History  of 
Burope,  p.  59,  it  a  brief  account  of  tbe  arrcft 

~8ijre. 


Special  Jury. 


Valentine  Grimsted, 
£dward  Bond, 
Thomas  Allen, 
Charles  Matthews, 
William  Downes, 
John  Cope, 


Edward  Hawkins, 
John  Willis, 
Thomas  Jordan, 
Redbum  Temkins, 
John  Biggs, 
William  Clarke,  esqrs. 


XH£  Declaration  was  opened  by  Mr.  Lee, 
as  follows : 

Gentlemen,  This  is  an  action  brought  by 
Stephen  Sayre,  esq. ;  against  the  right  hon. 
Henry  Esrf  of  Rochford. 

The  Declaration  states.  That  upon  the  23d 
of  October,  in  tbeyetr  1775,  the  defendant  did, 
by  various  illegal  riolences,  enter  the  pIsintilTs 
bouse,  seise  nis  papers  and  bis  person,  and 
commit  bim  to  close  prison  for  several  dav^ 
contrary  to  law  ;  wbkb  the  plaintiff  lays  to  hit 
damage  in  3O|0Qp/, 


4287] 


17  GEORGE  m.  AdUmJor  Fabe  fufpriioiimgfif— ■  [IM 


To  this  the  defpodant  pleaded, 
Firat,  the  greneral  iiiue  of  Not  Oailty : 
And  then  seTeral  other  pleas  in  jnttincation : 
and  his  justification  is,  That  he  was  at  that  time 
one  of  the  lords  of  his  majesty's  pmy  council, 
and  one  of  his  majesty's  principial  secretaries 
of  state;  and  that,  upon  an  information  upon 
oath,  by  one  Richardson,  against  the  plaintiff, 
for  treasonable  practices,  he  did  issue  bis  war- 
rant to  arrest  the  plaintiff  for  hi|;h  treason,  and 
to  seize  his  papers ;  and  did  issue  another  war- 
rant to  commit  him  close  prisoner  to  his  ma- 
jesty's Tower :  this  he  pleads  in  justiBcaliou. 

The  plaintiff  has  replied,  That  this  was  done 
in  his  own  wronjjr :  upon  that  Issue  is  joined 
which  you  are  to  try :  we  shall  bring  our  evi- 
dence and  prove  our  case  ;  and  upon  that  we 
trust,  that  the  justice  of  your  verdict  will  give 
PS  ample  reparetiou  for  the  injuries  we  have 
auslaioed. 

Afler  Mr.  Lee  bad  opened  the  declaration, 

Mr.  Serjeant  Gltfnn  went  at  large  into  the 
facts  and  circumstances  of  the  case,*  and  then 
proceeded  to  examine  the  witnesses,  asfollowa: 

Jouph  Wood  sworo. 

Examined  by  Mr.  Serjeant  Adair, 

IT  hat  are  you  P — A  shoemaker  by  trade. 

^Vhat  else? — A  constable. 

Do  you  remember  lieiog  at  Mr.  Say  re's 
house  ? — Yes,  1  was  called  upon  on  Monday 
morning  by  BIr.  Bond,  sir  John  Fielding's 
clerk,  and  1  went  along  with  him  to  the  king's 

*  In  the  Morning  Chronicle  of  June  28th, 
1776,  the  0|iening  speech  «f  Mr.  Serjeant 
4alynn  is  reported  thus : 

**  The  Ueirorder  of  London,  as  leading  coun- 
sel for  the  plaintiff,  opened  the  cause,  and  stated 
the  groundii  <»f  ilie  action  to  the  jury,  begin- 
ning with  an  account  of  the  mode  of  putting 
the  first  wnriant  in  force  on  the  23d  of  Octo- 
ber, by  sending  three  (>f  the  messent^crs  of  the 
secretary  of  state  to  !\Ir.  Sayre's  house,  where 
they  pretended  they  wantnl  to  speak  to  him 
res|>tcting  a  forged  note  of  200/.  and  by  that 
means  ^ot  |H>NS€iision  of  his  person  and  con- 
veyed him  to  lord  Roc  hford's  office,  after  hav- 
ing rummaged  his  cabiuetand  nei/ed  bib  papers  ; 
recitin£r  the  examination  of  IMr.  Soy  re  before 
lord  Hochford  and  sir  Juhn  Fielding,  with  the 
refusal  of  the  defendant  to  accept  bail,  al- 
though he  had  rhan«:ed  his  ground  and  com- 
mitted Mr.  iSayre  tor  treasonable  practices, 
notwithstanding  that  the  warrant  of  apprehen- 
sion charged  him  wiili  hi^li  treason,  and  final- 
ly nieiitionint;  thr  cornniitling  him  to  safe  and 
close  custody,  which  was  rigidly  observed,  (ex- 
ceptinuf  tlie  cinnphance  paid  to  a  reiktrictive 
order  for  the  free  access  of  Mva.  Suyre)  al- 
though the  offence  on  the  face  of  the  (oniinit- 
meui  n»K  merely  u  misdemeauour,  and  there- 
fore Imiiable. 

"  The  Recorder  d%%'elt  on  cnch  particular 
tboye- mentioned  with  great  force  and  ability, 


iMra,  and  from  there  we  went  te  S^br 
Sayre'snonse. 

What  messengers  P—1  doB*t  kwm  tMi 
names,  two  of  the  kin^^t  nMswogers. 

For  what  purpose  did  you  g;o  to  Mr.  Si^itli 
house  ? — ^They  bad  golja  warrant,  they  said. 

Did  you  see  that  warrant? — I  didnoliai 
it,  they  had  it  in  tbeir  hand. 

What  did  you  do  when  yoa  came  there?" 
They  knocked  at  the  door,  the  maid-servM 
came  and  opened  it :  they  amid  they  waakdn 
8|>eak  with  'squire  Sayre  about  aome  particahr 
business :  she  went  up  and  toM  the  'sqmrc,  I 
believe ;  she  came  down  anio,  and  let  as  all 
the  parlour  on  the  rij^ht-nand,  and  tbta  fk 
'squire  came  down ;  the;^  shewed  him  a  sawr, 
the  warrant  I  suppose  it  woo.  and  aaia  wj 
must  look  into  his  apartments  for  some  pipm. 

Tliey  must  search  for  papers  P — Yea. 

Did  they  read  the  warrant  ? — Yei,  they  ml 
the  warrant  to  him. 

What  did  they  do  in  coDaeanence? — As  mi 
as  the  'squire  had  settled  a- bit,  and  Mt  iw'fi 
he  shewed  them  all  the  desks  where  they  aiR. 

Did  they  take  any  thm^  f^I  btKete  llff 
took  two  or  three  away,  1  cannot  say  wUeb. 

Did  they  search  among  his  papers  F—Ya; 
I  stood  by,  and  the  'squire  was  oy. 

Where  did  they  go,  and  in  what  manatrii 
they  behave  ?— They  behaved  very  gealBeiHi 
quiet. 

What  did  they  do  with  bis  papers?— Tbiy 
read  a  great  many  orer,  and  those  that  ikiv 
did  not  %vant,  I  suppose,  they  left. 

They  eiamined  them  ? — Yes. 

deducing  from  the  whole  such  infereoenii 
were  most  likely  to  alarm  the  jury  and  bwf 
the  circumstance  home  ta  each  man's  bntfi 
He  painted  in  the  liveliest  colours  the  injuria 
of  issuing  a  warrant  to  seize  a  man^s  ||f(^?■ 
and  papei's  on  an  informati«n)  not  less  imprvtf' 
ble  than  ridiculous  :  he  ur^ed  the  inquisionii 
stile  of  the  private  examination  of  a  man  soip- 
prehendeil,  and  the  manifest  malice  and  wre- 
ritv  of  refusintr  hail,  and  coiiiQiitting  him  ciM 
prisoner  to  the  Tower,  after  the  magistrate  k«- 
fore  whom  he  was  examined,  had  found  reaiK 
to  alter  his  opinion  of  the  tact  with  »hick  ^ 
was  charged,  and  thoufrht  pro|ier  to  diMP 
the  description  of  his  offence,  and  to  imttitt 
the  couiiuiiinent  words  of  such  Tague  aod  v^ 
determiuate  import,  as  the  words  *  tresxfs^^ 
nvactices.*  Having  enlarged  on  the  grn«n!i'- 
iegatity  and  evil  tendeury  of  such  coui^c^ 
any  man,  and  more  particularly  m  a  »n-rtury 
of  state,  he  retouched  his  picture  undioiie^ 
its  effect  by  shewing  how  particularly  ae- 
chievous  it  was  to  Mr.  8ayn*  ;  w  ho,  nbcottif 
evLMit  took  place,  was  a  banker  of  iijeat  cnut 
and  wfks  now,  in  conKequence,  arninedsui 
He  ho|>ed  therefore  the  jury,  froui  their  ufu- 
ral  feelings -and  »ish  to  do  justice,  m^itK 
the  case  in  its  tiue  hghi,  and  then  he  iKl'- 
ed  not  they  would  think  tiit.  plaiuf iff  nnii' ^i^ 
injured  ;  untl  make  him  a  just  compensslui^ 
awarding  hiiu  aiuple  damages." 


1S89] 


Saifre  «.  the  Earl  vfBotiiJwrd. 


A.  O.  1777. 


[IfOO 


Th^  took  what  tbty  pleased,  and  left  what 
thejT  did  not  like  ?— They  took  two  or  three, 
I  think,  away. 

What  Hid  th^  do  afterwards  P— The  'squire 
dresMd  himself,  and  weat  with  them  to  my 
lord  Roohford's  office. 

What  time  in  the  momiDg  did  they  go  there  ? 
— -I  think  they  got  there  about  seven  o'clock  in 
the  morning,  or  between  seven  and  eight,  I  am 
liotpositive,  bat  it  was  about  that  time. 

How  long*  did  you  stay  at  Mr.  Sayre's 
iioase? — I  reckon  we  might  stay  there  three 
quarters  of  an  hour. 

Did  any  body  else  eome  there  while  ywi 
were  employed  about  this  business  P— Nobody 
else  came  there. 

Where  did  you  carry  Mr.  SsyreP— He  went 
to  my  lord  Uochford's  office. 

Did  you  go  with  him  ? — I  did  not  go  in  the 
coach,  I  followed  the  coach,  and  saw  it  there. 

You  di«)  not  see  any  thing  that  passed  after- 
wards P— M  A,  I  was  not  in  the  office. 

When  Mr.  Say  re  came  down  to  them,  and 
they  read  the  warrant,  tell  particularly  in  what 
manner  they  proceeded,  and  what  the?  did  ?— 
They  said  they  had  got  a  warrant  for  high- 
treason  :  the  'squire  did  not  seem  to  be  at  all 
diamayed :  he  said  they  should  look,  he  was 
not  afraid  of  any  thing ;  he  did  not  seem  to  he' 
the  least  discomposed ;  he  said  they  were  very 
welcome  to  look,  he  did  not  know  that  he  had 
done  any  thing  amiss. 

Was  Mr.  Sayre  in  the  room  all  the  time  they 
were  there  ? — Ves. 

Did  he  offer  at  any  time  to  go  out  of  that 
room  P — No. 

Did  he  ask  to  go  any  where  else  P— He 
asked  to  go  to  dress  himself,  and  they  did  not 
allow  that ;  he  had  his  clothes  brought  into  the 
room  where  he  was. 

They  would  not  then  permit  him  to  go  into 
another  room  to  dress? — No. 

Did  they  krep  the  door  open  or  shut  P— It 
was  shut :  they  ordered  me  to  lock  the  door 
when  I  went  in,  but  1  saw  the  'squhre  was  not 
diaroav ed,  and  I  did  not  lock  it. 

Did  they  make  use  of  any  excuse  to  get  into 
Mr.  Sayre's  house  P — Yes,  that  they  had  some 
particular  business,  and  must  see  the  'squire. 

Did  they  say  what  the  business  was  ? — ^Tbey 
tnentioneif  something  that  they  wanted  to  see 
htm  abont  a  note. 

Edward  Mann  sworn. 
Examined  by  Mr.  Dwoenport, 

You  are  a  secretary  of  stale's  or  a  king's 
netsenger,  are  not  you  P — A  king's  mesaengar. 

Pray  have  you  got  the  warrant? — No,  I 
liBTe  not. 

Had  not  yon  the  warrant  P— Yes,  I  had. 

What  became  of  it  P— I  gave  it  to  Mr.  Soeatfa. 

Who  ia  he  P— The  first  clerk  in  the  secretary 
of  state's  office. 

When  did  you  give  it  him  P — Last  Monday. 

Did  von  go,  upon  the  HSd  of  October,  with 
Wood  the  coostabje  to  Mr.  Sayni^  house  P-«I 
ilid. 


Under  what  pretence  P— With  a  atoratary  of 
stolels  warrant. 

Did  vou  tell  the  person  who  let  yoo  ia  that 
you  haid  a  aecretary  of  alate's  warrant  P-»l  did 
not. 

What  did  you  tell  the  pemon  who  let  yon  m 
that  you  came  forP^I  cannot  tall  the  very 
words:  1  believe  1  said  to  this  efSiKt,  that  I  had 
some  business  of  oonsequeaoe  tooommnnicnla 
to  Mr.  Ssyre,  and  I  should  wish  to  see  him. 

Do  vou  remember  saying  yoo  caoM  aboat  a 
draft  tnat  there  waa  reason  to  believe  was  fbrg- 
ed  P — I  believe  1  did  mentioa  something  of  it. 

Was  the  foiled  draft  the  warrant,  or  what 
other  thing  did  you  allude  to  P — Mr.  Sayra  waa 
then  not  stirrior. 

So  this  forged  draft  was  stirring  before  him  P 
—Speaking  of  it  was  stirring  before  bin. 

How  came  you  to  say  that  you  came  about 
a  foi|[ed  draft,  when  you  were  a  kiag'a  |Bts« 
senger  armed  with  a  warrant  P—Beoaose  I 
wished  to  see  Mr.  Sayre. 

And  therefore  yoo  OMide  a  mteace  of  a 
forged  draf^  instead  of  tollinff  him  you  cama 
with  a  warrant  P — I  did  mention  that,  and  with 
a  view  of  his  coming  down  stairs. 

That  warrant  I  think  you  say  you  delivered 
to  Mr.  Sneath  P— Yes. 

Is  he  the  secretary  to  lord  RocMard,  or  waa 
he  then  ?— Ho  was  first  clerk  then  to  krdRoch- 
ford. 

When  were  you  served  with  a  ^abpsBiia  to 
attend  thia  trial  P— Upon  Monday  last. 

Before  or  after  yon  dcliveiad  the  warrant  to 
Mr.  Sneath  P— Afiier. 

Yon  were  served  with  a  aabpswMi  to  bring 
the  warrant  with  yon  P — I  read  the  iabposBi» 
and  finding  it  aieatiened  that  I  waa  to  brinar 
the  warrant  or  any  other  papers  whioh  I  bad,  I 
went  to  Mr.  Sneath  to  ask  bim  ibr it:  ho  told 
me  he  bad  not  done  wilb  it. 

When  dbl  you  go  to  him  P — On  Moadair. 

How  long  after  yen  delivered  itP«*«Witbbi 
an  hour  after  I  roeetved  the  sabacaaa. 

How  long  had  yoa  delivered  it  befasa  ymk 
reeeived  the  subpcsnaP-^l  bslieva  it  migbt  be 
three  or  four  hoitro. 

Did  yoa  go  to  bim  upon  Taasdoy  P— Nb,  I 
did  not. 

Did  yoa  go  to  bim  opoa  Wedaaaday  P-^I 
went  to  him  u|ion  Wedneaday,  and  told  bin 
the  same. 

He  had  net  daao  witli  it  tbeaf— Hataid 
me  that  it  waii  mislaid,  and  ha  could  ant 
find  if. 

Then  it  isloBtP-<^I  don't  know. 

What  do  yoa  believe  about  HP^-l  beliorc  it 
is  mislaid,  I  only  guess  by  Mr.  flneath^s  words. 

Will  yoa  he  so  good  aa  to  tell  ow  whose 
hsnd- writing  it  was,  and  by  whom  aigned  P— 
Signed  by  lord  Rocbford. 

What  was  it  an  authority  to  deP-*l  believe 
it  runs  in  the  usual  form  tliat  warranto  do :  t 
have  one  at  home  I  had  15  yeara  ago,  aad  it 
runs  in  a  similar  form  to  that. 

Was  it  a  warrant  lo  tabe  bim  for  bigb  troa« 
aoaP— To  tbe  beat  of  my  i  imambrmca  it 


•  ■ 

t  ggit*  ty teii  Bwhfcfi  iwtiu  mumk%iid 
Mr.  Sftyn  lor  high  treMonr-t-llr.  fikiphai 

SMfiJ    •       '   .       ■ 

X'hiHife:aAinrwdt  yof  nir  Mr.  S^rrei 
4Uh0eoiMdo«rft  loyou  oryoagoii|iltumr 
w^Sooiw  Sft/raoHM  dovrft  to  M. 

WhifrdM.7M.th«i  ordorto be ^^M  to  him ; 
iUyM  M«r  him  to  ha  looM  iipf^ItoU 
Mr.  fliqnothallwooeino  o>  hoiiiwoi  which 
woiTorvdiMfreaofalotonWf  ftod  1  woi.ofrtid 
ll  would  ho 00 .to him;  tholwohod  Aooontoiy 
of  •lato'o  wamot  to  taho  him  kto  cpotody,  ood 
oKoriihot  to  miio  hk  popmo. 

When  ho  oomo  down  toyoo^did  yon  pMdit 
Mm  to  go  aboiit  to  drmt  himmlfy  oc  ooy  thiogr 
ForUu^Ireferyoo  toMr.Sojre. . 
.  For  Ihot,  hocooDOthoo  witoom,  aodiUMre* 
loro  1  rtfhr  to  yoib-rAAer  thisLNr^  Snro  oak- 
od  to  iwm  p  imilmiiiii  toahavohiomiifs  Itold. 
Ua  thit  «ad  any  dww  aim  that  ho  dorirod. 
Thab  yon  primiltoo  him  to  |po  op  atoira  fiir 
clothaaF— Oa  did  imH  daaico  to  go  np  ataira 
Ibr  hia  dalhaa,  ha«onf  IhoheliaDd  ardaiod  hia 
ololhea  to  bo  bnnight  to  him. 

.ThcB  hodU  aoCjdeHm  to  go.mto  any  room? 
•^He  did  daatra  to  go  op  atalra. 
:  .Thatwoa  jMlparmtttedtltohoitrf— Itwu 
pernuttcd. 

.  lodtogoiotoaootiiorraomf— «Yaa. 
'.  .Itodrem.hlBiadf  thcra{<r-Toap«ak  toMn. 
8am,  wlio  waa  theaal  braaldaat. 
« :  Wlio  wont  ioto  Ihf  room^  jfoa  or  Slalaj  f— 
I  wantaloag  withhim;  hnl  if  t  am  not  miar 
tohanilwaa^yMr.Sajro^^laiira;  botinlhal 
.  I  will  not  bo  paaitiTe. 
'    AAcrwardayjm  hranght  him  bafiMPa.  my  lord 
BoohMl  r^Wo  did.  * 

Dfai  yoo  bring  with  yoo  any  papcn  oC  hia  P 
9-^t  did. 

:  Did  yon  aeareb  and  look  into  a  numbar  of 
papera  Wore  ^ou  took  away  thoto  that  you 
thought  matenal  ?— I  do  liot  properly  know 
what  ia  MarchiDg.  I  told  Mr.  Sayre  we  were 
to  take  bia  papers,  in  conaequeoce  of  which  be 
himaelf  opened  bb  drawers. 

Did  you  take  any  ?— No,  we  took  oone,  Mr. 
Sayre  took  them  and  ga?e  them  to  us. 

You  took  all  that  be  gaTO  you  ? — No,  be 
held  sereral  papers  in  his  hand,  and  said,  this  is 
auch  a  paper,  and  thia  such,  and  we  took  bis 
word. 

So  then  you  looked  at  none  but  what  you 
brought  away? — We  looked  at  some,  and  re* 
tornM  them. 

You  took  bis  word  for  some,  looked  into 
others,  and  brought  away  what  you  thought 
proper  P— Some  were  brought  away ;  I  did  not 
look  into  any  papers. 

1  thought  you  said  just  now,  you  read  aome 
of  them  ?— I  did  not  say  I  read  some,  aome 
were  read  and  returned. 

Who  read  them  P— Sir  Stanyer  Porten  and 
Vr.  WiUis. 

.'    Who  waa  air  Stanyer  Porten  ? — He  waa  then 
firrt  aeoretary  to  lord  Roohford. 
>    Than  the  papara  warn  under  hb  inspaetion  P 
^-^vMr.  Bijffa  hamlad  tham;  Mr.  WUIbtoak 


,  and  aur  StaqwrPartmiallMra^aaiia- 
taiwodtham. 

Thaaa  that  warafo he  biwaghc  away,thQr 
gavo  to  yon  or  Slalay  P-^I  toak  tbam. 

Tbaoyoa  braatthtthi»  to  Im4  BadbftflP- 
T9  lord  RoohfbnPa  offioo.  . 
.  How  hmg  ware  yen  ibare  f— I  hdiata  wi 
aMffhtbetharaaheiitaahe«r«ii4«ftwfnr.  I 
wall  not  be  eiaot»  I  did  not  neka  muurtaa. 

What  beeeme  of  Mr.  9oyf«  Ihcaf .^Ha  «^ 
ahawB  into  a  room  wham  lord  Baeh%i» 
ceitea  Avaige  minaton. 

What  became  of  him  aflcr.  thiakam  aaf 
^rtarP — Mr.  Si^re  ordered -I|m  ewa  aw> 
nage,hegot  into  it,  aiml  BIr.  Stalay  aad^i 
went  to  lord  Roohfbrd'a  affioe. 

Boar  loiw  did  be  remain  nt.tlweCeir^ 
believe,  an  boor  and  a  ^nartof,  or  mtf  haarmt 
SOminntm. 

.  What  becaoM  of  yea.theB  P— Hmd^wo  hf 
another  warrant  giron  to.na. 

What  beeame  of  diatP^TUnt  I  gave  to  Jb 
de^yeooatohle  of  the  Tower,  aadMitmi 
him.  -     - 

Did  yon  earry  Hr.  Say  veto. the  TewarP— 
Wb  aant  far  a  baoknojr  eoesh  ;  end  llajb' 
ley  and  me  went  with  Mr.  Sayre  to  thelham 

By  whoao  ordemP— In  ronameemaa  af  if 
'warrant. 

What  waa  the  BMenge  to  11i|  liiatfamtf 
the  Tower  when  yo«  debrercd  hiai|— WoM 
no  measage. 

CMytbedelirery  of  the  wanmatP— Thidi^ 
livery  of  the  warrant  and  Mr.  Sayre.  ^ 

There  ended  yopr  doty  P— -I  look  a  licM. 

You  took  a  receipt  fhr  the  liody,  andM 
left  bhaP^YeapaadthereWk  ham. 


JohnlWfy 
Examined  by  Mr.  Alieyne. 

I  believe  at  the  time  of  thb  arrcat,  yon  were 
one  of  Mr.  Sayre's  clerks  ?— I  Waa. 

Do  you  remember  the  circnmatanea  of  tk 
messengers  coming  to  Mr.  Say  re's  ? — I  do. 

Do  you  remerolwr  what  paaaed  hetwcea  jm 
and  them  at  that  time  ? — 1  took  minutes  if  it 
at  tbo  time,  if  you  will  give  me  Uave  t$ 
read  it. 

Mr.  Attorney  General. .  When  did  yoa  lakt 
those  minutes?— Soon  after. 

How  aoon  P— Two  daya  after ;  bnt  I  en 
remember  it  without  my  notea,  if  yon  cbsM 
it.  [The  witness  proceeda  without  refernse  n 
his  minutes.]  On  Monday  the  S9d  ofOcJifi 
between  eight  and  nine,  \  waa  at  hrnkftH  ■ 
the  office :  our  porter  came  and  told  moa  tint 
gentlemen  wanted  Mr.  Sayre :  I  want  bWlhi 
parlour ;  Mr.  Sayre  waa  not  up :  1  asked ihf 
if  they  wanted  Mr.  Sayre  ;  they  toM  amtbtf 
did,  upon  very  parttcular  haaioen:  I  Im 
them  the  servant  had  informed  me  he  had  mi* 
ed  bim,  and  if  it  waa  very  urgent  huaiaavto 
would  call  bim  a  aeeond  time:  thay  sHtfJI 
was ;  it  was  about  a  fbisary  u^ 
I  asked,  what  kind  dT  ^iseiy : 
diately  made  anawcri  thal.it  ww 
of  800/.,  and  they  wppaaed   ili 


1S93J 


Saye  9.Me  EaH  ifJioch/bri. 


IX  nn. 


[1994 


hi  Holltnd :  I  did  oot  ask  them  to  let  me  see 
h,  but  immediately  sent  a  second  time  for  Mr. 
Say  re:  I  went  into  the  office,  waiting  for  the 
other  clerk  to  come ;  as  soon  as  he  came  1 
went  into  the  parlour,  and  asked  Mr.  StLyre  if 
Jie  wanted  me  :  he  said,  No :  I  thought  it  ex- 
ceeding odd  that  be  did  not  mention  the 
forgery :  I  came  back,  and  mentioned  it  to  the 
other  clerk,  and  told  him  that  the  people  were 
looking  Ofer  the  papers,  and  f  thoaglit  it 
something  very  eztraordiuary  that  Mr.  8ayre 
did  not  mention  the  forgery:  a  gentleman 
came  in,  and  Mr.  Havre  had  just  an  opportu- 
nity of  saying  that  he  was  in  custody  of  the 
king's  messengers. 

Did  you  slay  in  the  room,  and  see  every 
thing  that  pamed  ?— I  did  not  stay  a  minute  in 
the  room. 

You  saw  the  papers  rummaged  ?— ^The  pa- 
pers were  spread  upon  a  table,  and  they  were 
cnmining  them. 

Do  you  know  whether  it  was  permitted  Mr. 
Sayre  to  come  into  the  shop? — He  did  not 
come  into  the  shop :  whether  there  was  any 
permission  I  cannot  say. 

Had  you  anv  conversation  with  Mr.  Bayre, 
ftnd  where,  before  he  left  the  house? — I  nad 
DOC :  I  went  to  acquaint  a  friend  or  two  of  the 
•itiiatioo  Mr.  Sayre  was  in,  and  did  not  return 
till  Mr.  Sayre  was  in  the  Tower. 

At  this  time  Mr.  Sayre  was  a  banker  ? — 
Yet.  ^ 

VlT.Alleyne.  I  fancy  such  an  attack  as  this 
would  necessarily  have  a  very  bad  consequence. 

Mr.  Attorney  General.  Do  you  go  for  spe- 
cial damages  ? 

Mr.  AlUyne.    No,  -general  damages. 

L.  C.  J.  De  Grey.  It  is  proved,  that  he  is 
A  banker:  any  body  may  form  an  opinion 
what  an  effect  a  thing  of  this  sort  would  have. 

Tally.  Mr.  Sayre  had  settled  matters  that 
day  and  the  day  before ;  he  was  to  have  gone 
oot  of  town  for  ten  days  or  a  fortnight,  on 
Monday  evening,  or  Tuesday  morning,  to  Eiath. 

Before  this  busings  happened,  did  you  ob- 
serve any  tbinir  particular  about  the  house  ? — 
tSome  time  before,  I  cannot  be  certain  how 
lung,  but  it  was  previous,  to  this  event,  there 
■was  a  guard  of  soldiers  at  sundry  times  about 
the  house :  our  watchman  came  aud  told  me, 
he  thought  it  exceedingly  odd :  there  was  a 
▼acant  space  of  ground ;  it  is  now  built  upon, 
Dear  it,  by  lord  Paulett,  where  the  soldiers 
were. 

Mr.  Seij.  Davy.    This  is  oot  evidence. 

Tally.  The  watchman  came  and  told  me 
there  were  some  soldiers :  1  asked  him  at  what 
time  they  came,  and  how  they  came  there  ?  it 
was  about  eleven  o'clock. 

L.  G.  J.  Dc  Grey.  You  have  not  declared 
vpoo  any  thing  ot  this  sort;  you  declare  for 
the  trespass  and  imprisonment ;  if  you  mean 
to  tay  tnat  this  arrest  and  trespass,  as  it  is  stat- 
ed, was  not  done  in  consequence  of  this  war* 
-rsQt,  we  ought  to  say,  it  is  an  illegal  warrant ; 
fir 'tint  there  had  been  a  prememCated  desi^ 

io  surroond  his  house,  and  arrest  bun  in  an  il- 

e 


legal  manner  before :  if  yon  mean  to  say  that, 
you  will  shew  how  it  comes  withm  the  case. 

Mr.  AUeyne,    This  must  be  in  reply  to  the- 
justification ;  I  will  not  anticipate  it. 

L.  C.  J.  De  Grey.  To  be  sure,  yon  should 
not 

Mr.  Attorney  GeneraL  The  difficulty  is^ 
knowing  it  to  be  false :  1  don't  care  to  seem  \m 
oppose  it. 

L.  C.  J.  De  Grey.  Let  it  be  false  or  not^ 
we  should  not  go  mto  matter  that  is  extrane- 
ous to  the  cause.  Do  you  want  to  go  into 
more  witnesses  to  prove  these  facts?  These 
facts,  I  presume,  will  not  be  denied. 

Mr.  Serj.  Glynn.  We  shall  call  no  morcT 
witnesses  to  any  of  these  facts. 

L.  C.  J.  De  Grey,  The  jury  must  have  a 
full  insight  now  mto  the  manner  in  which  this 
warrant  was  executed. 

Mr.  Sen.  Glynn.  We  shall  ask  no  more 
about  the  tirst  warrant.* 

Jokn  "Reynolds^  esq.  sworo. 

Examined  by  Mr.  Xee. 

Were  you  at  the  secretary  of  state's  office 
during  the  examination  of  Mr.  Sayre,  apod 
the  9i3d  of  October  last  P— Upon  the  S3d  of 
October,  my  lord,  I  was  attendmg  my  duty,  as 
under  sheriff  of  this  county,  at  Tyburn  ;  and 
while  I  was  there,  I  received  a  measage  bj 
one  of  Mr.  Say  re's  servants,  that  he  desired  to 
see  me  instamly.  In  consequence  of  that 
message,  I  left  the  melancholy  business  ip 
which  I  was  then  employed,  and  went  to  the 
banking-house  of  Mr.  Sayre:  the  clerks  tokl 
me  he  was  then  carried  to  my  lord  Rochford's 
office  by  messengers,  upon  a  charge  of  high 
treason,  f  got  into  a  hackney-coach,  and 
went  down  to  the  Secretary  of  State's  office. 
I  sent  my  nsme  iu  to  my  lord  Rochford,  that  I 
understood  Mr,  Sayre  was  there  in  cuitody, 
upon  a  charge  of  a  criminal  nature,  and  I  de- 
sired, as  bis  solicitor,  to  have  access  to  him. 
I  received  no  answer  to  this  messsge,  from  the 
person,  but  that  it  was  very  viell.  I  told  the 
person  who  brought  me  that  answer,  that  I 
must  have  another  sort  of  answer;  that  1  must 
have  access  to  Mr.  Sayre;  I  would  not  be 
shuffied  in  that  way,  but  insisted  upon  being 
admitted.  The  person  came  to  roe  again,  and 
said,  if  1  had  any  thing  to  communicate  to  Mr. 
Sayre,  I  might  do  it  in  writing :  luy  answer  to 
that  was,  I  came  there  in  the  character  of  his 
solicitor,  aud  I  insisted  upon  having  access  Io 
him ;  that  if  my  lord  Rochford  did  not  admit 
me,  I  must  apply  to  Mr.  Serj.  Glynn,  his 
counsel,  and  bring  him  there  ;  and  see  whe^ 
ther  his  lordship  would  refuse  him  admissioo, 
or  not.  Upon  that  peremptory  message,  1  was 
admitted  into  an  outer  room.  The  iirst  person 
1  saw  was  sir  John  Fielding :  he  accosted  me, 
and  said,  Mr.  Reynolds,  did  Mr.  Havre  send 
for  you  ?  1  said.  Yes,  Sir:  said  he.  That  is  not 

.  *  I  suspect  that  there  are  some  errors  in 
this  report  of  what  occurred  duriug  the  enmi- 
natkm  of  JehB  Tally. 


1S953 


17  GEORGE  m. 


Act wn Jiir  Falte  Impritonmeni — 


[UN 


I 


Irue;  1  replied,  I  uii  very  notry  fur  tbit,  lir 
JoliD  FielJing.  Lori]  Ruclirord  hki  preieot : 
1  laid,  1  shoulil  nol  Itko  lh>L  lauj^uige  IVnai 
sir  Julin  Fi«Uia|[  \a  aoatlier  place.  L<'>nl 
Rochrtinl  inlerferad,  whom  tUru  1  iliil  nM  |ier- 
BonaUy  know,  and  I  exjiresseil  some  ivaniiili 
about  ib« difficulty  oi'a  genilciiMUi,  in  llif  cba- 
tucler  of  ft  aniicilor,  or  at  a  privatK  friend,  liav- 
iii^BGccas  toaperson  who  wasihere  in  eu»tndy, 
njun  a  cliai^e  of  a  criminal  nature.  I  then 
deiired  tlial  they  would  m\i  Mr.  Slyre  llie 
^ueiijoD,  wlietlier  be  stat  for  me  or  nul?  Mr. 
Kayre  wu  io  another  room :  BpiilicaliDii  was 
mide  to  Mr.  Sayre,  and,  ai  I  was  infiiimfd  by 
niy  lord  Rovbrord,  Mr.  Ssyte  raid,  1  did  tend 
for  Mr.  Reynolds ;  upon  whicb  my  kird  Ruch- 
ford  admitted  ine  iuto  tbe  pn-acora  of  Mr. 
Sayre.  I  fo«iiul  Mr.  Sayre  under  an  exaniioa- 
tiuo,  a«  1  uoderstnod,  aod  a  clerk  nriling  at  a 
tolde  :  1  tbep  chared  bini  aot  to  anawer  any  ) 
queftion* ;  not  to  «i^  any  papers  ;  that  (h« 
very  moment  he  did  one  or  Ihe  other,  or  seem- 
ed disponed  In  da  one  or  tbe  other,  I  would 
Ie»e  tbe  rouin.  Lord  Rochfard  said.  Is  that 
tli« advice  you  g^vcyour  client,  Mr.  Reynolds? 
Ve*,  ray  lard,  it  ia  Ibeadvicel  give  him;  1 
•m  u>*werable  for  that  odiice,  and  1  shall  give 
faiinuootber.    Then, (aid  be,Sir,l  thin  If  you 

Sire  him  very  wroo^  advice,  ftlr.  8ayre  Ibeo 
esired,  thai  the  niiimletof  bis  eiainiDation, 
to  far  ai  it  had  (;one,  miglil  be  reail  :  they 


UoTdChirf^ 
nl  iippliajH 


:  the  intormutiou  of  Mr.  KIchardton 
vroH  also  read.  Upon  hearing  the  inforiDOlion 
read,  I  laughed  exceedinifly ;  1  said,  the 
charge  was  too  ridiculous  tu  tw  attended  to  ae- 
rioDsTy  a  maraent.  Either  my  lord  R^chford 
or  sir  John  Fielding,  I  cannot  determine  wbinh, 
said,  Why,  SirP  It  ii  upoa  oalli.  laoawered, 
luoktng  at  Ricbardnon,  who  was  there  present, 
I  liDaw  that  geotleiDan's  character  lun  well  to 
gire  credit  to  any  thing  that  be  swears,  or 
words  to  ibnt  etTicl ;  upon  which  Mr.  Richard- 
son called  Ibi  Ihe  prolectiuD  of  ibe  magislrales : 
be  said,  be  wtuoot  to  be  there  insulted.  1  ihen 
aaid,  that  if  under  the  authority  of  sir  John 
Fielding  and  his  lordship,  I  was  not  periuitled 
to  say  it  iliere,  I  wuuUI  >ay  it  again  in  aoolher 
place.  1  then  said  to  my  lord  ftocbford,  al^r 
ihii  alteicatiun  had  iiawed,  if,  after  consaliiiig 
the  great  law  officers  of  ihecrown.tbey  should 
be  of  opinion  with  me,  that  this  is  not  a  charge 
of  higli  treason,  and  a  tiailable  ntfence,  I  ihra 
Ko  ready  tu  give  gnod  and  sutHcit-nl  hail  for 
Mr.  Sayre  ;  hul  il  tbey  should  be  of  another 
o)iioion,  1  have  no  favour  lo  aik :  I  waa  then 
ordered  with  Ur.  Sayre  and  Ihe  metsengcra 
into  auother  room.  That  is  all  I  know  with 
respect  to  what  passeil  that  day  at  the  Secre- 
tary of  Stale's  otSce. 

Did  you  apply  at  the  Tower  for  admission  to 
Mr.  Sayre  as  bis  solicilor  f— I  anplied  to  major 
Raiustbrd  between  seven  aud  eiglit  o'clock  thai 
evening  lor  access  to  Mr.  Sayie;  the  auswer 
given  to  me  by  major  Rainitord  waa,  that  Mr. 
Sayre  was  a  cbise  prisouer ;   that,  under   that 

him  wilhoiil  a  ajiecikl  order  from  tbe  secretary 


nf  stale.     1  applied  again  the  next  day,  aod 
applied  several    liuiea   atlerwarils,  but 
c'liild  get acces«  lo  Hr.  Sayre;    and   1 
saw  him  till  1  found  him  belure  the  Uord  CI 
Juaiiceof  the  court  of  Kiog's-bencb,  b; 
of  Habeas  Carpus.* 

L.  C.  J.  De  Grry.  These  aeveral  ap| 
lions  were  lo  the  Tower,  not  lo  the  secreuryl 
state's  office  t — Yes,  not  lo  the  secretary  i  _ 
slate's  office.  I  aas  present  when  Mr.  Alleyaa 
and  Mr.  Lee,  as  couusel  tor  Mr.  Sayre,  t^fiM 
for  accoH,  staling  lo  the  lieulenunt'goveritor  if 
the  Tower  the  reasons  for  that  application,  tbtf 
tbey  were  counsel  reiaineil  for  hitu,  and  wiibsd 
ID  see  him  lo  consult  sIkiuI  the  measures  for  bii 
entargemeot.  The  rosjor  gave  those  two  ma- 
tlemen  tbe  same  sort  of  answer  ibnl  bi 
given  me,  as  I  before  stated. 

Von  mentioned  that  you  witfadret*  atUf 
fering  bail,  and  then  a  warrant  waa  sent  out  I 
the  cumiuilment :  hnw  long 
time  af  your  wiibdrawing  and  ibe  wai 
being  sent  outi'—Alier  J  '  " 


Hlr,  Sayre  was  conveyed,  by  tbe  proHr  l 
cers,  from  tbe  Tower  to  his  lordsbip'a  mim 
Bloomsbury -square.  Messrs.  AiUir,  D<j|d 
Liicss,  and  Alleyne,  attended  oa  lbs  fin 
Mr.  Sayre,  aud  Mr,  White,  (larlmr  mib  I 
solicitor  of  tbe  Treasury,  ou  the  part  ^1 
crown.  After  tbe  iwu  hrat  mentioned  f 
men  had  spoken  for  some  bule  t  . .  „ 
GuUjevt  of  .llr.Sayre'a  being  coaiintited  task 
confinement,  hy  virlne  of  the  warraat  tt  «a» 
mitmeni,  which  only  conveyed  a  gt— ll 
charge,  and  Mr.  White  bad  dedarrtl  iWkt 
had  no  insiructioos  lo  oppose  ihe  bail,  im 
lordship  called  for  ihe  warrant  ofcomiuitmea^ 
and  immediately  on  perusinf  it,  (irnniiuMcd 
that  he  bad  not  the  least  doubt  uf  Ui.  S»;n^ 
being  entitled  tn  bail  ;  as  he  observed,  lliat  (bit 
gentleman  was  only  charged  with  IreauniaUi 
practices,  and  thai  lie,  lord  Manstield,  sImhiU 
nol  have  refused  Ihe  bail,  if  Mr,  Sayre  had 
without  any  counsel.     Bail  was  accord 


insly  tlireclly  oner«'l  aud  accepted  ; 
S^yrchimseff  in  o""'        '  '  "      " 


I-  )Ir. 


lOOl.  and  John  ReyDold>,tai 
Cuote  I'urdon,  esqrs.  in  i>50'.each. 

"  Alter  the  buiiness  was  ovrr,  Mr.  Stjie 
thanked  his  lordship  for  tbe  great  |ioliieae« 
and  candour  he  had  sbeini  on  the  iicouiea; 
and  hoped  bis  lordship  would  always  act  iali< 
liko  impartial  nianuer  eravirding  to  the  covsli- 
tuiioo,  '  I  bopeso  too,'  rc^plied  bis  lordthip; 
*  let  tis  bolb  act  accnrdine  to  tbe  consliiutin 
'  and  weshall  avoid  all  dilHculties  and  dangeit.' 

"Tlielardma}or  and  setrraloibeTfrieodsc'' 
Mr.  Sayre,  allciided  opon  this  occaaiau. 

"  On  December  ISih  l<>lluning  at  the  Ud 
Bailey,  upon  miitiou  on  behnlf  of  3Ir.  Stytt, 
the  recognisance  entered  into  before  lord  Mau- 
field,  ou  October  auib,  was  diachargcd."  Ao- 
nual  Register  for  1T75,  Appeiulix  to  Cbmiolii 
p.  343,  where  is  a  brief  accoani  of  Um  {WttlM 
proceedings  agHnatSajre. 


1297} 


Sat/re  v.  the  Earl  ofRoeh/brd. 


A.  D.  1T77. 


[1398 


room  I  had  three  or  four  minutes  coofemtiOD 
with  Mr.  Say  re,  in  the  presence  of  the  messen- 
gers ;  then  I  mthdrew  sod  went  to  his  bank- 
ing-house, and  sent  an  express  for  his  partner, 
for  fear  of  the  consequences  of  the  commit- 
meot.  I  had  not  been  in  Mr.  Say  re's  house  two 
mi  nutes  before  a  letter  cane  from  Mr.  Say  re, 
acqtiaioting  Mrs.  Savre,  which  was  opened  in 
my  presence,  that  he  was  now  committed  a 
close  nrisooer  to  the  Tower. 

Jj,C.  J,  De  Gret/.  Do  you  know  what  be- 
came of  the  papers  which  I  understand  were 
carried  to  lord  Rochford*s  office  ? — They  were 
sent  to  me  aften^ards,  I  think  it  was  after  the 
access  of  Mrs.  Sayre,  by  her  hands,  from  the 
Tower. 

L.  C.  J.  De  Grey,  Then  they  were  returned 
to  Mrs.  Sayre  ?t-1  understand  they  were. 

Major  Rainsford  sworn. 

Eicamined  by  Mr.  Alletfne, 

Do  you  remember  recei?ingMr.  Sayre  into 
^ur  custody  P — Yes. 

Do  ^ou  recollect  at  what  time  ? — Upon  the 
SSd  of  October. 

Have  you  the  warrant? — I  have.  [Pro. 
doces  ilie  warrsnt.] 

By  virtue  of  this  warrant  you  received  Mr. 
flkyre  into  close  custody  ? — I  did. 

Did  you  refuse  any  person's  seeing  him  ?-— 
Yea.     I  did.* 

Did  you  conceive  yourself  bound  so  to  re- 
fdse,  because  it  was  directed  you  in  the  war- 
vmni  to  keep  him  in  close  custody  ?— -I  do.  By 
tkc  practice  of  the  Tower,  when  a  person  is 
ordered  to  be  kept  in  close  custody,  no  person  is 
to  have  access  to  him  but  by  an  order  oi^  the 
secretary  of  state;  and,  in  consequence  of  that, 
I  did  refuse  several  persons  access  to  him. 

Do  you  know  my  lord  Rochford's  hand- 
writini^  P 

Mr.  Serj.  Davy,  That  is  not  meant  to  be 
Jisputi'd. 

L.  C.  J.  De  Grey.  Did  you  receive  any  par- 
ticular directions  Irom  the  secretary  of  state  P 
—No. 

No  particular  message  P — Nothiuff  but  the 
warrant. 

The  Warrant  read. 

"  October  23. 1775. 

<*  William  Henry,  earl  of  Rochford,  one  of 
the  lords  of  his  Majesty's  most  hon.  privy  coun- 
ciif  and  principal  secretary  of  state,  6cc.  &c. 

**  These  are  in  his  majesty's  name  to  autho- 
tise  and  reauire  you  to  receive  into  y<^or  cus- 
tody the  boJy  of  Stephen  Sayre,  esq.  herewith 
00Ot  yon,  betnsf  char^^edf  upon  oath  before  me, 

•  See  Vol.  19,  y.  983. 

•)•  In  a  Note  to  the42d  Lietter  of  Junius,  dated 
Janoary  SO,  1771,  (see  Woodfall's  edition,  vol. 
9,  pp.  191,  19^.)  is  some  criticism  on  the  offi- 
cial French  of  tliis  lord  Rochford.  The  Jan- 
ffuage  of  thi«i  warrant  is  aokward.  Conoern- 
m%  the  doctrine  that  a  relative  is  to  be  referred 
to  the  but  antecedent,  tee  vol.  10,  p.  147 ;  vol. 
19,  p.  1110. 

VOL.  XX. 


one  of  bis  majesty's  principal  secretaries  of 
state,  with  treasonable  practices,  and  to  keep 
him  in  safe  and  close  custody  until  he  shall  be 
delivered  by  due  course  of  law  ;  and  for  so 
doing  this  shall  he  yuwc  warrant.  Given  at  Sc 
James's  on  the  83d  of  October,  1775,  in  the 
15th  year  of  his  majesty's  reign. 

«*  'to  earl  Cornwallis,  constable  of  his  ma- 
jesty's Tower  of  London ;  or  to  the  lieutenant 
of  the  Tower,  or  his  deputy." 

L.  C.  i^De  Grey,  .  Are  all  your  warrants 
with  prisoners  committed  into  your  custody,  to 
receive  them  into  close  custody  P — No ;  in  the 
case  of  lord  Ferrers  and  lord  ttyron,  for  mur- 
der, who  were  committed  by  the  House  of 
Lords,  these  warrants  were  conceived  in  other 
terms ;  but  the  warrants  from  the  secretary  of 
state,  which  are  for  state  prisoners,  are  always 
to  close  custody. 

Have  you  got  the  warrant  for  the  admissioa 
of  Mrs.  Sayre  P — I  have.    |] Produces  it.] 

Was  any  body  else  permitted  to  see  him  P— - 
Nobody. 

The  Order  for  the  Admission  of  Mrs.  Sayre 
read. 

«  October  23,  1775. 

*<  William  Henry,  earl  of  liuchford,,  one  of 
the  lords  of  his  majesty's  most  honourable 
privy  council,  and  principal  secretary  of  state, 
&c.  &c.  &c. 

*<  These  ate  in  his  majesty's  name  to  autho- 
rise and  require  you  to  permit  and  sufier  Mrs. 
Sayre  to  have  access,  from  time  to  time,  to 
Stephen  Sayre,  esq.  her  husband,  a  prisoner  in 
your  custody ;  and  for  so  doing  this  shall  be 
your  warrant.  Given  at  St.  James's  the  33d 
ofOctober.  Rochford." 

*'  To  earl  Cornwallis,  constable  of  his  ma- 
jesty's Tower  of  London ;  or  to  the  lieutenant 
of  tne  Tower,  or  his  deputy." 

Mr.  Serj.  Adair.  We  are  now  going  to  prove 
that  applications  were  made  at  the  Secretary 
of  State's  office  by  some  gentlemen  for  admis- 
uon  to  Mr.  Sayre,  which  were  refused. 

John  ElliSy  esq.  sworn. 

Examined  by  Mr.  Serj.  Adair, 

Did  y^ou  make  any  application,  or  were  yen 
present  when  any  application  was  made  at  the 
Secretary  of  State's  office  respecting  Mr. 
Sayre  P— Upon  the  9SA  of  October  I  received 
a  note  from  Mrs.  Sayre,  to  acquaint  me  that 
her  husbsnd  was  committed ;  and  about  an 
honr  afterwards  she  sent  a  gentleman  to  me, 
that  I  supposed  was  either  a  clerk  or  one  of  the 
partners  m  the  bank,  requesting  that  I  would 

?o  down  to  khe  Secretary's  office  and  try  what 
could  do  for  the  service  of  her  husband  who 
was'  under  those  disagreeable  circumstances, 
and  to  take  such  steps  as  1  thought  proper 
upon  the  occasion  :  upon  this  I  went  and  ap- 
plied to  some  of  my  friends,  and  consulted 
them  to  know  what  was  proper  to  be  done.  I 
applied  to  lord  ^Bkgham,  and  we  went  toge* 
tlier  to.Mr.  Burke,  and  we  agreed  that  it  wit 
4  0 


1299] 

proper  10 


I 

I 


17  GEORGE  III,  Action  for  Fahf  ImprUonmnt— 


[isM 


0  go  kll  tocher  tolhe  Sf^cretiry's  nr- 

ilihovto  make  applicBiinii, If  llir 

Cuun  nill  permit  me,  I  made  a  lilile  mioule  at 
what  ptiHiPil  at  tbe  Secretary's  nflice,  wilhin 
alii>ut  llim  liiiiirs  alter  I  returned  liiinie. 

L.  C.  J.  De  Crty.  You  amy  relVeEb  your 
memory  hy  Irwking  al  i(, 

Mr  Ellitteaia.  October  the  S3d,Bboal  ten 
in  llie  ruurning,  Vln.  Sayre  wrote  me  a  naie, 
wlierein  she  tiicutioaeil  that  lier  liushanil  was 
aji  pre  I]  ended  by  a  warrant  frunj  the  Secretary 
of  Slate.  About  one,  or  after,  (be  sent  lue  a 
mesta^fe  by  a  gentk-roan  whom  [  suppose  la  be 
one  "I  tbe  partners  in  bis  bank,  (o  desire  I 
iTuuld  go  lu  lurd  Rochfbrd's  (iffice  to  eni]i)ire 
inlii  the  Bit  nation  ofber  huibtnd.and  tnkesuch 
steps  as  Here  necenary  fur  his  benefit.  Afier 
bating  consnlied  with  aotne  friends,  I  went  in 
liinl  Itncbfnrd'a  oflice,  accompanied  liy  lord 
Effii>£:ham  and  Mr.  Burke,  and  applied  to  the 
Uo'lur  Secretary  cancerniog  tbe  warrant  by 
wbieh  Mr,  Sayre  was  apprehended.  The 
Unikr  Secretary  aniwered,  Tlial  be  wan  com- 


ment  be  waa  under:  his  answer  was,  Tbat  the 
warrant  directed  he  ahould  be  under  «afe  and 
clone  ciK<tudy.     I  then  denired  to  know  if  any 
of  his  CrieiiiU  or  his  wife  might  bare  accets  to 
hini :    bis  aniHer  n>aa,  That  they  must  a[ip<y 
to  (be  Tiiwer  tn  soire  this  question.      I   then 
demanded  whether  Hra.  Sayie  mi|;ht  hare  ac- 
ci-u)  to  her  husband:    he  replied,   She  must 
apply  to  the  Tower,  and  If  she  had  not  admis ' 
aiun,  might  then  apply    to    tbe  Secretary  of 
Slate.     I   rould  not  help  observiof  upon  this, 
that  lord   Rocbrurd  might  a*  well  say  directly 
whether  he  would  permit  her  to  bate  Hccesa  to 
berhuiband  or  not ;  that  I  wbe  desired  by  Mrs. 
Sayre  to  conie  down  to  the  office ;  Ihit  I  acted 
from  molires  of  humanity,  and  that  1   would 
mil  quit  the  offii-'e  tiH   I  received    from    loni 
Kocbliird  an  explicit  answer  whether  he  would 
permit  her  to  hare  access  to  bcr  busbund, 
not.     Upon  Ibis,  tbe  Under  Secretary  went 
In  lord  Kochford,  and  returned  this  aniwe 
That  Mrs.  Sayre  must  make  application  at  t 
Tower,  and  if  Ihnt  was  not  satisfactory  thi-y 
might  apply  to  the Stvreiary.     I  repeated  i 
obserrnliuii,  that  ray  lurd  Rocbfurd  mif^t 


Wax  permiasion  granted  loany  budj  ehefcol 
Mrs.  Sayre,  that  you  know  f — Not  to  otj 
knowled^  ;  l'>r  I  ihoold  haTe  trailed  upM 
Mr.Bayre;  for  I  recoired  a  note  from  himlo 
beg  I  would  go  to  the  Tower,  and  [fet  »<««•; 
bui  in  my  way  1  called  upon  Mr.  Reyuoldi  at 
his  ottiL'e,  and  he  told  me,  nnliody  was  ptt- 
aiitted  tu  go  to  the  Tower  but  Mrs.  Sayre. 

Mr.  Attorney  General.  Von  mtiat  uotma* 
tion  what  Mr.  Iteyuolds  told  you. 

L.  C.  J.  Df.  Grey.  Mr.  Keynold*.  wbo  ii 
the  but  witness  lo  thai,  idls  you,  nobody  ww 
permitted  lu  bate  acceas  to  Mr.  8ajre  in  lb 
Tuwer  but  Mrs.  Sayre. 


Mr. 


vtW  al 


and 


ileel,  if  he  meant  she  nhould 
have  access,  to  iet  me  carry  an  order  for  that 
piirpme  to  ber  Immediately.      Though  1 
peaiHIy  urged  tbe  Bboreobser*Btion,theUiider 
Secretary  would  roakeno  other  answer  than 
first,  to  wit,  She  might  apply  tu  the  Tuwi 
■where,  if  she  waa  refused,  she  might  apply  to 
the  Secreury's  otfice. 

Did  you  Ko  to  tbe  Tower,  in  consequence  of 
ibat,  with  Mrs.  ^yre  or  any  other  persoi   " 
]  waited  upnu  Mra.  ^jre  in  tbe  evening ; 
t»ld  me,  no  acctss  was  permitted  to  her 
band,  except  to  herself. 

I  think  you  meiilioiied  that  ynu  applied  to 
kn«»  uhelher  Mrs.  Sayre  and  Mr,  Sayri  ' 
ffitails  mtiflit  luTe  jieiiuiinoa  lu  we  Uiui, 


Alderman  Lee  waa  called,  but  txK  brag 
present  was  not  sworn. 

"  As  loan  as  llie  evidence  on  tbe  part  of  lb* 
plaiBllff  was  gone  thmugb,  Mr.  Atlantey  Ge- 
neral rose  in  behalf  of  tbe  defeudaDt,  repl^q* 
»hat  had  been  advanced  hy  llie  KeooriA 
d  animadvertiog  on  tbe  evidence  atldoeti 
1  n  the  course  of  his  speech,  this  lawyer,  m'A 
amazing  akill,  reiersed  the  picture  wbicb  kal 
been  drawn  by  his  tearneil  opponent,  abuiol 
tliat  lord  Rucbford  liad  done  no  more  than  aa 
irictly  conformable  to  the  duly  of  au  ordiair; 
)Bgi«trate,  and  that  it  would  have  been  aeu- 
dsloutly  negligent  for  a  person  who  tilled  itx 
high  aud  important  station  of  a  Secretary  d 
Slate  to  have  done  less.  He  urged  tbe  alarm- 
ing nature  nf  tbe  charge  allegeil,  declaring  dul 
neither  its  absurdity  nur  its  intptubahiliiy  aat 
a  snffii:ient  reason  Idr  any  magiatrate  to  hi" 
paaaed  it  over  without  taking  legal  notice  of  i< ! 
he  ihea  proved  from  the  evidence  whieb  llw 
Court  had  just  beard,  Ibat  brd  Rucbfurd'iCM- 
ducl  had  not  only  been  strictly  legal,  but  ibll 
ttip  whale  of  tbe  business  bad  been  tranndil 
with  alt  p»«aiUe  puUieness  and  civility  to  ihr 
plaintiff.  He  answered  tbe  objections  of  lb: 
Recorder  one  by  one,  andendeavourFdloiht", 
that  the  material  grounds  of  complaint  sihged 
in  the  deularalioD,  liz,  the  issuing  a  warrant  tu 
seize  papers,  tbe  committing  unly  far  tmsoi- 
able  priclices  (allbougb  the  warrant  lo  apprt- 
liend  contained  a  charge  of  high  treason)  i»i 
the  refusing  lo  admit  bail,  and  tbe  cooimiltiD^ 
to  close  custody,  were  ill'lbunded,  and  aoaU 
not  t)ear  the  infereocea  deduced  frtMn  tbo- 
the  first  he  instanced  iJie  ohnlsli 
ractice  in  cases  of  bus 
irged  ibe  frequency  ol 
cases  of  feloav,  where  magi 
without  scruple,  search  the  persona  and  lodf- 
ings  of  highwaymen,  footpads,  3^.  muj  af 
whom  have  been  cnavicled  and  suffered,  iacw- 
sequence  of  evidence  so  obtuiHed ;  witbontiaf 
idea  prevailing  ibat  they  bad  been  iUcpH; 
trent^i  be  wished  therefore  tu  know  oowbsl 
principle  of  law  the  practice  was  otyccted  M, 
quoting  lord  Coke  in  support  of  it. — In  reptj 
to  tbe  vecond,  be  declared  it  was  the  newtd 
kind  of  objection  Ibat  ever  was  made  in  a  OOBft 


Sa^rev  ike  Earl  of  nochfotd. 


[rsos 


jHiyin  behiir  of  the  Jefenilani,  and  then  pro- 

•eeiled  lu  exumine  bi(  witnesses  as  folkifs :] 

Fon  THE  DerENDivt. 

Ttanci%  Richardion,  esq.  snora. 

Eunined  by  Mr.  Solicitor  General. 

Are  ynti  an  arljiilant  ia  the  gtianli  ? — Yef, 

in  the  nm  ballaliun,  iu  the  first  rreimenl. 

Were  vod^  in  ihe  month  of  Ocluber  last, 
MalionalinlbeTower?— 1  nai. 

Ut  oHeuce  to  a  miuleineanoar,  was  nirely  t 
mark  retlier  of  llie  magistrate's  \eiMy  ihnn  \.\\i 
rigour.^ — 'With  rrganl  to  the  retiMinc  liuil,  it 
bad  not  been  protril  that  any  bail  was  lF|[nlly 
l«ndrrecl.  Tl>e  law  rnjuireil  in  all  bailable  of- 
ffrices,  that  ihe  oames  ami  descriiitiona  of  ihe 
bail  sbould  be  inaile  knotrn  to  the  magislrates ; 
it  hoH  not  been  prettnileil  that  a  liint  even  was 
offered,  irbo  tbe  persoiu  were  that  were  to  be 
Uiebail;  and  finally  in  regard  lo  tbe  commit- 
■nent  to  aate  and  close  cnstody,  lie  luiew  oo 
Mker  leifal  ciMiody  ;  Ihe  worcta  were  tbe  u«ual 
•ad  forinal  words  uf  warrants,  from  the  day 
Ibal  warrants  were  first  tranvtaled  into  Eui[lish; 
tbej  were  a  literal  and  close  trjnslalioo  of  the 
old  LHtiD  words  '  in  ulf&  et  arclil  custodia.* 

■*  Mr.  Attorney  General  look  great  giaiaa  to 
exculpate  Mr.  KichariJaoii  from  cenBure,  sliew- 
inff  lliat  he  nuuld  haie  been  fc"''')'  of  Ihe  mo~t 
c«atem|)lilile  and  infaniaus  conduct,  had  he 
Wroeibehing'itcoiuaiiMion,  and  yet  concealed 
bia  knowledge  of  a  plan  to  insult  and  endaogar 
bis  |ier>OD,  (a  plan  whidi,  liowerer  apparently 
wi»arA,  was  uerertbeleai  practicable  I)  and  ex- 
nlaioiD^  bow  far  a  man  was  bound  by  any  in- 
furntalioQ  ^iTeo  him  In  cnnfidence.  asserting', 
ibat  when  tbe  iDrormatlon  went  beyond  a  cer- 
tain legal  poiat,  it  was  no  less  iin|>ndent  end 
tbrmg  in  the  person  ({■''"S  't  '<>  expect  cunti- 
ilanlial  secreuy,  ihaii  it  was  uu  war  rati  table  aod 
dangerous  for  the  party  to  whom  it  was  im- 
ptxwi  to  conceal  it.  Upon  this  ground  he  Jus- 
tified Mr.  Itichardaon  ;  ubom  h«  described  as 
Ok  mat)  deaervinif  tbe  ihanks  of  the  public,  Ibr 
bating  to  well  discharged  his  duty,  in  a 
of  ■  very  nice  and  iin]Hirtanl  nature. 

"In  obserring  upon  the  evidence  he  animad- 
verted with  mucb  severity  on  Mr.  fleyonldi, 
who,  be  aatd,  had  behaved  to  lord  Itucblbrd 
with   great  im pertinence,  and  bad    very  el 

3u*iitty  inl'urnird  the  Court  bow  rudely  be  b 
call  with  «  poor  secretary  of  slate  and  a  in 
ftijjutaut  of  tbe  guards,  to  whom  be  had  oflrred 
bla  law  advice  gralit,  wbicb  they  iu  a  mosi 
nilliog  uiauiier  bod  Delected  Id  folloir. 

"  Aller  a  very  lung  and  powerful  apeech, 
Ibrcii^g  the  I'lilluf**  of  hi*  ctteiil'K  jusOlical 
ikod  urging  repeatedly  that  there  was  clearly 
BO  malice  in  what  lord  ItochfurJ  had  ilone,  but 
that  tbe  whole  uf  his  tHiiiduci  aro»e  from  ibe 
neeeuary  ditcbar^re  of  bia  ollicial  duly  ;  be 
QOBCluded  with  expreasing  hia  hopes  thai  tbe 
jury  would  confine  their  ibuuglila  to  the  mat- 
Ura  ipedlletlly  atstrd  and  laid  di)wn,  and  not 
iMVcncourHio  tlieir  i(UB|[inaiioiu;  tbatacl- 


Fletse  to  look  ■(  ibnt  paper.  l»  Ibat  ihe  in- 
formation thai  yoii  made  upon  oalh  before  injr 
lord  Rocliford  ? — Yes,  bei-e  is  my  liand- 
wriiing. 
1  ou  were  iworn  to  it  f — I  was  Iben. 
[Iilsread.'] 
"  Tbe  voluntary  IsfDRMtTioM  of  FiuKci* 
Richardson,  Adjiilaat  to  ibe  first  balia- 
lioD  uf  Ibe  6rst  rrgiment  uf  fmil-u nurds, 
Bworii  before  me,  one  of  hit  Majesty's 
principal  S«crelaries  of  Stale,  tbis  day, 
Ibe  30tb  of  October,  1775 ;  who  says, 
<>  Tbat  he  tbe  said  Francis  Richardson  di<t> 
un  Thursday  Ibe  lyth  orihiamootb,  uo  nr 
alKiut  ths  liour  of  13- o'clock  ai  noon,  meet 
Stephen  Sayre,  esq. ;  banker  in  Oiil(ird-ti)ad, 
Bi  ilie  I'eosylfania  colfee-hanie,  in  Bircbiu- 
Idue,  when  be  told  ibe  saiil  iDturnisnt  tliat  be- 
intended  lo  have  wrote  lo  Iiim,  and  tbat  he 
wished  to  have  ten  mloules'  coiiversaliou  wiili 
him;  whereupon  they  bulb  went  op  staira 
into  a  private  rnom  in  the  sold  linuse,  and  after 
the  aaid  Informant  had  shut  tbe  door,  al  the  de- 
nire  of  the  said  Mieplien  Sayre,  he  Ihe  said 
Stephen  Sayre  said,  he  hoped,  as  ibry  hod  been 
long  friends  and  countrymen,  thai  the  infurm- 
ant  would  not  betray  ihe  coulidence  he  was 
guing  to  put  iu  him  ;  and  upon  Ihe  inlbrmant'i 
assuring  him  be  wuuld  not,  Ibe  said  Stephen 
Siyre  enquired  what  jiower  ihe  inforinanl  bad 
in  Ibe  Tnwer?--^Vbcther  be  cntild  keep  tbe 
gales  o|ien  ? — Wbrlticr  be  could  oot  fix  what 
onmber  of  centineU  he  thought  properf-  — 
>Vhelber  all  orders  did  not  go  lln-nugb  Ih<»i  b» 
adjutant? — Who  had  lliecare  aod  keys' of  the 
inagaiina- luid  arsenal? — What  ailustion  tbe 
men  were  in,  in  nupecl  to  ammunition?— -If 
by  presents  or  promises,  tbe  informant  had  it 
in  his  power  lo  make  tbe  snbliers  aland  neoter, 
in  case  there  should  be  ocaasion?-— Tbe  said 
Stephen  Sayre  then  said,  if  ibrre  was  not  a 
cbsDge  in  governroenl,  both  countries  would  he 
mined;  and  that  ibere  was  a  acbeme  laid  ia 
wblcb  the  inrormant  might  be  iiwlruaiental  in 
saving  this  country  and  America  from  ruin,  if 
be  had  but  resolution  and  good  will.  Tbe  in- 
formant replied,  whenever  be  was  called  upon, 
be  hoped  he  should  not  prnve  deRcienl  in 
either.  The  infurmant  then  deaireil  the  said 
Stephen  Sayre  to  explain  biinaelf,  which  ho 
did,  by  aaying,  the  people  were  determined  to 
take  the  government  imn  iheir  own  banda,  and 
the  lime  won  near  at  band  :  tluit  (hey  had  aaet 
of  floe  fellows,  w  ho  were  only  wailing  Ihe  op- 
porluiiily  :  and  that  as  lo  tearing  to  pieces  lord 
Manslield,  lord  Norlh,  U>td  Bule,  S(C.  il  would 
be  of  no  material  cnuseo'ieiice ;  they  mutt 
Btiike  al  llie  I'uuniain- head :  to  which  the  in- 
formant made  aiikwrr.  You  don't  mean  tbo 
king!  Tbe  BbiivementiunedSWpben  Sayre  re- 

iug  thus  coufiirmably  to  law,justice  and  xjuiiy, 
be  doubled  not,  aa  honest  and  cciiicieoli'ius 
men,  lliey  would  lay  their  bands  on  Ibi-ir  brrskta 
nud  give  «  verdict  for  the  del'eadaut."  Sluru. 
Cbruu. 


1903] 


17  GEORGE  IIL 


.,  Yet:  thmt  the  Idiig  WM  at  the  bottiMli  of 
ill ;  for  he  MieTed  loni  Noitb  wit  hetitil? 
tide  of  tbe  boMoeit :  li<t  tbeo  went  oo,  and  said, 
Tbe  desiiro  wa«,  to  iieise  the  king  going  to  tiie 
llouae  of  Lords  on  tbe  S6th  instant,  and  to 
eonvcy  his  majestv  to  tbe  Tower.  Tbe  in- 
formant then  asked,  «  hetber  they  intc^nded  to 
dentrojr  the  kingf  Tbe  abofesaid  Stephen 
Say  re  answered.  No,  bnt  to  tend  bim  to  bis 
German  dominions ;  and  that  major  Labillier, 
ore  major  of  a  name  like  that,  bad  been  em- 
ployed, for  tome  time  past,  to  dittribttte  money 
to  tlie  soidiert  of  tbe  foo^  gutrdt,  and  bad 
already  distributed  ttSOOL  for  tbe  porfwte  of 
alienating  their  affectiont  from  got ensment, 
ami  to  prepare  tbem  ibr  a  retolt:    and  that 


AeHai^Jir  FaUe  It^itOMm^i  f  ISM 

Did  Im  denro  yo«  to  go  It  loffd  Rtcilbid!- 
Yes:  hedtaiicdtMltgoalMiirwidiyak 

General  Craig  it  your  eommandiag  ofitvf 
—My  immediate  commauding  officer. 

Crott-exafliuncd  by  Mr.  Beljcont  Jdmr* 


the  aboveoamed  Stephen  Sayre  said,  he  with-    that  I  rtoollaets    I 


cd  the  infurmant  would  instil  into  the  Arst  bat< 
talion  of  fbot-gusrds  a  notioo,  that,  if  a  change 
of  gorernment  should  take  phMse,  their  pay 
tfaould  be  raised,  in  proportion  to  the  dearneta 
of  profisions ;  and  that  be  would  send  the  in- 
IbrDMint,  in  a  day  or  two,  10  or  SOi.  Ibr  tbe 
purpose  of  making  himself  popular  with  the 
tbldiers ;  and  that  if  the  informant  eould  not 
hriog  them  o? er  to  fall  in  with  the  said  Stephen 
fiayre't  tcfaeoie,  he  would  at  least  prerail  .on 
ihem  to  stand  neuter :  that  the  informant  waa 
to  be  in  the  way  on  the  morning  of  the  96th  in- 
ttant,  and  on  a  signal  given,  whiefa  would  be 
•eummunieated  to  bim  in  due  time,  that  the 
king  was  brought  to  the  Tower,  the  informant 
was  to  let  bim  in,  and  tbe  populace  with  him, 
then  to  see  the  gates  shut,  and  to  put  them  in 
possession  of  the  mag'azines  and  arsenals,  and 
to  fix  trusty  ceotinels  at  the  ^[overnor's  door, 
and  wlieu  they  had  {;ot  the  king  in  their  pos- 
session, they  were  tu  issue  proclamations  under 
the  kin)jf*s  sii^o  manual ;  to  call  a  new  council ; 
to  annul  the  authority  of  all  officers,  ciril  and 
military,  of  which  the  said  Stephen  Sayre's 
frends  should  disapproYe  ;  that  the  lord  mayor 
was  at  the  same  time  to  order  the.sherifTs  to 
raise  the  posse  comilat  us  to  keep  the  peace  near 
the  Tower ;  and  that  proper  constables  would 
likewise  be  entered.  The  aforesaid  Stephen 
Sayre  enquired  particularly  into  the  situation 
of  the  mac^azine  at  2St.  James's  guard,  and  the 
state  of  that  in  H\dePark,  and  finally  con- 
cluded by  savings,  The  attempt  would  entirely 
depend  on  their  opinion  of  the  temper  of  the 
people  of  that  day.      Francis  Richardson.'' 

**  8^vorn  to,  and  signed  by  me,*  the  day  and 
year  above  written.  Rochford." 

Did  any  body  go  with  you  to  lord  Rochford, 
or  did  you  go  by  yourself?—!  went  with  gene- 
ral Craig. 

Had  yon  communicated  te  general  Craig 
any  thing  of  this  matter  ? — Yes,  the  greater 
part  of  it :  general  (.'r.tig  declined  beinjf  privy 
to  the  name  uf  the  person  of  whom  1  received 
this. 


Botr  long  bare  you  beeo  acqiMiBtri  with 
Mr.  Sayre  f— •'Betweeo  afai  mi4  — eooyotm. 

There  bat  beeo  a  cnntidernblt  iggitt  K 
freedom  benveen  yeof— ^]o.  tkm  CMMOto  m> 
ceptation  of  the  word  tliere  woo  thoopptniiiM 
of  mtioBaey  ;  wo  oarer  nnteii  at  oor  ftpv^ 


tite  boosts;  tbero 

liarity,  coofidaooe  and  frtedlbJB. 

Hart  yoo  oarer  riaited  Bflr.  Soyro 
that  timeP^I  oarer  vitiled  iilai  ot  hi 


*  This  appears  to  afford  another  instance  of 
lord  Itoch ford's  official  incorrectness  of  lan- 
guage. 


ago  that  I  Diet  him  at  tho  haoto  of  a  Mr.  Di 
Borgh>t,  but  norer  Tiiilod  Ima  ml  4Nt  tM 
boote,  at  I  know. 

Wat- there  any  eorreapoodenoo  kept  op  ly 
letter  or  otharwito  httwem  yoo  and  Mr.  Ajm 
doriag  that  time  r— Not  that  I  rocsoHoet 

You  mean  then  to  aay  jroo  wero 
with  Mr.  Sayre  during  these  aix  or  aevt 
becaose  yoo  bare  loet  with  hioa  io  tlM  ttniet  ail 
oonveived  with  him,  and  ooee  out  with  hifliilt 
Mr.  De  Burgh's  P— We  net  aa  coootryoMo;  1 
waa  alwaya  rtry  happy  to  too  Mr.  Bayn^  aii 
heme. 

Mr.  Seij.  Davy.    What  eoonttymoo  ait yt 
—We  were  both  bore  in  America. 

Mr.  Serj.  Aiknr.  Then  yoo  coooeift  iW 
common  acceptation  of  the  wftrd  ^  iotiioaliP  h 
applied  to  people  who  for  six  or  seven  jrtrf 
together  never  visit  each  other  or  keep  up  any 
correspontlence,  bat  who  Mpeak  when  tbcy 
meet  in  the  street  ? — We  were  not  intirotle. 
I  must  ap()eal  to  your  lordship  whether  gft* 
tlemen  are  to  use  such  treatment  as  t  his  ! 

L.  C.  J.  De  Grey,  Upon  i»eing  asked,  be 
explains  what  his  idea  is,  there  is  no  impett- 
tion  lies  upon  the  witness;  according  to  the 
common  idea  of  words  I  should  have  tboogM 
they  did  not  import  an  iotioiacy,  but  be  ex- 
plains what  he  means. 

However,  that  was  tbe  state  of  yo|^  ac- 
quaintance and  intimacy  with  Mr.  Hay  re  tbtt 
yon  have  given  an  account  of? — Yes. 

Do  you  apprehend  it  likely  that  a  person  ss 
acquainted  and  with  such  a  dei^ree  of  inti- 
macy, whaterer  it  was  that  you  would  ^ 
icribe,  would  place  a  confidence  in  you  in  tbe 
manner  you  have  mentioned  ?^li  is*  likely, 
for  two  reasons:  in^the  fir«t  place  1  have  al- 
ways expressed  an  approbation  of  tbe  Ameri- 
cans and  their  cause ;  I  hope.  Sir,  yoo  ap- 
prove of  that :  the  other  is,  that  no  other  officer 
in  the  Tower  could  have  serred  bim  in  tbat 
manner  bnt  myself.  , 

Then  you  were  a  likely  person  to  have 
serred  him  in  that  manner,  you  conceive.^— 
Appai*ently  I  was. 

What  time  of  day  did  this  courersatien  pus 
at  the  co^ee-hoose  ? — At  twelve  o'clock. 

Did  you  meet  accidentally  or  by  appoint- 
ment  F— Accideotaily. 


PBS]  Sai/re  v.  Ike  Earl  ofRochfvrd. 

Who  began  the  cnnvetsatioa  ?— Mr.  H»yK. 

Ill  the  cnffGe-liouKij ? — Yes,  be  was  writbg- 
»  MlPT  nlica  I  rama  itp  Id  him. 

Were  Buy  pei-aiins  |»'FBFnl  ur  within  henrinjf 
wbeu  Mr.  Sajre  bepiii  ibut  conver««tioiif — I 
ifon'l  recoll«cl  any  liiiily  in  particular. 

UiJ  you  cuDliniie  I'l  canrcrae  aiiy  tiiae  la 
tlic  oolfrF-hiinaef— Mr.  ISavre  wa«  wtiling  a 
letter ;  an  noon  »  he  hnd  liaiabetl  it  be  Mid  he 
intt'oilrd  lo  hare  wrote  to  lae,  and  uaiiteil  to 

At  whose  iDstance  n'as  it  that  yon  withdrew 
iDlD  Knotber  roam  F— Mr.  bayre'i  rfiuevt. 
I  lliiiik  you  K»y  he  ludieil  the  dwir  upon  ibe 


oncasinn  ? — Liickeil  or  shot  iht  door. 

laiheroiivprsalrnn  with  Mr.  Sayreyouhate 
meulionprl  ibal  a  major  L»b«llier,  or  sntne  |i«r- 
■oaof  0  name  likp  ihal,  Mr.  Say  re  I'd  [I  you 
had  dixribiited  a  suni  of  mnney  among  tbe 
guards.     Did  that  pasM  * — Yes, 

Old  you  knnif  aay  tbios'  uflhat  person  (bnl 
wa«  Darned  f — 1  neier  heard  uf  such  a  name 
belhre. 

Did  you,  in  conspqiiencporihe  conTpraalion 
that  bad  piis«pd  between  you  and  Mr.  Savre  nt 
■Hy  t*me  before  yuur  inroniiaUoo  ai  lord  Koeh- 
fifril'a,  make  any  voquiry  conceTDingp  that  per- 


Oi. 


bad  pa«F<l 


-I  did  m 

I  ynu  make  any  eo'gulry  ainoni;  tbp'sol- 

of  Ibe  {{uards  ubpiiier  any  such   thing 


(iipiiosi'd 
-No,    ■ 


I  immediately 


ta  ape  the  ^eii 

This  parsed  on  the  20lh  of  October?— I  be- 
Uwfln  tlie  IQtk. 

Whrii  did  you  e^ite  the  jtiforinatioii  to  lord 
Itwhturd'— I  went  immediately  lo  look  for 
•he  ireDeral ;  |  believ«  it  migbl  be  about  three 
s'clnck  that  day. 

Did  yo.i  go  to  lord  Rocbford  the  iome  day  ? 
— Theamneday. 

I  think  the  information  la  not  datfd  on  that 
day  :  was  ihe  iiifnrmation  given  thai  day  or 
Ibe  d.-iy  r.j|loHing  f— The  day  lollowinff, 

Al  what  lime,  as  near  as  you  CBO  recidlect  ? 
—  I  believe  about   ten  or  eleven   In  the  fore- 

Vou  were  at  that  time  upon  duty  at  ihe 
Towerf— Not  while  1  wasal  ford  Hochlbrd'a. 
Bin  it  was  yuur  slaiion  ?— Yes. 
Did  yoii  at  aay  time  between  ibe  conTersa* 
tioii  wjrb  Mr.  Kayre,  and  the  tlnie  of  your  in- 
formation (fiven  to  lord  Roi'hford,  return  to 
Yourduly  al  the  Tower?— Yes,  1  lay  in  Ibe 
Tower  that  nisbl. 

Yuu  are,  I  Ibink,  an  officer  in  Ihe  first  regi- 
DaentoffUBrdaP- Yea. 

It  wa«  that  repmcDl,  I  think,  which  wai 
mcnlioned  in  the  courersalioii  between  yon 
and  Mr.  Sa^re? — He  spoke  of  all  iu  general : 
he  Kpoke  ot  the  firM  regiment  then  ;  of  that 
nhicb  was  immediately  under  my  Rare  as  ad- 
Money,  he  said,  had  been  diatribuled  among 
ibe  aoldiers  of  the  fool-guards  ? — There  ore 
•«TeD  batlalions ;  1  am  adjutODl  Vi  the  tint  bat- 
talion of  the  first  reglmeni. 


A.D.  1777.  [130G 

Did  you  make  any  enquiry  into  Ibal  malter? 
— No;  becanse  I  was  desired  by  my  lord 
Rwbfbrd  not  to  make  any  pniiuiry  about  Ibe 
tnulter,  fur  fear  of  discoiering  tbe  mailer  ;  I 
sU|i|)DM!  yuu  meeo  lo  cnnfiuc  me  lo  Ihat  parti' 
culnr  day,  I  waa  desired  lo  weoliun  it  tu  do 
person  whatever. 

L,  C.  J.  De  Grry.  Fifteen  hundred  puunda 
ia  not  asid  10  be  given  to  Ibe  tirst  bamliun  in 
the  Toiver;  but  among  the  lool-giiards  F— 
Y«.  * 

When  this  particular  was  mentioned  le  you 
nf  money  being  acluully  disiribnied  amoag  Ihe 
guards,  you  dtd  not  ihiuk  it  necessary,  bielbre 
yuu  gave  an  inlormaiiun  upon  thai  auhject,  lo 
make  any  enquiry  al  all  inlo  the  truth  nftltat 
Ibci? — No,  because  I  llibugbt  it  would  come 

Nor  is  the  nenxin  meotioued  in  Ihat  infur- 
niHlion  F — Nn,  1  Ihougbt  it  nut  Deccssary. 

In  fact  yon  did  nnl  doll? — No. 

Did  Mr.  tiayre  aend  you  Ihe  10  or  20/.  yon 
apohe  ofp— No,  be  promised  to  meet  me:  I 
staid  lill  three  o'clock  al  my  ofrn  apartmenls: 
that  was  the  tt^turday,  1  belieie,  I'olktwing  ; 
bui  he  did  not  come:  ibul  muney  was  lo  be 
dislribuled  among  pattit^ular  persons,  the  xer- 
ieants  of  the  gnards :  I  was  going  tu  look  lor 
Mr.  Ssyre;   I  mel  Mr.  Sayre  lu^a  eoauh  with 


Mr.  Bcv 


did. 


olds. 


For  what  purpose  ? — To  get  the  money  :  I 
ibought  it  my  dniy  to  get  tbe  money  :  I  was 
desired  to  see  ntr.^yre  upon  the  subject;  lo 
encourage  him  in  the  attempt ;  in  gel  out  what 
1  cuuld  from  bim:  I  looked  uponillnbemy 
duly;  and  I  would  do  it  again;  imnirdiatelj 
upon  coming  Iu  the  coach,  Mr.  Sayre  oflered 
lo  Mop ;  and  he  *aid  be  was  goinc  to.; 

L.  C.  J.  Ue  Greif  Before  this,  had  yoil 
settled  any  milters  »iih  Mr.  Sajrp  about  re- 
ceiving the  mntiey  ? — Al  firal  be  naid  he  WouM 
come  with  ii  lo  me :  afterwards  he  said  il  might 
create  some  suspirinn,  and  be  would  aeud  ill;y 
some  IruBty  person  in  a  letter. 

Then  iliwe  was  im  appointment  of  a  meeting 
for  that  pnrrnise  P — No. 

Did  Mr.  Snyre  express  a  readiness  nf  S|ieah- 
ihen  ? — He  offered  lo  atop  Ihe  conch 

lo  ihe  eoBch  ? — I 


tUm 


Did  II 


ik  ynu  lo  cm 
recollecl ;  but  I  t 
boily  aaked  me  to  cusne  in;  I  said  J  would 
waJK:  it  was  just  by  ibe  court  Mr.  Rcyui^ds 
bred  in  ;  Salisbury  •court,  I  beltefe  it  is ;  and 
Mr.  8ayre  said  lie  wa»  going  to  Ktn|i  iu  ihat 
court.  '  I  followed  the  coach  for  the  purpose  of 
sjieaking  lo  bim. 

Did  yon  go  lo  Mr.  Rf-ynnhls's  bouse? — 
Yes,  Mr.  Reynolds  was  liiere  ;  and  a  litlle 
mnii  in  lilack  gol  out  of  Ibe  cnsch  :  they  ted 
me  into  a  littleroom  on  Ibe  left  band. 

Did  any  thing  llurlicullst^a.'«a^.V«ft,^— ^V 


15073 


17  6EOBGS  UL 


AdimJ^  FJSa  /nyitiiwKfiif  [tSOB 


imiwuIlMidlMeiideiirad:  I  IdM  Mr.  8i]rTe 
I  bftd  coiMidered  Um  nmiter  Terj  allentifdj, 
wmd  I  tlMiight  It  WW  fetsible. 

Who  wM  pmeat  Ui<r«r— Nobody  but  BIr. 
8im  Olid  I. 

M  wbooe  doira  did  yoo  withdraw  inloo  pri- 
tote  room?— Mr.  ReynoUls'tt  they  opraod 
<ho door ;  Mr.8oyio  wont  iotothe  foom,  aod  I 
iUlowed  hifli':  tnnne  wot  o  iervut-iiioideleoB- 
iai^tbcbovtht  ihoweot  ool  ond  left  ■§  to- 
fpeiher.^ 

Witlioot  any  desiro  imteeiid  by  yoo  to  hoTo 
oay  private  oonfOTMtioQr^^Yoe. 

How  loog  did  yoo  eootipne  with  Mr.  Soyro 
■I  thai  timef— I  oellove  a  qoartor  of  ao  hour. 

Did  ho  give  yoo  any  BMmey  theo9*-«Bo 
palled  oot  bia  pone,  aod  said  he  bad  hot  half  a 
goiiiea  and  a  key ;  hot,  laid  he.  I  will  meet 
yoaalthoNew'Bn^jbnd  oofiee- nooao  at  one 
o'eloefc,  and  will  ipivo  it  yoo  then ;  yoo  will 
give  me  yoor  nolo  of  band,  and  it  will  look  like 
■Mney  ^--bot  there  waa  one  thing  that  1  had 
Ibrgot— When'  wt  were  in  the  roorn^  Mr. 
9ayre  asked  mo  whom  I  had  aeon  after  I  part- 
ed from  himP  I  Midy  general  Graig:  he 
looked  me  ateadily  in  the  eoumaoanoe,  and 
mmI,  Did  yoo  eee  nobody  ebo  P  I  laid.  No. 

Did  Mr.  Sayre  meet  yoo  ponnant  to  that 
.  nppoiotment  P-i^He  did  noC 

bid  aoy  thiog  ftitber  pom  between  yen  and 
Mr.  SayreP— 1  donotreeolleet  aoy  thing)  I 
went  tMre  at  one,  and  I  waited  th«e  Ull  near 
three :  I  met^a  genttotnan  who  waa  very  near 
jllie  phwe,  that  I  oMOtionod  the  circometance 
to  before  I  inibrmed  general  Craig,  captain 
Nutfent.* 

Di^  it  never  ooenr  to  jron,  or  wee  it  never 
•oggeatod  by  aoy  body,  that  it  would  be  proper 
flbr  yoo  to  en^oire  into  the  truth  of  that  tact 
witlT  respect  to  the  money  that  waa  said  to  be 
distributed  amoog  the  guards? —  I  never  thought 
it  necessary,  I  thought  this  affair  was  not  coo- 
flood  to  Mr.  Sayre :  Mr.  Sayre  mentioued  some 
great  persona  as  parties  conceroed  in  it:  I 
could  not  auppose  1,500/.  could  be  distributed 
and  it  not  be  known. 

Though  you  were  not  very  intimate  with 
Mr.  Sayre,  you  knew  him  for  six  or  eeven 
years ;  did  ^ou  ever  meet  with  aoy  thing  in 
your  acquamtance  with  him  during  that  time 
that  led  you  to  conceive  that  he  was  out  of  bis 
aeoses  ?— No,  I  thought  him  a  man  of  mode- 
rate parts. 

Aa  other  men  are? — Yes. 

General  Craig  sworn. 

Examined  by  Mr.  Serj.  Davy, 

I  believe  you  belong  to  the  first  battalion  of 
tiio  first  regiment  of  foot  guards  P— -I  have  the 
honour  to  Im  lieulenaot-colonel  of  the  first  re- 
gimenL 

^  *  1  believe  that  shortly  after  this  tranaac- 
tion,  captain  Nugent  was  dismissed  from  the 
guarda ;  and  that  m  the  year  1782,  during  the 
ndminiatration  of  lord  Sbelbunw^  he  waa  created 
%baionet  of  Ireland, 


P--^ 


Mr.^  aioharten  is  •4|0lnBir— iToa,  that 

ore  tlMrao.1 

Yon  are  of  coorw  hia  aoMiior  o& 
Year 

Do  yon  re«ambaff  bia  ^tmmg  to  yon 
bforming  yon  of  any  easvenalioB  Iw  tad 
withMr.CiayreP— Yea.. 

Of  what  natoio  waa  that  eoovonmieB  P— 
caaiM  to  no  »  the  orderly -roooi  of  the  inl 
regiment  of  foot  gnarda.  I  van  baiy  thsR^ 
but  he  waa  very  importoaato  to  apeak  ta  mt^ 
aaymg,  he  had  aomething  of  very  grant  oonm- 
qoeneo  that  bo  most  Imaadiaitly  coflMMmMla 
tome.  I  wentwith.hioioat  of  tba  ordsrff- 
room  into  a  little  book  contt  tlwt  la  thorny  Ikat 
wo  might  be  aloiM :  when  I  onoan  than^  ha 
aaki>a  had  had  a  tory  eitraordiiinrr  oanfMa* 
tion  boM^Mlh.him  that  wnanmf.  og  aaalla»if 
the  grenteat  nnnamnatga  to  ito  Batiaa^tlfc^ 
there  had  been  nooey  ilfctiHiUiid  nmsBff*o 
aoldiare  of  the  goardai  to  the  anaontt  tlbUf 
he  aaidrof  l^fioA  in  order  fi»  floboni  thorn  tan 
their  duty  and  allegianoe:  thnt  there  wwaia- 
tentiooa  of  aeiring  the  Kingla  paraan  aa  ha 
went  to  the  Hooee  of  Laida  oo  tbe  oponi^  lb 
aeasion  of  parliament,  with  naanj  otkor  partiea* 
Ian;  hot  thia  waa  the  chief  of  U.  Ho  amdlv- 
ther,  that  there  waa  no  portieular  dcnign  Main* 
his  Miyrety'a  life,  hot  that  ho  wna  to  ha  esa- 
ducted,  aome  time  after  being  aeiaod  ond  oanisi 
to  the  Tower,  lo  his  Gennna  dominiona;  oiii 
numy  other  particulars,  aa  I  aaid  bofore.  Jl 
thia,  you  may  imagine,  atmck  aod  aateoiihiA 
no.  I  rqieatedly  qoeatioocd  Mr,  Biihaidaa 
aa  to  the  certainty  of  tbeao  facto  ;  be  peniilii 
in  them:  1  then  naked  him  whether hsbii 
oommunioated  thia  cooferaaiion  that  he  bsl 
tokl  mo  of,  that  he  had  jnat  bad  ia  Iboeiqf.ii 
any  one  elae :  he  told  me  he  had,  to  capliia 
Nugent.  Captain  Nugent  waa  then  on  the 
Tilt«^ard  guard :  he  said,  that  while  he  vu 
waiUng  for  me,  which  had  beeo  about  an  bsar, 
or  half  an  hour,  or  something  of  that  sort,  bs 
had  met  with  captain  Nugent,  nod,  upoo  icB- 
iog  him  part  of  that  conversatioa  which  hebsi 
held  in  the  city,  he  immediately  ezdaiaNd, 

*  l^Iay  be  they  had  a  mind  to  tamper  with  nir> 

*  too  ;*  or  words  to  that  purport. 
L.  C.  J.  De  Grey,     We  caonot  receive  ge- 
neral Craig's  account  of  what  captain  Nofcst 
said,  or  of  what  adjutant  Richardaon  aaid  mf 
tain  Nugent  aaid. 

Did  Mr.  Richardaon  tell  yon  where  it  wm 
that  he  had  seen  Mr.  Sayre,  and  held  this  a* 
traordinary  confersation  r---He  told  me  it  o« 
in  the  city  ;  I  do  not  remember  that  he  aca* 
tioned  the  place.  1  desired  not  to  know  the 
name :  he  came  to  me  ofliciaJly  aa  his  csah 
manding  officer :  I  desired  him  not  to  tcU  ws 
the  name,  wishing  not  to  know  particolaia. 

What  advice  did  you  give  him  opaa  lbs 
whole,  or  did  you  lake  him  aoy  whereP— f 
thought  it  then  my  duly,  aa  it  waa  a  matltf  ^ 
auch  importance,  and  be  waa  ao  ^^rt^fidrrt  sal 
determioed  in  the  facta  he  bad  related  la  flft 
to  carry  him  before  the  oocretary  of  a|aie;  ii 
oonaeqoeaee  of  which  1  did  coiiy  hiai  li«f 


s 


IL; 


J  Sa^yrt  v.  the  Earl  of  Rodifvrd. 

Iiinl  R'lcbfriril's  office  :  he  w»a  sdmiu^it  In  tn^ 

lonl   ItiH-IW'uriJ'i  pri-£eiiue  ;    I  tbeo  quilted  tin 

rooai,  anil  wm  i>ut  presenl  at  liis  eiBminBtioa. 

Crou-examioeil  by  Mr.  Allet/ne. 

Were  you  at  lord  Rocbford's  nlien  Hr. 
Sayre  wai  commiUed  N--1  mig'lit  be  in  Iba 
«uier  uffiee,  but  I  knew  nothiiit;  or  it' 

Do  yon  know  ihi!  time  wben  Mr,  Sayre 
withdrenr  N--I  cannot  apeak  |;io«iliTe  wkeo  it 


_A.  D.  1777. 


fISlO 


waa  not  spirit  cnoiigii  leA  in  tlii*  couulry  Ift 
brinj  aiicb  •  meaatire  about ;  but  ibal,  as  ■» 
nuy  plau  or  inleolinu  olBeizIng  tbe  kin|['a  per-  ' 
■on,  he  ii  totally  and  entirely  ifpiorant  tbercotV 
"  'I'akeu  bdiire  me,  (be  d^ty  aoil  year  abvr* 
wrilleii,  RocuFOHD." 


Cro&i-exBtnineil  by  Mr.  Alleyne 


BIr.  Wallatt.  Mr.  Reynolds  informs  joor 
Inrilsbip,  that  be  Gaiii«  into  ibc  room  wlien  Mr. 
Kiyre  wag  at  lord  Itouhlbrd's  office,  aud  told 
Hr.  Sayre  Ibat  ir  be  auHwered  any  qnentionB, 
or  aigned  any  pajier,  be  would  inalanily  leave 
ihe  room.  1  triab  to  shew  your  lordabip  what 
Mr.  Sayre't  examlualion  was,  before  be  maa 
•10 piled  by  Mr.  Reynolds, 

ftlie  ExamiDaiioii  produced.] 

CKarta  Bricluhi  sworn: 

You  Wlong  to  ibe  secretary  of  state's  office  F 
---Yes. 

Is  that  your  biinil-writJDg?  — Yes;  it  is 
what  BIr.  Sayre  said  before  lord  Roclitord :  tbia 
is  I  be  true  purport  of  wbal  tie  said :  lord  Rocb- 
foril  puterery  question  before  I  wrote  it  down, 
to  see  if  it  was  proper,  aod  iioilerslood.     The 

Sueitions  were  put,  and  bis  anfoiers;  and  be- 
ire  I  wiole  ibem  down,  Mr.  !tayre  admitted. 
I    bvlirre,  that  ihey   were  ibe  sense  of   hit 

[The  Examination  read.] 

rbe  ExitMiNt-noN  of  Stepuen  S*yiie,  nq. 
Uken  befnre  me,  William   Heory,  Earl  of 
Ruchfurd,  thin  aSdday  of  October,  1775, 
••  This  examinaol  saith.  That,  so  far  as  re- 
<  (be  Heeiog  Mr,  RichiirdHin  at  the  Pen- 
is colTee-bouse,  upon  tbe   I9ih  iomanl. 
vlieres,  is  very  true :  and  Ibsl  '.hey  went 
•  •1«ir«,ia  also  true;  their  con  teraatinn  turued 
't&y   upon  Ibe  cooteal    now   ileiwadiug  in 
icnca ;    the    conrersation    began    by    Mr. 
tfaanlson's  apologiaiue  for  beio^  an  officer 
e  guai^,  instead  of  being  now  in  ibe  ser- 
pof  America.     Wbai  made  this  apology  the 
ire  necessary,  he   baviog  met  him  in  the 
pt\»  some  months  before,  when  be  declared 
1,  if  be  did  not  succeed  in  coming  into 

X~     uards  agaio,  be  meant  to  proceed  ioslautly 
narica,  and  to  gu  into  the  service  of  that 
Iholry  :  that  he  dufs  not  choose  to  trutt  his 
miory  with  Hr.  Reynolds  being  present  at 
Ihi*  conrersalion  ;    but  that  Ihere  was  a  person 
prcaent ;  Mr.  Richanlson  proceedeil  in  saying, 
Tbat  be  should  be  better  qualilied  for  that  ser- 
L^oe,  baving juit  been  appoioted  an  adjutant  in 
Mb*  guards,     Tbe  conversation  then  took  a  turn 
Bjiipon  the  (uiKbiels  wbicb  must  arise,  in  coiisc- 
pTMMoeof  the  contest  QOw  witli  America:   tbat 
'Be,  the  exam  iuant,  acknowledges  tbat  he  de- 
clared to  him,  that  he  thou)iht  nothing  would 
■ate  both  counlriet  but  a  lolal  chaiiL'c  of  both 
«M^  wd  anuore* :  4faM  be  wm  unid  Ibera 


Ogether 


the  Willie  they  were 
f— During  the  lime 
was  taken  dowu  by  me  in 
writing. 

Were  you  there  when  Mr.  Reynolds  cameF 
— 1  was  in  the  room  when  Mr.  Reynolds  ia- 
truiled  himself  into  that  room. 

How  loDgafterdidyoucontiuietbere? — TiR 
tbe  examinalioa  was  closed. 

Were  you  ia  tbe  toom  when  Mr.  Sayre  and 
Hr.  Reynolds  were  directed  to  withdraw  Intv. 
another  room  f — They  weut  into  another  room  - 
but  1  cannot  lake  upon  lu 
reeled:  I  was  iu  the  rooi 
lioQ  was  taken,  and  I  i 
Rochford  signed  it. 

Then  yon  were  in  Ihe  n 


B  to  say  they  «     

11  before  the  examina- 
emaineil  till  my  lord 


.  n  plain  Eniflisb, 
when  Air.  Ssyre  and  Mr.  Reynolds  withdrew  f 
—Yes. 

Jlow  long  afler  that  nithdrawmenl  was  it 
before  the  warrant  for  Ibe  cjmmiimeiit  was 
signed? — ll  might  be  half  an  hour,  or  more,  or 
\e*.%  ;  I  cannot  tube  upon  me  to  say. 

Wlittt  .was  done  after  Mr.  Ssyre  aod  Mr, 
Reynolds  withdrew;  did  not  lord  Rochliird 
iiiiinedialely  give  urden  tor  baring  the  warrant 
made  oulforcomuiilting  liimF— Iheardordert 
given  for  to  make  out  tbe  wsrraal. 

Immediately,  iir  within  a  few  ininoles? — I 
understood  that  unlers  were  given  :  I  am  not 
the  clerk  tbat  made  out  the  warrant. 

Yoii  beard  Sir.  Reynolds  talk  soiDetbinfc 
about  bail,  did  not  you  ?— I  caoDOt  charge  ntj 
uieoiory,  I  wish  I  could,  to  that  maiter. 

It  is  unfortunate  that  your  memory  can  re- 
collect all  on  one  side  and  nothing  on  tbe  other ! 
— I  shall  give  answers  to  every  qoestioQ  in  my 
power,  hut  I  will  not  speak  to  any  thing  1  do 

Did  you  hear  any  thing  of  bail  being  offered  f 
— I  oannot  say  that  I  did  ;  aod,  to  Ihe  best  of 
my  koowledue  and  belief,  there  was  not  any 
thing  said  about  bail,  that  my  lord  Rochliird 
said,  in  my  bearing. 

I  did  Dot  ask  you  what  lord  Rochford  said. 
— Or  any  body  else. 

L.  C.  J.  De  Gretf.  Was  sir  John  Fielding 
there  si  that  time  ?— lie  was. 

Mr.  Seg.  Doej/.  My  lord,  it  is  adinilled, 
thai  mailer  is  pleaded,  thai  there  is  sucb  an 
Habeas  Corpus  and  Recognizance. 

Mr.Merj.^t/oir.  TliaiRccogaiMnce  wwmT- 
terwards  discharged  fnr  want  of  proseculiODi 

The  crideace  for  tbe  defemUut  being  closn}, 
Hr.  Serjeant  (ilyiin  made  a  rcptv  in  behalf  of 
Ibe  plainlilT;  aller  wbicb  bii  lordship  summed 
up  il|g  ttukfis*  u  Uaejttry,  who  iriibdnw  tar  | 


MMMV  tiMf  n^lf&f  4p  flv  |0V#     He  V40M 

^^^^^^^V    ^^V^B^^^     ^^P^'PW  ^^^^^P^^^^P*       ^^^^^^C^MW^PP^v         ^^^^^^^P       Bv 

PMlM  M  very  rttilr  Wtg  I«mi  «onw  al  at  » 
IIm  mmmmI  cawr*  Ha4  Iw  UtMmm  mrt  !•  ite 
I«r4  Mi4)w  Uts  Wfmi4  l»ar«  tlir^Hvo  t«oie  liflrt 
iHi  llf^  f#f turr ;  w»  foi|^lit  iIm;  •oldiery  :  but  M 
Mi  iiMMBfUuM/l^  pfVMfl  «»f  |(ie  faUcbooU  «f  the 
cfc*ric««  tf'V'^i  ri4#ir  at  ilii«  diitance  of  lime,  lb« 
imf4rr$i$»l'mn  wmn  nlUrKtAlurr  uMuopwUsd,  It 
li*4  y^u  uf^^A  Uy  iittt  AtlorfMrjr  iitntnl  that 
Mr.  M«yr«  baJ  hit^  treaii^J  with  atl  poaaible 
mUthtnt'Wt :  it  wm  n^H  to  be  nupputatd  Uiat  lord 
MiMlifofil  womM  Ur»i  9uy  mau  unpo(it«!j,  but 
it  wint  r%irft$t¥\y  inridi-iit  that  Mr.  ttoyre  ha«l 
Uaaii  trrau'il  with  th«  full  exintioo  of  official 
fiKour  froin  th«  httui'tnmnff  to  tlie  end  of  the 
biMiiMMMi,  Tliff  iMuifiy  i(i'ri«ral  warraiitt  to 
Mriaa  iMifHT*  had  h«'eii  more  thafi  once  dehalMl 
febd  M'tllrd  :  1 1  had  hren  arffuird  in  the  caae  of 
Arthur  Hffardtnore,  and  in  the  caae  of  Mr. 
IVilkf*.  The  liecoril«;r  profi^trd  himielf  a^aintt 
All  UKUurtn  of  |ia|i«!r4,  and  he  wai  per*iuad«d 
that  Mr.  Ufynoldi  had  acted  with  ffreat  pro- 
l^riely  at  lord  liochford*«,  howerer  harahly 
oilier  iiii^n  init(lit  treat  hia  behaviour,  tie  bad 
given  lord  liochford  very  proper  advice:  the 
oriMvn  la  ivy  era  were  the  peraona  ivho  were  best 
tble  to  have  direoled  hia  lordahip  in  hia  pro- 
oeeilinf(a :  they  hati  iloubileita  lince  Ireen  c<in- 
•uMtff,  Mid  tuul  very  winely  adviaed  the  minis* 
try  lo  drop  the  aflair.  The  liecorder  apoke  for 
41  ooiMMltrBblo  timet  and  with  great  warrotb  iii- 
Afiid  Ui  oUiBt'a  cMe- 


I 


tPMcacelfce 

~  Ibrm 
offeloDy:  im 
be  coneeivetf  tlie  aame  role  w«old  beU.  ViA 
regard  to  tbe  iaiprobabilitjr  of  tkt  cbaige,  ii 
ooffht  to  be  femeaiibrred  boiv  rTrcrditlj  ■* 
probable  and  apparaitly  mbaur^l  alt  miirmptM  a 
lull  or  ddbrooe  pnaors  or  aher  gaveiaaMia 
ever  bad  been,  lo  tbecaae  of  Heaij  ibelA 
of  Fraoccy  tbe  people  aoiveriallj  6mmitd 
the  report  of  an  attempt  to  murder  tbnr  mh 
narcb ;  tbe  coaseqaeace  waa,  they  lotf  ihar 
king  by  it»  be  bang  killed  -in  tbe  paUc 
9Hm!i§  of  the  city  of  Paris  at  noonday,  H^ 
rounded  by  bia  retinue  and  court.  Btf 
improbable  alao  were  Uie  attempts  iipaM' 
to  have  been  designed  on  William  tbe  U 
and  Cliarles  the  Sod  of  England  !  It  mtwtit 
Uierefore,  lo  be  a  main  point  for  tbe  jury's  ai^ 
aideratioo,  whether  lord  Rocblord  badaoleiv 
a  magistrate  ought  to  do  in  aiicb  a  case  as  iM 
before  them,  and  also  wbetber  Mr.  KeyntMi 
dedaratioo  at  lord  Rocbford*s  amtMinud  Ii  ■ 
legal  lender  of  bail.  AlW  inaiancing  tbe  ■** 
terial  parte  of  tbe  evidence,  air  William  M  Ai 
whole  to  the  consideration  of  tbe  jury,  wha^ 
an  hour  after  three  went  out  of  oonrt  aad^ 
abfiut  two  hours ;  on  tbetr  retttin  tbey  Ivai'* 
verilict  for  the  pltioUff  with  a,OOM  ^MtKtg^ 
Morn,  CbroD. 

i 


1913] 


Sayre  v.  the  Earl  ^Roek/ard. 


A.  D.  irtt. 


tI314 


1.  Whether  the  offer  and  refiisal  of  bail  was 
aJiuisiible  evidence  nii<ler  the  iasues  joined 
upoo  the  special  pleas  ?  And  if  admissible, 

3.  •  Whether  the  evidence  f^iveo  was  a  suffi- 
cieot  proof  of  an  offer  and  refosal  of  bail,  to 
make  the  subsequent  iro prison iiient  illegal  ? 


The  followiDgf  is  Mr.  Justice  Blackstone's 
lieport  of  the  proceedings  in  C.  h, : 

Mich.  Term,  18  G.  3. 

In  trespass  and  false  imprisonment,  the 
plaintiff  declare<l, 

1st.  On  a  breach  and  entry  of  his  house 
on  tlie  2Sd  of  October,  1775,  and  making  a  dis- 
turbance there  for  twelve  hours,  break iu|f  open 
hta  cabinets  and  escritoires,  and  takio(i|f  away 
his  ffooils  and  papers,  and  for  an  assault  on  his 
person,  and  imprisonirm^  him  ten  days,  without 
•oy  lawful  or  reasonable  cause.  Snd.  On  a  g^e- 
Dcrml  count  for  an  assault  and  false  imprisou- 
■Mnt ;  and  laid  bis  damans  at  30,000/. 

The  defendant  pleaded,  1st.  Not  Guilty,  on 
which  issue  was  joined. 

3nd.  He  justified,  as  to  entprin^f  the  house 
and  takini;  the  j^ooils,  and  imprisoning  the 
plaintiff  for  part  of  the  time  laid  in  the  first 
count,  as  beinir  a  privy  counsellor  and  secretary 
of  state,  and  having  received  an  information 
upon  oath,  on  the  20th  October,  1775,  from 
one  captain  Francis  Richardson,  who  on  the 
10th  was  an  adjutant  in  the  guards,  tlien  on 
duty  in  theTuwer  of  London,  and  who  deposed^ 
as  stated  at  length  in  the  plea,  but  substan- 
tially, **That  the  plaintiff  had  tampered  with 
him  to  betray  his  trust  as  an  officer  on  guani  at 
the  Tower,  and  to  intiuence  the  minds  of  the 
soldiery,  by  a  promise  oi  double  pay,  to  assist 
in  a  revolt  and  ehange'of  government,  which 
he  declared  the  people  were  determined  to  take 
hitD  their  own  hands ;  and  that  there  was  a  de- 
aiffnr  to  seize  tlie  king  when  going  to  the  House 
of  Lords  on  the  26tli  of  Octob^,  and  convey 
him  to  the  Tower,  and  from  thence  send  him 
to  his  German  dominions,  and  that  1,500/.  had 
bceo  already  distributed  among  the  guards,  to 
alieoate  their  affections.  He  also  |)romised  io 
seod  the  informant  money,  to  make  himself 
popular  aiiioog  the  soldiers ;  and  desired  when 
the  kiog  was  seized  he  would  so  order  matters 
as  to  let  him  and  the  populaoe  into  the  Tower, 
and  put  him  iu  possession  of  the  magazines, 
lee  That  their  intent  was  to  compel  the  king 
to  issue  proclamations  to  call  a  new  priry 
couacil,  and  to  displace  such  officers  civil  ond 
military  as  their  party  should  disapprove :  and 
that  the  lord  mayor  (Wilkes)  was  to  order  the 
sheriffs  (Hay ley  and  Newuham)  to  raise  the 
oofse  comitaiuSf  and  keep  the  peace  near  the 
Tower ;  and  also  to  order  profier  constables." 
Upon  which  the  defendant  issued  his  warrant 
to  apprehend  the  plaintiff  for  hi^h  treason,  and 
seize  his  papers ;  and  delivered  the  same,  on 
the  23d  of  October,  to  two  of  the  king's  mes- 
soogers ;  who  taking  with  them  a  constabhs 
cDtared  the  plaintiff's  house,  and  seized  him 
and  his  papers,  and  brought  him  before  the 
VOL.  XX. 


defendant,  who,  upon  examination,  committed 
the  plaintiff  to  close  custody  in  the  Tower  for 
treasonable  practices;  but  returned  him  his 
papers.  That  the  plaintiff  was,  on  the  28th  of 
October,  1775,  upon  a  Habeas  Corpus,  ad- 
mitted to  bail  by  lord  Mansfielil,  chief  justice 
of  the  King's- liench,  and  set  at  liberty,  *  Que 
*  sont  eadem,'  &c. 

3d.  The  defendant  further  pleaded  a  like 
plea  as  to  the  second,  with  respect  to  entering 
the  house,  taking  away  tiie  defendant's  papers, 
and  imprisoning  him. 

4th.  There  was  also  a  fourth  plea  of  the 
same  purport  to  the  second  count  of  the  decht- 
ration. 

The  plaintiff  replies  to  all  the  special  pleas, 
<  De  injoriii  suft  proprift  absque  tali  causft,'  Ikt!, 
and  thereupon  issues  were  joineit. 

This  case  was  ai>i;ued  last  Easter  term,  by 
Adair  lor  the  plaintiff,  and  Walker  for  the  de- 
fendant ;  and  wheo  the  Court  was  ready  to 
give  judgement  thereon  in  Trinity  term,  it  was^ 
at  the  pressing  instance  of  the  plaintiff's  coun- 
sel, adjourned  for  another  argument  to  this 
term  :  when  it  was  again  argued  by  Glynn  for 
the  plaintiff,  and  Davy  for  tlie  dH'endant. 

For  the  plaintiff,  it  was  urged,  that  under  the 
replication  of  *  De  injurid  su&  pn>pri&,'  (!^c.  it 
is  sufficient  to  shew  any  fact  that  is  not  consis- 
tent with  the  justification.  And  though  a' new 
trespass  cannot  be  given  in  evidence  under  that 
issue,  it  may  be  shewn  that  the  original  tres- 
pass was  unjustifiable.  That  though  the  ori« 
ginal  caption  might  l>e  justified  bv  the  matter 
contained  in  the  plea,  yet  the  suhsequeut  de- 
tainer might  be  shewn  to  be  oi\|ustitittble  by 
the  tender  and  refusal  of  bail.  A  lawful  act 
may  be  turned  into  a  trespass  by  the  subsequent 
misbehaviour  of  the  party ;  as  by  abusing  a 
distress;  Salk.  201.  Gargrave  and  Smith. 
Riding  an  impounded  horse.  Yelv.  96.  Hee 
also  the  Six  Carpenters'  case,  8  Co.  146,  and 
Withers  and  Ilciidley,  Cro.  Jac.  379,  where  it 
is  held,  that  an  unlawful  detainer  ni'ter  a  l<^al 
taking  is  a  fresh  and  illegal  caption.  They 
said,  the  second  question  was  too  dear  to  make 
a  doubt.  The  tender  could  only  be  conditional, 
as  it  was  not  known  for  what  crime  the  plaintiff 
would  be  committed :  and  iuimctliately  after 
the  tender,  he  is  committed  to  close  custody, 
whidi  prevented  him  from  then  offeriuj^  bail. 

And  per  Gould,  justice.  It  is  held  m  Lon|p 
Quinto,  13,  that  in  bailable  cases  it  is  the  duty 
of  the  magistrates  in  the  first  pluce  to  demand 
sureties. 

For  the  defendant  it  was  argued,  that  the 
evidence  of  tender  and  refusal  of  bail  was  not. 
adroissiblp,  because,  Ist.  It  is  not  within  the 
issue,  which  is  only  on  the  truth  of  the  plea, 
and  that  the  plea  does  not  mention  thia  fact.  A 
general  replication  (like  the  nresent)  only  de- 
nies the  plea.  A  special  replication  coofessps 
it,  but  alleges  new  matter  ;  this  therefore,  be- 
ing new  matter,  ought  to  have  been  replied. 
In  King  end  Phippard,  Carth.  2K0,  in  action 
of  assault  aod  battery.     A  plea  •  son  aisault 

4P 


•1315] 


16  GEORGE  III. 


Action Jor  False  ImprisomnenL 


[WW 


<  demesne.'  Replication  that  the  defendant 
entered  the  plaintiff's  bouse  and  nAisbehafed, 
whereupon  he  ^eniiy  put  him  out.  Held  that 
the  replication  was  good  without  a  traferse, 
absque  hoc^  for  it  ought  to  be  a«special  replica- 
tion, because  this  new  matter  could  notbe  gifen 
in  evidence  on  the  general  replication,  *  De  in- 
*  jurii  suii  propri&i  &c.'  Whatever  confesses 
and  a?oids,  as  the  tender  of  bail  does  in  this 
case,  must  be  suggested  on  the  record,  that  the 
adverse  party  may  be  able  to  meet  it  in  e? i- 
dence.  It  is  collateral  matter,  and  out  of  the 
issue  of  the  general  traverse,  which  only  goes 
to  the  facts  of  the  plea.  Therefore  all  subse- 
quent misbehaviours,  as  abuses  of  distresses, 
lee.  are  in  the  regular  course  of  pleadinj^,  con- 
stantly replied,  and  cannot  be  giveu  in  evidence. 
Besides, 

2.  This  evidence  does  not  support  the  action, 
which  is  for  a  positive  fact.  This  is  only  proof 
of  a  negative,  a  mere  non-feasance.  See  the 
Six  Carpenters'  case.  Resolution  the  second. 
Ld.  Rayro.  1399. 

As  to  the  second  question,  Tender  of  bail 
must  be  like  the  teniler  of  money.  The  bail 
must  be  produced  in  order  to  see  that  they  are 
current.  A  promise,  or  offer  of  bail  not  pre- 
sent is  not  sufficient,  nor  is  the  subsequent 
commitment  a  refusal,  if  no  bail  were  readv. 
Vhe  tender  must  be  absolute,  not  conditional ; 
Salmon  and  Percival,  Cro.  Car.  196.  Sir  IV. 
Jones,  226.  Smith  and  Hall,  2  iMod.  31.  On 
an  action  of  false  imprisonment  the  defendant 
Justified  under  a  Latitat,  the  plaintiff  replied 
(which  shews  the  true  course  of  pleading)  a 
lender  and  refusal  of  bail.  Held,  that  as  the 
arrest  was  legal,  case  and  not  trespass  lay  for 
^is  refusal. 

De  Grey,  chief  justice.  As  the  case  is  so 
clear  on  the  first  question,  there  is  no  necessity 
io  give  any  opinion  on  the  second. 

It  is  a  certain  rule  that  no  new  matter,  fo- 
reign to  the  issue  joined,  is  admissible  as  evi- 
dence. The  present  replication  *  De  injuria 
*  8uk  propria,'  Sec,  is  a  general  traverse  of  the 
vrhole  of  the  plea.  W hatever  therefore  goes 
to  disprove  the  facts  of  the  plea  is  proper  evi- 
dence. What  disproves  none  of  them,  is  im- 
proper. This  refusal  of  l>ail,  if  true,  disproves 
i^othing  that  is  advanced  in  the  plea, and  there- 
fQre  ought  not  to  have  been  admitted. 

Gould,  justice,  of  the  same  opinion.  There 
-  may  be  a  partial  traverse  *  absque  tali  caus^,* 
and  a  general  one.  This  is  a  general  traverse, 
uiifler  «vhich  no  new  matter  can  be  given  in 
evidence.  The  case  in  Carthew,  280,  is  a 
strong  authority  for  the  defendant. 

BltLckstonc^  justice,   of  the  same  opinion. 


Nothing  ought  to  be  admitted  in  evidence,  bst 
what  is  material  to  the  issue  joined,  either  to 
prove  or  disprove  it.  Nothii^  is  in  issoe  opoi 
a  special  plea,  but  what  is  directly  travened: 
and  the  general  replication,  *  Oe  injar^  ssi 
'  nropri&  absque  tali  caas&,'  traverses  all  the 
nilatters,  and  nothing  but  the  matters  eontaiacd 
in  the  plea.  The  plaintiff  declares  on  a  ^ 
which  at  first  view  is  a  trespass.  The  de* 
fiendant  in  bis  plea  acknowledges  that  fact,  bat 
states  such  new  circumstancxa  as  (if  true) 
amount  to  a  justiBcation.  If  the  plaintiff  ess 
suggest  additional  new  matter,  which  sbeai 
that  the  defendant's  assertions  (though  trse) 
will  not  justify  thetrespass  committed,  heoagkt 
to  reply  that  new  matter  in  a  special  replici- 
tion,  that  the  defendant  may  demur  or  tib 
issue  upon  it.  Bnt  in  the  present  case  be  bas 
chosen  to  reply  generally,  the  imprisonmest  I 
complain  of  is  still  an  injury,  because  all  ttat 
you  have  said  in  justification  is  absolutely  ot- 
true.  •  The  words  « De  injuria  sui  prcfril,' 
of  his  own  wrong,  are  merely  introducfory; 
the  traverse  is  contained  in  the  words  '  ahsui 
*tali  caus^,'  without  the  cause  alleged  by  w 
defendant.  Whatever  tberefore  goes  Is  dih 
prove  that  cause  is  admissible  evidenoe,  bsl 
nothing  else. 

Nares,  justice,  of  the  same  opinion.  It  mi 
held  by  all  the  judges  on  a  reference  from  thii 
Court  in  the  case  of  Selman  and  CoarlBcy, 
about  the  13  or  14  Geo.  2,  that  wbereaddcact 
confesses  and  avoids,  it  cannot  be  given  io  efi- 
dence  on  the  general  issue.  See  also  3  fin. 
7,  pi.  8.    Cro.  Jac.  147. 

Judgment  for  the  defendant. 


See  the  Case  of  Wilkes,  on  a  Habeas  Corpsi; 

vol.  19,  p.  982.  Also  that  of  Leach  against  tbc 
King's  Messengers,  for  False  ImprisooiDfft, 
vol.  19,  p.  1002,  and  the  Case  of  Seizurt  of 
Papers,  p.  1030. 


In  the  Letter  from  Candor  to  the  Public  .4d> 
vertiser,  pp.  15,  16,  it  is  asserted,  that  **  Mr. 
Pratt  never  was  consulted  at  all,  and  but  oaec 
even  spoken  to,  about  any  secretary's  warrasi; 
and  then  as  Mr.  Pitt  avowed  io  a  certain  ao|^ 
assembly,  *  his  friend  the  Attorney  told  boa 
the  warrant  would  be  illegal,  and  if  he  tmied 
it  he  must  take  the  consequence,  nevertbelai 
preferring  the  general  safety  in  time  of  war  tsd 
public  danger  to  every  personal  coosidertfios, 
he  run  the  risk  (as  he  would  that  of  bis  bcsd 
had  that  beeu  the  forfeit  upon  the  like  motif e) 
and  did  an  extraordinary  act  upon  a  si 
foreigner  just  some  from  France.' " 


7] 


Trial  of  James  Hill,  &e. 


A.D.  1777. 


[I3IS 


The  Grand  Jury. 


.  The  Trial  of  James  Hill  otherwise  James  Hinde,  otherwise 
James  Actzen  or  Aitken,*  (known  also  by  the  name  of 
John  the  Painter)  for  feloniously,  wilfully,  and  maliciously 
setting  Fire  to  the  Rope  House  in  his  Majesty's  Dock- Yard, 
at  Portsmouth:  had  at  the  Assizes  holden  at  Winchester, 
Before  the  Hon.  Sir  William  Henry  Ashhurst,  knt  one  of  the 
Justices  of  his  IVfajesty's  Court  of  King's  Bench,  and  the  Hon. 
Sir  Beaumont  Hotham,  knt.  one  of  the  Barons  of  his  Ma- 
jesty's Court  of  Exchequer,  March  6:  17  Geouge  HI.  a.  d. 
1777.  [Taken  in  Short-Hand  by  Joseph  Gumey  j  and  pub- 
lished by  Permission  of  the  Judges.] 

James  Hill,  otherwise  James  Hinde,  otherwist 
James  Actzeo,  on  tbe  said  7tb  day  of*  Decem- 
ber, in  tbe  year  aforesaid,  with  force  and  arms 
at  Portsea  aforesaid,  in  the  county  aforesaid,  a 
certain  building  erected  in  the*  dock-vard  of 
our  said  lord  tbe  king  there  situate,  called  the 
Rope-house,  f/^lonioosly,  wilfully  and  malici- 
ously, did  set  on  fire,  and  cause  and  procure  to 
be  set  00  fire,  against  the  form  of  the  statute  in 
such  case  lately  made  and  provided,  and 
against  the  peace  of  our  said  lord  the  king,  his 
crown  and  dignity. 

And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  Jo  further  present,  that  the  said 
James  Hill,  otherwise  James  Hinde,  otherwise 
'James  Actzen,  on  the  said  7th  day  of  Decem- 
ber, in  the  year  aforesaid,  with  force  and  arms 
at  Portsea  aforesaid,  in  the  county  aforesaid,  a 
certain  building  of  our  said  lord  the  king  there 
situate,  in  which  great  quantities  of  naval 
stores,  that  is  to  say,  twenty  tons  weijg^ht  of 
hemp,  ten  cable -ropes,  and  six  tons  weight  of 
cordage,  of  our  said  lord  the  king,  were  then 
placed  and  deposited,  feloniously,  wilfully,  and 
maliciously,  did  set  on  fire,  aiul  cause  and  pro- 
cure to  1>e  set  on  fire,  aealnst  the  form  of  the 
statute  in  such  case  lately  made  and  provided, 
and  against  the  peace  of  our  said  lord  the  king, 
bis  crown  and  dignity. 

The  Prisoner  was  arraigned  upon  the  above 
Indictment,  to  which  he  pleaded  Not  Guilty ^ 
when  the  following  persons  were  sworn : 

The  PETrr  Jury. 


P.  Taylor,  esq. 
C.  Saxton,  esq. 
John  Pollen,  esq. 
T.  Gatehouse,  esq. 
T.  Sidney,  esq. 
J.  Amyatt,  esq. 
Tbo.  South,  esq. 
H.  Harmuod,  esq. 
W.  Harris,  esq. 
Richard  Bargus,  esq. 
Philip  Dehany,  esq. 


»unt  Palmerston 
on;  Hans  Stanley 
I.  Worsley,  hart. 
[.P.8t.  John,knt. 
V.  Benett,  knt. 
.  Ogle,  knt. 
en  ton,  esq. 
emonger,  esq. 
.  Jolliffe,  esq. 
orsley,  esq. 
KK>ner,  esq. 
idge,  esq. 

Indictment. 

Sauthamptonf 

E  jurors  for  our  lord  the  king,  upon  their 
present  that  James  Hill,  otherwise  James 
le,  otherwise  James  Adzen,  late  of  Portsea, 
e  county  of  Southampton,  labourer,  on  the 
lay  of  December,  in  the  17th  year  of  the 
I  of  our  sovereign  lord  George  the  3d,  now 
of  Great  Britain,  &c.  with  force  and  arms 
ortsea  aforesaid,  in  the  county  aforesaid, 
ty  tons  weight  of  hemp  of  toe  value  of 
. ;  ten  cable- ropes,  each  thereof  being  in 
;h  one  hundred  fathoms,  and  in  circum- 
ce  three  inches,  and  of  the  value  of  80/. ; 
lix  tous  weight  of  cordage,  of  tbe  value  of 
. ;  the  said  hemp,  cable- ropes,  and  oord^ 
then  and  there,  being  naval  stores  of  our 
lord  the  kinq^,  and  then  placed  and  depo- 
in  a  certain  building  in  the  dock-yard  of 
taid  lord  the  king  there  situate,  called  the 
vhouse,  feloniously,  wilfully,  and  mali- 
ily,  did  set  on  fire  and  bum,  and  cause 
>rocure  to  be  set  on  fire  and  burnt,  against 
Ibrm  of  the  statute  in  such  case  lately 
i  and  provided,  and  against  the  peace  of 
»aid  lord  the  king,  his  crown  and  dignity, 
id  the  jurors  aforesaid,  upon  their  oath 
!said,  do   further  present,   that  the  said 

Some  account  of  this  man  is  given  in  the 
lal  Register  for  1777,  Hist,  of  Europe,  p.  28. 


Henry  Lucas,  of  the  Soke. 
Richard  Long  of  the  same. 
Robert  Mondy ,  of  Thruxtou. 
John  Cole,  ot  Upelatford. 
.William  Cole,  of  L(»agstock. 
Richard  Yokes,  of  Kings  worthy . 
Rechab  Thurup,  of  Itchin  Stoke. 
I^muel  Maunder,  of  Hvde- street. 
George  Newsham,  of  \Vickham. 
John  Kent,  of  Fareham. 
John  Berry,  of  the  same. 
Charles  Cobb,  of  Oosport. 


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•  'I  li«<  «fl    ffiy  {ft*!ti  <-xt<  [ii  »ui\  rfi:i;.'riiitj<li-  in-  wfirk  otAont^  ■!' til.  or  tliftt  this  waf  s<4ii«  ho* 

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<  Milt' fjiiMiity  *,(  jfri-;ii  v.>|ii«-,  arid  ii  iH  »'X':f«:(|ifi;(  jiufposi*,  tlif-i)  it  wa*  fit  to  advert   bark  ii»  ifc* 

I  M  t  y  f'M    lin:  |iiiliii/:  t|i4t  It  rli'l  ri'fi  liajipMi  at  4ul>jf;r},  arid  t<i  turn  iu  tbf  ir   minds  all  thi*  cr- 

ili.ii    iiH.f    lo  <'iiii.iiii  «tff    ifiiir:ii  rord:i(f(!  :m  bt  ciiiiistaiiCf^s  ot    iliat  day;   amon^  oihf  r»  H  w- 

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iiih  i.'li 'I    I'l  I.I'  Kill  .iiiiiid  liiHt  d.iy,  lull  f'litii-  |  in  th«^  Dnck  in  fiie  minuiea,  1  su|i|»'i»r;it  -it 


riKin  had  been  M-f  n  U|)on  the  day  vi  the  6rp. 
Iiirkin){  ^er}'  much  aliout  the  lleiup-htiwe  wJ 
about  I  he  Uo|>e-hou<ie;  then  il  ocrurreil.  m^ 
a  iiKin  had  been  locktrd  into  the  Ko|if^hiHi*rT 
and  nithsoincdifliculty  bad  |j^touta^aiD;ii(9 
it  occurred,  that  the  |NfniOn  upon  whom  »!>!■>' 
^iii,  M  !•  ihf  pHxcding  chu|iti:r  of  that  nurk.       i  cion  then  fell,  i'roni  veveral  vague  iodcfimtecir* 


IniUl;  'It.il  iil'iiii'  M4i»  cMiiiiiiiii'd.  Cjriilli'iiifrli, 
ii  lii  III  f  I  KKii  y  III  ill*  iilinii  to  \oii  thiit  the  fir« 
liiiil.f  <Hii  III  till- 1  ii*<«  tiiiiiiiHt  fiiirtof  ihf'biiildiiii;; 

■*  M'.l.    |'M;.M   «-.  '41     Si-  |':«Ht'<    VU'HH  of 
Ihr  I  iO'.iii,!  Iiit|i.  Ti,  «.  ;Wl     I'oi  I  he  law  of  Af- 


ISSl]       far  setting  Fire  to  Porlsmoutk  Rope-Hmte.       A.  D.  1777. 


ri3s? 


cumsUnces,  w«9  one  whose  sirname  was  not 
known,  but  who  waa  calletl  John,  and  who  was 

Sbusinffa  a  painter,  who  had  worked  for  a 
r.  Gouldingf,  a  painter  at  Titch field,  at  a  gen- 
tleman's house  in  the  neif^hbourhood,  and  that 
was  the  origin  of  the  name  given  to  him  of 
John  the  Painter. 

John  the  Painter  then  beinic  the  man  upon 
whom  suspicions  stronj^fl}'  fell  from  several  eir- 
cumstanres,  none  fif  which  concluded  directly 
and  positively  against  him,  bnt  all  of  which  led 
to  extreme  stroni;  Kii^picions ;  and  the  circum- 
stances that  catisH  these  suspicions,  were  put 
together  m  the  furm  of  an  information,  and  laid 
before  a  magistrate,  in  order,  if  possible,  to 
have  iWiH  John  the  Painter  apprehended  and 
further  enquiry  to  he  made.  Upon  this,  there 
was  an  advertisement  published  m  the  |iapers, 
with  a  reward  of  50/.  for  the  apprehending 
John  the  Painter,  describing  him  as  well  as  they 
were  able,  and  his  person  and  his  dress  were 
very  inifficicntly  descnbed  by  the  people  who 
bad  seen  him  liefore. 

A  very  worthy  honourable  gentleman,  whom 
1  have  m  my  eye,  and  who  is  a  Tery  great 
friend  in  the  public,  and  in  the  strict  and  trite 
■ense  of  the  word,  a  patriot,  having  seen  this 
advertisement,  very  actively  stirred  himself  in 
the  business,  and  was  very  much  the  cause 
of  the  apprehending  of  this  John  the  Painter. 
John  the  Painter  %ias  accordinifly  taken  up,  I 
believe,  in  this  county,  at  Odiham ;  and  you 
'Will  be  pleased  to  mark,  that  there  was  tiien 
Ibund  Ufion  him,  a  loaded  pistol,  a  pistol  tinder- 
box,  some  matches,  and  a  buttle  of  oil  of  tur- 
pentine; he  was  examined,  hot  he  had  too 
nach  sense,  he  was  too  much  guarded  to  make 
any  considifrable  discovery  upon  the  examina- 
tion  tiial  he  underwent  Wfore  a  magistrate, 
•od  had  it  not  been  for  a  circumstance,  which 
I  am  now  going  to  mention  to  you,  it  woold  be 
an  extremely  iltfficult  matter  to  affix  the  crime 
upfin  this  person  at  the  bar,  however  satisfied 
one  mi^ht  have  beeu  in  one's  own  private  judg- 
inent  of  his  guilt. 

It  hapi»ened  that  there  was  one  of  the  same 
business,  a  painter,  who  had  been  as  the  pri- 
soner hkruisc  had  liecn,  a  painter  in  America; 
for  this  gonileuian  (the  prisoner)  has  worked  in 
America  ;  he  is  an  American,  not  by  birth,  for 
by  birtii  he  is  a  Scotrhinan,  but  he  is  an  Ame- 
rican, there  he  was  settled,  from  thence  he  had 
lately  come,  and  thither  he  meant  to  return. 
One  of  that  business,  and  wlm  likewise  had 
worked  as  a  painter  in  America,  it  was  ima- 
gined might  possibly  know  this  John  the 
Painter,  and  thfrelore  he  was  sent  for  to  sir 
John  Fielding's  in  Bow-street,  u|M)n  the  7th  of 
February,  in  order  to  be  shewn  the  prixoner, 
and  to  inform  the  inai;istrate  whether  he  did  or 
did  not  know  him  ;  that  man  being  asked  the 
question  pnswered,  that  he  did  not  know  him, 
ami  to  the  best  of  his  recollection  had  never 
■een  him  in  all  his  life  time ;  there  was  an  end 
therefiire,  of  that  business ;  as  that  man  had 
workeil  iu  the  same  place,  for  I  think  the  pri- 
aouer  had  worked  at  Philadelphia  too,  it  was 


▼ery  likely  that  he  might  have  known  him,  but 
he  happened  not  to  know  him  at  all ;  that  per- 
son l»eing  dismissed  from  the  room,  fihere  tliis 
examination,  though  1  can  hardly  call  it  an 
examination,  where  this  little  matter  had  pass- 
ed, and  retiring  to  the  other  room  where  the 
prisoner  was,  the  prisoner  having  been  infomed 
that  this  person,  whose  name  is  Baklwin,  waa 
an  Atnerican  and  a  painter,  natarally  enough 
beckoned  to  him  and  desired  him  to  ait  down  by 
him.  Baldwin  sitting  down  by  him,  a  conversa- 
tion began  between  these  people,  tonehing  their 
trade,  and  touchinc^  America  and  Philadelphia, 
that  part  of  Amenca  in  which  they  had  lived, 
thedisunce  of  the  place,  a  few  names,  and  some 
general  conversation ;  the  place  and  occasion 
would  not  admit  of  a  long  conversation.  The 
prisoner  at  the  bar  desired  Baldwin  to  do  him 
the  fiivour  of  a  visit  at  New  Prison,  Clerken- 
well,  where  he  was  going,  desired  he  wonid  be 
so  good  as  to  call  npon  him,  he  should  be  gla«l 
to  see  him.  Now,  gentlemen,  here  let  me  tell 
you,  for  fear  I  shoold  for^t  it,  that  all  this  was 
tlie  mere  fruit  and  offspring  of  accident ;  this 
Baldwin  was  not  set  upon  him,  was  not  desired 
to  obtain  any  confession  from  him,  nor  desired 
to  make  any  acquaintance  with  him ;  bnt  an 
intimacy  passed  between  these  people  for  seve- 
ral days  afterwards,  before  any  body  concerned 
for  tiie  prosecntion  knew  any  thing  of  it.  It  ia 
fit  the  world  should  know  that.  In  conse- 
quence of  this  short  conversation  that  passed 
at  sir  John  Fielding's,  Baldwin  went  as  de- 
sired by  the  jirisoner,  to  visit  him  at  Clerken- 
well  New  Prison  ;  when  he  was  there,  a  con- 
versation passed  between  them  of  no  very  great 
importance,  it  was  only  general,  concerning 
persons  and  places,  some  of  wfiich  both  of 
them  knew,  some  of  which  only  one  of  them 
knew.  Tlie  next  da^,  Baldwin  paid  him  ano- 
ther visit,  for  the  prisoner  liked  his  company, 
and  it  was  a  very  lucky  circumstance ;  it  was 
indee<l  the  providence  of  God  that  this  man 
nisced  that  fortunate  (for  fortunate  I  may  call 
It  for  the  public)  confidence  in  this  Baldwin, 
by  which  be  afterwards  made  the  ample  disco- 
veries that  you  will  hear  by  and  by.  The  pri- 
soner told  him  after  various  visits,  for  he  visited 
the  prisoner  at  his  own  request  almost  every 
day,  for,  I  believe,  near  three  weeks  from  that 
time,  and  it  was  not  for  many  days,  not  until  a 
full  discovery  was  made,  that  Baldwin  com- 
municated the  matter  to  any  bo<ly,  and  when 
he  did,   he  communicated  it  to  an  honourable 

Kerson  not  at  all  «H>nnected  wiih  government ; 
e  told  him,  among  other  things  (I  will  de- 
scend to  the  particulars  by  and  by,  for  a  very 
striking  reason  which  you  \\\\\  go  with  me  in 
observing  when  I  descend  to  them,  he  told  him) 
that  he  had  lately  come  from  Prance,  that  he 
had  been  employnl  there  by  a  gentleman, 
whom  he  wasi  surprised  that  Baldwin  did  not 
know,  as  he  was  a  man  of  so  much  note,  and 
whose  name  had  been  so  fr^-quently  in  the 
news-papers,  which  was  a  Mr. )<$ilaB  Deane ; 
that  Mr.  Silas  Deaue  was  a  very  honourable 
gentleman,  empl(»yed  by  the  congrfia  in  Ame- 


1S2S]  17  GEORGE  III.    Trial  of  James  Hilt  aUas  John  the  Painter,   [  ISU 


rica,  as  well  as  another  wery  hon.  gentleman,  a 
Dr.  Franklin ;  that  Mr.  Silas  Deaue  liad  ero- 
plove«l  him  in  the  noble  business  in  which  he 
bad  been  eng^aged  ;  that  his  employment  was  to 
set  fire  to  the  several  dock-yards,  to  destroy  the 
navy  of  Great  Britain ;  that  he  had  under- 
taken that  work,  and  that  he  was  to  have  a  pe- 
cuniary reward  for  it;  that  Mr.  Silas  Deane 
was  his  employer ;  that  this  was  a  uoble  act, 
this  was  a  patriotic  measure,  this  was  what 
all  patriots  would  exceedingly  appland,  this 
was  the  right  way  to  expose  government,  this 
was  the  way  to  render  Great  Britain  for  ever 
subject,  by  bending  its  neck  to  the  yoke  of 
America,  this  was  the  way  by  which  we 
were  to  prosper ;  this  great  work  was  to  be 
effected  by  his  hand  under  the  employment  of 
Silas  Deane,  and  that  he  did  not  at  all  doubt 
but  that  Dr.  Franklin  was  likewise  engaged  in 
the  same  good  work ;  he  told  him,  he  had 
taken  Canterbury  in  the  way  from  Dover ;  and 
now  I  am  going  to  descend  to  some  i^articulars, 
which  I  shall  by  and  by  have  an  occasion  to  re- 
peat, in  order  to  shew  you  that  it  is  impossible 
(I  will  not  change  the  word)  that  it  is  impossi- 
ble but  that  Baldwin's  account  should  be  per- 
fectly true;  he  told  him,  that  in.  his  return 
from  Paris  to  England,  he  had  landed  at  Dover, 
and  so  came  through  Canterbury ;  and  at  Can- 
terbury he  had  engaged  a  man  to  make  a  tin- 
machine,  which  you  will  see  by  and  by  some- 
what resembling  a  tin-canister,  the  purpose  of 
which  was,  to  act  the  part,  if  I  may  so  say,  of 
a  lantern ;  that  is,  that  a  candle  might  be  en- 
closed in  it,  and  yet  the  candle  perfectly  be  hid, 
80  that  no  eye  should  see  the  light ;  that  the 
man  he  employed  to  make  this  tin-canister  for 
him,  was  an  awkward  fellow,  and  set  about  it 
in  a  way  that  convinced  him  he  was  dull,  and 
did  not  coinpreliund  his  meaning;  but  that  his 
servant,  a  lad,  had  a  much  brighter  genius 
than  his  master,  and  very  well  understood  his 
directions;  tiiat  he  set  about  the  work,  and  he 
made  the  canister  for  him.  Gentlemen,  you 
will  remember  these  particulars  ;  he  told  him, 
that  he  had  ordered  two  more  at  another 
shop,  but  had  not  time  to  stay  for  them ;  and 
so  left  them  behind  him,  but  this  canister  he 
took  with  him  ;  he  told  him  that  when  became 
to  Portsmouth,  he  took  a  lodunng;  I  had  for- 
got the  wooden- box  ;  he  told  him  that  he  had 
likewise  got  made  for  him  a  wooden  box  ;  I 
told  you  that  the  use  of  the  canister  was  to  con- 
tain a  candle,  hidinj*;  it ;  the  use  of  the  box  was 
to  contain  the  combustibles  which  were  to  be 
lighted  by  the  match,  in  order  to  set  the  place 
on  fire  ;  the  preparation  and  the  ingredients  of 
this  you  VI  ill  have  an  account  oL  He  told 
him  he  had  taken  a  lodt^ing  at  Portsmouth,  at 
a  Mrs.  HoxelPs,  uhere  he  had  made  some  pre- 
parations for  the  work  of  setting  the  place  on 
fire ;  1  should  have  told  you  in  the  conversa- 
tion with  regard  to  Canterbury,  he  told  Bald- 
win likewise  of  a  quarrel  which  he  had  had 
there  with  r  dragoon,  which  had  led  to  a  sight 
of  this  canister  under  the  flap  of  his  coat ;  he 
said  at  Mrs.  Boxell's  he  had  iiiade  preparations 


in  order  to  set  the  store- bouses  oo  fire ;  and  be 
told  him  ihere  the  manDer  of  his  making  tUi 
composition ;  that  it  was  by  Kriodiog  cbareoil 
with  water  very  fine  upon  a  colour  stone,  sack 
as  painteK  use  in  grinding^  their  pamt,  not  vith 
a  pestle  and  mortar ;  that  it  was  ground  toaaci- 
ceeding  fine  powder ;  that  it  was  then  to  be  nil- 
ed  with  gunpowder :  he  then  meotioned  to  bin 
how  it  was  to  be  diluted  with  water,  and  whet 
proportions  of  the  powder  and  the  chsrestl, 
and  to  what  consistency  it  was  to  beisiisd; 
and  so  this  ended  with  the  particulara  of  btv 
this  composition  was  made :    the  prisoner  liM 
him  that  in  the  afternoon  of  the  6th,  the  dsy 
before  the  fire,  being  in  the  Uope-bouse,  beget 
a  parcel  of  hemp  and  strewed  the  hemp  abMt 
where  he  intended  the  match  to  be ;   tbitbe 
laid  a    bottle  of  turpeotioe  on  its  side,  vilh 
hemp  placed  in  the  neck  uf  the  bottle  insleidrf 
a  cork ;  that  he' laid  the  match  upon  a  piece  tf 
paper  in  which  was  some   ffonpowder,  tai 
over  the  gunpowder  some  hemp  strewed  fciy 
light ;  he  told  him  that  as  soon  as  the  onlcfc 
reached  the  gunpowder,    it   would   fire  the 
hemp,  and  he  mentioned  also  his  throvisf  i 
quart  of  turpentine  about  the  hemp  ;  all  tbcH 
particulars  he  told  this  man  of  the  naanacr  rf 
setting  it  on  fire ;  I  should  have  told  you  thalkt 
said  this  Mrs.  Boxell  waa    impextineat,  aii 
turned  him  out  of  his  lodgings  ;  he  toki  biai 
circumstance  of  his  being  shut  in  at  the  Rspe- 
house ;    that  he  was  so  long  in  the  place  abetf 
this  work  that  the  time  of  shutting  it  up  had  a^ 
rived,  and  when  he  attempted  to  go  out  at  iki 
door  at  which  he  got  in,  he  <»uld  uot  gcto^; 
that  after  having  walked  up  and  down  wilbeet 
his  shoes  to  avoid  being  beard,  and  eudeavosr- 
ing  to  get  out  quietly,  finding  all  that  ioipiicii* 
cable,  that  he  knocked,  and  cried  out  bolle! 
upon  which  a  person  came  to  the  door  and  ask- 
ed who  is  there  ?   that  the  person  directed  bia 
(o  go  straight  forward,  and  po&sibly  he  wouU 
find  a   door  open  ;    however,  lie   did  bappA 
to  get  out:    he  mentioned  alf>o   the  circan- 
stance  of  his  calliug  to  a  person  uu  the  outside, 
under  apprehensions  of  his  l>eiug  shut  io ;  Ik 
likewise  told  his  acquaintance   Mr.  Baldvio, 
that  he  had  been  befure  on  the  8ame  da^  iotlie 
Hemp-house  ;  it  was  the  Rope- house  300  o^ 
serve  that  was  set  on  fire  ;    that  in  the  Hrfli{r 
house  he  had  laid  the  tin  canister  which  be  w 
got  made  :    you  will  be  jileased  to  olwerve  be 
did  not  effect  the  fire  in  the  llope-houjcby 
means  of  the  tin  canister ;   I    have  tuM  \Q< 
already  how  he  effected  that,  but  the  tin  casii- 
ter  he  got  made  at  Canterbury  was  laid  in  ik 
Hemp-house,  which  was  not  setonfiri*,  for  by 
the  providence  of  God,  the  matches  which  \iai 
been  lighted  had  luckily  gone  out ;    that  ibeit 
he  had  likewise  laid  a  square  box,  in  wbicb 
square  box  there  was  room  to  put  a  casille ; 
that  he  had  put  into  the  Ik>x  tar  and  turpeatisc^ 
and  hemp  and  other  combustibles ;  these  tbiigi 
he  said  he  placed  in  the  Hemp- boose;  tbit 
making  all  this  preparation,  and  doing  ibii  is 
the  Hemp-house,  had  taken  up  a  great  deal  ef 
timcj  that  he  was  so  much  beatcd,  tbotigb  ii 


1 323 J       far  seiting  Fire  to  Portsmouth  Rope*House»        A.  IX  177T. 


U^se^ 


the  month  of  December,  that  he  had  pulled  off 
hill  coat,  which  he  could  not  find  for  some  time; 
that  when  he  found  it,  there  was  a  good  deal  of 
bemp  liickingf  to  it,  which  he  picked  off  aa 
well  as  he  could ;  he  said  the  next  day  be  went 
into  the  Hemp- house,  in  order  to  set  it  on  fire; 
the  candle  was  placed  in  the  wooden  box,  and 
within  this  tin  machine ;    and  he  mentioned  to 
bim  this  circumstance  likewise,  that  he  had 
bougfht  some    matches    for  the    purpose    of 
lighting  it  of  a  woman  at  Portsmouth,  whiih 
he  supposed  were  damp  because  he  could  not 
make  them  catch  fire,  in  order  to  light  the  can- 
dle ;  ao  you  see  the  saving  of  the  Hemp- house 
from  destruction  that  day,  was,  because  the 
matches  were  not  so  well  made,  or  being  well 
made,  had  been  so  long  made  that  the  wood 
was  not  dry  enough,  and  would  not  catch  fire, 
ao  as  to  enable  him  to  light  the  candle ;  for  if 
the  candle  had  been  lighted,  the  Hemp- house 
must  infallibly  have  been  burqt;     then,    he 
aays,  that  not  being  able  to  set  that  on  fire,  he 
got  some  matches  of  a  better  sort,  and  then  re- 
toraed  to  the  Rope- house ;  that  there  he  placed 
himself  in  such  a  way,  as  that  no  body  couM 
ate  it ;  when  he  strnca  a  light,  that  he  lighted 
the  oiatcb,  and  every  thing  being  prepared  be 
went  away,  leaving  that  to  be  burnt,    very 
mocb  vexed  that  he  was  not  able  to  set  the 
Bemp- house  also  on  fire;   that  he  set  out  as 
fast  as  he  could  from  Portsmouth ;   that  just 
after  his  leaving  the  town  he  overtook  a  woman 
ID  a  cart ;  that  he  got  her  Iteve  to  get  into  her 
eart,  for  the  sake  of  expediting  hfs  journey  ; 
that  he  gave  her  6d,  in  order  to  make  haste 
with  him  ;  that  he  then  hastened  to  London  as 
last  as  he  could.     Another  circumstance,  like- 
wise, he  mentioned ;    that,  besides  the  lodging 
yvhich  he  took  of  Mrs.  Boxell,  he  took  another 
of  a  woman  on   Portsmouth  Common ;    the 
pious  man  mentioned  something  to  be  done  to 
the  poor  woman  of  whom  he  took  the  lodg- 
logs ;  the^  had  a  very  fortunate  escape  too,  for 
his  intention  was  to  set  those  lodgings  on  fire, 
io  order  to  engage  the  engines,  that  tney  might 
pot  assist  to  extinguish  the  fire  in  the  dock-yard ; 
hat  by  good  luck  that  did  not  succeed  neither ; 
homing   a  house  was  nothing  to    him ;   he 
lohl  Baldwin  a  circumstance  of  his  leaving  a 
haodle  at  the  lodging  on  the  common  ;  he  saki, 
that  he  had  come  away  from  Portsmouth  in  so 

rit  a  hurry,  that  he  had  not  time  to  go  there 
it,  and  that  bundle,  he  said,  contained  three 
hooks,  the  titles  of  which  he  mentioned  ;  there 
waa  an  English  translation  of  Justin,  another 
of  Ovid's  Sletamorphoses,  and  there  was  a 
Treatise  of  the  Art  of  War  and  of  making 
Fire  Works,  or  something  of  that  sort,  and 
iihowise  a  pair  of  breeches,  a  pair  of  buckles, 
•ml  a  French  iMissport;  all  these  things,  he 
aaid,  were  in  bis  bundle,  which  he  had  left 
with  the  woman,  at  his  hdgio^  at  Portsmouth 
Common  ;  now  all  these  particolars  he  told  to 
Baldwin.  I  mentioned  to  you  ^ost  now,  gen- 
tlemeo,  that  it  would  come  out  in  the  course  of 
Ail  cause,  that  it  was  impossilHo  for  Baldwin 
lobafoiavcBtedthisitory;  bnttbathauftbey 


that  the  prisober  had  told  it  to  Baldwin :  noir 
I  will  tell  you  why  I  said  so ;  Baldwin  havin^jf 
made  a  discovery  of  these  conversations,  that 
he  had  held  with  this  man,  to  the  effect  I 
have  mentioned,  then  it  was  that  an  enquiry- 
was  made  into  tliese  particulars ;  for  that  led 
to  all  the  discoveries,  of  which  you  shall  now 
have  au  account,  and  which  will  be  proved  to 
you  in  evidence.  In  the  first  place,  I  will 
mention  to  you,  not  in  the  order  of  time  in  whiciv 
the  discoveries  came  out,  but  in  the  order  of  time 
in  which  I  have  mentioned  the  transactions  them* 
selves  to  have  happened :  having  told  the 
story  to  this  Baldwin  of  what  had  passed  at 
Canterbury  and  the  other  places,  messengers 
were  sent  to  all  these  places  to  find  out  the 
people  referred  to,  and  to  see  whether  these 
several  accounts  were  true  or  no ;  upon  enqui- 
ry, they  found  out  the  persons  who  made  these 
tin  canisters,  not  only  the  persons  that  made 
the  tin  canisters  by  his  directions,  which  he 
had  left  upon  their  hands,  not  having  time  to 
stay  for  them  ;  but  we  found  out  the  wery  per- 
son who  made  the  tin  canister  that  was  left  io 
the  Hemp- housed  in  order  to  set  it  on  fire; 
vou  will  see  the  very  boy  who  made  this,  and 
he  confirms  exactly  the  account  as  related  by 
Baldwin  ;  that  his  master  having  first  been 
employed  to  do  this  work,  and  not  rightly 
understanding  the  instriictioDS  he  received,  that 
the  boy  understanding  ihem,  made  the  canister, 
and  the  boy  will  swear,  that  the  very  canister 
now  to  be  produced  at  your  bar,  and  which 
was  found  in  the  Hemp- house,  he  made  for  the 
prisoner.  The  story  of  his  quarrel  with  a  dra- 
goon at  Canterbury,  will  be  confirmed  by  the 
dragoon  who  quarrele<l  with  him ;  the  stripping 
off,  or  taking  up  the  lappet  of  his  coat,  and  the 
seeing  the  canister  under  it  at  that  time.  The 
making  of  the  wooden  box  will  be  proved ;  the 
witness  swearing  to  the  identity  of  the  person, 
by  whose  order  it  was  made,  ftlrs.  Boxdi  will 
be  produced  to  you  ;  she  will  tell  you,  that  this 
very  prisoner  at  the  bar,  came  to  her  house  to 
take  a  lodging,  the  day,  I  think,  before  the 
fire  happened ;  that,  afterwards,  observing  a 
strange  sulphurous  smell  in  the  lodging,  she 
went  about,  inside  and  outside  of  the  house* 
and  could  not  guess  from  whence  it  came: 
that  the  next  morning  there  was  the  like  smell ; 
she  then  traced  it  to  the  very  room  that  the 
prisoner  had  taken  to  lodge  in  ;  she  found  him 
at  work,  in  preparing  combustibles,  and  there 
was  a  stench  of  ^un|Mwder,  or  nitre,  or  what- 
ever it  was,  which  I  mentioned  to  you  just 
now  from  the  account  he  gave  to  Baldwin, 
how  he  had  prepared  this ;  we  will  produce  to 
you  the  person,  noon  whose  colour- stone  the 
prieoner  ground  the  very  charcoal,  and  who 
saw  the  prisoner  grinding  the  charcoal.  Gen- 
tlemen, we  will  prove  the  circumstance,  I  men- 
tioned to  jjTou,  of  the  Rope- bouse  being  shut, 
and  the  prisoner  being  shut  in  ;  we  will  prove 
by  the  recollection  of  the  people  in  the  rope- 
yard,  that  there  waa  a  man  exactly  in  the  cir- 
cooistances  that  he  describes  himself  to  Bald- 
wia  to  bafo  been  b,  making  a  noise;  asking 


1327J 


17  GEORGE  III.     Trial  of  James  Hill  alias  John  the  Painter^   [13H 


the  witness  bow  he  could  ^*ii  out,  ami  bis  giv- 
ing bim  the  best  directions  be  could,  leaving 
him  there  speskini^  to  the  waichmnn,  the 
watchman  sa^inir,  he  must  stav  there  all  night, 
the  hour  of  call  bring  over:  biU  perfectly  le- 
collecting  the  circumstances  in  the  viay  in 
which  he  himself  described  tlitm.  Gentle- 
men, we  will  likeM  ise  |iroduce, — it  is  marvellous 
that  we  are  able  to  do  it ;  but  it  is  owing  to 
the  great  vigilance  and  care  of  the  noble  person 
who  was  at  the  lirail  of  this  enquiry,  and  u  ho  has 
spared  no  pains,  in  order  to  investigate  every 
circumstance  as  far  as  possible ;  thou>rh  one 
should  not  have  supposed,  that  any  human 
enquiry  could  liave  reached  such  circumstances 
as  these ; — but  we  u  ill  pru<lnce  to  you  the  very 
woman  that  he  bought  the  matches  of;  she  saw 
him  yesterday,  and  she  will  tell  you,  that  that 
man  at  the  bar,  and  she  noted  him  particularly, 
because  he  y>\  as  not  such  sort  of  a  man  as 
usaolly  come  upon  these  errands ;  he  came  to 
her  shop  tlie  day  before  the  6re  to  buy  a 
bundle  of  matches;  that  he  asked  her  whe- 
ther they  would  light  quick,  rejecting  one 
bundle  and  choosing  another ;  she  remembers 
his  taking  out  a  handful  of  silver,  and  having 
but  one  halfpenny,  she  remembers  that  parti- 
cularity ;  the  man  being  dressed  so  particular, 
and  unlike  persons  that  call  upon  such  errands, 
struck  her  observation,  and  she  w  ill  swear  to 
the  identity  of  the  person.  There  is  yet  be- 
hind, one  more  circumstance,  that  places  it  be- 
yond the  possibility  of  suspicion  ;  the  bundle 
ihat  I  told  you  of,  could  not  be  found ;  fur  Mrs. 
Hoxell,  where  he  actually  did  lodge,  nor  any 
body  there,  could  hear  of  any  other  loilging 
that  he  had  taken  ;  she  remembered  that  she 
had  ;*een  such  a  hniii'le,  that  the  prisoner  had 
with  liira  the  first  day  ;  but  what  was  become 
of  the  bundle,  and  where  he  had  left  it,  or 
whether  he  took  it  away  with  him,  God  Al- 
luighty  knew !  nohudy  could  give  an  account. 
At  la^t,  after  great  itearch  and  enquiry,  the 
bundle  was  found  in  the  possession  of  another 
woman,  whose  lo(l<;ini;s  lie  had  taken,  and  who 
had  no  suspicion  about  what  the  man  was  ;  she 
wondered  that  he  liaJ  not  returned,  and  kept 
the  bundle  unopened,  expecting  hiiu  to  call 
every  day  for  it.  Upon  openin*;  the  bundle, 
there  were  the  vrry  things  he  had  described ; 
an  English  Justin,  Ovid's  Metamorphoses,  a 
Treatise  on  the  Art  of  War  and  of  making 
Fire  Works,  ami  there  was  thi^a  pL-rson's  pass- 
|iort  from  the  Fiench  goveri.meut ;  all  these 
things  were  found  just  exactly  as  he  had  de- 
scribed them  to  Mr.  Baldwin ;  and  you  will 
have  likewise  an  account,  that  in  that  bundle 
are  a  pair  of  buckles,  licloogiug  to  the  prisoner, 
whiim  a  witness  will  be  protlnced  to  you  to 
pro«e  that  he  has  y<in,  as  far  as  he  can  re- 
meniher,  that  p:iir  of  buckles  in  the  shoes  of 
the  prisoner,  (lentlemen,  there  is  yet  one 
more  circumstance  ;  you  will  have  the  woman 
that  took  him  up  in  her  cart,  and  she  w  ill  swear 
to  the  very  man,  ti»  the  bringing  him  two  miles 
in  her  cart,  and  while  they  were  just  at  parting 
the  blaze  of  the  hreat  the  Rope-boose  burst  out. 


Now,  when  you  have  all  these  circumstaiicct 
proved  to  you  in  evidence,  will  oot  jou  uy  dm 
I  was  well  w  arranted  id  iiisistimi^  that  it  wit 
inipfissible  for  Mr.  BaUlwin  to  baT«  iDvefitcd 
this  story  ?  for  these  discoveries  were  madeia 
consi  qucnce  of  Baldwin's  relation  ;  not  tkul 
Baldwin's  relation  was  after  the  discoTcriet,  ftr 
it  was  the  relation  of  Baldwin  from  the  mMlh 
of  the  prisoner  that  led  to  a  discovery  of  aQ 
the  particulars  which  I  have  now  mentiooed  ts 
you ;  the  tenth  part  of  these  circumstaacfs, 
which  1  have  opened,  would  serve,  I  ihoald 
think,  to  decide  the  fate  of  any  nian  stawfiair 
in  the  prisoner's  situation  ;  built  is  the  i»i«b  ■ 
the  public,  it  is  the  wish  of  government,  tbitill 
the  world  should  know  the  infamy  of  thistrui- 
action,  and  that  they  should  know  to  xihon 
they  are  indebted  for  the  sorrows  they  have 
felt,  and  how  much  they  owe  to  the  pmvidroa 
of  God,  that  America  has  not  been  able  totally 
to  destroy  this  country,  and  to  make  it  bow  ill 
neck,  not  only  to  the  yulce  of  America,  bat  to 
the  most  petty  sovereign  in  Europe ;  for  let  ibe 
Eoj^lish  navy  be  destroyed,  and  here  vm  t 
hand  ready  to  eflect  it ;  let  hut  the  Ea^islk 
navv  l)e  destroyed,  and  there  is  an  end  of  ill 
we  hold  dear  and  valur.li!e ;  the  importance  i 
the  suliject,  the  magnitude,  the  extraordiorj 
nature  of  the  thing  calls  for  a  more  particpltf 
investigation,  than  any  other  suliject  of  «bl 
kind  soever  could  demand ;  and  tberefort  I 
need,  I  hot)e,  make  no  npolugv  ibr  having  <ifr> 
scended  so  particularly  into  tiiese  uiiaute,  if 
any  of  them  can  be  called  minute,  particahn 
of  this  story.;  wc  shall  prove  all  these  circsHr 
stances  to  the  full,  and  surely  there  can  be  n 
doubt  what  shall  be  done  with  the  man.  I  duft 
be  glad  to  bear  what  he  has  to  say  for  himidf, 
and  1  shall  be  glad  if  he  is  able  to  by  tbif 
uuilt  at  any  body's  door  besidps  tho^e  to  whoa 
he  has  laid  it.  I  wish  Mr.  Silus  Doane  ^t't 
here  ;  a  time  may  come,  perhaps,  when  he  uJ 
Dr.  Franklin  may  he  here. 

Priioncr,  lie  is  the  hooestcst  man  ia  tk< 
world. 

Jame$  Russell  svvoru. 

Vou  are,  I  believe,  employed  in  Portsmoolli 
dock  :* — 1  am. 

In  what  capacity  ? — I  am  clerk  to  the  cleric 
of  the  Hope-yard. 

Do  you  remember  the  day  when  the  Rrpe- 
house  was  set  on  fire? — Yes,  it  was  on  2Situr- 
day  the  7lh  day  of  December ;  the  fire  «tf 
first  perceived  at  half  after  four  in  the  sfiff- 
noon. 

Was  the  Uopi'-house  consumed  by  that  fire' 
— Vrs,  entirely. 

What  was  in  the  Rope-house  that  wmshorat.' 
—Some  hemp-toppings  which  were  in  tbt 
middle  loft  of  the  ll('mp-hi>use. 

Was  there  any  thing  else  that  was  burnt.'-* 
Some  cordage  on  the  ground  tlo«)r. 

It  is  the  place  where  cordage  and  htnf 
usually  are  kept? — Yes. 

And  there  was  some  there  at  thai  W^ 
which  was  burnt  ?— 'It  was. 


J        Jar  setting  Fire  to  Purlsmoulh  Rnpe-ffouie.         A.  D.  177T. 


[1330 


Dili  yao  at  any  time  tiad  tiny  tiiiag  parti- 
cular in  llie  Hemp-houae  %t  l*orl»mautb ?— 
Ves,  on  llie  I5lli  nl' January  I  fouoil  a  tin  caac 
in  Ibc  IIeuip-liuii9«.  QTlie  Mitiieu  ■•  nliewn 
«  tiD  case  or  canister.]  Thii  apreari  lu  be  Ihe 
tia  cnie  that  I  look  up  in  ilie  Hemp-tinuke  ; 
tbere  m  a  piece  of  wooil  hollowed  out,  wliicli  is 
toaide  it,  add  a  iliin  piece  uf  wood  naileil  nt  the 
top  or  it;  there  are  tnalchei,  and  lar,  and  oil, 
and  other  conibuslibles.  I  have  no  doubt  hoi 
tbia  is  the  tJQ  r^ise;  Ihisboxgoes  intoit ;  they 
were  le para te  when  I  lound  them. 

What  did  you  lind  else  heaidra  these  two 
things  i* — A  hiiiile,  which  appeared  by  thegmell 
lo  bare  heM  spiiils  of  tiirpenliae,  or  soinelliiiig 
or  that  qilality  ;  and  ihfre  were  some  common 
wooden  matches,  such  aa  are  gc^nrrally  sold  at 
chandler's  11  hu pa,  which  I  lound  lyiu);  in  ibe 
Hemp'bouae  ju«  by  this  lio  canister. 

Wherealiiiut  in  the  ilenip-buuBer — In  the 
centre  of  the  mow  uf  heiu|i  there  were  M>me 
buudles  of  refused  berap.  There  is  certain 
hetnp  irhich  is  refui^cd,  which  ii  not  according 
ta  Ibe  contmat,  which  is  pnl  by  and  ii  returned 
lo  the  merchant;  this  was  behind  ibo$e  bun- 
dles of  hL-mp  whik:h  were  then  in  the  Tery  cen- 
ter of  the  mow  behind  serer-il  oiber  bundles. 

Were  these  things  easy  to  he  discurercd,  or 
were  tbey  concealed? — Tltey  bad  tbe appear- 
ance of  cunceal  men  t. 

Could  they  be  iliscoTered  uitbonl  removini.' 
Ibofe  bunillea  of  hemp,  behind  which  they  were 
put  P— Nut  cnnrraieuily.  There  was  a  pai- 
Mije  that  went  up  ai  ihe  end  of  the  bandivs  of 
this  hemp,  and  a  person  pruliaUy  might  hare 
diacoTered  it.  At  the  ends  of  the  bundle  of 
hemp,  there  is  a  hllle  passage ;  a  pf  rson  inijtht 
b«*e  gone  up  lo  the  upper  end  of  it  and  have 
riiacotered  ibiK,  if  he  had  bad  any  appreheu- 
•iona  of  such  a  ibiug. 

Was  Ibere  any  loose  hemp  near  il  ? — Yes, 
wbat  we  cull  ■  dunnage ;'  that  is  the  refute  uf 
Ibe  bemp  which  we  generally  lay  al  the  hot- 
tarn  of  the  hemp  to  preserre  it  from  aoy  mois- 
ture that  may  arise  from  the  found4lioo;  those 
cotuhusithles  were  laid  upon  ihal ;  there  was 
alM  some  brown  paper;  uben  we  found  all 
tbese  paria  of  llie  machine  llicy  were  put  to- 
gether, and  then  made  Ihe  apjiearance  of  a 
dark  lantern  ;  there  was  some  Irowo  paper  laid 
near  it,  which  appeared  in  liaie  been  larretl ; 
fihen  this  thing  was  all  united  we  put  it  upon 
the  paper  that  was  tarred,  and  the  paper  seemed 
as  if  il  bad  been  round  this  tin  ca»e ;  il  seemed 
as  if  it  had  Wen  thrown  over  llie  bunille,  and 
by  tiribing  against  ibe  mow  of  hemp,  ihe  pacts 
bad  separated  ;  thai  was  the  idea  Ibal  I  liirroed 
of  the  mailer. 

TbeD  you  cnmraunicated  it  lo  the  proper 
officer  at  ihe  Dork-yard  ?~-\  did. 

Were  these  things  fouud  la  sucb  a  place, 
tliai  if  a  Hre  had  arisen  in  consequence  of  ihem, 
the  Hemp-bouse  and  the  beiiip  in  il  must  pro- 
bably have  been  consuuied  ?-  -Undoubtedly. 

ThatHemp-lmuse,  t  suppose,  from  its  name, 
it  Ibe  place  where  the  hemp  belonging  lo  Ihe 
dock  IS  kept  ?— Ym.  Ibe  Kroiuiil  lltwi    utiOD 

VOL,  XX,       ^^.^^„ 


wliicb  Ibis  tincaiteHas  found  was  full  of  hemp, 
and  this  was  ibe  siiuation  uf  the  machine ;  ii 
could  nut  have  bfcn  thrown  in  al  a  vculiire. 
The  oonstiuclJon  thai  I  put  upon  it  was,  Ibit 
it  must  ba(e  been  thrown  over  tbe  hnndltid  of 
refused  hump,  for  they  were  as  liii;h  at  my 
head,  and  therefore  it  is  possible, 


■gainst  ibc  m 
teparaled. 
Court.   Pti 

out  repealing 


s  Ihe 


,  that  il 


s  thio 


*  from  which  it  rebounded  aud 


with- 


iner,  1  would  once  for  all,  > 
.  to  you  atler  evrry  wilness  II 
you,  ihat  you  are  nl  Idierly  lo 
s  wtial  nueations  yon  think  fil, 
IS  gone  ihtouiih  by  Iha 
own.     You  know  best  your  own  defeuce. 

William  Ttacit  sworn. 
Did  yuii  ever  see  the  prisoner  f — I  hare. 
Where? — Al  my  master's  bousejiut  with- 
I  Westgale,  Cai.i«rbury. 
Did  you  make  any  tin  ibing  for  bim  ? — Yes, 


I  did. 

Look 
Ihiiieihalyi 
machine. 

When  1 
a  month  < 


thai,  t 


r  that  is  lUe 

»,  this  is  Ihe 


il  you  made  it  for  him 
X  weeks  before  Cbristmaa. 
the  first  time  since  that,  that  any 
enquiry  was  made  of  you  about  mnkiug  Ibia 
canisler  ? — On  the  Monday  belbru  tasi, 

Examined  by  the  Friioncr, 

Yoii  say  you  made  ihls  canisler  fur  me,  a 
month  or  six  weeks  ngn  f — No ;  a  mouth  or  aii 
weeks  before  Christmas. 

How  du  you  know  the  caniaterf— 1  know  it 
by  the  seam. 

1  saw  a  canister  a  few  days  ago  with  ihs 
same  -^eam  as  that;  how  cun  you  know  one 
seam  from  another.' — Because  ihis  is  so  ler^ 
bad  soddered  ;  I  took  pariiculnr  nolice  of  it 
w  ben  you  came  lo  me  about  iL 

CiiD  you  swear  to  ihe  soilderf — Yes. 

How  ilo  you  know  me ;  by  my  face,  or  drets, 
or  voice,  or  what? — 1  know  you  are  tbe  very 
man  that  came  to  me  abuut  it.  I  know  you  by 
your  person,  by  your  hair,  and  by  yuut  ilolbea 
Ibal  you  have  on  now. 

AVbat  particular  ^rraenl? — You  bad  on  llie 
same  coat  you  bare  now. 

This  coal?  (bis  great  coat.) — No;  noi  your 
great  coal,  the  other,  or  near  upon  suuh  a  co- 


WaK  il  so  much  as  six  weeks  twrore  Christ- 
is  P-.-That  is  as  nigh  aa  I  can  tell. 
Was  it  more  or  less,  do  you  ihiak? — 1  really 


EUiabtlh  Borcli  sworn. 
Have  you  evrrseen  Ihe  ptisoner  a 
befbreP— 1  liSTCi 


1331]  17  GEORGE  IIL    Triai  qfJtma  Mitt  ottn  Jtfhn  ike  Pmnier,   [I3S 


Wben  did  you  see  him  P — ^The  day  before 
the  yard  was  on  ftre,  at  my  bouie. 

Where  is  your  bouse r — At  No.  10,  Bar- 
rack-Btreet|  Portsmouth ;  he  came  to  me  lor  a 

JodfifiDfi^. 

Jiiil  he  lod^  at  your  house  ? — Oee  nifrhf. 

What  niffht  waa  that ?— The nigfht  before  the 
fire  happened. 

Did  you  obaerve  any  thing  particular  relat- 
in«>^  to  him,  or  the  room  he  lodg^ed  in? — 1  ob- 
served a  very  sulphurous  smelJ  ou  the  Friday, 
and  on  the  Saturday. 

That  was  when  he  first  came  to  your  house.' 
— Yes,  uo  the  moraini^  of  the  Saturday,  my 
house  was  in  a  very  ^reat  smell  and  smoke ;  1 
went  up  stairs  and  pushed  open  the  door,  and 
I  could  not  sec  my  band  betbre  me,  because  of 
the  smoke ;  there  was  a  sulphurous  smell  in 
the  room  and  the  grate  ;  I  asked  bim  what  he 
was  about,  whether  he  was  going  to  set  my 
house  on  fire  ?  He  asked  me  what  I  was  afraid 
of?  1  said  I  was  ufraid  he  was  ffoing  to  set 
my  house  on  fire,  for  fire  was  a  thmg  I  much 
dreaded ;  he  asked  me  if  I  had  ever  suffered  by 
fire  ?  I  said  No,  God  forbid  I  ever  should,  for 
fire  was  very  dreadful  to  me ;  I  was  much 
afraid  of  fire. 

Did  you  obserre  what  occasioned  the  smoke 
in  the  room  ? — As  I  was  making  the  bed,  1 
turned  round  arid  saw  be  had  been  burning 
something  on  the  hob  by  the  fire-plfioe. 

Did  you  observe  any  thing  else  in  tbe 
room  ? — He  had  a  lighted  candle  oo  Saturday 
morning ;  he  had  had  a  little  bit  of  candle  car- 
ried up  stairs  in  a  candlestick  for  him,  but  the 
candle  that  t  took  from  him  in  the  room,  was 
not  the  same  candle  that  I  carried  up  stairs  for 
him,  fin*  it  was  about  half  an  eight  candle;  he 
had  something  in  a  chair  which  he  was  doing 
something  with,  but  I  could  not  tell  \%hat  it 
was.  I  carried  the  candle  down  stairs,  ond 
Went  up  ajj^aiu  immediately,  as  fast  as  possible  ; 
1  opened  the  window  a  little  before  I  went 
down  .  wheo  \  came  up  again  he  had  shut  it ; 
I  said  I  wciuld  not  have  my  window  shut  hy 
hini  or  any  other  man,  that  if  1  chose  to  have 
k  open  it  should  be  opeu. 

Did  you  observe  any  thing  else,  at  any 
other  time  when  you  were  in  the  room  ?— rOn 
the  Friday,  w  hen  he  came  out  of  the  room,  I 
went  uj> ;  I  saw  his  bundle ;  I  went  to  carry 
it  to  one  of  the  neighbours  to  wash  ;  when  T 
0|)ened  it,  I  saw  part  of  an  old  shirt,  a  pair  of 
leatiier  breeches,  a  top  of  a  tin  case  ;  I  viewed 
the  tin  case  a  quarter  of  an  hour  to  be  sure. 

Look  at  that  tin  case  ? — I  viewed  it  from  this 
part  [pointiui;  out  a  particular  part  of  the  ma- 
chine] 1  think  this  is  the  same  canister,  it  is  as 
much  like  it  as  one  thing  can  possibly  be  like 
another ;  1  really  believe  it  to  be  the  same. 

You  say  you  had  some  dispute  with  biro 
about  filling  your  room  with  smoke.  Did  you 
tell  him  he  should  (jro  away  from  your  house  T 
"^1  ordered  him  out  of  my  house ;  he  said  it 
was  hard  he  could  not  be  permitted  to  put  his 
things  up ;  1  lold  bim  uo,  he  should  quit  the 
room ;  he  then  said  that  the  candle  1  carried 


down  in  tbe  candlestick  was  his,  aadtbttbc 
wanted  it;  1  told  bim  be  mifcht  lake  it  Hk 
weal  dowa  stairs ;  tbis  was  on  Satonlay  rnsn- 
ing  between  nine  and  ten,  Chen  be  IcA  ny 
houne,  and  he  never  retnmed  sf^in. 

Court.  Wbatbecama  of  the  bundle?— i.  Hi 
carried  tbe  bundle  in  bis  left  hanrf,  and  I  «v 
him  into  High-slrtet,  for  1  got  iaio  tbe  wA- 
die  of  the  road  and  watched  bias;  I  aciv 
saw  him  afterwards. 

Do  you  know  whether  tbe  canister  tru  is 
the  bundle  wben  be  took  it  P— i  cansol  sijr;  I 
saw  the  camster  on  Fridaj,  I  did  net  ses  il  as 
Saturday. 

Jama  GaMier^  esq.  sworn. 

Mr.  Gmnbier,  I  bsTe  here  the  bnodlsttll 
has  been  spoken  of  by  the  witness :  I  isniiii 
it  from  my  first  derk  John  JeiEsreys ;  it  hm 
been  in  my  possession  ever  aim:e ;  il  is  etsdr 
in  the  same  state  now  as  when  I  reeeiftdit;  1 
received  it  on  the  2 1st  of  Febmnry  in  lbs  i 
ing,  about  nine  o'clock. 

Eiit.  BwctlL  I  believe  that  to  be  tbe  I 
die ;  it  is  tied  up  in  an  handkerchief  of  ibei 
pattern. 

John  Jtjfertyt 


Do  yen  know  that  bdndle  P-^Tbat  ii  il 

handken;hief,  I  believe ;  indeed  1  have  nodirii 
of  it ;  cOmmiMsionfr  Gnrabicr  gave  ordim  a 
the  evening  of  Thursday  Aie  SOCb  of  Fefcrw^ 
for  search  to  be  made  in  North -street  and  Mi 
neiglibearhood,  forsueb  a  bundfe. 

Where  did  yon  go  to  make  that  search?— I 
ordered  a  junior  clerk,  and  n  messenger  of  ill 
stice  to  make  that  seareh  in  Nortb-sirrtt  vA 
its  nei^hboorhood ;  they  came  back  in  abaolM 
hout's  time,  and  told  me  they  bsd  searcM 
that  street  except  a  few  hoosn,  in  oce  (^ 
which  particularly  the  person  was  not  at  booe; 
1  wei»t  next  mornin{^,  and  found  this  fooBilteH 
xMrs.  Cole's  in  Nonh-streel ;  1  delivered  h  to 
Mr.  Gambler. 

Ann  Cole  sworn. 

Look  at  the  prisoner,  do  you  know  biiD  ?•« 
I  do. 

When  did  you  see  him? — On  flie  day  of  ths 
ftre. 

Where  did  you  see  him  ? — At  my  hsme  n 
North -street,  on  Portsmouth  common. 

What  was  the  occasion  of  bis  comiog  it 
your  house  ?^To  take  a  lodging ;  he  itok 
one. 

Did  he  leave  any  thing  when  he  want  awty^ 
— He  left  a  bundle. 

Is  thai  the  bundle  ?— It  U>oks  like  it. 

What  became  of  thai  bundle  ? — I  defivcni 
it  to  Mr.  Jeffereysand  Mr.  Calden. 

Had  yon  kept  the  bundle  from  the  tine  ftt 
prisoner  lell  it  with  you,  till  you  gave  it  to  rinw 
gentlemen  ?^-I  had. 

How  long  did  the  ffrisoner  slay  in  ysor 
boose  f — A  quarter  of  an  hour,  not  moie. 

What  tinoe  of  the  day  was  Ibatf— la  lb« 
forenoon;  I  can't  exactly  tell  the  htor;  it  mi 


ISSS]  .    fiir  wfthtg  Fire  to  Portsmotah  Rope-HoMU.       A.  D.  1777. 


[1SS4 


betweeo  nine  and  twelve  $   he  ttaid  about  a 
quarter  ef  ao  hoor,  then  he  went  out. 

Did  he  return  again  ? — No. 

Did  yeu  open  that  bundle  ?— It  waa  not  tied 
•lose,  and  I  saw  it  a  little  way  open. 

What  did  yon  see  in  the  bundle? — I  saw 
•ome  books  and  other  things ;  f  diil  not  untie 
it,  1  delirered  it  to  these  gentlemen  when  they 
Mme  for  it. 

Yoa  took  nothing  out,  nor  put  any  thing  in  ? 
—No. 

PrUoner,  My  loni,  I  beg  Mrs.  Boxell  may 
■lop. 

William  Ab^am  swornw 

What  are  you  ? — A  blacksmith. 

Where  do  you  live  T — At  Portsmouth. 

Did  you  erer  see  the  prisouer  before  P— Yet, 
he  lodged  in  the  same  room  with  me. 

At  whose  house  ? — At  Mrs.  Bozell's  in  Bar- 
nck-street. 

Bad  you  any  particular  conversation  with 
the  prisoner  ? — At  first  he  asked  me  whether 
there  waaiany  pressing ;  I  told  him  ves,  they 
preated  very  hot ;  that  the  constables  had  press 
warrants,  to  take  up  all  the  people  that  could 
act  give  an  account  of  theaoselves  ;  says  he, 
•appose  tbejr  were  to  take  ujp  such  a  roan  as 
■le,  I  can  giye4io  account  or  myself,  only  by 
the  writings  I  have  in  my  pocket ;  be  asked 
Bse  if  i  thought  if  he  was  to  get  into  the  justice's 
hands,  there  was  no  way  of  escaping ;  I  said 
No,  there  were  gates  and  walls  all  round ;  and 
if  he  was  not  taken  in  Portsmonth  towa,  he 
would  be  taken  at  the  bridge ;  he  said,  was 
there  no  way  of  getting  over  thooe  walls  ?  I 
said  No,  there  is  water  on  the  other  side ;  he 
then  said  again,  is  there  no  getting  OTer  those 
waUi  f  I  said  No. 

EjouBieed  by  the  PraaoMr, 

Waa  anv  other  thing  said  P^ Yes,  he  said  he 
fcttew  one  ''Brooks  who  was  in  Newgate  ;  and 
he  was  certain  sure  he  would  be  banged. 

At  what  time  was  tiNitP — 1  cannot  justly  say. 

Where  was  it  said  P — At  Mrs.  Boxeirs. 

In  what  part  of  the  house  ? — ^The  k>wer 
;  Mrs.  Boiell  heard  the  words  as  well  as 


CouhhI  jfor  the  Crtmn,  Look  at  these 
hSK^fclea  which  were  in  the  parcel  P— There  are 
a  ffreat  many  buckles  alike,  thev  are  such  sort 
•f  huckles  that  the  prisoner  had,  they  are  the 
••■le  pattern. 

John  Baldmn  sworn. 

Prisoiur.  I  can't  embrace  you  now,  Mr. 
BaMwioa  as  1  did  htft  Monday  aeu'night 

Look  at  tlie  prisoner  at  the  bar,  when  did  you 
first  see  him  ?— The  7th  February. 

Where  did  you  then  i^ee  him  P — At  sir  John 
Fielding's ;  lord  Temple  sent  his  servant  to  me 
on  the  6th  of  February,  to  iotbrm  roe,  that  1 
•bookl  be  sent  fur  by  nir  John  Fielding,  in 
order  to  give  evidence  against  a  person  wtiom 
they  looked  upon  to  be  a  painter  that  had  come 
from  America,  my  lord  knowing  that  1  bad 
■^"~    in  America. 


Were  you  sent  for  under  an  iraaginalion  that 
you  mignt  know  the  prisoner  at  the  bar,  having 
been  in  America  and  a  painter  there  ? — Yes,  1 
have  been  in  America,  at  New- York,  at  Phila- 
delphia, and  Amboy. 

Are  you  a  painter  by  business  P— I  am. 

Open  the  recommendation  of  lord  Temple 
then  you  went  to  sir  John  Fielding's  ? — I  did  ; 
1  was  asked  whether  f  knew  the  prisoner ;  I 
told  sir  John  that  f  had  never  known  him  to  the 
best  of  my  memory  and  remembrance ;  nor 
never  seen  him  till  I  saw  him  in  the  other  room. 

The  prisoner  heard  you  say  that  ?— He  did  ) 
he  made  me  a  bow  as  he  stood  at  the  bar,  as 
soon  as  1  had  given  my  evidence  to  sir  John  ; 
f  saw  him  aftervjardii  in  another  room. 

What  passed  in  that  other  room  P — I  went  to 
sign  my  name  to  the  deposition  1  had  made ; 
as  I  was  going  away  tlie  prisoner  beckoned  to 
me  with  his  bead ;  I  went  and  sat  clown  by 
biro  ;  he  asked  me  what  part  of  America  1  had 
been  in,  and  who  I  knew  there ;  I  mentioned 
I*bihulelphia ;   be  asked  me  if  I  knew  any 

Printers*  there ;  I  said  I  did  many ;  who  did 
know  there  P  I  mentioned  several ;  he  said  I 
see  that  yuu  know  the  place  very  well ;  you 
are  not  like  evidences  that  have  been  brought 
against  me;  there  was  one  oerson  said  he 
knew  me,  but  I  had  chaoffeil  the  colour  of 
my  hair;  did  they  imagine  tuat  1  was  a  came* 
leooP  there  was  another  person  said  1  waa 
transported  from  Gloucester  gaol ;  but,  said  he, 
you  are  a  gentleman,  and  I  wisii  it  was  in  my 
power  to  make  yon  a  satisfaction ;  he  tohl  me 
lie  would  be  very  glad  to  see  roe  at  a  place 
called  New  Prison ;  I  said  1  weuhl  come  there 
whenever  he  pleased,  if  I  could  get  a<lmitsion  ; 
he  said  I  don't  know  what  time  1  shall  be  dis- 
charged from  here,  but  if  you  will  come  be- 
tween three  and  four,  I  dare  say  \oo  will  see 
me ;  I  went  to  New  Prison  about  FtHir  o'clock, 
1  saw  the  prisoner  there,  he  and  f  walked  to- 
gether ;  we  adjourned  te  a  corner  by  ourselves 
between  the  two  gates;  he  disclosed  a  great 
deal  about  America,  mentioning  gentlemen's 
names  in  America  that  he  knew;  and  he  begged 
I  would  call  u|)on  him  the  next  day  w  hen  it 
suited  me ;  I  went  and  acquainte<l  my  lord 
Temple  of  what  infonnatioo  i  had  got  frona 
the  prisoiier ;  my  lord  Temple  said  he  thooght 
it  was  very  material,  and  thought  it  proper  that 
lord  George  Germain  should  be  acquainted 
with  it ;  he  wrote  a  line,  1  carried  the  letter 
and  was  introduced  to  lord  George  Germain  ; 
his  lordship  said  he  was  of  the  same  oniniou  aa 
lord  Temple ;  and  that  it  should  be  taken  care 
that  I  should  have  admission  to  see  the  pri- 
soner, in  order  to  bring  him  to  a  eonfession  if 
possible ;  I  waited  upon  the  prisoner  the  next 
day,  and  we  had  discourse  again  about  America 
as  before ;  he  found  by  my  di»conrse  that  1  was 
an  American  by  principle ;  he  asked  me  what 
countryman  1  was ;  I  said  a  Welchman  ;  he 
saiil  he  thought  at  first  seeing  me  he  saw  in  my 
face  that  I  was  a  person  intereste*!  in  the  cause 

*  So  in  ertg.  edit.    Qu.  pamt€n% 


d»y  to  day,  tiHtbe  15th  f  dmMury ;  ooUmI  dav 
liatoklinoalltlieiMrliealftni;  beMkadiMifl 
knew  one  Mr.  Dmm  r  I  told  trim  no  ;  bootid, 
not  A|r.  DoaBo  who  if  employed  by  the  Cob* 
great  at  Paris  f 

Friatnur.  I  fomark  to  the  witoeii  thai  than 
k  a  rigbieooa  Jndge,  who  alao  gi?eth  righteoaa 
jwfginiit ;  beware  of  what  yon  aay  oonoem- 
ing  that  Mr.  Deane,  peijore  nol  joarMlf*  yon 
are  in  theaigbtof  God,  and  all  tbia  conpany  !§• 

BMmin,  The  nrikoneraaid,  what,  not  ftlaa 
DeaneP  1  told  bun  No;  ho  MU^he  ia  a  flno 
defer  fellow,  and  I  boUero  Benjamin  Franklui 
i$  cmptoyed  in  the  aame  errand ;  bo  aaid  that 
ho  had  taken  anew  of  moat  of  the  dook-varda 
and  fortificationa  throngbont  England,  andjpar- 
licufatfly  the  nnmber  of  gnna  that  each  ahin  b 
the  naVy  had,  and  likewne  the  gnna  in  the  tbr*. 
tificatiena,  the  weight  of  their  metal,  and  the 
Bomber  of  men;  and  ho  had  been  at  Fiuiatwo. 
or  three  timea,  to  inform  Mr.  Silaa  Deano  of  the 
partioukra  of  what  ho  Ibnnd  in  «Mmmlng  the 
Jiock-yarda. 

Frisoner,  Consider  in  the  sight  of  God  what 
you  say  ooDcerning  Silas  Deane. 

Cvuiuelfor  the  Crown.  Yon  need  not  be 
afraid,  Stlas  Deane  is  not  here,  he  will  be 
hanged  in  due  time. 

Prisoner.  I  hope  not,  he  is  a  very  honeat 
man. 

Baldwin,  He  said  that  Silas  Deane  was 
greatly  uleaaed  with  what  be  had  done ;  be  ac- 
quainted Silas  Deane  in  what  manner  be  was 
io  set  the  rope-houses  and  the  shipping  on  fire 
in  England  ;  that  Silas  Deane  was  amazed 
that  he  should  undertake  by  himself  to  execute 
a  matter  of  that  kind,  but  he  told  Silas  Deane, 
that  he  woold  do  more  execution  than  he  could 
imagine,  or  any  person  upon  the  earth ;  that 
then  Silas  Deane  asked  hiro  what  money  be 
wanted  to  carry  his  scheme  into  execution ;  he 
told  him  not  much  ;  he  expected  to  be  rewarded 
according  to  his  merit ;  that  then  Silas  Deane 
ga?e  him  bills  to  the  amount  of  300/.  and  letters 
to  a  |B|rreat  merchant  or  a  great  man  in  the  city 
of  London.  He  was  lery  anxious  to  know 
whether  lord  Cornwallis  had  been  defeated  be- 
tween Brunswick  and  Trenton,  in  the  Jerseys. 
He  said  tliat  he  knew  general  Washington 
penoually ;  ho  belief  ed  that  general  Washmg- 


aW 


1SS5]  17  GEORGE  m..  tVM^jMMl]»«fiit  JdAitOriUMn^,  [IS 

•f  AHMrions  I  told  bus  I  Bwrriad  at  Anbay, 
that  W6  remofod  to  PbUadalphMi  and  Ihora 
Ijfed,  where  1  had  a  aoa;  that  that  aeo  I  had 
BOW  m  London. 

Qmiuel.  Howofar  yon  seed  not  maatioB 
•f  cry  particnhu* ;  you  entered  into  genemloon- 
vanatkm,  bemg  both  of  the  aame  trade  and  of 
the  aame  ooontvytf 

Frimmer»  1  dewe  the  witneaa  will  i^eak 
atery  partionlar,  aa  1  am  wtefealad  in  it 

Coumel/crtk§0<mn.  BoitaobyaUmaaM, 
go^mthen.  -(^^^^. 

BtiUmim.  I  mentioned  tolhtt  abovt  my  lb* 
Ally,  that  I  had  my  aeo  arith  me  new  in  Lon- 
don ;  be  waa  deairpna  to  aee  him;  1  tokl,  him 
my  wife  waa  fery  nuioh  indiaooaed,  wbieh  he 
aaid  be  waaaorry  for ;  I  waiten  npon  him  Aom 


ton^  abilitiaa  wera  |_ 
Howe,  and  that  gtaainl 
waich  general  How«^ 
bamaa  nim  ;•  bo  .van 
findahi  wonid  canqnar  thin 
grand  eampajgn.  waa  to  -hm 
that  general' waabiaglaB  mIj 
eipenanead  offienn^  wlHOk  hn  i 
be  anpplidi  ftom  Fknnoe  ;  nadSilaa 
appointed  for  thnt  pnrpona  at  PMi|  Iraq^ 
than  with  ammunition  nnd  mnma  ;  bat  aa  In- 
cannon  balk,  baaaMttbny  cocM  prsBMaami^ 
lleiency  to  aerf e  all  Bnmne,  in  AanaiMn  ata 

Elaee  new  AnnaMlia  hi  mmFjUmH^  Ihitbi 
imaelf  had  aean  ukewian  pitcbt  tor  and  tmfi^ 
tine.  Thia  waa  what  paaaad  intbe  onanstf  a 
great  nnnbar  of.fisita.  I  araited  nfarlja 
from  the  rth  of  Nof .  to  the  t4tb.  1  wmm 
missed  but  one  day,  and  tmn  with  ton  twiwm 
moat  daya. 

JVunnar.   fiemeodier  that  thin 
he  waa  with  ose  twiee  uMpt  dmjf9. 

BMarim.  The  priaoiiar  naid  bm  uimi  M 
Defer,  iraro  Pyuria,  and  went  to  C^nttibaiy} 
that  be  went  into  n  shop  nnd  ^nhafiir  m  maahM 
tobemade. 

Fnmner.  At  what  partieoinr  niaoa  dM  I 
call  in  my  way  from  Caaterhsry  P  I  aanathna 
ealled  at  aome  narticniar  |daee. 

Baldsmi.  JEEe aaid  bo  went  into  a  atManal 
ordered  a  thi  machine  to  be  ouide,  whin  nm 
by  aome  people  called  a  eaninter  ;  he 
maater  was  a  atapid  ftUow,  nnddfid  noti 
ataad  bb  directkma,  bnt  that  the  bow  aaoL 
be  mora  ingenioua  nnd  twdnratnmf  it»  but  bi 
was  obligecrtoatand  by  the  hoy  while  hanm 
making  of  it  to  mstmei  him,  nnld  hn  gnse  bto 
aomething  to  get  aome  drinh  Ibr  hm  pim; 
that  then  he  went  into  n  pnblio-lMHHa  nM 
the  canister  under  the  breast  of  hie  eoat ;  tkst 
a  dragoon  saw  something  under  hia  ooat,  mi 
opened  bis  coat  to  see  what  waa  under  it,  mi 
said,  which  of  them  are  you  for  ?  The  piiswr 
asked,  what  do  you  mean  f  He  aaid,  wbedicr 
you  are  a  barber  or  a  tayknr  ?  The  pnasair 
said,  that  was  no  business  to  him,  and  caOd 
him  an  impudent  fellow,  and  told  turn  that  to 
did  not  mind  him,  nor  none  of  his  BBsatcf^ 
men  ;  be  said  there  was  another  soldier  in  tto 
room,  who  was  a  ci? il  man,  and  he  drank  nith 
him  ;  that  he  went  from  thence  to  Fortsosonlk, 
where  he  took  a  lodging  at  one  Mra.  BoaeU*a 

Q.  All  this  is  the  account  that  hegaf  a  jea  t 

Baldwin,  Yes ;  in  all  the  €H>nferaations,  as 
near  as  I  recollect,  word  for  word.  He  aaid  si 
Mrs.  Boxell's  he  tried  his  preparationa,  wbicb 
were  matches  that  he  had  made,  by  dooUinf 
a  sheet  of  whitish  paper  into  ten  or  twdta 
folds ;  that  then  the  paper  wna  unfolded,  is 
order  to  lie  done  o? er  with  a  compoaition  asadt 
of  charcoal  and  gunpowder ;  hn  aaid,  if  tto 
paper  was  not  doubled  before  the  cumpusilim 
was  laid  on  it  wouU  causa  it  to  emok ;  that  tto 
charcoal  must  be  ground  fery  fine,  npnn  a  es* 
lour- stone,  in  the  aame  mnnnnr  na  paialHi 
grind  their  colours;  bnt  the  gunpnndsr  dtf 
not  require  much  grindihgi  hn  ami  | 


lUpe-Hc 


A.  D.  1777. 


riS38 


niigbt  be  nasbed  wilb  a  knife,  io  the  nme 
manner  ae  painteri  mix  ▼ermiilioo:  bot,  be 
said,  they  must  be  very  particular  in  muuo^ 
these  two  bodies  together ;  that  the  charcoal  is 
ground  in  water,  and  then  mixed  to  the  oon- 
■istenoe  of  new  milk,  and  then  with  a  small 
brush  the  paper  must  be  painteil  ofer  on  both 
•ides  with  this  composition ;  be  said,  that  he 
liad  managed  the  matter  so  well,  that  one  match 
would  last  24  hours.  He  said,  be  knlged  at 
Mrs.  Bozeli**  one  night,  and  that  Blrs.  Bozell 
was  a  very  impudent  woman,  for  she  had 
opened  hisbundle  during  his  absence ;  be  told 
me,  that  this  tin  machine  was  a  very  curious 
construction  of  his  own  invention,  and  that  he 
bad  a  wooden  box  made  which  had  a  hole  in  the 
centre,  in  order  to  put  a  candle  io,  and  in  that 
box  was  tar,  turpentine,  and  hemp ;  that  the 
tin  canister  fitted  this  wooden  box  so  well,  that 
when  the  caudle  wss  pot  into  it  no  person  could 
perceive  any  light.  He  said,  that  on  the  6th 
of  December  he  went  into  Portsmouth-yard, 
and  got  into  the  Hemp- bouse ;  that  there  was  a 
deal  of  hemp  there,  and  it  was  matted  so  to- 
gether that  be  could  hardly  get  it  apart;  he 
pulled  his  coat  off,  and  then,  after  lightening 
the  hemp,  he  placed  this  canister  o?er  the  box, 
with  a  small  candle  in  it ;  that  he  sprinkled 
•ome  turjientine  about  the  hemp  that  was  round 
il ;  that  he  was  some  time  before  be  found  bis 
€oat  afterwanls,  and,  when  he  found  it,  there 
was  a  deal  of  hemp  sticking  about  it,  which  he 
endeavoured  to  take  off;  that  he  then  went  out 
of  the  Hemp-house,  and  got  into  the  Rope-house, 
and  in  the  liupe- house  be  placed  a  quart-bottle 
of  spirits  of  turpeutine  upon  its  side,  stopped 
with  hemp  instead  of  a  cork,  and  close  to  the 
b'emp  he  laid  a  piece  of  paper,  and  in  this  paper 
was  some  dry  gunpowder. 

Primner,  Did  J  go  straight  out  of  the  Hemp> 
boose  into  the  Rope-house? 

Court.  You  had  better  wait  till  he  has  gone 
through  his  evidence,  and  then  you  may  ask 
what  questions  you  please. 

Baldwin*  To  this  gunpowder  there  was  one 
of  these  matches,  and  over  tbe  powder  be  laid 
some  hemp  strewed  very  light,  likewise  a  quart 
of  turpentine  strewed  all  ak>ut ;  that  as  soon  as 
the  fire  oftbe  match  touched  the  powder  it  should 
set  it  all  immediat^y  on  a  blaze.  He  said,  that 
br  cutting  this  match  which  he  had  made,  into 
short  pieces,  it  would  answer  any  time  that 
be  plfMised,  in  order  to  make  his  escape ;  that 
tbe  next  day,  which  was  the  7th  of  December, 
be  went  from  Mrs.  Boxell's,  and  took  two  other 
bMigings,  one  was  at  a  public- house,  and  the 
other  at  a  private  house  on  the  Common,  he 
said  in  the  North-street ;  that  lie  took  particu- 
lar notice  before  he  took  these  lodgings  which 
bouses  had  most  wood  about  them,  for  he  bad 
bis  combustibles  reaily  for  the  purpose  of  set- 
ting bis  two  hMlgings  on  fire  on  the  same  day 
ms  he  set  fire  to  the  Hope- house,  in  order  to 
keep  the  engines  from  playing  uoon  the  boiki- 
ings  in  the  Dock-yard ;  he  saio,  that  he  told 
the  wooMUi  at  the  lodging  which  he  took  on  the 
Commooy  that  ht  was  going  to  Petenfiekii 


and  begged  her  to  take  care  of  his  boodle ;  be 
said,  after  that  he  went  into  the  Dock-yard  io 
order  to  set  fire  to  both  the  Hemp- house  and 
tlie  Rope- house ;  that  be  first  went  into  the 
Hemp-house,  and  struck  a  light,  but  the 
matches  which  he  had  were  very  damp,  snd 
he  could  not  get  the  sulphur  to  take  fire ;  that 
be  wasted  a  whole  box  full  of  tinder  in  order  to 
light  the  candle,  and  even  blowed  at  the  tinder 
till  he  had  ahnost  burnt  bis  lips ;  .that  he  went 
away  from  the  Hemp-house,  and  pnicured 
some  better  matches ;  that  then  he  got  iuiu  the 
Rope-house,  and  set  fire  to  the  match  which 
led  to  the  powder. 

Q.  Did  he  say  any  thing  about  buying  of  the 
matches  P 

Baldwin.  Hesaid  he  had  bought  an  halfpenny 
worth  of  matches  the  day  before  of  a  womau. 
—My  lord,  there  is  one  matter  I  forgot :  he 
said,  the  day  that  he  put  his  preparations  into 
the  Hemp- house  and  Rope- house,  he  was  so 
long  in  the  Hemp- bouse  that  he  was  locked 
into  tbe  Rope- bouse;  that  when  he  came  to 
the  door  which  he  went  in  at,  he  could  not  get 
out ;  be  said  there  were  several  doors  belangmg 
to  this  buihiing,  that  he  tried  many  of  them, 
and  went  the  whole  length  of  the  building, 
which  was  upwards  of  three  hundretl  and  sixty 
yards.  He  then  went  up  stairs,  pulled  off  his 
shoes,  and  went  the  whole  leogtb  there,  and 
could  find  no  possible  means  to  get  out,  upon 
which  be  returned,  and  got  to  the  same  door 
that  be  came  in  at ;  there  he  heard  some  per- 
son's voice,  upon  which  be  knocked  at  the  door, 
and  said,  holloa !  They  asked,  who  was  there, 
and  what  business  he  had  there  ?  He  said,  it 
was  curiosity  that  had  led  him  there,  that  bo 
did  not  imagine  they  had  locked  up  the  bouse  so 
soon ;  he  said,  the  person  tokl  him  to  go  strait 
forwards,  and  turn  to  such  a  door,  and  ho 
would  be  able  to  get  out,  which  he  did ;  ho 
said,  when  he  came  out  be  was  very  vexed  with 
himself  that  he  could  not  set  the  if  emp- bouse 
on  fire,  and  was  also  vexed  because  he  coukl 
not  go  to  his  lodging  at  Portsmouth  Common, 
where  he  had  left  a  parcel,  which  parcel  con- 
tained, among  other  things,  a  pistol,  Ovid's 
Metamorphoses,  the  Arts  and  Ddugersof  War, 
or  somethiug  of  that  sort,  and  a  Justin ;  but 
what  vexed  him  most  was  a  passport  that  he 
had  left  which  was  signed  by  the  French  king, 
and  in  that  passport  was  his  real  name,  but  it 
was  in  French,  and  he  did  not  imagine  that  tbe 
people  at  the  lodgings  could  read  or  understand 
It,  but,  he  said,  he  was  greatly  amazed  that 
they  bad  not  found  the  bundle;  he  ssid,  he 
imagined  they  intendefl  to  make  a  pro|)erty  of 
him,  or  otherwise  he  thought  it  would  be  best 
to  take  no  notice  of  it,  but  let  it  lie ;  tiXtr 
setting  fire  to  the  Rope- house  he  made  the 
best  of  his  way  towards  London ;  he  said,  that 
he  was  so  sorry  that  he  could  not  get  the 
matches  to  light  in  the  Hemp- house,  that  he 
had  a  good  mind  to  go  and  shoot  at  the  windows 
of  the  woman's  liouse  where  he  had  bought 
them ;  he  said,  that  he  had  burnt  tbe  bilk  and 
the  letter  which  be  had  from  Silas  Deaue,  on 


1339]  17  GEORGE  III.    Trialof  JtimesHiU  alias  John  ihePiKhier,    [IStf 

mccount  of  the  bebtTiour  of  Mrs.  Dozell,  and  to 
prefeot  any  suspicion  of  the  i^entlemeo  that 
they  irere  for ;  he  said,  that  soon  after  he  left 
the  Dock-yard  he  juokped  into  a  cart  and  he^- 
ge<l  of  the  woman  to  drive  quick :  that  he  rode 
lu  this  cart  two  inilea,  and  then  ga^e  the  woman 
six- pence  tor  driviugf  quick,  for  he  bad  near 
four  miles  to  go  before  be  passed  the  sentries  ; 
that  a  few  minutes  after  be  bad  passed  the 
■entries  be  looked  back,  and  saw  the  flames  $ 
lie  said  the  very  element  seemed  to  be  in  a 
blaze ;  that  be  walkeil  all  nii^bt  on  bis  way  for 
Loudon  ;  that  upon  ibe  road  between  the  last 
sentry  and  Kiiignlon  two  dogs  barked  at  him 
very  much ;  be  said,  be  shot  at  them,  and  be- 
lieved be  eitber  killed  or  wounded  one ;  that  he 
arrived  at  Kingston  the  next  morning,  which 
was  Suuday,  between  ten  and  eleven  o'clock ; 
tbat  be  staid  there  till  pretty  near  dusk,  and 
then  came  in  tbe  stage  to  London,  and  waited 
upon  tbiti  great  man  in  the -city  of  Lomlon ; 
be  sai<l,  he  told  tbe  gentleman  tbat  he  had 
had  letters  and  bills  about  him  that  he  b.id  re- 
ceived from  Silas  Deane  at  Paris,  which  be  was 
obliged  to  burn  ;  that  tbe  gentleman  seemeil  to 
be  very  liby  of  him,  and  told  him,  he  bad  re- 
ceived no  account  from  Pari«;  be  said,  be  tohl 
the  gentleman  be  might  think  what  he  pleaseil, 
bat  be  was  an  enemy  to  Great  Britain,  and  a 
firiend  to  America ;  and  that  be  ha<l  set  lire  to 
the  Ru|)e-bouse  at  Portsmouth,  wiiicb  he 
would  see  in  tbe  papers  of  Monday  ;  be  said 
tbe  gentleman  ordered  him  to  a  certain  coffee- 
bouse. 

Court.  I  suppose,  by  your  repeating  tbe 
word  gentleman  so  often,  be  did  not  mention 
bis  name? 

Baldvin,  No,  1  could  not  get  bki  name  from 
bim ;  1  wish  I  bad.  He  aaid  the  gentleman 
waitetl  upon  him  at  the  coflTee-bouse,  where  they 
had  some  little  discourse,  but  the  gentleman 
seemed  stiil  to  be  shy  of  bim  ;  he  said,  there 
was  another  gentleman  in  tbe  coffee  house, 
who  took  very  particular  notice  of  him,  which 
be  observed,  and  therefore  did  not  chuse  to  stop 
long  ;  be  said,  he  was  so  angry  that  this  gen- 
tleman would  not  believe  bis  word,  that  he 
took  his  leave  of  bim,  and  went  directly  to 
Hamiuersuiith  ;  tbat  when  he  got  to  Hammer- 
smith he  wrote  a  letter  to  this  gentleman,  and 
told  bim,  he  was  very  sorry  that  he  would  not 
believe  what  he  had  told  him,  but  he  was  saiis- 
fiei\  he  would  receive  letters  in  a  few  da^'s ; 
that  be  was  going  lo  Jiristol,  where  he  should 
bear  of  more  of  liis  bundy  works.  He  said,  in 
his  way  from  thence  to  Bristol  he  called  at  Ox- 
ford. 

Court,  He  is  going  now  in  speak  about 
Bristol ;  if  you  donH  watch  him  very  atten- 
tively ii  is  uaiural  he  should  fall  into  an  ac- 
count of  Bristol,  which  we  have  nothing  to  do 
with. 

Counsel  for  the  Crown.  We  are  not  exa- 
miuiug  alMMit  Bristol  with  a  view  to  impute  to 
him  the  setting  Bristol  on  fire,  but  to  shew  he 
was  actuated  by  the  same  motives  towards  this 
oountry,  with  regard  to  America,  which  ope- 


rated at  Portsmouth,  which  will  be  materid, 
aa  it  will  eonflrai  the  deaign  b«  had  in  kii 
miBd.  We  shall  profe  bis  grinding  charcNl 
upon  a  painter's  stone  there,  umI  eihercircaa- 
stances. 

Court,  Any  conversation  that  he  rdaUf  i 
tbe  prisoner's,  of  whM  happened  at  Bristol  tbn 
will  confirm  this  evidence  here,  is  material. 

Baldwin.  He  said  bis  next  scheme  was  It 
set  a  building  at  Woolwich  on  fire ;  he  mhI  be 
arrived  at  Bristol  a  tew  days  belbre  Cbristnai; 
that  be  got  leave  from  a  painter  to  (riod  sone 
charcoal  ufHin  his  eoluur-stooe. 

Q.  Did  he  mention  to  you  bis  reasses  ftr 
going  to  Bristol  ?  I  don't  mean  of  what  he  ii* 
tended  to  do  there ;  but  whether  he  mcatiosrf 
any  reason  why  in  particular  he  should  go  It 
Bristol,  any  more  than  to  Worcester,  sr  nj 
other  place? 

Baldwin,  He  said  that  he  heard  there  wnv 
three  or  tour  shi|)s  that  were  there :  that  osear 
two  of  them  were  mounted  %viih  twelve  or- 
riage  guns  and  eii>bt  swivels,  and  that  tbfj 
were  troing  to  tbe  West-Indies,  and  be  waolBl 
to  see  these  vessels. 

Court,  All  these  questions  Riust  ncemarBj 
tend  to  the  fire  at  Bribttd. 

Baldwin.  He  said,  a  painter  gave  bin  libcilf 
to  grind  ibii  charcoal. 

Court,  When  wsstliis?  before  the  fire  il 
Portsmouth,  or  after  it  f 

Baldwin,  After  the  fire  at  Fortsiiioulb. 

Counsel  for  the  Crowm,  We  shall  call  tkd 
witness  to  confirm  and  prove  many  of  tbcK 
thintrs  afWr  the  fire ;  tbat  he  called  opou  tbi 
man  to  grind  charcoal.  Now  1  shall  eall  tint 
man  to  prove  that  the  prisoner  di<l  grind  cbir- 
coal  at  tbat  house.  I  do  not  mean  for  the  pre- 
paration for  this  particular  fire,  hut  onlj  ai  i 
circumstance  confirmatory  that  he  did  bolil  ike 
conversation  that  the  witness  relates,  and  M 
make  such  preparations. 

Court,  As  far  as  tbat  goes  I  see  no  oljectioi 
to  tliat. 

Counsel/or  the  Crown.  Let  it  be  suppowJ 
tbat  the  charcoal  was  tor  an  innocent  puri^fe; 
but  it  is  a  fact  that  tbe  witness  w  ill  prove  cjfl- 
flrmatory  of  bis  having  said  that  be  did  socb  i 
thing. 

Baldwin.  He  said  be  ground  it  u|ion  a  t*^ 
lour-sttme  belonging  to  a  painter  at  Bristol,  thii 
he  was  above  txvo  hours  grinding  it,  auJibc 
painter  took  particular  notice  ciftbai. 

Q,  He  told  }OU  he  went  to  Bristol  T—  He  AA 
tell  me  he  went  to  Bristol  ;  be  said  be  kKiktil 
u|ion  that  to  he  one  of  the  greatest  cirront* 
stances  against  him,  the  man  seeing  liiui  m^ke 
this  preparation,  grindin;;:  this  charcoal. 

You  gave  an  account  of  this  matter,  aiiit  m 
consequence  of  that  enquiries  were  made  odht 
several  people  i* — I  suppose  so. 

When  did  you  give  an  acc4»unt  of  this  corvcn 
satioii  ? — Day  after  day  to  my  loni  Temr'^ 
and  from  thence  to  my  iiird  Ci«rorge<aemi«»; 
it  was  on  the  15th  of  February  that  the  psrti- 
culars  came  out.  1  was  from  the  7rb  t<i  tbe 
ISth  before  I  could  get  out  any  particulars.   I 


1511]      jyr  teUmg  Pire  to  PoWmhwiA  Rtpt'Houuu       A.  D.  1777. 


[1343. 


eoAmsBicated  to  aeeoaiit  of  (lie  ptrticulirt  day 
^jr  day. 

Prit^ner.  I  sliMild  wisli  tobcartbetfidciice 
read  over. 

Mr.  Btunm  Hoih^m.  I  oertwnly  will  rttd  it 
•v«r  to  yon,  if  you  deolro  it* 

Primnet.  I  wish  it  to  be  read,  io  order  to  re- 
fresh niy  memory. 

Mr.  Baron  Hoiham,  If  yoa  want  to  ask  any 
^oentioD,  you  will  stop  me  at  the  place  where 
yoo  wish  to  interpose  yoor  qocsiioB. 

Mr.  Baron  Ilotnam  then  read  over  his  notes 

5 which  were  exceeding^  accurate)  of  the  e?i* 
lence  which  Baldwin  Md  gifen.    His  lordship 
eoocKided  thus.    *  I  have  taken  the  efidetice 

*  as  faithfully  and  as  elaetly  ai  I  oonid ;  If 

*  there  is  any  difference,  I  shall  be  oblifed  to 

*  any  gentleman  in  court  who  will  he  pleased  to 

*  set  me  right' 

Pruoner.  It  is  exceeding  well  taken  down, 
ny  lord.  Now  is  it  proper,  in  the  sight  of 
God  and  in  the  sight  of  man,  that  a  man,  con- 
trary to  the  laws  of  God  and  mati,  shoald  come 
with  deceit  in  his  heart  as  an  emissary  from 
other  peeple  to  iosinoate  to  me,  Of  any  person 
what  they  can  in  that  deceitful  manner  T  If 
they  are  deceitful  enough  to  deceife  one  in 
such  a  distressful  situation,  Ibey  must  certainly 
hare  deceit  enough  in  their  heart  to  speak  liei 
of  them. 

Court,  That  is  matter  of  obserratkm,  which 
will  come  in  with  propriety  in  the  course  of 
your  defence ;  it  is  better  for  yuu  to  apply 
yourself  now  to  asking  any  qnestions  that  you 
may  think  proper. 

Fritoner,  I  would  rather  ask  hrn  seme 
ifuestions  afler  all  the  witnesses  are  examined. 

Counsel/or  the  Crown.  Well,  he  shall  stay 
io  court. 

Edward  Evam  sworn. 

Were  you  at  Canterbury  at  anv  time? — Yes, 
firnm  the  month  of  October  till  the  hitter  end  of 
February. 

Did  ^00  ever  see  the  prisoner  at  Canterbury  f 
«-1  thtiik  1  hare :  the  man  it  altered  a  ffrcat 
deal  since  I  saw  him,  but,  to  the  hMt  of  my 
jodgment,  he  is  the  man,  that  wts  either  the 
latter  end  of  October  or  the  beginning  of  No- 
fember,^  in  November  to  the  best  of  my  koow* 
ledge,  we  had  some  words. 

Did  you  see  any  thing  about  him?— Ny 
comrade  was  present ;  he  said  he  saw  some- 
thing under  his  coat. 

How  was  he  dressed  ?— Io  a  brown  dbffil 
•ortoot  coat,  rather  shabby. 

Did  you  observe  what  wtt  'inside  tbn  Mur« 
toot  f — I  did  not 

Jama  Wilton  sworn. 

Do  Tou  remember  seeing  the  prisoner  tt 
Canterbury  ?— 1  really  think  be  is  the  |iersoo  t 
bat  1  bad  never  seen  him  before  oor  tinet  be 
had  a  dispote  with  my  comnde  Ef  tat.  To  the 
best  of  my  opinion  be  wss  drestid  osotb  tt  ht 

f.  Bo  ifl  oHg* 


is  now ;  I  observed  something  bright  under  his 
coat  that  glistened  like  tin. 

Did  yon  tea  much  of  it  ?— I  did  not  make 
mnch  observation  upon  it. 

Was  there  any  quarrel  or  words  betweeo 
cither  of  yon  ?— There  had  been  a  fighting  or 
a  scuffle  between  him  and  my  comrade. 

Pritenet.  (Ih  the  Counted.)  Sir,  I  have  ont 
thing  to  remark ;  are  you  hit  majesty's  ooun« 
self 

Caunui.    I  am.    What  then  ? 

Prittmor.  I  only  wanted  to  know  if  vou  were 
his  Britannic  majeitty 's  counsel,  atd  if  you  had 
done  with  the  examinatk>n; 

John  FftiAer  sworn. 

WKers  do  yon  live? — ^At  Mr.  Ltwrenct 
Tuck's  at  Canterbury. 

Do  you  know  the  prisoner  ?— 1  think  f  have 
seen  him  before. 

When  ?-— About  six  or  seven  weeks,  I  believe 
before  Cliristmts. 

Where  dhl  yCn  see  him  then?-*At  my  mat- 
ter's shop ;  he  came  and  ordered  two  tin  canis- 
ters of  me.    My  inaster  is  a  tin-man. 

Whtt  were  hrs  directions  ?— To  maketwn 
canisters  of  a  long  square.  1  hare  got  one 
here.    [Prodaciog  it.] 

Was  that  canister  iuade  by  the  pritoner't 
directions  ?— Yes. 

How  came  he  not  to  take  It  away?— I  can- 
not tell ;  there  were  two  of  them  left  in  m^ 
hinds. 

Did  he  call  afterwards  for  them  f— He  call- 
ed once  and  they  were  not  completed,  after 
that  he  called  no  more.  [The  machine  or 
canister  was  exactly  upon  the  same  constrnc* 
tion  with  that  found  in  the  Hemp-house.] 

William  Baldy  sworn. 

Ijook  at  the  prisoner.  Did  yon  ever  see  that 
man  in  the  Dock-vard  at  Porlmoutli  f— I  have. 

In  what  part  ol^it  ?— I  saw  him  about  a  hun- 
dred yards  from  the  east  end  of  the  Rope- 
house  upon  the  lower  floor  where  the  cordagt 
is  made. 

Upon  what  day  did  you  see  him  there?-- «Oo 
Saturday  the  7th  of  December,  which  wao  tbt 
day  of  the  Are. 

At  what  time  of  the  day  did  you  tee  him  P— 
Between  11  and  19,  it  might  be  nearer  19  than 
1 1 ;  I  saw  him  come  down  on  the  south  side  of 
the  bouse,  and  cross  from  that  to  the  north  sidn 
towards  where  I  was  sitting  by  myself. 

Did  he  speak  to  you  f — Yes,  he  picked  up  a 
sOMtll  smooth  stone  which  he  held  up  in  bit 
flngtr  in  this  manner,  [describing  It.]  Pray, 
Hir,  says  he.  Do  you  make  use  or  this  io  mat> 
iug  cables  ?  The  oddnttt  of  the  question  mtda 
me  look  folly  tt  him :  1  thoi^ht  he  appeared 
ftry  ignorant.  1  said,  we  do  not  make  use  of 
tbit ;  tbit  it,  1  tnpptwe,  t  ttone  that  it  coma 
out  of  tbt  oUy  tbtt  thott  btrrels  trt  IIIM 
with ;  tbert  were  Ibeo  about  threetoort  and  ten 
borreltorclty  tbtM;  bttttid  ftrttrtljr  mi- 
nottt,  tod  tbfo  bt  Itft  me. 

Whcii  M  yM  ttt  Mn  i|iin  f^^fo  tiMl 


iM3] 


17  GEORGE  III.     Trial  ofJametHiUaliu  John  the  PahUer,    [IW 


it  miyhl  b«  k  qnarlei  of  t 


Wbcre  did  you  ttt  hina  then?— -I  wn 
the  Kcood  lime  at  llie  eul  end  of  tbe 
fliior;  he  b*d  been  u^  •tiirs,  I  «aw  him  come 
dowu  ;  there  nas  one  Williani  Wtstgo 
compaoy  wiili  me ;  tbc  priMoer  addrened 
bim  wiih  liQw  do  ynu  do,  bow  do  yuu  do  "* 
holdini;  out  liio  baoiii  to  him  ;  Ibey  fell  into 
CoDiiTMliuDi'wbicli  1  ihooght  wu  ■  malter 
thai  ilid  nnt  concern  me  ;  aiiiiiiaBing  [fy  bis  ad- 
dreaniog  him  in  thai  roaooer  that  tbey  knew 
each  utber,  I  went  off. 

Are  you  ur  are  you  not  certain  (bat  he  ic  the 
man  wbiitn  yuu  paw  in  the  Rope-botue,  the 
duy  of  the  lire  f — I  am  ceHaiu. 

Court.  What  i«  ;our  bunntM  in  Ibe  Dock- 
yard? 

Baldy.    1  am  a  rope-maker. 

William  Weilon  awom. 

IjDiib  at  the  pritoner.     Hare  you  ever 
Ibat  mac  before  ?—Tu  the  beat  of  mj  kuow- 
ledge  I  bate. 

Where? — la  the  Rupe-faoaae  the  day  thai 
the  lire  wdi  ;  that  ii  Ihe  man  that  I  aaw  there, 
to  (he  heal  of  toy  kaowle<l|;e. 

You  hml  some  conreraatioD,  1  belicTe,  with 
him  ?— Very  litlle. 

Had  vou  s(^n  him  there  before,  or  did  you 
kaow  bim  before  P — 1  saw  bim  walking  Ihere, 
aboiil  srven  weeks  before  the  lire  ;  he  aaid  he 
had  been  ruiind  the  Dock  then,  and  that  be  bad 
never  been  iu  the  Dock  in  hit  life  before. 

Did  you  Bee  what  part  of  the  bouae  he  < 
from,  on  the  7ib  of  December  ? — I  cannot  lay 
Idid. 

Did  you  aee  him  come  down  alaira  f — No. 

Whal  IB  your  employmeni  io  ihcyardP'—l 
am  a  sbipwrtgbl'a  apjireDtice. 

Edttard  Carey  stforo. 

Were  you  ai  I'orismanib  at  the  time  of  the 


u  there  the  day  before  IheRref — I 


fire?-  1  « 
Wir 


Do  yoL 
■hut 


I  the  VI 


whether  any  neraon 

— Ye*,  ihe  nifjhl  before 

IS  shut  up  in  tiie  Rope- 


the  6i 

Did  ynu  mc  bim  T — No  ;  1  heard  a  mnn 
raakinic  a  ritiulilin^  bmsk  at  the  door ;  I  weut 
Up  In  ibe  diMir,Biid  asked  him  what  he  iranteil; 
he  said,  he  was  lockeit  in  and  could  not  ^  out, 
and  be  should  be  i;lad  if  we  cnuld  let  htm  out ; 
I  told  hiiu  we  coiilil  not  let  him  out,  he  must 
abide  there  all  uit>:1il ;  we  left  him  in  the  bouae. 

Prisoner.  IV as  it  llie  night  of,  or  the  night 
beliire  the  lire  ? 

Carey.  The  nisilit  before  the  fire. 

Ann  Hopkint  sworn. 
Lonk  at  the  man  behind  you  (the  prisoner) 


•lid 


n  bt-ll.n 


U  hen  ? — I  saw  hmi  last  Salurduy. 
When  did  you  first  Bee  liiui  ? — The  day  that 
the  Duck  was  oo  fire. 
Ai  what  lime  f— At   four  o'clock,  or  b>ir 


after,  I  cannot  be  exact  ai  to  the  tiaoe,  1 U 
been  at  the  market}  1  was  conuDg  homeiaB 
liltlecart;  between  the  Flyiug  Bull  aadC» 
ahaai,  he  atopped  my  carl. 

Did  be  orertakBormeetyoar — IcannMId, 
it  waa  a  cloac  lilted  cart,  1  did  pot  ate  biia  fl 
he  caa>e  chiae  to  me  i  he  atopped  my  cait,  Md 
asked  mo  how  far  1  was  ^in|;7  1  laid  h«a 
little  way ;  be  aaid  he  would  give  ma  laj 
thiog  10  sire  him  a  lift,  for  he  wagfoiiit* 
PelerafietdaDd  abouUhe  Ikenighied  ;  he  jaiifrf 
up  ioto  the  can,  aod  aaid.  Do,  aw'am,  JriwM 
faat  aa  you  can  ;  a*  1  waa  sr(*ii>S  "''■  "^  ^ 
aham,  1  called  at  a  abop. 

Wai  be,  or  oot,  healed  irhm  Iw  came  up  h 

Ku?— Bewaa  very  much  outof  breath,  irba 
came  up  to  iii« ;  I  called  «t  a  abop  ai  Ct> 
aham  tn  tiny  a  pair  of  pattena ;  whea  I  ni 
tatiing  out  the  money  to  pay  the  womaa,  ika 
priioner  took  aii-peoce  otit  of  his  pocketifll 
gave  her,  aod  I  gave  her  naoiber. 

W,by  did  be  do  that* — It  wu  le  ait 
baate ;  1  lold  liim  before  I  called,  that  1  aiM 
atop  at  a  shop ;  he  deaired  me  not  U  «f 
there;  then,  be  aaid,  you  won't  wait  Ion? ;  td, 
he  vaid,  he  wonkl  gifc  any  thing  for  a  reiantJ 
chaise,  liir  he  rautl  get  lo  Peteratield  (hal liftl 
if  be  was  alive ;  1  drove  on  lilt  I  came  in  rifbl 
of  my  own  houae,  I  itopped  to  let  my  boMt 
drink,  and  he  jumped  out  of  the  cart  and  na 
away  aa  fait  aa  he  could. 

Had  Ihe  fire  burat  out  at  the  time  he  Idtik 
cart  r— No. 

How  aoon  waa  it  afterwards  ? — I  cannoip^ 
tendtoaay;  beran  the  maiDljundanrsa^Hl 
1  MW  no  more  of  him, 

Eiiiaitth  GenUll  awom. 

at  Portsnoodi 


n  yestenlii, 


Where  do  you  L»e? — I  live  a 
Common. 

LiODk  St  Ihe  prisoner,  you  saw  lil 
Ibeliere?— i  did. 

When  was  the  first  time  that  you  saw  hiaV 
The  day  before  the  fire  at  the  'itnpe-huuM  ;  I 
saw  him  at  my  own  house  iu  H avail l-sim'. 
Portimnuih-common ;  became  to  my  lioitf. 
andsaked  tiir  ahalf-peauy  wonhol  niu'icheiil 
look  down  two  bundles  and  put  them  uponllx 
coupler ;  be  aslced  me  if  they  would  lake  i" 
quick ;  and  he  degired  me  to  chaoKC  one  ifiht 
buncbcB,  which  1  did  ;  he  pullt^  KUirn:  til'^ 
out  of  his  pockel,  aod  e^ve  me  a  halljienny. 

Are  you  aure  (bat  ihe  priiiDner  is  Ihe  liM 
person? — I  sm- 

Friiuaer.     How  can  you  be  «o  ceruin  fn"" 

Email  a  time  as  you  have  now  taken  lo  ii"^ 

roe  i  bow  slnuld  you  knuw  my  phvtii^- 
DO  my  ? 

Omtcll  [looks  at  him  again]  1  am  tantt 
I  the  man. 

John  lllenden  awom. 

Did  you  ever  see  the  prisooer  at  Cantv- 
"    -As  far  as  there  is  human  poasibiliij " 


What  1 
cary ;  1 1 


I,  1  hare  aeen  him  tbere, 
e  you?-— A  auigeon  uil  apotlX' 
11  utdy  an  nupruitiR. 


13A9}      f^  MMag  Fife  to  Potimouih  Rope-Hause.       JL  D.  1777. 

Od  what  busioess  or  occaiion  did  jou  lee  T^amtu  Mason  swoni. 

bim  there  ?-— Upon  bis  oomiDg  to  bpy  two 
•aocef  of  sLfirits  of  torpentine,  and  a  qaaiter 
of  a  poimd  oTsalt-petre,  what  we  call  nitre. 

About  what  time  was  that  ? — As  fur  as  I  can 
reooUeck,  it  was  either  three  or  foar  daji  be- 
Ibre  or  after  the  sotb  of  November. 

Mary  Bishop  sworn. 

Did  yon  ever  see  the  prisoner  before  ?— Yea* 

Where?— At  my  house  in  Canterbury. 

l>o  you  recollect  at  what  time  you  saw  him 
Hiere  P-— It  was  beiween  MicbaelnuM  and 
Christmas ;  but  I  cannot  recollect  the  particu- 
lar time. 

Had  he  any  conversation  with  you  when  he 
was  at  your  house  at  Canterbury  ?»< He  told 
flue  he  had  been  interrupted  by  a  dragoon  at  the 
ii^hite-borse  ;  he  told  me  he  came  from  Ame- 
rica on  accouut  of  the  disturbances. 

Do  you  recollect  whether  he  applied  to  you 
^  direct  him.  where  he  might  get  any  thing 
made?- --He  asked  me  afterwards  where  he 
■ugbt  get  a  wouden  thing  made  ? 

prisoner.     Is  that  a  proper  question  to  put  ? 

Countel,  If  1  was  to  put  an  improper  ques- 
tion the  judfife  would  stop  me. 

Court.  No  improper  question  will  be  put ; 
and  y  oo  ought  to  see  by  this  time  that  the  can- 
dour of  the  counsel  for  the  crown  will  prevent 
thero  putting  an  improper  question. 

Did  you  see  any  thing  that  was  made  for 
liifls  ?—  I  saw  a  wooden  thing  which  the  ap- 
prentice of  Mr.  Overshaw,  to  whom  I  directed 
■ABB,  brought  into  my  bouse  for  him ;  the  pri- 
soner pul  it  under  his  coat,  wishing  not  to  have 
it  seen. 

-  Did  you  see  that  wooden  thing  ^- 1  saw  the 
vrong  end  of  it ;  the  sha[>e  of  it  was  a  long 
•quare. 

Was  it  at  all  like  this  ?  [shewing  the  witness 
ibe  wooden  part  of  the  machine  found  in  the 
Hemp- house.] — Yes. 

What  is  become  of  the  apprentice  who  made 
amd  brought  this  machine  ?— He  is  since  dead. 

Yon  say  it  was  like  this  wooden  machine  ? 
—As  nigh  as  I  can  guess  it  was  like  this ;  it 
was  of  the  same  shape. 

Court.  How  long  was  it  after  he  asked  you 
where  he  could  get  such  a  thing  made,  that 
jrou  saw  it  brought  to  him  by  the  apprentice  ? 
'— il.  Some  time  in  the  aAernoon,  1  thmk,  of 
Ibe  same  day. 

John  Dalby  sworn. 

1  believe  you  apprehended  the  prisoner  ?— I 
did. 

What  did  you  find  upon  him  when  you  ap- 
'prebended  him?— I  found  upon  him  a  Bath 
metal  seal ;  a  pair  of  steel  buttons ;  a  snuff- 
box with  tinder:  a  small  powder-born  with 
gun|)Owder ;  a  large  nail  piercer;  a  striking 
tinder-box  primed  ;  a  screw  barrel  pocket  pistol 
.loaded  with  shot ;  two  bundles  of  matches  dipt 
ID  brimsttne;  a  phial  bottle  half  full  with  spi- 
'j;its  o'  turpt-ntin^i  and  n-nnall pair  pf  fqisaiurf. 

VOL.  XX; 


[1340 


Wlijere  do  you  live  ? — In  the  parish  of  St. 
Philip  and  Jacob  in  the  county  of  Gloucester^ 
pear  to  Bristol. 

Look  ^t  the  prisoner,  did  you  ever  see  him 
before? — He  was  in  my  house  the  roorroi^ 
aA.er  Christmas-day. 

What  business  had  he  there  ?— He  came  to 
my  house  about  eleven  o*clock ;  he  asked  me 
to  let  him  grind  a  lump  of  charcoal  upon  my 
colour-stone. 

What  business  are  you? — I  am  a  tyler  and 
plaisterer,  and  a  house  painter  ;  I  told  him  yet 
sure,  and  welcome ;  I  shewed  him  my  colour^ 
stone. 

What  did  the  prisoner  tell  you  he  was  ?-^I 
talked  with  him  a  good  while  afWt^ards; 
when  I  was  in  my  room,  I  saw  him  pull  out  a 
hanger  from  under  his  coat  when  he  began 
grinding,  and  lay  it  down,  and  luy  his  great- 
coat upon  it ;  1  said,  why  you  are  one  of  the 
press-ganjjp  ?  No,  Sir,  said  be,  1  be  not. 

What  did  he  tell  you  ?— -I  asked  him  when 
he  was  sitting  in  my  house,  what  lie  did  think 
of  the  American  affairs;  he  said  he  wished 
that  affair  had  never  happened ;  that  he  had 
lost  a  plantation  there,  and  he  hoped  when  that 
affair  was  over  he  should  have  it  returned  to 
him. 

Priumer,  Is  it  proper  that  this  man's  evi- 
dence should  be  invalidated  or  not,  from  bis 
own  downright  contradictions? 

Court.  I  did  not  observe  any  contradiction  ; 
the  witness  does  not  seem  to  be  very  quick  of 
apprehension,  and  did  not  immettiately  under- 
stand the  question  put  to  liini ;  it  is  nothing 
but  relating  a  discourse  which  does  not  appear 
to  be  material. 

Counsel  for  the  Crown  to  James  Gamhier^ 
esq.     Have  you.  Sir,  translated  the  pas8{iort  ? 

Mr.  Gambier.  This  is  the  translatiun  as  well 
as  I  understand  the  English  of  it. 

Prisoner.  I  object  to  the  pasuport  being  read. 

Coiirt.  State  your  objection. 

Prisoner.  That  they  who  shall  be  called  to 
witness  for  or  against  me,  may  not  hear  the 
contents  of  it. 

Counsel  for  the  Crown,  We  shall  call  no 
more  witnesses. 

The  translation  of  the  Passport  was  read  as 

follows : 


Exhibited  at  the  } 
Office  of  Marine  V 
at  Calais.  > 


By  the  Kino. 


To  all  governors  and  our  lieutenant  generals 
of  our  provinces  and  arofiie»,  giivi>rnnrs 
particular,  and  commanders  of  our  towuM, 
places,  and  troops ;  and  to  a!l  other  our 
officers  iusticiary,  and  subjects  to  iihom 
it  shall  belong,  —  Health. 

We  will  aqd  command  you  very  expressly  to 
Ifltt  pass  safely  and  freelv,  Mr.  James  Aclzen« 

J^oing  to  England ;  without  giving  him  or  suf- 
ering  him  to  bare  any  hindrance ;  but  on  tha 
4R 


1817]  17  OBpBOB  lit* 

CMtrn7»  efeiy  aid  and  MiiiteMe  tluit  be  tl^ 
irwitorlHiireoeeMloifftr.    Tbkfraeot 
Mfttoberafidfcrgpe  Bflotb  odIt.  fcr  Mn 
MHT  Dletmre^GivcB  at  FontMiMeu  tiw  IS 

Lom. 


r  

hb  yuuuiiiiw* 


af  Nbr  cnlMHf  1770* 

B J  ttw  king, 

C^mkIM  the  Cratm.  Nowitwillbe  mato- 
lU  for  ilie  offiocr  to  till  your.  knMiip  what 
thoac  hooki  irr 

Ojfker.  The  booka  ar«  Ofid*a  Bfetao^iiw 
yhoaat,  a  Traatiaa  of  iJm  Anas  aad  Eogiafla  af 
W^,  of  Fire  Worka,  te.  and  the  otW  is  the 
History  of  Jostin. 

Omntd  fir  tke  Crmm.  My  kml,  this  b  all 
esf  evidcoccw 

Couri.  Pnmmtft  tbe  efidsneea^piiisl  yoo  is 
IMW  closed;  this  is  therefore  the  time  for  yoa 
le  nafce  your  defaioe. 

Pbisqner*s  Dbpbncb. 

I  oDdsrstand,  my  lord,  that  that  French  peas- 
fort  was  not  found  out  till  a  few  days  ago,  and 
irinQS  my  first  apprehension,  a  great  prt  of  the 
Idngdom  haa  hsen  aoogbt,  and  persons  bate 
%eeB  brought  from  many  dilferent  plaoea  to  give 
•ridenee  who  1  waa,  or  what  I  am.  or  ao  fiur  as 
they  koew  about  me,  and  every  particohHr 
•thmg  that  has  been  witnessed  rcspMting  the 
late  ihre  in  the  Dock-yard,  from  these  evi« 
donees  given,  and  the  eommnoieatlen  of  them 
l#  all  the  people  in  the  kingdom,  by  newa- 
papers,  and  other  ways.  I  think  It  is  possible, 
end  may  have  been  possibkf  Ibr  Mr.  Bahlwin, 
er  for  any  other  person  that  is  any  way  at 
all  Intelligible,  to  bring  every  evidenee  against' 
AM  that  that  person  has  done,  by  the  aaid 
knowledge  from  poUic  papers  and  conversa- 
tion ;  nevertheless,  whether  it  is  a  false  accu- 
aatioo,  that  is  upon  me,  or  whether  it  is  a  be- 
traying of  trust,  through  the  treachery  of 
the  heart,  God  Altnigbtv,  the  great  judge  of 
all,  bnly  knows  ;  if  it  is  the  former,  1  pray  God 
Jklmigbty  may  forgive  him  !  if  it  is  the  latter, 
J  pray  the  same !  but  in  that  case  I  should  like 
to  know,  whether  it  is  proper,  that  a  person  pos- 
eessed  of  such  a  disposition  as  that,  should 
oome  from  emissaries  unknown  to  me,  and  do 
all  that  lies  in  him  to  insinuate  any  thing  put  of 
me,  unknown  to  me,  and  daily  to  come  and  go, 
and  give  information  to  the  said  lord  George 
Germain  ?  I  should  hke  that  your  lordship 
would  take  it  into  your  consideration,  as  in  the 
eight  of  God,  whether  such  a  persod  has  a 
right  in  the  sight  of  God,  and  according  to 
the  laws  of  man,  and  of  this  kingdom,  to  give 
evidence  against  a  man,  that  his  evidence 
ought  to  be  regarded  ?  He  that  may  have  been 
able  to  betray  me,  and  speak  things  in  the 
dark  of  me ;  he  is  able  also,  I  think,  to  give 
the  lie  to  any  man,  through  motives  of  gain, 
er  any  other  motives  whatsoever ;  ;^our  lord- 
'  ehip  can  consider  that  in  your  own  mind,  much 
better  than  I  can  apeak  it,  as  I  am  not  endowed 
with  oratory. 

'  '  Cserl,  Do  yea  ceit  your  defeace  on  that 


■  • 


JViisner*  Wilb  f^ipeet  la  aaf  aft«  iA; 
aamaa  tbeloiay^baealS  agaiaal  M.^tti$i 
aay  pesitive  liMt  caa  fc'  aawwi  MSBat  mkl 

eet|rt  will  praeeed  aooarmmif  tlft  WKm^mM 
tba  eonntry.  I  have  om^  tfiaa-  maaalaaf  | 
IweoM  pola  fcw  y astimw  la  Ibia  bhb^» 
flaUwui.  '  ■«..... 

JUhi  BaUsia  enaaiMf  bgr  «M  TiPfM^ 

1  tbmk  yea  gav  i  es  irfeaca ,  that  1 1 
aaldto  yea,  tbateo  FiMay  tlia 
last,  1  weat  into  the  He«p>h  ■■aspaawagwi 
bis  Brttaaaie  maleoly'a  yar^  la  BM^Sbf 

— idy. 

Aad that T  weat bilbera  with aaaaaid» 
tibbia,  aad  NgbteA  enaa  haaial^Yeii  h 
order  to  aet  ire  to  the  ooaabiMlihHa. 

Do  yoa  apeak  of  IMitiaff  •  flaMe,  er  faglf 
the  tlnag  Ngbler  r--Sro«  aaid  it  mi  wSSi 
that  It  waa  to  make  it  lia  lifhc 

It  is  aot  my  bariaeas. to  iaay  coiaf  la  te 
terbnry,oreeaiHait;  dawonaay,  thUlflii 
1  went  to  Caalmbury  aad  had.  tha  iia  Biiipi 
madeP—- Yea.  ■  •» 

Yoa  alee  aay,  that  I  oaid,  thallMathha 


pamportP— Yea} 

Frimiur,  There  am 
aay,  that  I  was  at 


sutoraavea, 

•Christmaa,  aaetber,  bafeta  or 
November;  oftbe other thraa^taFaspsritrfk 
aaaooner:  respecting  the  Freaeh  peaspsdid 
haa  heea  foand  at  Fsdaaaoatb,  it  aeeam  Is  at 
inconsistent  how  it  osn  be  nay  paaapert,  asid 
the  same  time,  1  to  be  at  Gaoterbary,sriiy 
where  in  England  at  the  time  mentioned  $  da 
date  of  the  pamport  ia  the  13th  of  Nsvsihf; 
if  1  can  brin^  these  two  artidee  to  bstff  t 
seems  very  unintelligible  to  me,  for  it  iassMCib 
that  I  said,  that  is  my  paasport,  and  agaia  kii 
sworn,  that  I  was  in  England  at  that  tinw;  thi 
is  equal  to  the  good  gentlenaui,  that  aaid  I  hd 
power  to  alter  the  colour  of  my  own  hair;  if 
there  is  any  thing  brought  againat  ase  tkd  ii 
positive,  1  am  ready  with  the  mateat  plmaiy 
by  the  help  of  Almighty  Gtod,  to  receive  di 
punishment  of  the  laws  of  the  coontry,  be  elK 
It  will :  there  are  other  thinga  anrprim  9$ 
more  than  that :  1  have  nothing  oaore  ts  aj» 
my  lord. 

Counsel  for  the  Ctimnu   We  have  daae  fid 
our  evidence.  • 

Court.  Will  you  call  any  witnesses  ? 

Prisoner,  For  what  end  ?  till  eomcdnag  it 
proved  positive  against  me,  I  intend  no  defalk 
10  the  world.    1  am  r 
cording  to  justice. 


ready  to  live  er  die•^ 


Mr.  Baron  Hotham.  Gentlenseaaftbe  J«}» 
The  prisoner  at  the  bar  etanda  hsdietsd  Awai- 
ting on  fire,  and  proeuriag  to  be  est  sa  fi^ 
the  Rope-hoHie  ui  thi'D<*k*yaid  U  Mt 


1349]      far  netting  Fire  to  Poritmouih  Rope-Houie.       A.  D.  1777. 


■loath;  and  before  I  lum  up  the  eridence  to 
yoa,  I  will  make  one  general  observation  ;  that 
though  it  is  impossible  for  any  laof^uage  toag- 
grtLWBte  this  offence,  yet  it  is  not  for  you  now 
to  feel  the  magnitude  of  that  crime ;  you  are 
to  divest  yourselves  intirely  of  all  the  horrible 
ooDsequences  of  the  perpetration  of  it,  and  ap- 
ply your  consciences  to  this  single  fact ;  Is  this 
pnsoner  guilty  or  innocent  of  this  offence  ? 
VFhat  the  censequences  of  it  are,  or  might  ha?e 
been,  I  wish  you  not  to  think  of;  because  it  is 
M  human  nature  to  feel  prejudices,  that  one 
wishes  at  such  a  moment  as  this,  juries  should 
forget.  1  am  sure,  therefore,  you  will  now 
think  of  nothing  but  the  plain  simple  fact  it- 
•elf ;  and  whether  it  is,  or  is  not,  supported  by 
the  evidence  you  have  heard. 

Gentlemen,  the  first  witness  is  James  Russell, 
who  says  he  is  clerk  to  the  clerk  of  the  Rope- 
yard,  and  that  upon  Saturday  the  7th  of  De- 
cember last,  at  half-past  four  o'clock,  he  first 
perceived  the  fire  by  which  the  Rope-house 
was  consumed.  There  were  hemp-toppings  in 
the  middle  loA,  and  cordage  on  the  ground 
floor:  and  that  was  the  usual  repository  for 
both ;  much  of  it,  he  says,  was  burnt.— This 
witness  was  called  to  prove  the  fact  of  the  fire 
itself;  which,  though  too  notorious  to  doubt 
•boot,  was  necessary  to  be  proved  in  evidence. 
He  says,  on  the  15th  of  January  he  found  a 
tin  case  in  the  Hemp-house,  on  the  ground 
floor ;  and  upon  its  lieing  produced,  he  says, 
it  appears  to  be  the  same — he  has  no  doubt 
ot  all  about  it.  He  told  you  that  there  was 
a  box  in  it,  but  at  the  time  it  was  found, 
tbere  were  besides,  matches,  tar,  and  oil,  in 
die  wooden  box ;  but  the  tin  box  and  the 
wooden  box  were  then  separate.  He  says, 
be  found  also  a  bottle,  which  had  had  spirits 
of  turpentine  in  it ;  he  found  all  these  things 
io  the  Hemp -heuse,  just  by  the  box :  its  situa- 
tion was  in  the  center  of  a  mow  of  hemp; 
and  it  had  the  appearance  of  concealment, 
though,  he  says,  a  person  by  going  up  to  the 
upper  end  of  it,  if  ne  had  bad  a  suspicion  or 
apprehension  of  it,  might  possibly  have  disco- 
rered  that  such  a  thing  was  there.  He  aays, 
there  was  a  great  deal  of  loose  hemp  near  it, 
and  there  was  some  dunnage,  which  I  under- 
stand to  be  cuttings,  or  refuse  of  hemp,  which 
leemed  to  lie  under  the  box  and  the  canister. 
There  was  also  some  brown  paper  lying  near 
it,  and  from  the  appearance  it  bad,  it  seemed  to 
him  to  have  been  all  thrown  in  together  over 
the  bundle  of  hemp  upon  the  mow  ;  and  by 
falling  against  the  mow,  they  had  separated. 
tiowy  geutlemen,  it  is  material  for  you  to  under- 
stand, that  all  these  several  things  were  found 
io  this  place,  because  in  the  course  of  the  evi- 
dence you  will  find,  most,  if  not  all  of  them, 
particularly  accounted  for ; — he  says,  that 
tbere  was  hemp  in  the  place ;  that  both  it  aod 
the  Hemp  house  must  have  been  consumed  if 
the  fire  had  happened,  for  you  will  recollect, 
though  fire  was  attempted  to  be  set,  as  well  to 
the  Hemp- bouse  as  the  Rope-house,  the  pro- 
ridence  of  God  did  interpofe,  and  pre? jBOt  thitt 
^ialdugeffe^ 


[IS50 

William  Tench,  the  next  witneM,  says,  tha^ 
he  saw  the  prisoner  at  his  master's  house  just 
without  West  Gate  in  Canterbury ;  and  he 
thinks  it  was  about  a  month  or  six  weeks  before 
Christmas.— The  observation  which  the  pri- 
soner has  made  in  his  defence  is  very  true ; 
namely,  that  all  the  witnesses  from  Canterbury 

S've  rather  a  different  account  about  the  lime ; 
ey  are  none  of  them  very  particularly  pre- 
cise ;  they  all  speak  rather  at  large  about  it. 
But  it  does  not  seem  to  me  to  weaken  that  evi- 
dence, because  five  or  six  different  people  do 
not  all  concur  in  their  recollection  of  the  very 
day  when  the  person  was  at  Canterbury  ;  and 
when  they  speak  cautiously,  it  is  not  to  be 
wondered  at,  that  they  differ  a  little,  a  few  days 
or  a  week  in  their  account    This  witness  says, 
that  it  was  a  month  or  six  weeks  before  Christ- 
mas, and  that  he  himself  made  the  tin  machine 
for  the  prisoner ;  the  first  time  he  was  applied 
to  upon  this  business  was  on  the  Monday  be- 
fore last,  and  that  was  particularly  asked  hiroy 
in  order  I  suppose  to  show  you  a  material  cir- 
cumstance, that  this  was  after  the  prisoner  hatl 
confessed  the  whole  himself  to  Baldwin.    But 
when  I  use  the  word  *  confession,'  it  is  proper 
now  at  the  outset  to  make  one  general  observa- 
tion to  ytu  upon  the  evidence  of  Baldwin.     I 
do  not  look  upon  this  as  being  strictly  a  confes- 
sion of  the  prisoner :  but  it  was  evidence  which 
the  man  himself  chose  to  disclose  to  Baldwin 
without  any  solicitation  whatsoever,  and  without 
any  promise  or  engagement  of  secrecy.     It 
seems  to  have  come  from  the  prisoner  himself 
spontaneously ;  and  as  far  as  we  have  the  evi- 
dence before  us,  Baldwin  does  not  seem,  io  any 
of  these  conversations,  to  have  sought  a  disco- 
very from  the  prisoner ;    but  it  has  all  come 
from  the  prisoner,  and  not  from  Baldwin,  and 
therefore  what  the  pnsoner  has  said  in  his  de- 
fence by  way  of  objecting  to  Baldwin's  evi- 
dence, does  net,  in  my  apprehension,  weigh 
much  in  the  consideration  of  this  question. 

Tench  then  proceeds  to  say,  upon  being 
cross- examinefl  by  the  prisoner  himself,  that  he 
knows  the  canister  very  particularly  by  the 
seam  in  it,  and  that  he  knows  the  seam  by  its 
being  very  bad  solder ;  that  he  took  particular 
notice  of  the  badness  of  the  solder  when  the 
prisoner  came,  and  that  he  can  swear  to  that 
solder  any  where :  that  he  knows  the  prisoner 
by  his  person,  he  thinks  also  by  his  hair,  but 
he  is  positif  e  that  he  had  the  same  sort  of  coat 
on  as  he  has  now. — He  says  he  does  not  pre- 
tend to  recollect  the  particular  day  that  he 
made  the  canister. 

Elizalietli  Boxell  says,  that  she  saw  the  pri- 
soner the  day  before  the  Rope-houNc  was  on 
fire  at  her  own  house,  in  Biirrack-street,  Ports- 
mouth :  that  he  took  a  lodging  of  her,  and 
lodged  there  one  night,  which  was  the  uight 
lietore  the  fire.  And,  gentlemen,  her  evidence, 
aliittracted  from  bringing  it  home  to  the  pri- 
soner that  he  was  at  Portsmouth  at  the  very 
time,  is  extremely  material,  if  yon  give  h^ 
credit ;  inasmuch  as  she  speaks  to  narticular 
work  vid  operatfonf I  upon  which  m  found 


J 


1351]  17  GEOKGE  III.    THat  qf  James  IliUdlias  John  the  Painter,    [138! 


him  einployeil;  for,  she  says  that  thut  very 
Ili^ilt,  when  he  was  at  her  huose,  she  observed 
a  vcrv  iii^ly  sniphurous  smell  in  his  room  ; 
and  she  smrit  it  agruin  on  the  Saturday  rooro- 
in^; :  bhe  was  so  uneasy  at  it,  that  she  went  up 
BtairH,  she  pushed  open  the  door,  and  found  the 
ronin  full ot' smoke;  she  asked  him,  with  fp'eat 
anxiety,  what  he  was  about  ?  She  saw  that  he 
had  been  burning^  something;  by  the  side  of  the 
liro,  and  on  the  iiearth  itself:  she  said  she  took 
a  candle  fmrn  him,  but  observed  it  was  not  the 
same  candle  she  had  carried  up.  She  says, 
he  was  doin^  something*  too  on  the  chair.  She 
then  went  down  stairs,  but  returned  again  im- 
mediately ;  and,  in  that  interval,  she  havinnf 
opened  the  window,  and  he  having  shut  it,  she 
told  him  he  should  not  shut  the  window,  and 
insisted  upon  its  beingf  kept  open. — I  say,  gfen- 
tiemen,  this  is  material ;  because  as  this"  case  is 
to  depend  entirely  upon  a  chain  of  circum- 
stances, you  must  lay  all  of  them  attentively 
together,  and  circumstances  may  form  such  a 
body  of  evidence,  as  shall  be  abundantly  stronger 
than  where  two  or  three  witnesses  swear  to  a 
positive  fact.  If  you  should  think  this  case 
stands  upon  such  circnmstances,  you  will  draw 
your  ouu  conclusion  :  if  you  think  the  circum- 
stances are  not  strong  enougrh  to  brinor  the 
cliar^re  home  to  the  prisoner,  you  will  then 
discharge  your  consciences  by  saying  so : 
but  upon  every  little  circumstance  you  must 
hang.  This,  therefore,  i^  material  to  recollect. 
The  prisoner  is  empli»yed  visibly  in  some  pre- 
paration of  combustible  matter  over  nit^ht,  and 
next  morning  ;  the  iiic  hapnens  that  very  day. 
That,  therefore,  ynu  will  take  as  one  circum- 
stance. IShe  then  mentions  another,  which 
turns  out  to  be  alro  material,  which  is,  that  on 
the  Ftiday,  looking  into  the  prisoner's  bundle, 
she  for.iid  in  it  part  of  an  old  shirt  and  a  pair  of 
leather  breechts  upon  a  tin  case:  now,  you 
have  had  it  in  e;  idcucc,  (hat  a  tin  case  was  found 
in  tlie  llemp-housc  ;  islie  says,  she  \iewed  this 
tin  case  a  quarter  of  an  hour,  and  therefore  is 
verv  particular  in  swearing  that  it  is  as  much 
like  the  case,  which  has  been  produced  to  you, 
as  any  i bins'  cun  \)o :  she  says,  she  was  so  much 
alariiiiid  at  liitf  procccdin(;s,  that  she  ordered  him 
out  of  her  house,  and  indeed  she  says,  that  she 
ivonid  Mi)t<joitthe  room,  lie  said  he  wanted  his 
candle ;  she  hid  him  take  it  as  he  went  down  ; 
that,  !>yanil  by,  may  turnoiUalsotobeacircum- 
stuaiv  lit  to  he  reuieinhered.  She  says  he  took 
auav  the  bundle,  hutshedoes  notknow  whether 
th(.'  eudlKti  r  wu»  in  it  at  that  time  ;  she  had  seen 
it  on  tl;t>  I'Mday,  and  this  wa<«  on  the  Saturdn}'. 
Thin  Mr.  Coiiiuiissioner  (lauibier  produces  the 
Liimii.'  \^  hich  he  roccivcl  tVoni  his  clerk,  John 
Jelli  .t'vs  on  ilie  21i»l  of  February  ;  it  is  shewn 
t<»  3Jis  IJuxr.l,  who  hay?,  she  does  believe  that 
|u  be  I  In*  N'line  hll.'idle. 

J'Mui  .l'Jfcr«'\s,  who  delivered  the  bundle  to 
Mr.  (i.iinMi"',  *ii\s,  that  he  ha»i  no  douht  about 
the  ii  uidkerctiiej',  whir.ji  incloses  the  contents, 
heino;  :hf  sanje;  he  s:iys,  ihal  on  the  evening 
of  the  ':^Oth  (d'  February,  he  had  orders  to 
search  all  about,  aud  particularly  in  North- 

t 


strest,  aad  he  found  the  bundle  io  North-itmt 
at  a  Mrs.  Cole's. 

Mrs.  Cole  being  called,  says,  that  she  koon 
the  prisoner;  that  he  came  to  her  hnnseoD  the 
day  of  the  fire,  and  took  a  lod^og  there ;  tliit 
he  left  a  bundle ;  and  looking  at  the  bundle  no* 

troducedy  she  says  it  has  all  the  apnearsikoerf 
eing  the  same  bundle.  Mr.  Jeffereys,  ul 
another  person,  she  says,  bad  it  from  ber;  tkit 
she  never  opened  it  whilst  she  had  it ;  thai  dw 
bundle  was  not  tieil  quite  close,  and  she  nvi 
little  way  into  it.  She  says  the  prisoner  caM 
to  her  house  in  the  forenoon  ;  that  he  stiid  i 
quarter  of  an  hour,  and  went  out  about  11 « 
12  o^clock. 

William  Abram,  a  blacksmith  at  Portsnoutb, 
says  he  lodged  in  the  sanae  room  with  the  pri- 
soner at  Mrs.  BoxelPs;  the  prisoner  asked  tbe 
witness  if  there  was  any  pressing?  He  aid, 
yes,  there  w»6  a  very  hot  press.  The  prisooir 
said,  suppose  they  were  to  take  up  such  amaa 
as  me,  I  could  give  no  other  account  of  mjself 
but  from  writings  in  my  pocket.  Then  be'ask- 
ed,  if  a  man  was  to  get  into  the  justice\  liand, 
could  there  be  anv  way  of  escaping?  Tbevii- 
ness  said  no.  Vfhy  not  e8ca|ie?  said  the  pri- 
soner, Why  there  are  very  high  walls — itby 
is  there  no  way  of  getting  over  the  walls.*— Im 
said  no.  The  witness  says,  that  then  the  pri- 
soner said  there  was  one  Brof»ks  io  Ness^ite, 
that  he  knew  would  be  hang'ed.  He  sa\stk« 
prisoner  had  yellow  buckles  on,  but  he  caaiiot 
swear  to  the  buckles  that  are  shewn  hin 
(which  are  part  of  the  contents  of  the  bnodlp), 
being  those  buckles,  though  they  are  ibe 
same  pattern.  Now,  upon  this  eiideore.  I 
would  make  this  observation ;  that  Abram 
proves  the  identity  of  the  prisoner ;  he  prorrt 
too  his  lodging  at  Mrs.  Bo.xell's  house,  so  that 
he  confirms  her  evidence,  and  to  his  hn!^'^ 
there  at  that  parlimlar  time;  aud  then  the 
bent  of  the  prisoner's  conversation  withlaiR, 
(for  you  are  to  take  the  whole  evidence  to-je* 
ther)  you  may,  perhaps,  think,  implies  tli&t 
he  then  had  something  in  contemplation,  vbirH 
might  induce  him  to  wish  to  make  h.» 
escape. 

The  next  witness  is  John  Baldwin  ;  this  wa 
see  is  the  material  witness,  upon  whose  ac- 
count ver}'  much  uill  depend.  J  did  reador^r 
his  evidence  before  to  the  prisoner,  as  he  \ti>li* 
ed  to  hc-nr  it;  but  1  will  repeat  it  now  iowu. 
John  Baldwin  says,  he  first  saw  the  prisom'r  oi 
the  7(h  of  February,  at  sir  John  Fieldiiiir's 
having  been  sent  there  by  my  lord  Temple. 
because  he  thought  he  might  know  the  pri- 
soner, as  he  was  a  painter,  and  hud  liveil  lo 
America,  and  the  prisoner  was  descrilieii  ai 
having  been  there;  he  says,  tU^i  he  hjjiscir 
had  been  at  Amhoy,  ut  New  York,  and  at  Tlii- 
ladelphia;  he  says,  he  tohi  sir  John  FiilJie.; 
that  lir  had  never  seen  the  prisoner  ;  tiut  lU 
prisoner  heard  him  say  so,  and  made  him  a 
bow  :  he  afterwards  saw  the  prisoner  in  another 
room,  and  the  prisoner  beckoned  to  him,  an^ 
he  sat  down  by  him  ;  and  then  he  entered  ifiit 
a  little  discourse,  and  asked  him  who  hs  kuiv 


R/op^Ht 


A.  D.  1777. 


[ISM 


there  ?  be  mentiooed  sereral  people,  |>ftrt]Cohir- 
\y  some  painters ;   and   he  told  him,  **  you 
•re  Dot  like  the  other  evidences,  who  have 
■worn  falsel]|r,  but  yon  are  a  gentleman,  and  I 
iritb  it  was  in  mv  power  to  mike  you  a  satis- 
fiiction,*'  and  said  he  Sliould  be  glad  to  see  him 
in  New  Prison  :  he  says,  at  near  four  o'clock 
be  went  there,  he  went  into  a  comer  between 
the  two  gates,  and  there  he  discoursed  a  good 
«leal  with  him  about  America,  and  desired  him 
to  come  again  the  next  day.     Lord  Temple 
sent   him,  in  consequence  of  this,   to  Ibrd 
George  Germain ;    and  they  both  thought  it 
inaterial  that  he  should  go  to  the  prison.    Ac- 
eordingly  he  went  again  the  next  day,  and 
bad  a  good  deal  of  discourse  with  the  pri- 
soner ;   the  prisoner  told    him  he  found  he 
^as   an    American    by  principle,   but  what 
countryman  was    he?     He  said    he  was  a 
Welshman ;   "  Why,"  said  he,  "  I  find  you 
•re  interested  for  America,  howcTer."    Then, 
be  says,  he  told  the  prisoner  that  he  was  mar- 
ried  at   Aroboy,   and   they  Ulked  about  the 
witness's  family.    He  waited  upon  him,    he 
says,  from  day  to  day,  till  the  15th,  and  in  the 
course  of  all  that  time,  nothing  but  general 
discourse  passed  upon  the  subject  of  America; 
but  upon  the  15th  he  made  material  divcove- 
ries ;   he  then  began,  and  he  told  him  all  the 
particulars.    I  do  not  mean  that  he  told  him 
all  upon  the  15th  of  February  :  but  I  collected 
from  his  evidence,  that  the  substance  of  what 
be  has  tfild  you,  all  passed  subsequent  to  the 
I4th  of  February  ;  and  among  other  things, 
be  asked  him,  '*  Do  you  know  one  Mr.  Deaue  ? 
he  said  no.  <•  What,  not  Mr.  Deane,  employed 
%X  Paris  by  the  Congress  ?"— No.   «•  What,  not 
Silas  Deane  !'»-^No— »  He  is  a  fine  fellow ;    1 
believe  Benjamin  Franklin  is  employed  about 
the  same  errand."     And  then  he  told  him  that 
be  hail  taken  a  view  of  most  of  the  dock  yards 
and  fortifioHtiuns  about  England,  and  particular- 
ly the  number  of  guns  in  each  shin  of  the  navy, 
and  the  weit^rht  of  their  metal,  and  the  number 
of  men ;  and  he  vaid  he  had  lieen  at  Paris  two 
or  three  timeM,  to  inform  Silas  Deane  of  the 
particulars  of  what  he  found  in  the  dock-yards ; 
that  Silas  Deane  was  greatly  pleased  with  what 
he  had  done,  and  he  acquainted  Silas  Deane 
in  what  manner  the  dock-yards  were  to  be  set 
Ml  fire ;  and  Mr.  Deane  was  amazed  he  could 
undertake  to  execute  it  in  such  a  manner  alone ; 
but  he  told  him  he  would  do  more  execution 
than  he  could  imagine,  or  any  person  upon  the 
face    of  the  eatth.    Deane  asked  him   what 
money  be  wanted  to  carry  his  scheme  into  exe- 
cution ?  he  said  not  much ;  that  he  ex|»ecte4l 
10  be  rewarded  according  to  his  merit.    Silas 
Deane,  however,  he  said,  gave  him  bills  to  the 
imount  of  300/.  and  letters  to  a  great  man,  a 
considerable  merchant  m  the  city  of  London. 
In  his  discourse  wiih  the  witness,  heexpress- 
h1  his  anxiety  to  know  whether  my  lord  Corn- 
nrallis  hatl  been  defeated  iu  America  ;    be  said 
16  knew  Washington  personally,  and  believed 
bim  to  be  abler  than  geseral  Howe.    That  he 
iroDld  watch  and  haraai  gei^^l  Howe,  aod 


he  was  sure  the  Americau  would  ooaqner  thii 
winter;  but  the  grand  campaign  was  to  be  in 
the  summer.    He  said  he  only  wanted  a  lew 
experienced  officers,  which  he  believed  would 
be  supplied  from  France.    That  Silaa  lieano 
was  appointed  at  Paris  for  that  purpose,  and  to 
buy  stores  and  ammunition ;   but  as  to  cannon 
ball,  they  bad  enough  in  America,  particularly 
somewhere  in  Maryland,  to  supply  all  Europe; 
and  likewise  pitch,  tar,  and  turpentine.    He 
says,  from  the  7th  of  February  to  the  84th,  be 
was  with  him  e?ery  day;  and  mostly  twice  a 
day :  the  prisoner  told  Inm  among  other  thingi, 
that   he  arri?ed    at  Dover  from  Paris,   aod 
went  to  Canterbury. — Now  here  you  see  ap« 
pears  the  materiality  of  the  Canterbury  evi- 
dence.   That  he  went  into  a  shop  at  Canter- 
bury, and  bespoke  a  machine  to  be  made  which 
they  called  a  canister ;  the  master  to  whom  \m 
applied  he  said  was  a  stupid  fellow,  and  did  not 
understand  him  ;  but  tbe  boy  was  more  inge- 
nious ;   though  he  was  obliged  to  stay  by  him 
to  instruct  him.    Now  that  boy  you  see  haa 
been  called,  and  confirms  this  part  of  Baldwin's 
evidence,  by  swearing  positively  to  tbe  pri- 
soner being  the  man  who  came  to  his  master's 
shop,  who  bespoke  the  canister — for  whom  he 
made  the  canister,  and  who  took  away  the  ca- 
nister.   That  the  prisoner  told  him  be  gave  the 
boy  something  to  drink,  and  then  he  went  into 
a  public*  bouse  with   the  canister  under  the 
breast  of  his  coat ;  that  there  was  a  dragoon  in 
the  bouse  with  whom  he  had  some  words,  ami 
that  the  dragoon  opened  his  coat  to  see  what 
he  had  in  it. — ^The  dragoon,  you  will  recolleot, 
is  called,  and  he  confirms  this  story,  not  direct- 
ly, but  in  such  a  way,  as  leaves  you  very  little 
room  to  doubt  about  it ;  he  does  not,  you  will 
recollect,  swear  positively  to  seeing  the  actuAl 
canister  itself,  but  be  saw  something  under  the 
breast  of  tbe  prisoner's  coat  shining  and  glitter- 
ing like  tin :  and  he  mentions  tbe  circumstance 
of  the  prisoner's  having  had  a  quarrel  with  hie 
comrade,  which  the  other  dragoon  also  con- 
firms him  in,  though  both  of  them  swear  cau- 
tiously to  the  identity  of  the  prisoner.    The 
witness  says  the  prisoner  told  him  that  from 
thence  he  went  to  Portsmouth,  where  he  took 
a  lodging  at  Mrs.  Boxell's ;  and  there  he  tried 
his  preparations.    Now,  gentlemen,  1  think  I 
am  warranted  in  saying,  that  Mrs.  Boxell's  evi- 
dence was  very  material,  inasmuch  as  he  him- 
self, in  his  discourse  with  the  witness,  has  con- 
firmed her  testimony  in  the  strongest  degree: 
for  he  tells  him  here  what  she  told  you  belore, 
that  he  was  employed  iu  her  house  iu  preparing 
and  in  trying  these  combustibles.    He  goes  on 
and  says,  that  there  were  matches  made  of  a 
sheet  of  whited- brown  paper  being  folded  op  in 
ten  or  twelve  folds ;   amd  he  told  him  that  this 
was  the  method  in  which  he  made  them  in 
order  to  be  done  over  with  a  coni|H>8itiou  of 
charcoal  and  gun-powder ;  that  is  a  small  cir- 
cumstance as  it  passes ;   but  you  will  recollect 
it  presently,  as  being  perhaps  nisferial :    Un 
cbareoal  he  said  niust  be  finely  pounded  upon 
a  coh>ur>itoo6y  luch  m  painten  use,  in  order  16 


1355] 


J7  GEORGE  in.     Trial  nf  James  im  alias  John  the  Painter,    [V. 


I 


I 
I 


make  it  efffctual:  he  uid  the  ptpe 
tluiiblfc)  brrure  it  «u  dune,  in  orikr  i 
ib  cracking.  Now  Ihtre  w»  n  wiln 
afieriTu'd*,  relaiiTe  in  wliat  |iai»«il  i 
irliD  ii  a  painter.  You  nill  recollect 
siroiiB  (bat  he  shoiilij  tleer  clear  of  ilrupiiingany 
lhini;ahDuI  Ihe  calamity  that  we  have  all  lira ril 
of  at  llrialol;  because  we  are 
charily  ur  justice  at  liberty  to  enppoae,  thai 
■his  jirisoner  had  any  the  remoleal  Ci 
tinn  vriili  what  bappeoecl  at  Bristol. 
Ibe  etidence  was  material  in  lliis  wi_. 
ptttte  liira  at  Bristol,  merely  tiir  Ihe  purpose 
of  uouiirmiiig  that  part  of  tlalili  '  '  " 
where  he  teiJ  l'h<  priaoner  lolU 
allerwanis  to  Bristol,  and  to  prove  him  to  haie 
been  wiih  Mason,  the  (winter.  It  shews,  loo, 
that  he  knew  bow  tu  moke  this  preparation, 
and  that  io  fact  he  did  hiuiself  apply  to  Ibe 
{iiiDter  to  grind  charcoal  upon  a  alojie,  Ibr 
Home  [lurpoie  or  another ;  what  that  purpoae 
t*aa  is  no  considerntion  ur  ours,  nor  was  tha' 
the  tiew  with  witich  the  evidence  was  called  , 
but  however  he  k(iew  ihal  wb9  Ihe  method  of 
grinding  charcoal,  and  iherel'ure  it  coiilirms 
Baldwia,  in  some  measnre,  in  llija  pari  of  bii 
relatifin,  The  witness  aaya  he  lold  him  thai 
Ibe  gunpowder  does  not  require  much  t^rind' 
inir;  thai  might  beiua>bed  with  a  knifi:,  ai 
painters  mix  vermilion :  but  they  roust  be  very 
particular  in  mixing  Iheae  two  bmliea  together : 
the  charcoal  is  ground  in  water,  then  mixtNl  tit 
to  the  consistency  of  new  milk,  and  then  Willi 
a  aotall  brush,  ine  paper,  ihal  is  to  make  thi 
match,  ia  puioted  over  wilh  it:  and  it  is  so  inn- 
uagtnJ,  that  the  nintch  will  lust  S4  bnnrs.  Yuv 
will  imagine,  I  dare  sty,  wilhout  my  telling 
^ou,  that  il  ia  material  fur  any  person,  who  in- 
t'n'la  lu  rHrry  inl'>  rKecutinn  such  a  |iur]>0Be  ni 


1,  thai  it 


}uld  r 


:  bei^: 


^nted  ti 


iv  is  of  importance  ihnllt  ihonld  he 
abuut,  in  order  to  faoililale  the  party'«  rscape 
and  therefore  il  is  to  he  so  contrived,  that  it  I 
not  instantly  to  lake  fire.  He  luld  ilie  witness 
be  lodged  at  Mr*.  Boxcll's  one  nijfht,  but  she 
was  a  very  impudent  woman,  fur  she  had  open- 
ed bis  bundle  during  his  absence.  The  lin  ma- 
chine, be  said,  was  n  curious  contlructlno  of 
his  own  invenlioo ;  and  in  that  we  ah  go  along 
with  him  ;  il  most  certainty  ia  a  curious  in- 
vention ;  and  it  ia  only  a  pity  thai  it  was  fnr 
inch  a  purpuse.  He  tnid  him  he  had  a  wooilpn 
box,  which  WHS  made  wilh  a  hole  in  the  ccnlre, 
lo  put  a  candle  into  il ;  and  in  ihat  box  he  pul 
tar,  turpentine,  and  hemp,  lie  said  the  can- 
nister  fitted  the  box  so  well,  Ihat  when  the 
candle  was  put  in,  nohody  could  pcrodve  any 
light:  then  he  told  him,  that  on  the  (]lh  of  De- 
cember, he  went  into  the  yard,  and  got  into  Ihe 
Uemp-house,  where  there  was  a  deal  of  hemp, 
BO  tight  malted,  that  he  could  hardly  get  it 
apart — that  he  pulled  his  coal  off  to  nnrk  al  it ; 
and  then,  after  lightening  the  hemp,  he  placed 
the  canivter  over  the  bos  with  a  small  candle 
in  it.  Now,  genlleuien,  you  will  recolleet  that 
Mrs.  Boxell  lold  yuu  he  was  very  desirous  of 
having  ■  candle,  when  he  went  away  from  her  i 


house,  and  that  she  told  him  he  might  lake  i 
as  he  went  down  slain.     He  said  (le  sptinl 
Kome  turpentine  alwut  the  hemp  Ihat  vaa  roi 
it;  and  whrn  he  had  done  that,  it  vraa  tt 
time  before  he  fonnd  bis  coal ;  and  when 
found  il,  there  W83a  £ood  deal  of  h^rnptuck 
ahout  il,  which  be  eindeavouTed  to  gel  flffj 
then  wen!  out  of  the  Hemp- house,  and  gut 
the  Rope-house;  aod  belaid  down  a  ^uart' 
tleofipirilsof  lur|>entiue  upon  iu  tide,  i 
hemp  io  it  inalead  of  a  cork ;   he  said  cIm 
the  hemp  be  laid  a  piece  of  painn",  with 
guupowder  in  it,  and  tn  the  paper,  where 
powder  was,  one  of  these  matchea;  and  i 
the  powder  he  laiil  aomu  hemji  lightly  alren 
and  a  (juart  of  turpentine  poured   all  aboni 
Now,  gentlemen,  if  you  believe  the  fact  <{ 
this  accuuol,  to  he  sure  it  is  impoaaible  In  ( 
ceive,  ihat  any  man  could  (ike  lib  mean 
more  eBectually  for  dmng  complete  intacU 
lie  awd,  that  as  soun  as  the  fire  of  the  oil 
touched  the  powder,  it  would  lel  it  all  i 
bbize   presently ;    and  thai    by  cultii^  tb 
matches  iuto  pieces,  it  would  answer  to  I 
lime,  so  that  lie  might  make  bit  escape.    . 
told  him,  llial  the  next  day,  which  wm 
7lh,  he  went  from  Mra.  Bozell's,  and  iwdt  t 
other  lodgings,  une  al  a  public  house,  lliaod 
at  a  nrirate  nnuse ;  and  he  touk  parlienlsr  i 
lice  before  he  took  the  lodging*,  which  ban 
had  the  roost  wood  about  thora,  and  he  w4 
had  these  combustibles  ready  for  aetlii^  tbi 
two  houset  on  fire,  on  the  samo  day  llut  be: 
lire  to  Iht!  Rope-yard,  in  order  tfiathenu 
keep  the  eni;inet  engaged  :  he  lolil  the  waa 
al  the  lodgings  he  took  on  (he  Commoo,  d 
he  was  goinifto  PelersBeld,  and  Wg^ed  bv 
lake  care  of  hia  hundk — that  bundle  veo  '  ' 
an  account  of,  alter  Ihal  he  went  into  tfal  "" 
yard  in  order  lo  set  fire  lo  (be  Ilciiui-liiinA 
and  the  Rope-bouse.     HeCrsi,  he  aaul,  iinl 
into  the  llemp-hunae,  and  struck  a  ligtii;  M 
the  matches  were  very  damp,  and  hecouldaal 
get  Ihe  suljihiir  tu  uke,  and  he  wasted  in  tU 
irial  the  whole  bui  full  of  linder,  and  fale*  It 
1  he  almost  burnt  hia  lips:  tlienbewHl 
away  fnun  Ihe  llenip-hnuse.  in  despair  of  Mt 
lin^  fire   lo  thai,  and  procured  tome  belt« 
matches;   aud  he  returned,  and  got  into  A* 
Rope-house;  and  then  besei  fire  in  the  maub 
Ibnl  led  lo  Ihe  powder,     This  is  the  acpwiot 
he  gave  of  Ihe  manner  in  whiub  he  peT|Hlrst«4 
lis  crime:  he  said  he  had  bought  a  hall'peuaf 
orlh  of  inalches Ihe  day  before  of  a  wnotisi 
lal  woman,  vou  see,  is  called,  in  the  «uhw- 
quent  part  of  ihe  evidence,  and  cutiliriiu  Bald- 
win in  thif  circumiuuce  loo  of  hU  relaliot. 
The  day  he  put  the  preparations  in,  he  a<i4. 
was  BO  lung  about  it,  that  he  was  lo<4r4 
the  Hemp-house,  and  could  not  get  aui; 
he  tried  at  ceveral  dnora,  he  went  iben  up  stiini 
and  pulled  olT  bin  shoes,  and  tried  whethef  N 
could  get  out ;  fioding  that  he  ci>ii(d  not.  h> 
ime  back  to  the  same  door,  where  heaiii^ 
iLiiebody,  he  hnlloed  ;  being  asked  bow  ba 
line  Ihere,  he  uid  it  was  curiosity 
I  Ihe  outside  of  the  door  directed  ' 


ed  bow  baa 
tiiinitIMn 

J 


1357]       Jor  seHing  Tin  to  Portmotdh  jRope-ffouse.        A.  D.  nil. 

ivhich  way  he  should  get  out ;  this  too  is  con- 
firmed so  far,  that  a  person  was  locked  in,  but 
who  that  person  was,  is  not  positiTely  pro? ed. 
He  said,  when  he  came  out,  he  was  much 
Yezed  that  he  could  not  set  the  Hemp- house  on 
fire ;  and  also  vexed  because  he  could  not  go 
to  Portsmouth  Common,  where  he  had  left  a 
parcel ;  which,  you  will  observe,  he  told  him, 
and  it  is  very  material,  contained,  among  other 
things,  a  pistol,  an  Ovid's  Metamorphoses,  a 
book  entitled  The  Art  of  War,  and  making 
Fire  Works,  and  a  passport  from  the  French 
kins^ ;  all  of  which  you  see  are  found  in  it. 
And  in  that  passport,  he  said,  was  his  real 
name,  which  vexed  him  more  than  any  thing  ; 
but,  however,  as  it  was  in  French,  he  did  not 
imagine  that  the  people  at  the  Imlging  could 
read  or  understand  it ;  hut  he  expressed  his 
surprize  that  this  bundle  had  not  been  found. 
He  said,  after  setting  fire  to  the  Rope-bouse,  he 
made  the  best  of  his  way  towards  London ; 
and  that  he  was  so  sorrv  be  could  not  get  the 
matches  to  li^ht,  that  he  had  a  good  mind  to 
shoot  at  the  windows  of  the  woman  where  he 
bad  them :  he  said,  that  he  burnt  the  bills  and 
the  letter  (which  you  will  remember  he  told 
bim  before  he  brought  over  from  Silas  Deane) 
on  account  of  the  behaviour  of  Mrs.  Boxell, 
for  he  evidently  suspected  that  she  entertained 
some  doubt  of  him ;  and,  therefore,  lest  the 
person  to  whom  the  letter  was  addressed,  or 
the  bills  might  lead  to  a  discovery,  he  prudently 
burnt  them  all.  He  said,  soon  after  he  left  the 
yaril,  he  jumped  into  a  cart,  and  desired  the 


woman  to  drive  quick ;  this,  you  see,  is  posi- 
tively confirmed  by  the  woman  who  drove  the 
Tery  cart ;  he  rode  in  it  two  miles,  and  gave 
ber  sixpence  to  go  quick ;  that  he  had  near 
four  miles  to  go  before  he  passed  the  sentries, 
aod  therefore  was  very  desirous  of  getting  past 
tbem ;  and  that  two  minutes  after  he  had 
passed  them,  he  looked  back  and  saw  the 
flames,  and  the  very  elements  seemed  in  a 
blaze ;  he  walked  all  the  way  to  London  ;  and 
in  the  road  between  the  last  sentry,  and 
Kingston,  two  dogs  barked  at  him  ;  he  shot  at 
one  of  them,  aod  believed  he  killed  or  wounded 
him.  The  next  morning,  being  Sunday,  he 
got  to  Kingston,  and  waited  there  till  near 
oosk  ;  he  then  came  in  the  stage  to  London, 
and  waited  upon  the  great  man,  the  merchant 
ID  the  citv  ;  and  he  told  him  that  he  bad  a 
letter  and  bills  upon  him  from  Silas  Deanc  at 
Paris,  but  which  be  had  been  obliged  to  bum. 
The  merchant,  he  said,  seemed  very  shy  of 
bim,  and  said  he  had  received  no  such  accounts 
from  Paris ;  he  answered,  that  he  mi|;ht  think 
what  he  pleased,  but  that  he  was  an  enemy  to 
Great  Britain,  and  a  friend  to  America ;  and 
4bat  be  had  set  fire  to  the  Rope-house  at  Ports- 
mouth, which  he  would  see  in  the  papers  on 
JMIonday.  Baldwin  said  he  could  not  get  the 
oame<of  the  merchant  from  him,  but  the  pri- 
soner said  the  merchant  appointed  to  meet  him 
at  a  coffee*  house,  and  the  gentleman  waited 
there  accordingly  for  him  ;  they  discoursed  a 
Kttla  togttberi  hut  the  ge&tiemaD  leemed  still 


shy  of  him,  and  another  gentleman  in  theJ 
coffee-house  taking  particular  notice  of  him,  bO 
did  not  care  to  stop  long :  he  was  so  angry  that 
the  gentleman  would  not  believe  him,  that  he 
got  up  and  went  to  Hammersmith,  from 
whence  he  wrote  to  him,  and  said,  he  was 
going  to  Bristol,  where  he  would  hear  more  of 
his  haody  works ;  and  you  will  remember  there 
is  a  subsequent  evidence.  Mason,  the  paintery 
who  tells  you  he  saw  him  at  Bristol.  He  said, 
he  arrived  at  Bristol  a  few  days  before  Christ-* 
mas  ;  that  he  got  leave  of  a  painter  there  to 
grind  some  charcoal  upon  a  colour-stone  of  his, 
and  that  the  painter  took  notice  he  was  long 
abont  it :  that  painter,  you  recollect,  has  been 
called,  who  tells  you  that  the  prisoner  did  ap- 
ply to  him  for  the  purpose  of  grinding  charcoal 
upon  a  colour-stone,  and  he  did  according  so 
grind  it.  Then  the  witness  says,  that  he  .gave 
an  account  of  this  from  day  to  day,  to  lord 
Temple  and  lord  George  Uermain,  and  ha 
mentioned  that  the  15th  was  the  first  dav  that 
the  prisoner  diseased  any  of  the  particulars  to 
him.  Now,  gentlemen,  you  see  from  this 
man's  evidence,  there  is  an  exceeding  clear, 
intelligible,  and  consistent  history  giten ;  hut 
if  this  account,  clear  and  consistent  as  it  is, 
were  unsupported  by  other  evidence,  one  might 
perhaps  entertain  some  doubts  about  it;  but 
where  vou  find  it  confirmed  in  almost  every 
material  passage,  where  you  find  it  not  con- 
tradicted in  any  one  circumstance,  you  must 
then,  I  think,  feel  it,  when  so  authenticated,  to 
be  a  very  strong  body  of  evidence  indeed. 

Edward  Evans,  who  is  one  of  the  dragoons^ 
says,  that  he  was  at  Canterbury  from  October 
till  the  Ist  of  February.  But  yon  will  observe, 
that  he  does  not  pretend  to  swear  positively  to 
the  prisoner ;  for  he  says  the  man  is  mucb 
altered  since  he  saw  him,  though  be  believes 
him  to  be  the  same.  He  says  it  was  about  the 
end  of  October,  or  beginning  of  November, 
that  he  saw  him  there,  and  that  too  you  see  is 
contradictory  to  the  other  evidences ;  as  to  the 

Krecise  time  they  do  not  agree,  as  I  told  yoa 
efore ;  but,  however,  he  agrees  in  this  mate- 
rial article,  which  came  from  the  prisoner's 
own  mouth  to  Mr.  Baldwin,  that  he  was  there 
at  the  time  when  he  had  a  quarrel  with  him ; 
in  fact,  the  witness  says  he  had  a  quarrel  with 
him  (supposing  the  prisoner  to  be  the  person) 
at  Canterbury,  and  be  then  saya  that  the  pri- 
soner had  on  a  brown  surtout  coat,  but  he  did 
not  see  what  was  under  his  coat. 

The  next  witness  is  James  Wilson,  the  com- 
rade of  the  last  witness,  who  was  there  at  the 
same  time,  and  who  says  that  he  really  thinks 
the  prisoner  is  the  same  person,  though  he  will 
not  positively  swear  to  him,  and  that  the  dress 
was  the  same  as  he  is  in  now ;  he  remembers 
that  there  was  a  dispute  between  his  comrade 
and  him,  and  he  says  he  did  observe  something 
white  under  his  coat  which  glistened  like  tin. 
John  Fibber  lives  at  Mr.  Tuck's  at  Canter- 
bury, who  is  a  tinman  :  he  savs  he  thinks  he 
has  seen  the  prisoner,  and  he  believH  it  to  be 
about  six  or  aevsu  wssks  before  Christnu  that 


1359] 


17  GEORGE  UL    Trial  of  Janus  HiU  alius  John  tU  Painter,   [1309 


he  saw  him  in  bis  master's  shop ;  Toa  see  ihey  | 
all  vary  a  little  as  to  the  time :  he  ^<«\s  the  pri- 
fooer  ordered  two  canisters,  and  he  ordered 
them  to  be  made  of  a  lon^  M|uare  shape ;  and 
OD«s  of  them  beiuif  produced  now  to  him,  be 
believes  it  to  be  the  same;  and  he  savs  he 


Edward  Carej,  a  shipwright,  sajs  he  visit 

I  PortiDioath  tbe'day  before  the  tire;  atMl  tbtl 
nii;ht  he  remeniber »  a  person  btio:^  shut  up  ii 
the  Hope- house  ;  he  heard  a  |»er»ua  mftkic^  i 
noi«e  in  the  llope-bnu^,  uho  said  be  vii 
locked  in,  and  desired  hioi  to  let  him  oat;  ibe 


doe<«  not  know  wliy  the  prisoner  did  not  take  j  witness  said  he  could  not,  and  went  a«av  ;  n 
them  away,  but  he  left  them  at  their  simp :  -  that  little  circumMancp  too,  meotitmrd  by 
however,  he  say^,  the  prisoner  called  nnce  for  }  Baldwin,  you  set:  is  contirmed  by  this  witoea; 
them,  but  thfv  were  not  then  oiinpieted.  •  he  remeriibcrs  a  person  bein^- liMrked  up  in  the 
Now,  ^eottemen,  upon  this  maii*s  eiidence  you  Ilope-house,  but  yuu  will  obs^rte  thtt  be 
will  naturally  make  this  observation,  that  the  i  does  not  pretend  to  auiy  that  perioo  wat  ike 

Carson,  be  he  who  he  may,  that  uitnted  this  tin  j  prisoner. 
>z,  certainly  wanted  more  than  one  ;  uhy  hr-  j      Then  ^nn  Hopkins   is  called.     8be  is  tbe 
did  not  bespeak  them  all  at  the  same  shop,*  womun  that  drove  t!iv:cjrt  t*)!it  fi\v  fi't^ni  Po;ts- 
caimot  well  lie  accounted  for,  unless  it  be  thai  |  m  'Uth,  into  which  you  recol't-ct  'ae  told  Bal^- 
he thought  so  many  atone  place  nii^ht  Irail  lo    win  that  he  cfot.     She  says  she  saw  the  ^ri' 


some  suspicion.  However,  the  fact  turn<  out 
to  be,  that  he  did  not  stay  for  these  tt^o  being 
made  ;  they  were  left  behind,  and  he  only  car- 
ried off  that  which  has  l>een  found. 


soner  the  day  that  the  Dsck  vi-a«  en  tire  it 
aliout  four  oi  haW  an  hour  p:i»t  fo^irin  tbe&f- 
teruuOQ.  At  that  linte  she  was  comin;;  from 
the  market ;   she  sjw   him   first  between  t!i; 


William  Jialdy  is  nextcaled  ;  and  he  proves  !  Hull  and  Cosbam,  she  dii  n«>t  see  him  LiiLe 


the  prisoner  not  only  in  the  Dock-yard,  but  in 
this  very  buildin^^,  on  the  7th  of  December. 
The  witness  says  he  is  a  r<»pe-maker,  that  he 
has  seen  the  prisoner  in  the  Dock-yard ;  he 
tays  he  saw  the  prisoner  in  the  Itope-houseon 
the  lower  floor,  about  a  hundred  yards  from  the 
east  end  of  it,  on  Saturday  the  7th  of  Decem- 
ber, between  eleven  and  twelve  o'clock,  which 
was  the  day  of  the  fire.     He  says  he  saw  the 

Rrisoner  come  down  from  the  upper  fiart  of  it. 
low  that  too  confirms  the  story  that  Ilaldwin 
has  told  ;  for  the  prisoner  said  he  was  first  in 
the  lower  part,  that  he  could  not  get  out  there, 
and  then  he  went  into  the  upper  part ;  the  wit- 
ness mentions  an  immaterial  passage,  which  I 
need  not  repeat  to  \ou,  about  picking-  up  a 
small  stone,  and  he  had  a  Utile  discourse  with 
him  :  that  was  only  ankeil  to  satisfy  you  that 
he  was  so  long  in  conversation  with  this  pri- 
soner, that  he  could  not  make  any  mistake 
about  his  person,  but  that  he  was  the  man; 
he  stayed  five  or  six  minutes  nith  him,  und 
then  left  him  :    he  savs  he  saw  him  al^out  ten 

mr 

minutes  or  a  quarter  of  an  hour  after  this  at  the 
Ciast  end  of  the  same  iloor  coining  down  stairs  ; 
anil  then  one  William  Weston  being  with  the 
uitness,  the  prisoner  said  to  Weston,  'Mlow 
du  you  do?"  holding  out  his  hands  to  him  ; 
and  he,  thinking  him  lo  he  an  acquuintnncc  nj* 
his,  did  not  stay  to  hear  his  conversation  with 
him,  hut  went  awny.  He  closes  his  evidence 
with  saying,  that,  from  seeing  him  at  these 
dilitTeiit  times,  he  is  certain  he  is  the  man. 

W  illi.iui  Weston  6ays,  that  to  the  best  of  his 
recolU'ction  he  saw  the  prisoner  in  the  Hope- 
house  tlie  day  tlie  fire  was. — He  had  very  little 
convcrsaiiou  with  him  at  that  time;  but  he  is 
i)ositi\e  it  was  the  same  man  ;  for  he  had  seen 
him,  he  says,  seven  weeks  before  walking 
about  in  the  Dock  ;  he  did  not  however  see 
him  come  down  stairs :  these  two  witnesses, 
as  far  as  their  evidence  (;oes,  prove  him  to 
have  been  in  the  Dock-yard,  and  in  that  very 
building  in  the  Dock-yard,  upon  the  day  when 
tlie  tire  happened. 


came  up  close  to  her  ;    lie  i^topped  her  ud 
asked  her  where  she  was  };'r»in:;  ?   ^^be  saidi  i 
little  way ;   he  said   be  wuuld  ^ire  her  at 
thing  to  give  him  a  lift,  for  he  wav  goio^io 
Peterafielu  that  night,  and  was  nfraidhe  fthouU 
be  belated  ;    and  intreaied  her  lo  drive  a«  iMt 
as  she  could.     When  -he  came  into  the  can 
she  observe<l  he  was  much  out  of  breaih;  fbe 
told  him  she  was  to  stop  to  buy  a  pair  of  pi'* 
tens ;  she  did  accordingrfy  stop  at  a  shop ;  sbe 
was  to  pay  a  shilling  for  them ;  the  prisiivr 
threw  down  siipence,  and   then    he  sai'l,  U 
wished  he  could  get  a  returned  chaise;  laJ 
when  she  stopped  a  little  before  ^he  came  (•> 
her  own  house  to  give  her  hurse  somedruk, 
he  jumped  out,  and  ran  away  along  the  l/t- 
don  road.     Mow,  with  respect  Vt  this  eridenn 
to  be  sure,  any  person,  totally  nnconccroeJ  1:1 
any  guilty  deed,  might  Ik^  anxlou*  v*  u^i  •■ 
Pelersfield  ;    mi;:ht   be  afraid    of    beinj:  '<• 
ni&rhted  ;  might  wi^h  her  to  drive  mt)  i.-^i 
all  that  might  happen  very  uatiiraliv  ui;:.!-Ji 
any  imputation  upon  the  party  ;    hui',  as  1  ^i^ 
before,  you  are  to  lake  iliis  case  with  all  us  Cir- 
cumstances together  ;  and  every  liiile  rirciK' 
stance  weighs  something ;    and    i(  yuu  sii  jU 
trace  the  prisoucr  to  the  very  place,  aliu?>t  ^ 
the  moment  of  the  lire,  if  you  trace  him  Iciriu: 
the  place  immediately  alter,  and  heiii^;  m  tii.f 
state,  out  of  breath,  eager  to  sfet  olf,  presc.' 
the  woman  to  drive  on,  anxiuus  to  get  a  it- 
turned  chaise,  jumping  uut,   and  running  for- 
ward when  she  stopped  ;  laying  these  c.icuai- 
stances  together,  with  all  tlie  others,  lobesiHf 
ynu  will  be  jnstiOed  if  you  entertain  yome  iitf' 
picions  about  his  motive.     Hut  all  this)'>u«:^ 
weigh  together  with  the  many  various  circua* 
stances  of  the  case. 

Klizat)eth  Geuteil  says,  she  lives  on  IVro* 
mouth  Common.  She  saw  the  pris4>ner  at  Ix^ 
house  the  day  before  the  fire  ;  lie  came  titfr 
and  asked  her  for  a  halfpennv-wonh  of 
matches.  That  you  see,  gentlemen,  UiD^'b^r 
circumstance  that  has  been  proved  to  yiMi.  *^ 
coming  from  himseLf  to  BaJdwlD }  tlui  ^ 


]       fi^  seeing  Fire  to  Portsmouth  Rope-House,        A.  D.  1777« 

t  ft  halfpeany  worth  of  matches  of  a 
1  at  Portamouth.  She  aays  he  asked 
ilarly  if  the  matches  would  lake  quick  ? 
>k  a  bundle  and  tried  one  or  two  of  tliem, 
en  he  took  out  some  money,  and  paid  her 
peony*  She  snys  she  is  sure  he  is  the 
person.  Now,  upoo  this  evidence,  it  is 
ur  consideration  whether  a  man,  goings 
f  matches,  would  or  would  not  shew 
n  anxiety  about  their  lieiiig  particularly 
ade  ;  and  there  is  one  more  observation, 
1  would  make  to  you,  that  the  man  who 

0  buy  a  halfpenny  worth  of  matches  for 
'n  use,  is  hardly  such  a  man  as  could 
to  express  a  desire  of  meeting  with  a 
laise  to  carry  him  to  Fetersfield. 

next  witness  is  John  Illenden,  who  is  a 
•n  and  apothecary.  He  says,  tiiat  as 
hnman  possibility  can  go,  the  prisoner  is 
rson  whom  he  saw  at  Canterbury,  three 
'  days  bpfore  or  after  the  20th  of  No?em- 
ind  that  he  is  particularly  clear  that  he  is 
m,  because  he  came  to  his  shop  to  buy 
inces  of  spirits  of  turpentine,  anu  a  quar* 
a  pound  of  saltpetre.  Now,  gentlemen, 
hiugs  you  will  feel  a  man  might  inno- 

buy,  at  the  time  you  are  recollecting 
lese  materials  have  been  found  upon  the 
md  that  they  are  materials  necessary  for 
St  ion. 

y  Bishop  says,  (hat  the  prisoner  was  at 
luse  at  Canterbury,  between  Michaelmas 
iristmas  ;  so  that  she  speaks  very  vague- 
ut  the  time ;  she  cannot  be  fiositive  when 
I,  but  she  remembers  one  circumstance 
ing  it  to  be  the  prisont^r)  that  he  told  her 

1  been  interrupted  by,  that  is,  that  he  had 
quarrel  wiili  a  dragoon  at  the  White 

,  and  he  told  her  in  conversation,  that  he 
from  America,  on  account  of  the  dis- 
ces ;  but  he  asked  her  a  material  ques- 
lud  that  was  whether  he  could  get  a 
n  thing  made,  which  she  did  not  know 
lame  to  give  to ;  bnt  the  wooden  engine, 

produced,  being  shewn  to  her,  she  says, 
her  directing  him  to  some  man,  who 
make  it  for  him,  that  she  saw  something 

a  Mr.  Overshaw's  apprentice  brought 
i  prisoner  in  the  afternoon  of  the  same 
no  that  he  put  it  imder  his  coat,  wishing 
bave  it  seen.  The  counsel  very  properly 
Ibe  woman  what  was  become  of  the  ap- 
se ?  because  undoubtedly  they  ought  not 
'e  stopped  short,  without  calling  the  ap- 
se ;  but  the  apprentice,  she  says,  is  dead, 
>re  we  cannot  have  any  clearer  or  fuller 
ce  upoo  this  matter.    Then,  upon  look- 

this  wooden  machine,  she  says,  it  is  as 
IS  she  can  guess,  like  that  thing  she  saw 
it  to  the  prisoner. 

D  Dalby  is  the  person  who  apprehended 
isoner,  and  he  is  called  to  prove  what  he 

upon  him  ;  he  says  the  prisoner  had 
lioa  a  pistol  primed  and  loaded  with  shot ; 
d  a  pistol  tinder- box,  whic'.i  was  also 
1 ;  and  he  had  a  snuff-box  full  of  tinder. 
greotlemeo,  that  is  a  little  circumataoce 
L,  XX. 


[136S 

that  is  uncommon ;  a  man's  carrying  about 
with  him  ^a  pistol  tinder-box  to  strike  a  light 
may  very 'well  be;  but  he  seldom  carries  mor# 
tinder  than  that  pistol  tinder- liox  will  hold  ; 
for  if  ever  you  saw  one  of  these,  yon  must 
know  there  is  a  part  of  it  made  to  hold  tinder 
in  ;  but,  however,  over  and  above  that,  he  had 
a  snuff-box  full  of  tinder,  and  he  had  a  powder- 
horn  with  some  gunpowder  in  it.  He  says, 
he  had  also  two  bundles  of  matches.  You  re- 
member he  was  discontented  with  the  matches 
which  he  tried,  and  went  out  of  the  Doek-yard 
and  bought  others. 

Thomas  Mason  says,  he  lives  at  Bristol,  and 
is  by  trade  a  painter ;  that  the  prisoner  called 
on  him  the  day  after  Christmas -day,  and  asked 
him  to  let  him  grind  a  piece  of  charcoal  upon 
his  colour-stone,  which  he  did ;  this  is  only 
material  to  show  that  he  was  at  Bristol,  as 
Baldwin  mentioned  he  was,  and  that  he  knew, 
in  fact,  what  use  the  colour- stone  could  l>e  ap- 
plied to. 

Then,  gentlemen,  the  only  remaining  evi- 
dence is  the  contents  of  the  bundle.  The  biiu- 
dle  has  been  opened,  and  in  it  is  found  the 
passport  from  the  French  king,  aliout  which  ha 
expressed  so  much  anxiety,  lest  it  should  lead 
to  a  discovery.  That  passport  is  dated  the 
13th  of  November  ;  it  is  in  the  common  form, 
to  grant  him  free  permission  to  go  out  of  the 
kingdom,  and  to  continue  in  force  for  one 
month  from  the  date.  Besides  that,  there  u  as 
Ovid's  Metamorphoses,  and  a  Treatise  of  the 
Arms  and  Engines  of  War  and  Fireworks,  and 
the  Justin,  the  books  he  mentioned  to  Baldwin, 
and  the  pistol,  and  some  few  other  things. 
This,  gentlemen,  is  all  the  evidence  in  support 
of  the  prosecution. 

The  prisoner  has  called  no  witnesses,  but  he 
has  rested  his  defence  chiefly  upon  the  credit 
that  you  ought  to  give  to  the  evidence  of  Bald- 
win ;  because  he  says,  that  a  mm  who  was 
capable  of  draviin*^  out  this  evidence  from  biro, 
ought  not  to  receive  credit  in  a  court  of  justice. 
Gentlemen,  i  bave  told  you  before,  and  I  ought 
to  tell  you  now,  that,  in  point  of  law,  there  is 
no  objection  to  tliis  man's  testimony  ;  and  from 
the  manner  in  which  he  came  by  the  know- 
ledge, which  he  has  now  furnished  us  with,  I 
do  not  see  that  there  was  any  thing  which  caa 
lead  you  to  suppose  that  Baldwin  was  the  first 
mover  with  him,  or  that  he  prevailed  upon  the 
pris(»ner  to  disclose  the  secret ;  but  it  should 
seem  as  if  it  came  from  the  prisoner  himself, 
though  it  was  undoubtedly  upon  the  idea  that 
this  man  was  his  friend :  because,  if  you  do 
not  suppose  that,  you  must  suppose  him  madder 
than  any  man  that  ever  was  born.  He  certain- 
ly thought  him  his  friend,  and  he  therefore  did 
disclose  all  this  to  him. 

Gentlemen,  one  has  only  to  say  further,  that 
if  this  point  of  honour  was  to  he  so  sacred,  as 
that  a  man  who  comes  by  knowledge  of  this 
sort  from  an  offender,  was  not  to  be  at  liberty 
tu  disckMe  it,  the  most  atrocious  criminals 
would  every  day  escape  punishment ;  anil 
therefore  it  'a,  that  the  wisdom  of  the  law 

4S 


death  should  not  be  pamd  upoo  htm,  to  whkl 
he  replied,  *'  I  bft? e  noihiog  to  aay." 

Srhtbiicb* 


1363]  17  GEOftGE  III.     trial  of  James  ttUl  alias  John  ihe  Painier,    [13B4 

knows  nethioff  of  that  point  of  honour ;  if  the 
man  is  a  legal  witness,  you  are  bound  to  reepi? e 
his  testimony  ;  gif'mg  it,  however,  that  weight 
«nly  which  you  think  it  deserves:  for  it  is  al- 
ways in  the  breast  of  the  jury,  to  consider  of 
the  degree  of  credit  they  will  give  to  every 
witness.  Let  him  be  in  all  lights  a  legal  wit- 
ness, yon  are  still  to  be  the  judges  of  bis  credit ; 
if  you  think  that  a  man,  because  he  listened  to 
this  tale  so  many  days,  and  disclosed  it  as  he 
heard  it,  to  the  great  officers  of  state,  and  has 
disclosed  it  now  in  a  court  of  justice,  is  a  man 
to  whom  belief  cannot  be  given,  in  that  case  to 
be  sure  you  will  set  aside  bis  testimony ;  but  if 
yon  see  no  ground  to  suppose  that  the  man  has 
•poke  untruth,  you  cannot  then  r^ect  hia  tes- 
timony. 

Gentlemen,  the  trial  has  lasted  already  very 
long ;  the  summing  up  has  also  been  long.  I 
have  endeavoured,  as  I  have  gone  on,  to  lay 
together  some  of  the  many  circumstances  of 
this  case  for  your  consideration ;  and  I  do  as- 
sure the  prisoner,  as  well  as  yoir,  that  if  1  had 
found  myself  enabled  in  my  conscience  to  have 
stated  any  thing  more  favourably  for  him,  T 
would  have  been  the  first  to  have  done  it.  But 
1  am  sitting  here  to  do  eqaal  justice  between 
the  public  and  the  prisoner;  and  I  was  there- 
fore bound  to  make  those  observations  which  I 
bave  done,  because  they  strike  my  conscience, 
ms  being  necessary  and  material.  I  thank  God, 
however,  gentlemen,  that  you  are  to  judge  of 
these  circumstances ;  you  are  to  lay  them  all 
toarelher,  and  draw  your  conclusion  from  them ; 
and  if  you  believe  that  there  is  such  a  train 
following  one  another,  I  had  almost  said  so  ir- 
resistibly, as  that  you  cannot  doubt  that  in  the 
first  place  the  fire  did  happen  by  these  com- 
bustibles, and  then  that  the  prisoner  was  the 
person  who  laid  those  combustibles  there,  I 
should  suppose  you  can  have  no  doubt  but  that 
he  set  this  building  on  fire  wilfully  and  mali- 
ciously. If  ou  the  other  baud  you  should  fed, 
thou{i^h  there  area  great  number  of  circum- 
stances tending  in  some  degree  to  the  proof  of 
the  fact,  that  your  minds  are  not  satisfied  that 
jt  comes  home  to  the  prisoner,  if  you  are  of 
that  opinion,  you  oiight  to  exercise  tlie  jurisdic- 
tion which  you  have,  and  acquit  the  prisoner. 

I  will  say  one  thing  more,  and  only  one; 
you  are  bound  by  your  oaths  to  give  a  true 
▼erdict ;  and  if  the  circumstances  of  the  case 
appear  to  you  decidedly  strong,  you  will  of 
course  give  your  verdict  on  that  side  on  which 
they  preponderate ;  but  if  you  should  tbink 
that  they  are  still  so  doubtful,  as  that  you  can- 
not satisfy  your  minds  this  was  the  very  man 
Who  did  the  fact,  in  that  case,  in  favour  of  life, 
you  ought  to  acquit  him. 


The  Jury  almost  immediately  proDOUDced 
the  Prisoner,  Guilty. 

The  Prisoner  was  then  asked,  in  the  umial 
form,  what  ht  bad  to  say  nvhy  MOteoce  of 


Mr.  Baron  Ho^Aam.  Pri80Der;Yoa  bave  ben 
indictedi  tried,  and  convicted  of  a  crime,  wbich 
the  law  of  this  country  has  thought  fit  to  soske 
capital,  and  now  the  most  painful  hmmdcm  thsl 
1  have  undei]^;one  in  the  coarae  of  this  trial  h 
arrived  |  for  it  is  my  duty  to  paaa  opon  jh 
that  dreadful  sentence.    I  ahsdl  not  mtcmpi 
tbgse  feelings,  wbich  I  truat  you  havc^  ly 
talking  to  you  of  the  enonoity  of  the  ofan 
which  yon  have  committed  ;  liecanaa  it  isia- 
possible  for  me,  or  any  roan  who  ham  oa^ti 
add  a  word  by  way  of  anraTation  to  it :  aaiil 
has  this  in  particalar  aabat  it,  that  it  eusrt 
have  been  committed  from  anj  motif  ca  afpd- 
vate  malice,  revenge  or  hicre.     It  caalmi 
proceeded  only  from  a  general  anlknily  tf 
i^ind,  which  hu  broka  out  in  a  doMiaadi 
design*  not  only  to  ruin  one  deToied  iodividBi^ 
but  to  inv<|lve  every  one  of  this  audienae,  s^ 
the  whole  EpgUsh  natfan,  perhapa,  in  ioMi- 
diate  rnin.    You  cannot  theteforft  htmufdmi 
that  the  law  hu  thought  fit  to  pnaiah  ssohi 
crime  with  death.    You  can  aa  little  be  w- 
prised,  if,  aAer  you  have  been  convicted  9fim 
the  clearest  evidence  of  thta  ofieace,  I  caa  |^ 
you  no  hope  of  pardon.*     It  in  inipossifchftr 
me  to  say  a  word  in  your  behsdf :  aad  Am- 
fore  I  must  entreat  and  coi^ra  you,  hi  lbs  imI 
solemn  manner,  to  prefiare  youradf  doriafikt 
few  days  you  bave  to  live,  to  meat  the  grrit 
God  in  another  world,  aad  to  aak  hha  iftcR 
for  that  pardon,  which  you  could  not  rcethth 
this ;    there  it  will  lie  worth  reoeiviag :  ail 
atrocious  as  your  crime  haa  been,  shoit  as  tk 
time  is  that  you  have  to  live,  a  sincere  repM- 
ance  now  on  your  part,  may,  aiMi,  I  hope  is 
God,  will  procure  you  mercy  at  bis  haa^   I 
say  all  this  not  to  taunt  or  distress  you  in  josr 
present  unhappy  situation,  but  merely   iioa 
motives  of  humanity  and  religion.     For  yM 
cannot  be  suffered  to  live  in  this  world ;  yM 
must  die,  and  that  within  a  very  few  i^t. 
And  therefore,  before  you  go  into  eternity,  (« 
your  soul's  sake,  do  what  you  cao,  that  ihn 
eternity  UMiy  be  an  eternity  of  bliss  instead  ^ 
misery.     1  have  only  now  to  pronounce  Ite* 
nainfulf   sentence  of  the  law,    which  I  lo 
bound  to  do,  and  1  accordingly  adjudge  ai 
order  that  you  be  hanged  by  the  neck  uaiilyM 
shall  be  dead,  and  the  Lord  have  merey  i^ 
your  soul. 

Prisontr,  Hy  lord,  I  am  exoaodiagly  ««B 
satisfied. 

*  The  prisoaer  said,  '*  I  do  not  look  for  i^ 
my  lord." 

f  When  his  lordship  oiedtioned  the  wiH 
<<  painful/'  the  prisoner  taid  *«  joyful.'* 


196^]      far  Hitb{g  fire  to  P^rtpnovfh  Bop^Hdflue.        A.  D.  1777.. 


[1365 


THE  PRISONER'S  CONFESSION. 

City  of  Wincheiter  ; 
The  pgiuntary  Cqnf^asiom  ^  Jambs  Aitken, 
commo9ljf  calif  4  Jo|In  the  Paints,  now  a 
Priumer  in  the  Counts/  Gaot  if  Southamp- 
ton^ and  under  Sentence  of  Deaths  for 
hurling  the  Dock^yard  at  Porttnumth, 
taken  the  seventh  Bay  rf  March^  tilt ; 

Saitb,  that  he  wm  born  at  Edinburgh,  the 
S8tb  of  September,  1769,  his  mother  now 
li?in^,  ai  he  belie? es.  Curiosity  led  him  to 
Virgnia,  in  America,  at  the  ace  or  twenty -one, 
as  an  adfentnrer  to  seek  bis  fortune — Lefk 
America  in  March,  1775. 

In  October,  1775,  ^by  the  name  of  Jionei 
Poswell,  iolisted  a  '^privaie  soldier  iu  the 
^hty-seoond  regiment  at  Grayesend-^march- 
kA  to  Cbathapi  next  day,  from  whence  he 
•oon  deserted ;  was  not  concerned  in  the  fire 
io  Temple-street,  firit4ol,  nor  pri?y  to  it. — 
Bro|^  into  Mr.  Morgan's  warehouse  at  BristQl 
alone ;  no  person  concerned  with  him  in  that, 
or  any  other  accident,  that  ensued  in  that  city. 
—He  intended  to  set  fire  to  two  houses  m 
Portsmouth,  in  order  to  employ  the  engines,  I 
whiis^  the  fire  mijght  spread  in  the  Rope -yard. 
—Broke  into  Air.  Morgan's  warehouse  at 
Bristol,  in  order  to  burn  it,  that  the  engines 
might  be  there  employed,  whilst  the  shipping 
yrtn  burning  and  the  quay,  for  which  purpose, 
be  left  a  lighted  candle  burning  in  the  said 
Warehouse ;  ^nd,  because  that  fire  did  not  take 
effect,  he  afterwards  set  fire  to  the  warehouse 
in  Quay-lane,  by  getting  over  the  top  of  the 
door. — Mr.  Deane  told  him.  when  the  work 


done  (meaning  burning  the  Dock-yards  at 
Portsmouth,  Woolwich  and  Bristol  harbour,  but 
not  tbe  houses)  he  should  make  his  escape, 
and  come,  if  possible,  to  him  at  Paris,  and  he 
should  be  rewarded.  As  a  reward,  hisown  ex- 
pectations prompted  him  to  hope,  that  he  should 
DO  preferred  to  a  commission  in  the  American 
aroDV. 

when  after  setting  fire  to  the  Rope-yard,  he 
left  Portsmouth  (to  wit)  the  next  night,  being 
Sunday— he  reached  London,  and  went  to 
Doctor  Bancroft,  No.  4,  Downing-street,  West- 
minster, to  whom  he  had  a  veibal  reconimen- 
datiun  from  Mr.  Deane,  who  ga?e  him  at 
I^aris  the  doctor^s  name  in  writing,  and  place 
of  abode;  but  the  doctor  would  gife  him  no 
countenance,  and  therefore  did  not  relate  the 
particulars  of  the  mischief  he  had  done  to  him, 
but  hinted  to  him,  that  he  would  soon  see  or 
bear  by  the  papejs  of  an  extraordinary  acci- 
dent that  had  hap|>ene4l. 

And  he  afterwards  wrote  such  an  account  in  ! 
a  letter  to  him,  which  he  left  himself  at  the  ' 
doctor's  house  with  a  persun  who  came  to  the  ■ 
dour,  which  for  the  sake  of  truth  he  relates,  and  | 
without  intention  of  casting  any  slur  un  the 
character  of  an  innocent  man.  > 

That  be  saw  the  <loctor  the  day  following  in 

5  I 


the  Salopian  coffee-house,  and  told  him  that  he 
would  do  all  the  prejudice  he  could  to  this 
kingdom ;  to  which  the  doctor  replied,  **  he 
could  not  be  of  opinion  with  him  m  that  re- 
spect, for  that  he  got  his  bread  in  this  kingdom, 
and  therefore  would  not  be  concerned  with 
him."  And  seeing  that  the  doctor  did  not 
approve  of  his  conduct,  he  hoped  he  would  not 
inmrm  against  him,  to  which  the  doctor  said* 
"  he  dki  toot  like  to  inform  against  any  man.** 
When  at  t^aris,  be  was  assisted  by  Mr.  Deane 
with  tweke  six  livre  pieces ;  he  asked  for  no 
more,  neither  did  be  receire  from  him  any 
b|nk  bill,  draft  or  note  whaterer. 

After  leaving  London  (to  wit)  at  High  Wy- 
corab,  be  broke  into  a  house,  and  took  away  a 
few  linens,  consisting  of  caps,  handkerchiefs, 
but  nothing  of  value.  He  then  went  to  Ox- 
ford, from  thence  to  Abingdon,  where  he  at- 
tempted to  break  into  two  houses,  silversmiths 
or  watchmakers,  but  without  effect.  From 
thence  lie  went  to  Fairford,  where  he  broke 
into  a  hoose,  and  took  from  thence  a  number 
of  stockings  and  handkerchiefe,  and  a  metal 
watch,  and  near  fifty  shillings  in  silver  and 
halfpence:  the  watch  he  pledged  for  sixteen 
shillings,  in  tjie  name  of  James  Hill,  at  a  pawn- 
broker's in  Castle-street,  Bristol.  After  this^ 
without  attenoptiog  any  thing,  but  having  pre- 

Kkred  some  or  his  ingredients,  he  went  from 
riatol  to  Plymouth,  with  iutent  to  set  fire  to 
the  Dock-yard  there;  twice  he  reached  the 
top  of  the  wall,  but  the  watchmen  being  so  near, 
he  could  hear  them  talk  together,  especially  tha 
last  night,  therefore  be  desisted;  he  never 
committed,  or  attempted  to  commit  any  rob^ 
bery,  but  when  he  was  like  to  be  drove  abort 
of  money. 

After  leaving  Plymouth,  he  returned  once 
more  to  Bristci,  with  a  determined  resolutiooy 
then,  to  set  fi»«  to  the  shipiring  in  the  harbour 
and  in  his  way  to  Bristol,  at  Taunton,  he  at- 
tempted to  break  into  the  hoose  of  a  silversmitbt 
or  watoh- maker,  without  effect. 

He  attempted  the  shipping  a  second  time, 
but  on  account  of  the  vigilance  and  strictneaa 
of  the  watch,  then  kept  on  the  c|uay  and  in  tbe 
ships,  his  attempt  proved  abortive.  He  like- 
wise attempted  on  the  Saturday  morning,  but 
in  vain,  to  get  into  a  stable  or  coach-house  on 
the  quay,  in  order  to  set  fire  to  it ;  but  seeing 
a  man  lying  in  a  cart  near  the  place,  he  de- 
sisted. 

On  the  Sunday  morning  following,  he  set 
fire  to  the  warehouse  in  Bristol,  in  Uuay-lane, 
which  he  effected  in  the  following  manner  ;  (to 
wit)  he  bought  some  coarse  flax  ou  the  quay, 
and  some  turpentine  at  another  place;  but 
where  he  cannot  rcmemlier,  and  with  those  and 
charcoal  mntches  and  gunpowder,  and  striking 
a  spark  of  li^ht  on  tinder,  to  which  he  set  a  pa- 
per iiiHtcli,  he  effected  his  purpose.  The 
match  was  made  of  touch  |»a|>er,  and  as  that 
consumed  to  the  end,  the  powder  lieing  laid,  and 
wrapt  up,  likewise,  in  touch  paper,  it  of  course 
took  fire,  and  so  he  presumes  it  iiistanliy 
mounted  into  a  blaze.    Then  he  left  tbe  town. 


1367}  17  GEORGE  IIL    ZVmI  ofJamit  WU  aSiit  Mitm 

bat  Meiag  do  firs  behind,  be  Ktnned  baek  tba  haam  of 
pirt'of  diBVIij,  liU«t  bat,  beuiBir  Ibedtj  rilTcr  table  «[ 
WH  OD  6re,  he  ibcn  went  on  to  Sodbnr  j,  ead    in  the  ipriog 


flSB 


bat  Meiog  DO  fii«  behind,  be  Ktuned  bMk    tba  kooM  of  |lr.  Mufc.  wh«»  IsMib  In 
',  lillet  bat,  beuinfT  Ibedtjr    rilTcr  table  «paMs,  and  a  fair  briBnr  taUM 
'igotlTtS.  Jma  AmftL 


ChitipcnlMm  and  Calnc;  Bvt  tba  fint  night 
after  the  fira,  be  4epl  at  SodboTT ;  Ibc  eaoood 
idgbLhe  fanba  open  the  deer  afuaol-hsuae 
Beacit,«bera  beil«pt,Bnd  left  bablad  him  in 
thaBwmiwadwkbalern.  OalbaWcdnea- 
day  uffbt  m  weot  to  Caloet  and  bcteg  mh 


whieh  mfaberjr,  aa  It  b  Wfawa,  b«  ban  do  oeca- 
eian  to  enUrge  npen  ik  He  left  a  paiaei,  with 
-a  piilol  end  other  thJi^  la  tba  pararii  is  tba 
«bnrafa  porch  of  Calae. 

At  Bmtal.  ba  Bret  brake  into  Hr.  Hoicui'a 
warebtma^  and  there  prepared  the  oovbueti- 
Wea,  fbf  aeUiof  fire  la  the  ehippiog. 

UeneTCrwaaintbeASIbnginent;  nailbw 
did  he  go  to  Amertee  in  anj  regioeat. 
'  HeaererMid,  thatoneBnNika,oraojotbai 
yniOBer  ia  Newgale  mmld  ba  hanged,  aa  woe 
owomagaioM  him  ifpea  his  trial;  neither  doth 
lie  bnei*  nnj  men  bj  the  name  of  Bnwka. 
:  Bie  fttber  waa  a  bUekamitb  at  Etfiabiiigh, 
«i>d  ha  wee  a^renticed  to  n  paialer  tbm^ 
.aerrod  bia  lioM  oat,  and  tbeo  bad  biaindea- 
tnree  deUiered  np,  lAiob  he  nwallj  oarriad 
•boat  in  bia  pocket,  and  afterwarde  honit  then; 
which  ga*«  riee  to  the  ttorr  of  hie  deetraying 
paper*  to  Iberaloe  of  soot   . 

Tbooe  were  the  thioga  of  nlue,  wUeh  be 
Beaat  to  eiprcM  by  wbal  he  had  burnt. 

At  to  any  merchant  in  Landon,  or  any  otbei 
pnvon,  eioepl  Dr.  Baneraft,  he  bad  no  recom- 
neudaiion  to,  or  convenation  with,  rMpedisB 
the  miDV  unhappj  accident*  befbre  related. 

That  he  alopt  a  poat-chaiae  between  Parte- 
.inauth  ind  Petertfielil,  niih  a  geDtfcman  and 
laiiy  in  it,  bqidb  cooiideraltlo  time  betbre  tiM 
fite,  and  robbed  Ibemol  9(.  6d.  of  which  he  re- 
turned St. 

Tlie  latter  end  of  December,  177S,  he  inliiled 
at  Charrl  in  Somerwl,  into  the  13lh  regiment, 
with  •  recruiting  Berjeant,  and  a  few  days  altei 
deserted. 

At  Til cli Geld,  as  has  been  publicly  raenlioned, 
lie  fullotved  tiie  trade  of  a  painter,  also  at  Bir- 
minijliain  wiili  Mr.  Uobiosuo,  at  WarrioglOD, 
and  many  otber  places. 

Tlint  lie  bad  commttled,  and  attempted  Ifl 
commit  keveral  otlier  robberies  and  burglsriea; 
but  of  no  material  accuiiot  to  mention. 

Declares  that  all  liie  acts  bereio  mentiooed 
of  a  public,  es  of  a  prirote  nature,  were  of  liii 
own  mntiDn,and  lliat  be  was  not  odrised  ut 
instigated  tbenlo,  by  any  person  wbaleter,  ex- 
cept what  is  before  related,  and  that  he  bad  nn 

One  otlier  circumstance  strikes  bis  present 
recoltecliun  irhich  he  ii  dniron*  to  mtDtion  ; 
and  which  bspiwiied  ia  the  city  of  Norwich,  at 


a^ned 

ri ,_ 

March,  ITTT.— OBoaufe  Dmamims 
N.  P.  Ehnrt,  two  of  bia  H^eaty'a 
Jnafieea  of  tbe  Pcaee,  fa  asd  Ar  iba 


by  JaMH  ArixD,  rad  pwhaltl 
m  to  coataia  the  iiwlk  nalr,  a 
— tf  oa  tUa  TUt  day  at 


Tbe  Pfiaoaer  traa  named  from  WiaAwhr 
gaol  on  the  10th  t»  FtirtaviMilb,  whenitiM 
anointed  beakonld  be  eancled  at  the  Hid 

C;  and  tl)a  Allowing  iaau  enact  Meamtrf 
dwrioitr  from  Ibe  luae  of  bin  Htiral  la  Aa 

Harmg  beeo  oarriad  ia  an  open  atl  btt 
Bamp-henaeand  roandthe  rainaof  tbawy 
bouse,  when  be  cama  oi^oaite  the  cbmM- 
■oaer'a  booae,  be  daaired  to  apeak  vib  tt 


forgi 


'  Sir ;  1  adnwwlcdM  ■■  j  cwioac,  aad  tat 

fargmnefl  fimn  God,  luoogb  tba  wA 

Dj&noar  Jeana  Gbrut. 

■  I  ask  pardon  of  yon.  Sir,  and  biM  |w 
as."  Upon  thaeart'a  noeiag.MMiL 
onething  men  in  obaeneaa  a  ai^a 
to  all  the  oommiaaiaaen  of  the  daak^ak 
tbroivboul  England;  to  ba  more  viglMtaJ 
ririctly  careful  of  then  Ibr  th*  fubn  Uam 
it  tain  the  power  of  adetennined  aadiaMhn 
man  to  do  a  grest  deal  of  rniachief." 

As  the  cart  stopped  at  the  end  of  the  Ibp 
house,  ho  looked  atleDtively  at  the  place  rf 
his  perpetratioD,  tnd  said,  "  I  ncknowMgtaj 
crime,  and  am  sorry  for  it." 

Just  before  he  returned  out  of  the  Dsd- 
yard,  upun  being  asked  there  if  be  bad  si} 
tbinif  more  that  be  wished  lo  aay  to  tbe  an- 
misaioner,  be  said,  "  No,  only  I  reaMOKal 
gre^t  care  and  strict  vi^ituica  at  tbe  dnt 
yards  at  Chatham,  IVooIwicb,  Dejitford,  Pmo- 
mouth, acd  Plymouth  ;  and  |>articalarly  ittk 
Rupe-houie  at  the  latter." 

Just  before  he  was  turned  off,  he  ■aid,'' I 
ackponledge  the  justice  of  my  aeateoc*^  ^ 
hope  for  fiir^Teriess,  as  I  for^re  all  Ihe  asrU; 
I  wish  suceesatii  liis  majesty  king  Gecapal 
his  hmily,  and  all  bia  loyal  aubjcct* ;  ni  I 
hope  tor  furij^veness  fur  ail  tbe  traondiM 
Ibat  I  lia«e  been  gnilly  of  from  tbe  year  im 
sioce  my  appreoticeKbip ;  aud  that  iIm  "^ 
wnulil  be  satisfied  about  hioo,  aa  bi*  life  aadi 
be  very  soutt  ia  print," 


1S69]  Addenda  to  Vol.  20—7^  Negro  date.         .A.  O.  Wl. 


PS70 


ADDENDA   TO   VOLUME  XX. 


Extremely  had  heakhf   and  Jrequent 

unavoidable  absences  Jrom  London^ 

have  disabled  me  Jrom  causing  to  be 

inserted  in  their  proper  places  the 

Jbllowing  articles. 

ADDENDA 

TO  THE 

Report,  given  in  a  Note  to  Sommer- 
sett's  Case,  of  the  Negro  Case  in 
France.     See  pp.  12,  et  seq, 

NoTwiTUSTANDiNo  the  profusc  aod  high 
aounding  declamations  of  the  French  Jairyers 
in  the  case  of  *  La  liberty  r^clam^e  par  tin 
nbgre  contre  son  niaitre*  (see  pp.  13,  et  seg :) 
coocerniog  the  iDCompatibility  of  slavery  with 
the  soil  or  with  the  air  of  France,  certain  it  is 
that  manj  persons  (the  *  serfs'  or  *  main-mort- 
ables— they  had  other  deoomioatioos^  in  dif- 
ferent parts  of  that  country  continuea  nntil  its 
convulsive  revolution  to  exist  in  a  condition, 
which,  if  it  were  not  strictly  speaking  slavery, 
undoubtedly  bore  a  very  strong  resemblance  to 
that  status. 

By  an  edict  of  August  1779,  during 
.  M.  Neckar's  first  administration,  the  benevolent 
1/Ouis  16  abolished  the  right  of  *  matn-morte' 
on  the  royal  domains,  and  removed  in  all  other 
parts  of  hts  kingdom  one  of  the  greatest 
grievances  incident  to  that  right-^/e  droit  de 
tuite. 

In  the  Encyclop^die,  tit.  Main-morte,  there 
18  a  copious  account,  composed,  as  it  appears, 
bv  M.  Henrion,  of  this  feudal  institution.  Into 
that  account  is  incorporated  the  edict  of  Louis 
16,  from  which  I  will  here  insert  the  pream- 
ble. It  is  an  interesting  historical  document ; 
and  fomishes  an  authentic  exhibition  of  some 
important  characters  of  the  *  Main-morte.' 
Henrion  denominates  the  edict,  *  nn  des  pins 
beanx  monumens  de  la  sagesse  de  noa  rois.' 

**  Louis,  Ice.  A  tous,  &c.  Constammentoc- 
eop^  de  tout  ce  qui  peut  int^resser  le  bonheur 
de  nos  peoples,  et  mettant  notre  principale 
^floim  k  commander  une  nation  libre  et  gin6- 
reuae,  nous  n'avons  pQ  voir  sans  peine  les  restes 
da  servitude  qui  subsistent  dans  plusienrs  de 
noa  provinces;  nous  avons  ct^  alfect^,  en 
consid^rant  q*i*un  grand  noinbrc  de  nos  sujets, 
aervilement  encore  attaches  k  la  gl^be,  sunt  re- 
Ipird^  comme  en  faisant  partie,  et  confoodus, 
noarainii  dire,  avec  elle,  que,  priv^  de  la  li- 
l>ert^  de  fanrs  person nes,  et  des  prerogatives  de 
lapropri^^i  ils  sont  mis  eux-memes  an  nom* 


bre  des  pofsesaions  f6o6a\es ;  qnMls  n*ont  paa 
la  consolation  de  disposer  de  leurs  biens  aprhi 
eux  ;  et  qu'  except^  dans  certains  cas  rigide- 
ment  circonscrits,  ils  ne  peuvent  pas  m€me 
traosmettre  k  lenrs  propres  enfans  le  fruit  de 
leurs  travanx ;  que  des  dispositions  pareilles  ne 
soot  propres  qu*^  reodre  Pindustrie  languissante, 
et  ik  priver  la  soci^t^  des  effets  de  cette  ^nergie 
dans  le  travail,  que  le  sentiment  de  la  propriil^ 
la  plus  libre  est  ieul  capable  d'inspirer.  J  uste^ 
ment  tooch^  de  ces  considerations,  none 
aurions  voulu  abalir  sans  distinction  ces  ves- 
tiges d'nne  f^odslitd  rigoreuse:  mais  noa 
finances  ne  noutf  permettant  pas  de  racheter  ce 
droit  des  mains  des  seigneurs,  et  retenus  par 
les  egards  ^ue  nous  aufons  dans  tous  les  tem|>a 
pour  les  loix  de  la  propriety,  que  nous  consi- 
derons  comma  le  plus  sdr  fondement  de  I'ordre 
et  de  la  justice,  nous  avons  vu  avec  satisfaction, 
qu'en  respectant  ces  priocipes,  nous  pooviona 
cependant  eifectuer  une  partie  dn  bien  que  nous 
avions  en  vue,  en  abolissant  le  droit  de  servi- 
tude, non-seulenient  dans  tous  les  domaines  en 
nos  mains,  mais  encore  daus  tous  ceux  en- 
gages par  nous  et  les  rois  nos  pred^cesseurs; 
autorisant  k  cet  efiet  les  engagistes  qui  se 
oroiroient  l^s^s  par  cette  disposition,  k  nous  re- 
mettre  les  domaines  dont  ils  jouissent,et  k  r6- 
clamer  de  nous  les  finances  fuurnies  par  eux  ou 
par  leurs  auteurs. 

**  Nous  vonlons  de  plus,  qu'en  cas  d'acqnisi« 
tion  ou  de  reunion  i  notre  couronne,  Tinstantde 
notre  entree  en  possession  dans  une  uouvelle  terra 
ou  seigneurie,  soit  Pe|H)qiie  de  la  libertie  de  tous 
les  serfs  ou  main-mortables  qui  en  relbveni ;  eC 
pour  enconrager,  en  ce  qui  depend  de  nous,  les 
seigneurs  de  fiefs  et  les  communaut6s  i  suivre 
notre  exemple ;  et  considerant  bien  moins  ces 
affranchissemens  comme  une  alienation,  que 
comme  un  retour  au  droit  natnrel,  nous  avona 
exempte  ces  sones  d'actes  dt:s  formalites,  et 
des  taxes  aox-quelles  i'antique  severite  des 
maximes  fbodales  lesavoit  assujettis. 

**  Enfin,  M  les  principes  que  nous  avons  de- 
veloppes  nous  erop^chent  d'alM)lir  sans  distinc- 
tion le  droit  de  servitude,  noufi  avniis  cru  ee- 
|»endant  qu'il  dtoit  uu  exc^4  dans  I'exercice  de 
ce  droit,  que  nousne  pouvions  difTerer  d'arr^tor 
et  de  prevenir ;  nous  vonlons  parler  du  droit  de 
suite  sur  les  serfs  et  main-umrtables,  droit  en 
vertu  duquel  des  seigntiurii  de  fiel's  ont  quelque- 
fois  poursuivi,  dans  les  terres  franches  de 
notre  royaume  et  jusques  duns  notre  capitale, 
les  biens  et  les  aci|udts  dt>s  dtoyens  eioigues 
depuis  nn  grand  uombre  d^annees  du  lieu  de 
leur  gl^beet  de  leur  servitude ;  droit  excessif 
que  les  tribunaux  ont  hesite  d'accueillir,  et  que 
les  priacipet  de  justice  sociale  ne  nous  permet- 


x^avw^BL 


,_  ,    ..MliariuM 

tiMifrM>cww,iMt«>«fc  111  ^»^  ihni,  j>^ 

fviniB,  H  ^ 


aillrB,  aoeapMit  Mtn  ■nllkitaAc,  M  Ml  dM 
fcjgjlWg^t^  »llll<iM*iW»>HHIi 

4*  fh«uMm,  kj  tto«nM  vTCM.  *«.  31i 
•w  wWl.  b^rtfe  Md  MttMoHd  mhwmBm, 
«•  H.  CmM  aflte  fiMtw  hMta  MBWflh 

Mlfe  mai  right  <raM-Mw<d  wnmllf, 


.MlWblftftMr^MlB^.  (191 

"  And  do  cnminyU  and  gCn  M>  yta  bO 

power  «Dil  autlioriiie  bj  iImm  ftmmtm,  !•■»• 

crpW,  ulmitw,  and  receive  ts  be  BMBMjKi, 

pninuqcli^ed,  aod  t»tde  Ac*.  a«cb«  M  W 
iraoy  •!  OUT  bondnea  «mI  ba«d««B>a  ia 
Uoud,  with  >ll  tmd  every  Iheir  cbildrea  aod  w 
quellf,  Iheire  goodes,  luidei,  lenemente*,  ud 


vadv  MMonr  ef  jMrAWMsiv*  ff 
.    •*  WbMMi  divM  aid  Hndrw  ffMr 


tSB 


ilMdIqr*!     , _. ^ 

iifetadaaad  MCwduMt  ts  dinuMdHMdrfe 
Mraaaan  anTpaaMMiOH  withk  Mr  Mte 


«•  ba  pHuoqnad  yfriwidiiiid  wd  M|ib 
-AaamdillHira  chJUfMandaavunLky  Mf 
•  r  tbmm  nMdii>niwprfh 
»fcr 


aM  Mdl  iMMJIWW  Ma 

UeaAiJ«Mliaa«3,«ho 

Mada  dl  AMUNida  Am,.  I^ 


fotha      „    _   „       ,__ 

tbe  tender  lore  and  ecbIb  wkUha  vc  bora  to 
SM-  aside  wuifttlit,  aiid  br  ibe  nmw'iU  Iruit 
•od  oonfideace  vluelie  ira  have  ia  your  tf- 
fttitd  wiaacUMHea  Ntd  idriiiiai,  4b  aawa  bmI 
■ppoyote  giay  Ivs  aw  aemeniwiomTi.  ud  doby 
theae  prworHi,  far  4W  aur  baiiea  and  aMCuaanr, 
^Te  lull  po«er  and  auctboiritia  fo  jroa  tmo  our 
■•id  catDMHMaaen,  lliat  ifou,  xidwr  b/  jotir 
warraM  ia  writiug  sidMcnbed  vkb  jraur  Mm 
handi  a«Ml  lealea,  or  ttktrwite  bv  cnwimiadaii 
dram  <n  nod  iu  our  oane,  under  tiieaaale  of  our 
cotute  of  exehr^utrr,  iliall  aad  aiif  AMOnUose 
40  y4Hir  diMXMioBi  oooiyMale  and  ^fogv^e 
any  person  or  peMoiw,  fur  ui  aod  ia  Mir  name, 
iaenqiHce4il'BM  w  my  swiiaiHlnieaaBd  band- 
'WiMieii  wui)  <Leirt'  children  and  ae^iuUi,  «ad 
•fall  tliMre  i^aodea  dkaUeH*  laada  t«nani«Nilci 
•nd  lierediUaoenta  wiiiiiii  theaeveriU  eouMif* 
«fCori.i>iitl  Derun  ^MnerauU  aiid ClaOMste, 
mad  of  wtial  valcue  Ibe  aaaae  be  «f,  ai^  tbat 
■uclie  iHTnan  and  pe raooi,  ao  by  yau  naowd 
and  a|ipuinteil  to  eciuuyre  aa  aforeaud  by  fbrix 
•or  virtue  cf  any  aurke  warraalx  or  ^qauniMiwi 
•a  aTamaid,  aball  akhin  caDteomd  lyme 
■tabcor  oauH  III  be  madeieturfl  (d'cTMy  indhe 
warraDi  and  CMuniasian,  wiib  trw  eertifioalea 
ia  wriliBae  undar  Hiair  bandea  and  aealM,  of 
«ll  ibeir  doinfa  euacemii^  tbe  pBianiMra  «slo 


or  ngatduBM  la  all  or  anj  of  our  MaaMt^ 

lu|ja-    tm^m^tggt^  ^laaaaMiaiL   ar  ^MAa- 

CenwiA,  Dint,  thmmmtt,  aari  tatme.  m 
fm  lyyoef  jiMwrtiiii^ha  MlwawiMt 


■ndMKiMaaUBflBN  «r  aamv****  ■< 

be  tahan  and  iceairad  to  aw  «M  ArlW «H- 

myawnnawd  aeftMwcbiaawwit,  aadibtlWf 

•eaaioaa,  and  enjoying  of  all  nod  ui^nlar  Mm 
laudea,  teaemeols,  ber^jiameiili,  Madei  Ml 
chaltella  whalsoerer,  aa  you  atta  ib^  OB 
a^l^ree  Ivr  tbe  lame  afler  yooi  nptaaaW 
disvKliaM,  asd  our  fttiiher  mill  aad  |^ 
lore  i«,  tbat  ibereupoo  you  our  aaid  iSifMt 
■ionvra  shall  liave  full  poirr-    — ^*  -- — *■-* 


)  w«  fii»U 


dedtire  unto  yui 


jriSwaliv 


Oialie  w»rrau))l  uudctyii^ 
huuitti  in  ivriiiuge,  iq  tbe  Lord  Chauacelw  V 
Lord  Keeper  of  tliu  greal  scale  of  Eo^aad^ 
the  lymB  lieyintc,  (u  pa^te  Hnd  suOer  f  be  |i«a^ 
cil  under  Uie  said  greale  se^iie  of  Eo^lia^ 
fucbe  and  w  atmye  ^sui4s,  aaiiuniyuja^ 
aurt  ec&aiiacluMiieuli  lo  auy  »udie  prnai  ft 
giettau  a»  ypu  aJiall  so  coMapouixle  or  apfl 
Kilhalit  and  t»  you  •ball  be  iliouf;bl  oiru  t^. 
cuoienieiu,  wilb  lull  poi*er,  auciboriuc,  ■!. 
liberlie  lo  possesu:  Biideojoye  all  aiwl  MCgMf 
niUHiprB,  i»eMWi;e«,  Undes,  tfnenMMl^ 
goiiiet  aud  cbaUelU  *b>l||*- 
)r  tbe  like  iu  etleclf  of  wluib 
Bod  eurraocbec- 
iliall  be  in  sucke  order  sod  Catne  l|d 
ofsuf^  lilie  t^ecle  »s  U  bore  in  llicse  iueM|i 
couteyneil  aoil  sett  torili.  uv  els  in  surue  olbp 
OTller,  manoeri  Hid  I'orDM;  as  you  (XfriaiilaM- 
inisamuen ibiill  tbiokneeic  aod  «WTCU(«t|» 
bepawed  Uoot  ve;  thai  U  Ut  kb^'i 

"  Eti>«baba,  Ud  Qratia,  AflglUe,  fa^at, 
el  Uiberniffi  U^iiu,  Fidei  O^Ananr,  ^.  «■■ 
oibua  sd  <|uos,  &£.  iSalutem. 
"  Cum  abiiitlio  wwoltWMVef  fffttwylAcVi 
.Tit  Onus,  (It  poaiea  ju^  yefilifii^  W"^ 
aub  ju|>.'0  Kerviuilk  cDoaUvK,  piiiitl  ft(f<^^ 
diraiuci  Oea  Mc^ialiile,  CbfMwui'^m; 
riiui  oolweiUUioeuiB,  cert«a,  in  FjUwi|irMM 
iinredibv*  at  »iKae«eribuanciipt(^.a«bt4*^ 

"  Sciatit  jtfiwr  ^ho4  aaa,  |Mf«al«  moti  fpim 
et  in  libaHWe  <v>*i)ie  >|BmM  4p  Owp  II<>4* 
sfieoioli,  ac  ex  cetta  ««^Miii»  at  mam  aaaia  ■» 
tiis,  jiro  uobia  liEredibua  et 
IrU  A.  11.  U.  D.^.  et  aias 


gueiBlibet, 
beroB  facimw  el  ab  onni  j|i^  i 
vilis  cunditionia  liberanut*  *l  /i—,. — „_„ 
per^eliHwi  pw  pt«snmh  'V»i  »>*#«*,  ipM 


1373] 


The  Nigra  Caie. 


A.  O.  1771. 


[1374 


nec  nos  oec  bcredes  nee  f  accessoreft  imstri  dcc 
aliqnis  alios  pro  nobis  sen  nomine  nostro  aK- 
quoJ  juris  seu  clamei  in  praedictis  A.  I).  C.  D. 
iic.  DOC  in  progeniis  aut  tequctia  suis  uec  in 
progenisL  vel  sequelii  alicajus  eorum  jam  pro- 
creatA  sive  iinposleri^m  procreaDd&  nec  in  ca- 
tallitf  fluis  aut  eonjin  alicujus  ad  quascOmqua 
roundi  partes  diverterit  exiecre  clamare  sen 
Tendicare  poterimus  nec  debemub  in  f Uturum 
aed  ab  omniactiooe  juris  et  clftmei  ind^  siutis 
exclusi  imperpeiuuin  per  pm&sebies  ac  ab  otuni 
ju^  servitutis  eos  et  eorum  quemlibet  exotie- 
ramus  acquietamus  et  dimittimus  pro  uobis 
borredibus  et  successoribus  nbstris  imperpc- 
Uiiim. 

**^  Damns  eliam,  et  uberiori  Gratia  nostra spe- 
€iali|  ac  ex  certa  scieutia  et  mero  motu  nostris 
pnedictis  per  prsesentes,  pro  nobis  lisredibus 
ct  successoribus  uostris,  concedimus  prtefutis 
A.  B.  C.  D.  &c.  et  eorum  culibet,  mesuagia 
terras  tenementa  et  ha*.rrditamentA  sua  qute- 
cumque,  necnon  bona  catalla  et  debita  sUa 
qoiecumque,  tarn  raobilia  quam  immobilia,  ac 
tarn  realcs  quam  prrsooales,  cum  euriim  perti- 
nentiis  universis  de  quibus  seisiti  sen  posses- 
iinnati  jam  existuut,  aut  eorum  aliquis  jam 
existit. 

■*  Habendum  tenendum  et  pfaudendum  omnia 
^t  singula  mesuaj^ia  terras  tenementa  bona  ca- 
talla debita  et  caelera  litrreditameota  aua  cum 
uertinentiis  oniversis,  prferalisi  A.  B.  C  J>. 
oec.  hsercdibus  et  successoribus  Kuis  ac  execu- 
toribus  cujuslibct  eoruui  imperpetuum,  secuu- 
dom  separates  fitatus  seu  interesse  in  prce- 
missts,  absque  compoto  seu  aliquo  alio  proinde 
Bobis  hseredibus  ? cl  successoribus  nostris  quo- 
quomodo  reddendo  solvendo  tcI  faciendo,  ra- 
tione  servitutis  seu  servijis  conditioais,  sire 
aliqua  legfe  statute  actu  praclamatione  con- 
•uetttdine  seu  pnuscriptione,  aut  aliqua  alia  re 
causa  vel  materia  quacumque,  antebac  editis 
Qrdinatis  promul<(atis  fatis  seu  provikts  in 
fsmlrarium  inde  uon  obstantibus  ;  Salvistanien 
nobis  lizredibus  et  successr*ribu8,  tam  liberis 
t^nuris  et  hsereditamcniis  nuslris  omnium  cun- 
tuniariaruni  terrarum  et  teuementorum,  de 
quibus  illi  aut  eorum  aliquin  seisiii  existunt  et 
de  nobis  tenent,  aut  eorum  aliquis  tenet  per 
COpiassife  per  copiani  curls,  et  servitiis  con- 
•uetudinibus  redditibus,  et  aliis  casualibus 
pnietsdem  seu  eorum  aliqua  reddendis  &ol?endis 
vel  faciendis,  quam  redditibus  et  servitiis  nobis 
faDquam  capitali  domiua;  feodi  reddendis  pro 
/Miquiboa  terris  seu  tenementis  libera  tenurie, 
ie  quibus  ipsi  aut  eorum  aliquis  seisiti  existunt 
▼fti  existit. 

"  £o  quod  expressa  mentio,  See. 

**  In  cujus  rei,  &c. 

"  Aad  so  our  expresse  will  and  pleasure  is, 
|hat  every  auche  person,  so  compoundingeand 
^greeioge  as  is  aforesaid,  sball  aud  may  have  a 
f  uffieicDt  manumyssion,  grauute,  and  enfian- 
cbeament  for  such  matters  as  in  forme  afore- 
•aid,  shall  be  compounded  and  agreed  for  be- 
fore you  cure  said  commissioners. 

*'  And  our  further  will  and  pleasure  ii,  that 
cTtry  biU  or  warrant  thai  hereafter  shall  be 


mide  ibr  any  such  maniimistiton,  graimte,  and 
elkfrtittnchesment,  asTOu  shall  ihinke  mete  and 
convenient  to  b^  made  and  ^ssed  from  us,  for 
any  suche  cumifositions  and  agreements  as  ia 
abovesaid,  sball  be  subscribed  by  you  as  above 
ia  said,  and  our  will  and  pleasure  is,  and  by 
these  presents  we  ilo  firraunte,  that  every  such 
bill  or  warrant  so  to  Se  made,  and  so  by  you 
subscribed,  shall  be  a  sufficient  and  immediate 
warraunt  to  the  said  I^rd  Chancellor  or  I/m! 
Kcper  of  the  greate  sealo  of  England  for  any 
tyme  beingc,  for  the  making  and  passage  of 
every  such  mannmyssion,  graunte,  and  en- 
frauehefiment^  la  due  order  and  forme,  under 
our  said  griat  seale  of  Etigland,  according  to 
the  tenor  aud  effccte  of  the  said  bill  or  warrant, 
without  any  further  warraunt  for  the  same  to  be 
bad  or  pursued,  payinge  only  for  all  manner 
Of  fees  St  the.Greate  Seale  twentee  six  shillings, 
eight  pence, 'and  nnt  above,  and  these  our  let- 
tets  signed  with  our  haude  shall  be  to  you  suf* 
firient  warrant  and  discharge  in  lliis  bi  halfe  at 
all  times  hereafter,  being  pleased  ami  content- 
ed that  you  ihall  take  this  our  writinge  under 
our  great  seale  of  England  nt  your  owne  plea- 
sures and  willes  for  the  full  execution  ut  the 
premises,  to  the  benefit  of  the  persons  that  sball 
receive  this  mauuinyHsion. 

<^  Witness  our  self  at  Oorhambury,  the  third 
day  of  April  in  the  sixteenth  yereofour  rsigne. 

**  Per  ipsam  Reginsm/' 

Tlie  preceding  1  take  to  be  the  Commissioe 
intended  by  lord  Karnes  in  bis  *  sketches  of 
the  History  of  Man,*  book  1,  sk.  5,  vol.  1,  p. 
300,  edit,  of  1807. 

To  the  Note  ending  p,  21. 

See  more  concerning  the  Act  for  preventing 
Wrongous  Impritionment,  vol.  19,  p.  53  ;  aad 
coiiceruing  i\w.  Habeas  Corpus  Act,  see  soma* 
thing  iu  vol.  18,  p.  IStiS. 

In  Dodson's  Life  of  sir  Michael  Foster, 
which  I  had  not  seen  when  the  Case  of  Press- 
ing Mariners,  vol.  18,  p.  1323,  was  printed,  is 
the  following  pasbage : 

"  I  cannot  forbear  to  observe,  that  in  Hihiry 
term,  SO  Geo.  3, 1757,  a  difference  of  opinioa 
appeared  in  the  court  of  King's  bench  on  a 
very  constitutional  point ;  1  mean  in  respect  te 
the  writ  of  (lalieas  Corpus.  This  affair  ox  cited 
great  attention  a  considerable  time,  and  in  con* 
sequence  of  it  a  bill  was  brought  into  the  House 
of  Commons  for  giving  a  more  speedy  remedy 
to  the  subject  upon  the  writ  of  Habeas  Corpus ; 
but  sir  James  Burrow  in  his  Reports  is  totally 
silent  in  regard  to  this  business. 

**  As  we  have  not,  to  my  knowledge,  any 
gooti  account  of  this  important  affair  in  print,  I 
will  give  the  best  account  which  I  can  extract 
from  Mr.  Justice  Foster's  notes  and  papers.  It 
appears  by  bis  note  book,  that  in  that  term  mo- 
tions were  made  to  the  Court  for  several  writs 
of  Habeas  Corptu  in  favour  of  men  impressed 
for  soldiers  iiyiae;  the  sUtuts  S9  Geo.  9,  c.  4| 


1375) 


12  G£ORGE  III. 


Addenda  to  this  Volume. 


u|ioa  affida? it«  intended  to  shew  the  men  not 
to  lie  within  the  description  oi*  the  statute;  that 
the  Court,  instead  of  granting  the  writs,  made 
rules  for  shewing  cause  why  the  writs  should 
Dot  pro,  for  notice  to  he  given  to  the  solicitor  of 
the  Treasury,  and  for  the  keeper  of  the  Savoy 
not  to  suffer  them  to  be  removed  in  the  mean 
time  ;  and  that  aflemards  in  the  same^term  the 
ineu  were  discharged  by  the  Court  with  the 
consent  of  Mr.  Jolicitor- General  Yorke.  These 
cases  are  severally  entitled  the  King  asfainst 
Jlaywaid ;  and  in  them  Mr.  Justice  Foster 
expressed  his  sentiments  concerning  the  writ 
of  Habeas  Corpus,  and  in  particular  declared 
it  to  be  his  opinion,  that  the  return  to  the  writ 
is  not  in  all  cases  conclusive  to  the  Court  or  to 
the  parlies,  but  that  men,  wrongfully  impressed 
into  the  public  service  by  sea  or  land,  are  by 
law  entitled  to,  and  ougnt  to  have,  an  easier 
and  8pee<lier  remedy  than  an  action  for  a  false 
return,  w  hich  may  afford  to  them  not  the  least 
relief.  Among  his  papers  I  find  iu  his  own 
hand-writin(f  a  copy  of  a  letter  which  he  wrote 
to  Mr.  *Solicitor-General  Yorke  ;  the  date  of 
which  he  hath  neglected  to  preserve  in  his 
copy,  but  from  internal  marks  it  ivas  manifestly 
written  in  the  former  part  of  the  year  1758 : 

««Sir; 

*'  The  practice  of  granting  writs  of  Habeas 
Corpus  in  the  vacation  in  cases  not  within  the 
Habeas  Corpus  act  having  long  prevailed,  I 
confess  that  I  did  not  entertain  any  sort  of 
doubt  touching  the  legality  of  it ;  though  pos- 
sibly there  might  have  been  some  room  ior  a 
doubt,  if  the  passajre  in  lord  Hale  (2  Hale,  145) 
which  you  mentioueil,  and  that  in  2  Inst.  53, 
had  been  considered  independently  of  the  prac- 
tice. But  as  I  always  considered  the  case  of  a 
barely  wrongful  detention  as  not  within  the 
Habeas  Corpus  act,  but  merely  at  common 
1a\«-,  I  tlr>t]i:;lit  a  legal  sound  discretion  out;tit 
to  l»c  used,  aiul  generally  expected  an  :iflidavit, 
on  behalf  of  the  party  ap|)lyiug  for  tlic  writ, 
setting  forth  some  probable  ground  for  relief 
upon  the  merits  of  liis  case.  This  mctlioJ  I 
constantly  observed  in  tlic  case  of  men  pressed 
into  tiie  servire :  and  that  t'.ie  public  service 
miirht  not  suffer  by  an  ab^^se  of  tlic  writ,  f 
oideriMl  notice  to  be  t(iven  to  the  proper  ofiicers 
of  the  crown,  of  the  time  at  which  the  party 
was  to  he  hrouirlit  before  me,  with  copjtsonhe 
alhda^its.  In  iliisuay  siveral  weredi><chargeJ: 
and  I  niUHt  say,  tiiat  in  some  instafices  1  saw 
80  much  oppression  on  the  part  of  those  con- 
cerned in  that  service,  that  I  am  satisfied  the 
subject  oiii^ht  tu  have  some  better  relief  than 
what  the  pn-bbins:  acts  have  provided. 

<<  About  tlio  latter  end  of  31ichaelmas-vaca- 
tion-was-iwclve-niuntl),  applications  for  the 
writ  coming  V*  ry  thick  upon  me,  I  began  to 
see  the  difficulty  of  steering  properly  between 
the  liberty  of  the  subject  and  the  necessities  of 
the  public  ;  and  accordingly  desired  the  advice 
and  assistance  of  the  other  judges  of  the  court. 
We  met  at  my  chambers  a  low  days  before 
Ijiiary  tcriDi    wheu  1  found  that  the  doubt 


[ISiO 

which  f  have  mentiooed  bmd  operated  strong  v. 
This  determined  uoe,  the  term  being  at  huKi, 
to  proceed  no  farther  than  the  f1i«chargiDg  of 
one  or  two  upon  recotrnizance  for  their  appcir- 
ance  in  the  term.  What  pacscil  iu  court  opot 
motions  for  the  writ  is  well  known. 

**  I  sent  to  you  the  other  day  the  cnpy  of 
the  return  in  the  case  of  thft  Queen  and  Cban- 
berlain.  When  you  shall  have  got  it  traa- 
scribed,  tou  will  return  it  to  me.  1  have  ao 
note  of  that  case,  nor  of  any  otliers  retatiof  to 
this  matter,  in  the  late  queeu^s  time,  though  1 
attended  Westminster- hall  a  little  more  thao 
five  years  before  her  death;  There  was  do  act 
for  pressing  in  the  last  reign  ;  and  I  thiok, 
that  all  the  acts  of  that  kind  in  the  prcKBt 
have  been  made  since  I  was  on  the  beach. 
From  the  few  notes  which  I  hare  relating  to 
that  matter  I  find,  that  the  Court  batb  not 
granted  the  writ  as  of  course,  and  within  the 
Ilabeaa  Corpus  act,  but  bath  required  affidiriii 
on  behalf  of  the  party  apply  ing*  for  it,  srttii; 
forth  the  merits  of  his  case :  and,  on  the  oibff 
hand,  though  proper  returns  in  |K>int  of  form 
may  have  ^en  made,  the  Court  hath  nutgifea 
entire  cre<Iit  to  them,  and  put  the  party  com- 
plaining to  his  remedy  by  action  fur  a  filse  it- 
turn  ;  hot  hath  constantly  entered  into  the 
merits  of  the  case  upon  atndavits,  and  either 
discharged  or  remanded  the  party,  as  the  ok 
hath  appeared. 

"  This  was  done  in  Trinity  term,  in  the  IPOi 
or  20lh  of  the  king,  in  the  case  of  one  Rev- 
nolds*  ;  and  iu  Easter  term,  in  the  ^  9th  of  the 

*  *'  After  writing  this  letter  the  authnrdrev 
up  a  fuller  account  of  this  case^  which  I  wiK 
here  give : 

**  The  King  against  WurrE. 

"  Saturday  next  after  the  octave  of  tbc  Hi>l,v 
Tiinity,  in  ilie  19th  year  of  king  Geori;*- :,  » 
writ  to  major  Thomas  While  in  the  Tower  »f 
T^ofidon  or  his  deputy,  for  Thomas  Uc^na!-. 
5l.ijor  White,  by  the  name  of  Uichard  Wii  i^ 
(for  his  Chr'stian  name  was  tnistaken  in  ih* 
vvrilj  returns,  *'  That  Reynolds  was  conrni'tt.! 
10  his  custo;!y,  as  a  person  impi-ose:!  arci>r.lir,* 
to  the  act  (IU  (iP>  2,  c.  10.)  then  Lidy  mu^' 
for  recrullinuf  his  m'lje^t^  *s  laud  r.>rrti  anJ 
marines,  wliich  is  the  cause  of  lii<  dettnli'^c: 
and  he  brings  his  bndy  into  covut."  Ti:e  rf- 
turn  si'Cnis  to  be  snffiLic:;l  in  point  of  f«irni. 

*'  M'j:.djy  n^xlaiier  ihrtM*  weths ^rihe \Wf 
Trinity,  in  ihe  19t!i  year  of  the  k'j^.  Reveal* 
bf^in:;  bro'-nrlit  ii.i  j  c  -nrt  id  the  custody  of  B> 
ciiard  Wiiite,  it  is  ordered  hy  conscut'of  ro'ia- 
sel  on  bmh  sidis,  thai  the  name  Thomas  Wi.;ie 
mention  ft!  in  the  writ  be  made  Uichnrd  \V:i:*f: 
and  it  is  t'.rthcr  ordered,  that  the  sf.\'\  MritaoJ 
return  be  liied,  and  that  the  said  White  brin;; 
into  court  the  said  Reynolds  on  \Vo<!ne<Uir 
next.  Ani!  upon  reading  the  several  atfi!"'!* 
of  Thomas  Kell,  !s:c.  Sec.  it  is  farther  r.rJer<di 
thut  Thomas  IJi-dwell,  dci*.  &c. — (the  t^iDflu*- 
siontrs  for  putiinjr  the  act  in  exrculinn,  »hp 
acted  iu  the  affair}— shew  cause  to-morrv'j 


1S77J 


Tht  Negro  Casei 


A.  D.  1771* 


C13?8 


kinnf,  in  the  cate  of  one  Hamilton  ;  and  in  the 
Ibllowinsr  term,  in  the  case  of  one  Worald, — all 
preased  men ;  and  of  one  M*Nown  a  supposed 
deserter,  but  in  truth  an  out-  pensioner  of  Chel- 
sea ;  and  in  a  few  other  cases,  of  which  I  find 
no  notes.  In  some  of  these  cases  the  parties 
compUiniog^  were  discharged  in  court;  in 
others  they  entered  into  recoj^nizances,  with 
the  consent  of  the  counsel  for  the  crown,  to 
Appear  the  next  term,  and  were  then  discharg- 
ed, the  king's  counsel  either  consenting  or  not 
opposing. 

**  If  what  I  have  written  will  either  give  you 
light  into  the  matters  about  which  you  en- 
quired, when  f  had  the  favour  of  a  visit  from 
20U,  or  afford  you  any  amusement,  you  are 
evtify  welcome  to  it.     I  am,  &c.      M.  F." 

*' Excuse  some  rasuras  and  after-thoughts; 
for  transcribing  a  long  letter,  with  thick  ink, 
aoft  pen,  and  hard  paper,  is  riding  twice  over  a 
deep  road  upon  a  lame  horse." 

**  On  the  9th  of  May,  1758,  the  House  of 

why  the  said  Reynolds  should  not  be  discharged 
out  of  the  custody  of  the  said  Richard  White. 
The  affidavits  above-mentioned  were  in  behalf 
of  Reynolds,  in  oriler  to  shew,  that  he  was  not 
o  person  within  the  description  of  the  act,  and 
that  llie  impressing  of  him  was  a  wicked 
scheme  of  one  Robinson,  and  founded  in  ma- 
lice. 

**  Wednesday  next  aAer  three  weeks  of  the 
Holy  Trinity,  in  the  19th  .year  of  the  king, 
Reynolds  being  brought  into  court  by  major 
White,  gives  hiti  own  recognizance  in  the  sum 
of  100/.  for  his  appearance  in  court  the  first 
day  of  next  term,  to  answer  to  such  things  as 
•halt  be  objected  against  him  ;  and  thereupon 
it  ia  ordered,  that  he  be  discharged  out  of  the 
euBtody  of  m^or  White.  On  shewing  cause, 
the  al»Bve-mentioRe<l  affidavits  were  read  ou 
the  part  of  Reynolds ;  and  on  the  part  of  the 
oominissioners,  their  own  affidavit,  and  the 
affidavita  of  Robinson  and  some  others,  were 
read  in  support  of  what  the  commissioners  had 
done  in  the  affjir ;  and  the  Court,  upon  consi^ 
deration  of  the  affidavits  on  either  side,  made 
the  laat  rale :  and  upon  the  first  day  of  the 
next  term  Reynolds  appeared,  and  his  recogni* 
aaoce  was  discharged,  no  opposition  being  then 
■lade  on  the  part  of  the  crown  or  of  the  com- 
miasioners. 

**  I  was  favoured  by  my  brother  Bathurst 
with  copies  of  the  rules,  writ,  and  return,  and 
of  the  affidavits  filed  in  the  office. 

**  1  have  an  imfierfect  note  of  this  case. 
Affidavits  were  read  on  both  sides:  and  the 
Goari  aaid,  that  although  it  ia  not  usual  to 
CfDter  into  the  truth  of  facts  set  forth  in  the  re- 
tom  to  a  Habeas  Corpus,  yet  in  this  case,  at 
the  party  suing  the  writ  hath  no  other  remedy, 
it  may  be  dooe :  and  that  if  Reynolds  is  not 
within  the  desoription  of  the  act,  the  com  mis- 
oioocra  have  no  sort  of  jurisdiction  over  him  : 
the  whole  proceeding  ia  a  mere  nullity,  aa 
^ormm  mm  judic$,^^ 

VOL.  XX. 


Lords,  on  the  second  reading  of  the  bill  from 
the  Commons,  entitled,  An  Act  for  giving  a 
more  speedy  remedy  to  the  subject  upon  the 
writ  of  Habeas  Corpus,  ordered  the  judges  to 
attend  the  House,  to  deliver  their  opinions 
seriatim^  with  their  reasons,  upon  ten  questions, 
which  may  be  seen  in  the  Journal  of  the  House 
of  Lords  of  that  day.  On  the  2Jth«  'iGih,  and 
29ih  days  of  May,  many  of  the  judges  delivered 
their  0|tioions  on  the  queHtions  proposed  to 
them  by  the  Lords ;  and  on  the  2<l  ot'  June, 
after  lou^r  debate,  the  bill  was  rejecteii  by  the 
Lords,  who  then  ordered  the  judges  to  prepare 
a  bill  to  extend  the  power  of  granting  writs  of 
Habeas  Corpus  ad  8ui»jicien(ium  in  vacation* 
time,  in  cases  not  within  the  statute  31  Car.  9, 
c.  2,  to  ail  the  judges  of  his  majesty's  courts  at 
Westminster,  and  to  provide  for  the  issuing  at 
process  in  vacation-time  to  compel  obedience 
to  such  writs ;  and  in  preparing  such  bill  to 
take  into  consideration,  whether  in  any  and 
what  cases  it  may  be  proper  to  make  provision^ 
that  the  truth  of  the  facts  contained  in  the  re- 
turn to  a  writ  of  Habeas  Corpus  may  be  con<« 
troverted  by  affidavits  or  traverse,  and,  so  far  aa 
it  should  appear  to  be  proper,  to  itiseri  clauses 
for  that  purpose,  and  to  lay  such  bill  before  the 
House  iu  the  beginning  of  the  next  session  of 
parliament.* 

"  Alwut  this  time,  May  15,  1758,  lady  Foster 
died  after  a  long  illness  ;  and  by  this  event  Mr* 
Justice  Foster  was  prevented  from  attending 
the  House.  However,  ou  the  24th  of  that 
month,  he  wrote  to  chief  baron  Parker  an  ex- 
cellent letter,  of  which  he  liath  preserved  a 
copy  in  his  own-handwriting: 

"  My  Lord  ;  Mny  24,  1758. 

*<  When  we  met  nt  lord  chief  justice  Willes'a 
houKC,  1  had  the  satisfaction  to  tiud,  that  you 
and  I  do  not  differ  in  opinion  upon  any  of  the 
questions  proposed  to  us  ly  their  lordships,  ex- 
cept the  tenth.  Upon  that  f|uestion,  which 
your  lordship  sees  is  proposed  m  the  strongest 
and  most  striking  terms,f  we  did  then  seem  to 
differ. 


*  "See  the  Lords*  Journals,  29,  p.  312* 
322.  331.  337^311.  344—347.  319.  352* 
353. 

t  **  That  question  is  in  the  following  words  t 
'*  Whether  in  all  cases  whatsoever  the  jud^ea 
arc  so  bound  by  the  facts  set  forth  in  the  re- 
turn to  the  writ  of  Habeas  (;orpiis,  that  they 
cannot  discharge  the  person  brought  up  before 
them,  although  it  should  appear  most  inani* 
festly  to  the  judges,  by  the  clearest  anil  most 
undoubted  proof,  that  such  return  is  false  iu 
fact,  and  that  the  person  so  brought  up  is  re* 
strained  of  his  liberty  by  the  most  un warrant* 
ble  means,  and  in  direct  violation  of  law  and 
justice?" 

"  Mr.  Justice  Foster  liath  written  in  the  mnf 
gin  ;  ''  God  forbid  that  thev  should."  But 
how  is  this  question  answered  by  some  of  the 
judges  ?  Chief- baron  Parker*s  answer  i^  thus  t 
**  That  ID  no  caaes  whatsoever  the  judges  are 

iT 


ai9}  ItGEOROBIIL 

flagfMwUhTOvrloMiabip  in  thelratlitC 
'th«  MmnI  docUM,  UmI  a  retm  to  a  writ  of 
'floMo  Coqmo  »  eoodoMf  o  in  point  of  Act 


n  koond  li¥  tiM  botf  Ml  Ibrth  in  tlioiotnrnto 
tiM  writ  of  HalieM  Corpos,  ihottko/  cuuMt 
dteelMige  tbo  ponon  fmraglit  np  More  tlitiB, 
VittlKKild  oppoormoilnioniiMV  totlM  jodra, 
l^tlie  clearatt  and  inoit  andooMod  proofy  tnat 
otooii  rctutn  it  Mm  in  fiici,  ond  tbot  the  peioon 
'•0  broogbt  op  it  rottroined  of  bio  libort j  oj  tbo 
aifttt  anirmmotoble  iBcana»  ond  in  dneet  mb- 
lioooriowondjdtlicoi  bntbr  tiioolotretlond 
flMtt  nndoobtedf  proof  bo  unMOtondt  tbo  for- 
diot  of  o  jury,  or  jod^eot  on  donarrer  or 
otbeniiM,  in  on  ootion  m  a  (khe  rotnm ;  ond 
in  MM  Ibo  laett  retnmod  to  n  writ  of  fiobMt 
Corput  tbew  o  ta6kiont  ground  in  pobt  of 
kw  for  Micb  rettminty  lio  b  of  opinion,  tbat  tlie 
conrt  or  judge,  before  wbom  tocb  writ  it  re- 
tnmablo,  Monot  try  tbo  faett  eontoined  in  tocb 
]htnm  by  offidofitt.*'  lo  notriy  tlio  mow 
^■itnner  tbo  qocttion  b  ontwercd  by  Mr.  Jot- 
tiMDenitoo,  Mr.  Baton  StBytbo,  Hr.  Baron 
'Adamt,  and  Mr.  JuiiiM  Wilmol.  If  tbo  opi- 
vioB  of  tlwM  jodget  bo  ogrNoMo  to  bw.  tbo 
Igreatctt  ii^nry,  m  If  r.  Jottieo  Footer  oboerfet, 
.My  bo  done  to  a  man  witboot  n  powbiTUy  of 
leimat.  GoMtwainli  caM,  whieh  b  reported 
in  «  Bbokttooo'a  Repoctt.  190r— 1311,  ond 
whieb  come  belbre  tbo  oonrt  of  Common  Pleot, 
fl>o  Grty»  Godd,  Blaekttooo,  and  Narot,) 
Fueb.  aOd  Trio.  18  Gm.  3,  irtB.  now  do- 
•ervM  tbo  grealetl  attention.  Ho  wm  illc- 
|niUy  preated  into  tbooM-terfico,  ond  Mr.  Jnt- 
fieo  GouM  tan;—'*  I  do  not  conoei?e,  tbat 
•ilber  tbe  oonrt  or  tbo  porty  ai^  condnded  by 
Ibo  rotnm  of  a  HabcM  Corpat»  bat  bo  may 
plead  to  it  any  tpecbl  matter  necesMry  to  re- 
gain his  liberty.  St.  John's  case,  5  Kep,  71, 
wts  a  case  or  this  Innd.  One  Gardeoer  was 
eoDvicted  and  imprisoned  for  carrying  a  baod- 
guD,  and  this  cause  being  returned  on  Habeas 
Corpus,  he  pleaded  to  it,  that  he  wm  a  sheriflf's 
officer,  and  as  such  entitled  to  carry  a  band* 
gun ;  which  plea  being  confessed,  he  was  dis- 
cliarged.  1 1  is  said  in  the  Queen  and  Bumsby , 
Ld.  Kym.  900.  Salk.  181,  tbat  the  record  of 
St.  John's  case  cannot  be  found ;  owing  per- 
haps to  a  roistalce  of  the  year,  which  is  in  Colce 
84  Eliz.  whereM  in  Cro.  Eliz.  821,  it  is  re- 
|K>rted  under  the  name  of  Gardener's  csm  in 
48  Eliz.  and  there  is  a  cop^  of  the  record  in 
Treroaioe  854,  which  b  mhI  to  be  P.  48  Eliz. 
rot.  49."  Tbe  learned  reporter  adda, — **Tbo 
Court  declared  they  conid  not  wilfully  abut 
llieir  n^es  against  such  fiicts  u  appeared  on 
Ibe  affidavits,  but  which  were  not  notictd  on 
Ihe  return.  They  were  inclined  to  thiplc  it 
Ibeir  duty  immediately  to  discharge  the  party, 
and  should  therefore  ra  some  measure  do  it ; 
but  still  with  a  reserve  to  any  question  of  law, 
which  tbo- Admiralty  meant  Wiously  to  argue. 
They  therefore  discharged  Goldswain  on  bb 
Own  recogniiaoM  of  90/.  to  appear  in  court 
Ibe  oeoond  day  of  tbe  next,  being  Trinity,  term } 

aid  in  Ibe  won  luno  rooonrntndtd  it  to  tbe 


4Mmi»  te  Hw  foliime.  fttl 

IloanoolbolivfOfpoi*;  tfMOnartilbaMdV 

iL  and  Ibe  tejmed  pnrfcy  in  flijvcB  m  Man  ' 
Too,  1  ndaui, b llio gePMiyi nJe;  btfi 
Ibm  ft  b  not  mrfi 

ri  whioh  aie  eiMptbdn  m  bi  naJ 
Ml,  u  yonr  bidabip  orett  fcaooi 
bot  ratbcr  oatabOtb,  n  geueinl  «§!•«  TMmm 
of  peraont  pramtd  into  liw  ^niiicn  ai^  I  dih 
eeife»  one  of  tbem,  for  tbb  plnfai  toMtn,  Ihsti 
llie  parly  cannot  contrwictt  iIm  imbtf  Ai 
Ada  ttl  Ibrtb  in  Ibe  leliUB.  fan  b 
witboul  remedy.  An  inadeqonM^ 
reme^ b noTMody ;  bb 

to  n  diftiwnbg  oMn,  whieh 

or'wiUnotbeorhb  weighl.  Itb 
of  baobko  to  tbe  cbildmi  of  Mie*OfaMly,«bii 
tlMyaiebying  for  brand.  lacoMnaanoM^ 
in  OTtfT  caM  wbere  Hie  geoeral  rab  b  hM 
down,  die  ininffd  pertj  «iHt  wait  Ml » 
lience  till  be  ean  fobirf  Ihe  relam  innpnfir 
aetion.-  Tbityilwotlbe  eoaft!MiJ,bapiit 
aaitfortnne ;  bot,  till  tbe  dny  oTino  diKiuai 
oomet,  he  oantinnM  al  hooan  ~  ~ 
tbe  bw,  and  under  ita  pnolnc 

bnowa,  b  not  the   conn  of 

into  tbe  aarme  by  bad  ornei,  flHa» 

bin  to  beneoigeei  of  tbe  bv.    BTt 

~   *^^^^*^V**^  AuMhdbbilii 

8iifoy,'orabonrdatonder|  udifbbibdl 
happen  to  bate  lime  oanngb  to  praoMeal^ 
boMCorpot,  a  toficbttlictara  toihe  wiib 


Biy  madf,  (Iheienrtt  praoniaiiim^d 
wnoCoe,an<  Ihcy  uw  mob  eiM 
4uid  tbe  man  b  aeni  nny,  ui  dae  ftmorna^ 
to  take  bb  ohmwe,  for  name  ecHn  paAM 
amidtt  Ibe  perib of  the  nan,  mnI  iheSmM 
of  war.  Bnlilbaaid,  IhnthaMMiwiM 
a  remedy.  What  remedy  f  An  nctbnifiHd 
a  man  perhaps  not  worth  a  groat.  But  bo 
responsible  soever  tlio  officer  may  be,  whati^ 
tisractbn  in  damagM  b  equal  to  the  iqan- 
or,  if  tbat  were  poaaible  to  be  had,  what  a* 
comea  of  tbe  action,  if  the  plaintiff  abooM  h 
knoclced  on  tbe  hMd  in  tbe  oerriee  ?  Wbr 
trolv,  moritur  cum  perumA.  lo  abort,  be  bdk 
in  this  view  of  tbe  case,  no  remedy,  unless  ja 
Snre  him  what  I  call  tbe  apecine  remoif»i 
right  to  controvert  tbe  tmlh  of  the  retmb 
fore  it  is  too  bte. 

•<  In  the  COM  of  tbe  Riog^  and  fVbito,  vbA 
was  mentioned  at  our  last  aaeeliag,  tbo  Cail 


connael  for  the  Admirallj  to  oooaider, 
they  would  amend  their  relnna :  in  dcfaal^ 
which  tbe  Court  would  eooaider  wbethai 
quMh  it  for  insufficiency,  or  admil  Culdisdi 
to  plead  to  it  according  to  the  precedent  ^ 
by  Gould,  justice ;  or  to  lake  it  up  in  a  aii 
aumniary  way,  by  taking  pro  coM/ct«»  tbe  ^ 
ters  stated  in  tbe  original  offidavito.  Ami  ^ ' 
00  the  second  day  of  tbb  term,  being  tbetf^ 
of  June,  Goldswain  appeared  on  bb  iMp 
sance,  and  was  finally  dbcharged,  by  oitf^ 
of  Dary ,  counsel  for  the  board  af  Adawaip* 
♦  "See  Gokbwaia'n €ane»  abed  ia  tepj 
eedingnote. 


19BQ 


The  Hegro  Cate. 


A.  D.  1771. 


[138S 


considered  the  matter  in  tbie  light,  and  in  the 
«nd  the  man  was  discharged  upon  reading  affi- 
ilaTits  on  both  sides.  The  like  hath  since  been 
•^one  in  other  cases  of  like  nature.  It  matters 
not  with  me,  what  method  the  Coort  took  to 
come  at  the  merits  of  the  question  in  point  of 
fact.  The  principle  which  they  went  upon  is 
what  I  rely  on :  and  the  principle,  as  I  take  it, 
was,  that  though  in  common  cases  the  return 
is  conclusive  in  point  of  fact,  ^et  these  special 
cases,  as  they  come  not  within  the  general 
reason  of  the  law,  are  not  within  the  general 
mle.  The  parties  are  without  remedy,  if  they 
mre  not  to  controvert  the  truth  of  the  return 
in  a  summary  way ;  and  therefore  they  shall 
doit. 

"  You  may  be  surprised  to  receive  so  long  a 
letter  from  me  at  this  time ;  but,  to  confess  a 
serious  truth,  while  I  am  thinking  of  these  in- 
different matters,  I  feel  that  my  mind  is  em- 
]»ioyed  upon  something  which  doth  nut  give 
ine  pain.    1  am,  &c.  M.  F." 

«<To  this  letter  the  Chief  Baron,  May  sr, 
1758,  returned  the  following  answer : 

"  Good  Brother ; 

*<  I  am  favoured  with  your  letter,  and  am 
Tery  aorry  for  your  late  ^^reat  loss.  As  yon 
•spree  to  the  general  principle,  that  the  return 
of  a  Habeas  Corpus  cannot  be  contradicted  in 
Ant  proceeding,  so  I  must  confess,  that  your 
leaaons  are  very  strong  to  shew  the  present  to 
be  an  inadequate  remedy;  but  I  am  afraid, 
that  the  parliament  only  can  apply  a  quicker 
•od  more  effectual  remedy.  As  to  the  case  of 
the  King  and  White,  and  several  subsequent 
cases,  I  entirely  approve  them,  t>ut  consider 
them  as  collateral  proceedings,  founded  on  the 
general  power  of  the  court  of  King's-bench,  to 
correct  toe  acts  or  misdemeanours  of  all  infe> 
ftor  jurisdictions  to  the  oppression  of  the  sub- 
ject. We  have  gone  as  far  in  delivering  our 
cpioions  as  my  brother  Smytbe^  and  are  to 
proceed  on  Tuesday,  so  that  it  must  be  left  to 
your  own  discretion,  whether  you  will  give 
yoQT  opinion  or  not ;  but  if  you  should  not 
dioose  to  appear,  I  have  taken  care  that  my 
lord-keeper  shall  excuse  your  absence  to  the 
liords. 

**  I  am,  with  true  respect,  Sir,  your  most 
cUiged  brother,  and  obedient  servant, 

*•  T.  Parker." 

"  Bedford-row,  May  87,  1758." 

**  While  this  business  was  depending  in  the 
Bouse  of  Commons,  Mr.  Justice  WHmot  wrote 
to  Mr.  Justice  Foster  the  following  letter: 

«  Ormond'itrut^  April  9,  1758. 
'« Dear  Brother ; 

V I  herewith  send  you  a  State  and  some  Res- 
gaaa,  which  lord  Mannfield  and  I  have  put 
aa^cCber,  to  explain  and  support  the  Court's 
proceedings  upon  the  present  act. 

**  We  desire  that  you  will  be  so  good,  as 
fDOO  aa  possible,  to  took  them  over,  and  to  cor- 
net tbem  as  you  think  proper,  and  to  add 
0m9k  other  reasons  as  oecur  to  you  in  rapport 


of  what  we  were  all  of  opinion  to  do ;  and  I 
own,  that  I  am  still  strongly  of  the  same  opi- 
nion. If  yon  should  think,  that,  auppoaiogthe 
construction  of  the  act  wrong,  yet  what  we  did 
was  right,  that  may  properly  be  added,  and  ia 
an  ariorument  d  fortiori, 

'*You  recollect  that  this  happened  hut  just 
before  Hilary  term.  The  pariiament  was  sit- 
ting, and  in  the  new  bill  might  have  laid  dowa 
what  rule  they  pleased  before  the  vacation. 

**  I  am,  dear  brother,  your  most  faithful 
friend,  and  most  obliged  humble  servant, 

••  Eardlby  Wilmot." 

''  Mr.  Justice  Foster  the  next  day  returned 
an  answer  to  Mr.  Justice  Wilmot,  which,  as  I 
am  informed  by  his  son,  John  Wilmot,  es^. 
one  of  the  masters  of  the  court  of  Chancery,  la 
not  found  among  his  papers.  I  give  it  from  a 
copy  In  my  poasession  in  the  author's  band* 
writing: 

«  Dear  Brother ;  AprU  10,  1758. 

"  Lord  Mansfield  did  me  the  favour  of  a  visit 
on  Saturday,  and  told  me  of  the  paper  which  I 
received  from  you  yesterday,  and  now  return. 
He  told  me,  that  it  was  intended  as  a  justifica- 
tion of  the  rule  which  we  made  in  Hilary- 
term-was-twelve- month  :  but  in  what  roanuer 
it  is  to  be  made  use  of,  I  know  not. 

"  It  will  undoubtedly  be  a  full  justification  of 
that  measure,  if  it  be  known,  that  even  a  ma- 
jority of  the  judges  have  put  the  construction 
on  the  act  which  you  contend  for.  They,  if 
they  are  well  founded,  need  no  better  justifica- 
tion ;  and  the  juds^e  who  differed  desires  no 
better  than  to  say,  that  he  came  into  the  mea- 
sure, as  the  only  expedient,  which,  all  things 
considered,  offered  to  let  the  subject  into  a 
proper  defence  against  the  abuse  of  the  powera 
given  by  the  act. 

'*  1  have  made  some  marks  with  my  pencil 
on  your  paper,  which  I  will  now  explain. 

*'  P.  1.*  The  first  cou«ideration  was,  whe- 
ther a  writ  of  Habeas  Corpus  might  issue  ia 
the  vacation  in  cases  not  within  the  Hubeas 
Corpus  act,  and  the  passages  in  Coke  and  Hale 
were  mentioned  :  but  that  matter,  upon  farilier 
enquiry,  is  now  put  out  of  doubt.  J  indeed^ 
out  of  pure  deference  to  what  I  took  to  be  the 
opinion  of  tlie  majority,  have  decliued  graniiog 
the  writ  in  the  vacation,  but  sorely  a>(ainst  my 
own  juilgroent  1  am  informeil,  that  write 
have  issued  in  the  vacation  since  tJiat  tune. 

•»  P.  8.*t4.  p.  3.*  p.  8.*  In  these  places, 
and  perhaps  io  some  others,  which  I  hsve  not 
marked,  you  speak  of  the  judi^es  in  general  ; 
you  khould  confine  yourself  to  the  major  part, 
which,  I  suppose,  ia  ilie  case. 

**  P.  8.f     Here  all  the  judges  concurred. 

*'  P.  9.*  The  words  struck  out  should  be 
inserted :  and  you  will  be  pleased  to  consider, 
whether  this  rule,  and  that  wbicli  we  grounded 
ii|ioo  it,  do  not  go  on  a  supposition,  thst  the 
adjudication  of  the  commissioners  is  not  final  to 
all  intents  and  purpoKes.  With  regard  to  those 
who  are  the  real  objecu  of  the  law  it  is  final : 
and  with  regard  to  the  persona  to  whoat  cui» 


■jm 


WCEOBCE  ni. 


Jiflmi>t>liUliUmt— 


te  disp^iHd  of,  and  libewlie  lo  ibe  offi- 
'•m  wh>  receive  Ihem  anil  treat  llietn  as  sol- 
'Ikkia  atf  i»te<l,  it  ii  a  full  ioiluiDnily  for  nhat 
ttm  Ai  uiiil«r  the  Biiilioriiy  of  ihe  coromis- 
'■Mfti.  Ttiii  roadruclioo  tbe  act  will  Lear, 
nd  tba  Utong  wutJint;  of  il,  wdkh  you  ha'c 
^■fv  properly  iiuloIfiI  nut,  platnly  It^ads  to  il, 
)Mn,  1  tliink  lua,  ii  sufficiently  satisfied  by  il : 
tin  thut  tliu  BiljiHlicition  or  ibe  cooiniJtmiier* 
aboald,  he  cunuliisiTe  to  ibe  parliei,  whetber 
8lgw4»  iif  lbs  law  or  doi,  I  can  oeter  sdmil. 
T9B  arglue  from  tbe  inleDliun  of  tlie  act.  I 
Umit  M'ktKr  rale  of  MUtraetion  liiaii  at- 


tMilliiin  itiTwIrr-' '-Ji 

.■MtMti  to  try 
ipk.    WMil 


lfc»iMmtiM  af  lh«  ligMlMant  M 


aiMJOMM  ■*!  MOr  ifciir  fi^nar  If  ^fi  als-bevM 
«r  m  Uf  en  ;  to  oeud  liie  belt  inon  mmmm  m 
lj|od  P^  powdtr  lo  North  4moiie«.r  1>io»  1  «b 
■Ibt^'  «■>  MM  their  iolMlioB ;  and  jot,  if  Ott 
Mudicatioo  orthoooaniMiofMnbe  oopdnoin 
ft  Ibe  partf ,  and  a  pr^r  reiBrn  bo  Bade  to 
tltf  writ,  thn  ma«  be  the  cowquenee. 

"F.  0.*  I  do  not  rteollcol  tl)ia  oieniB- 
•laiMo.  I  did  UN  tnfficieniljr  aUcad  to  all 
irhich  iwewd  Ibet  daj. 

.  •'  1  hue  apokcD  mjt  mind  ftedy  to  joi.  I 
■a»,  TOO  kop*.  epitteii  to  tbo  faaia  cKot 
^nore  iBaa  once  od  tlio  bench ;  and  I  boTe  eecn 
V*  rcaaoA  to  ajtor  n^  epintoa.  I  hope  that  J 
db.iiH  ha*e.  bo  eecaeioD  to  mj  uj  thing  nior* 
M  dio  aolnoct  n  pnUic :  Tor  at  a  time  when 
Um  world  i«  fall  wf  jealoROT,  tpi  rooDtoB  mad 
•Aer  popnliriljr,  one  wmtw  sot  wiah  to  lea 
Mtge«  dif'uM  00  poiiiti,  when  the  liberl*  o 
Die  niigect » 10  nearlj  GoueorMd.    I  am.  && 


M.  F." 


"  Whether,  Ibe  paper  mentioDed  id  theie  let- 
ten  be  now  in  existence  or  not,  I  am  unable  lo 

^y.  On  a  view  of  tbe  facta  aad  reuoDa  bere 
bmughl  tngrther,  it  ii  natural  to  with,  that  the 
Ull,  wliich  llie  jiiilgrailrew*  with  great  care 


•  "  It  ia  in  the  following  wordi :  "  Whereaa 
4>e  writ  of  Habeas  Cnrpua  ad  Suhjiciendum 
bath  bern  found  by  ex|>erieDce  to  be  the  moot 
cxpeditioua  aud  elfectuil  method  of  reatoring 
any  jieraoD  lo  his  liberty  who  bath  been  un- 
juatly  deprired  thereof;  eod  wbereu  eiteadiug 
Ibe  rfioedy  of  inch  writ,  and  enfureing  nbedi- 
ence  Ihereunio,  and  preventing  delays  in  tbe 
cxeculinn  Ibereoliaad  ascertaiDing  the  proceed- 
inga  Ihervupun,  will  be  greally  beneficial  to  the 
alibjecl :  Be  it  therefore  enacted  by  Ibe  lung'i 
mim  exi'ellent  tn^eaty,  by  and  nitn  Ihe  advice 
and  cnnaent  of  tbe  Lorda  spiritual  and  temporal 
and  Curnmnni,  in  this  present  parliament  as- 
aemblfd,  and  by  tbe  authority  of  the  aame, 
l^at  where  any  pennn  ehall  be  confined  or  re- 
B{raineil  uf  hia  or  brr  liberty,  otherwise  than  foi 

2 me  ciiruiiial  or  aiipposed  crimiuat  matter,  il 
all  and  may  be  lawful  for  Ihe  lonl  cbancelior, 
hyd  ktega,  iwif  cummiKiooen  of  tlu  gnai 


r}  RrjUtwufc  tr.  Jm^  EkA- 


eairataad*  if  __ 

affirmadnGii  oaea  whmt'kj  lur  tm  aUta^ 
lion  is  iillqvad)  that  dura  ia  ■  pabiyi  ad 
eaaaadla  fnMtod  br  sock  coMpbHt,  to  aaal 
a  facaliH^tima  a-writaT  Habaaa  CatfMil 
bibjicindnm,  aadw  lh«  aaal  af  aaah  Md 
rhc^.etfboshaH  tken.haaMa( -'     '"       ' 


custody  oe  pows  tbo  |Ht*  ao  e. 
Mraiiied  sbaD  be,  KWrlaatto  immttiwt)  hMO 
the  iiersbo  so  awarfiag  tba  aaaoaJta  hafaqp'M 
other  jodK*  if  ibe  «M*t  wB^ei  *•  tod  rf 
which  iho-said  writiaaaeC 

-  Iiiilliii  ilfsill iiliidbj  Ibiwrtwg 

aforesaid,  that  iribof""'    "  '- 


,tbatirihopaaea« 
oTHahMfCwpMi 


pnrsuancaof  ihiiacLiniaanfilaaafiiAw^ 
eiiher  bj  tba  actual  datiwy  lliaiarf  to  U^ 
her.  or  tbein,  or  bj  banaa  iba  mmm  at  Ii 
wbmi  Ibe  party  ab^lM  — Baed  «'» 


.toed  with  aa* 


irasaataribtii 


trilluIlyiicgleatorrafBaa  to  a 
pay  obedienoa  ibareto,  be  or  aha  dbalbe^^ 
td  ifniltj  of  a  wataautof  tba  OMpM  ^atoia 
seal  wberoefsiMbwttaballianai  uditMi 
anit  ma*  ba  kwM  to  aad  lor  tba  ^dM 
chancellor,  lord  keeper,  lord  caauuiaMoaer.  ji^ 
tice,i)r  baron,  before  whom  aoch  wHl  shaBta 
rviurnibte.  upon  proof  made  of  ancb  aeriict, 
tu  award  io  the  vacation-time  praoeaa  of  ^ 
icmpt  under  tbe  aeal  of  sitcb  court a^caiatfiti 
\-trsiiii  at  perwina  Kuiliy  of  attch  ooDtempt,» 
iiiniiitile  before  himseu'  in  the  TacalMA-ui% 
ivli'>  shall  proceed  ibereoa  aa  ta  law  aad  juMBI 
lihull  appertain. 

"  I'rovided,  that  if  sncb  writ  shall  be  awvd- 
ed  so  lale  in  the  vacation  hj  any  ona  of  tki 
haiil  Jiislicesor  barens,  that  in  hiaopiomial^ 
ilifiicc  thereto  cannot  be  Giinieoieally  paid  A» 
iiii.''  sMch  vacation,  tba  aania  shall  anil  Bsysl 
hij  (lisorelioD  be  made  returnable  in  hia  ■»■ 
jpE^tv's  court  of  Kiog's-bench  at  a  day  eenaia 
in  ilip  next  term  :   and  tbe  aajd  court  ahaJI  mt 


lanoer  as  if  such  writ  bad  bacn  otifiadlf 
awarded  by  tbeaaiil  court. 

"  Provided  also,  that  if  auob  writ  shall  b 
an  arded  by  Ihe  court  of  KiD«'s-beDcb  is  IsA 
Ijul  so  late,  that  in  the  judgiiHut  oT  tba  Mi' 
conn  obedience  tlieristo  cannot  ba  caavesindf 
paid  during  aoch  term,  iba  aame  aball  aad  M^ 
at  tbe  discretion  of  tbe  aaidcauii,  ha  Madi  i^ 
tuciitiU«4a,iiiV  (KftaiB  i& tti« IhinMrt » 


1385] 


TkeN^TQCaae. 


IIm  remedy  it  amt  ooMipfelte  for  rem^t  inc^  the 
injnry  of  uojiMt  and  illegal  ceofiocaieDi,"  yet 
it  is  manliest  from  the  ubservatioss  of  Mr. 
Jttsike  FoOer,  and  from  the  bill  Urawo  by  tbe 

calioo  before  any  judge  of  the  same  court,  who 
shall  and  may  proceed  thereupon,  in  such  man- 
ner as  by  this  act  is  directed  oonoemiog  writs 
issuing  in  and  made  returnable  during  Uie  f  a- 
catioo. 

**  And  be  it  farther  enacted  by  the  aothority 
ftfiiresaid,  that  in  all  caaea  provided  for  by  this 
act,  although  tbe  return  to  any  writ  of  Habeas 
Corpus  shall  be  good  and  suflbcient  in  law,  the 
•aid  lard  cbancellur,  lord  keeper,  lord  commts- 
•iooer,  justice,  or  baron,  before  whom  such 
writ  shall  be  returnable,  shall,  as  soon  as  con- 
veniently may  be,  proceed  to  examine  into  the 
truth  of  the  nets  set  fortti  in  such  return,  and 
iato  the  cause  of  such  coofinement  or  restraint, 
by  affidavit,  or  by  affirmation  (in  cases  where 
ma  affirmation  is  allowed  by  law)  and  shall  do 
Ihereia  as  to  justice  shall  appertain.  And  if 
Mich  writ  shall  be  returned  before  any  one  of 
tbe  said  justices  or  barons,  and  it  shall  appear 
doubtful  to  him  on  such  examination,  whether 
the  material  Tacts  set  forth  in  the  laid  return, 
or  any  of  them,  be  true  or  not,  in  such  case  it 
■hall  and  may  he  lawful  for  such  justice  or 
bason  to  let  to  bail  the  said  person  so  conBned 
•r  restrained,  uinm  his  or  her  entering  into  a 
recogniiance  with  one  or  more  aureties,  or  in 
case  of  iufancy  or  coverture  upon  security  by 
iBCOgnisaoce  in  a  reasonable  sum,  to  appear  in 
Ibe  court  of  King's-liencb,  upon  a  day  certain 
io  the  term  follouing,  and  so  from  day  to  day 
•a  the  court  shall  require,  and  to  abide  socii 
order  as  the  court  shall  make  in  and  concern- 
ipg  the  premint^ ;  and  such  justice  or  baron 
•ball  transmit  into  the  same  court  the  said  writ 
and  rHuru,  together  with  tlit*  said  recognizance, 
affidavits,  and  affirmations ;  and  thereupon  the 
•aid  court  shall  proceed,  order,  and  determine, 
touching  tbe  discharging,  bailing,  or  remand- 
mg  the  |»arty,  as  to  justice  shall  appertain, 
^itlier  in  a  suwiuary  way  by  affidavit  or  affir- 
■MitioB,  or  by  dincting  one  or  more  issues  for 
the  tridil  of  the  facts  set  forth  io  such  return, 
or  aov  of  them,  whereupon  such  proceedings 
diall  ue  had  as  in  other  cases  of  issues  directed 
by  that  court. 

**  And  be  it  farther  enacted  by  the  authority 
aforesaid,  that  the  like  proceeding  shall  be  had 
ip  tbe  same  court  for  controverting  the  truth 
of  tho  return  to  all  writs  of  Habeas  Corpus 
awarded  for  or  on  behalt'  of  any  person  confined 
or  restrained  of  bis  or  her  liberty,  otherwise 
tban  for  some  criminal  or  suppcMed  criminal 
matter,  by  affidavit,  affirmation,  or  otherwise, 
although  such  writ  shall  be  awarded  by  the 
Mldicoart,  or  be  returnable  therein. 

^  And  be  it  farther  enacted  by  the  authority 
•fcmaid,  that  it  sbail  sod  nsy  be  lawful  for 


A.  D.  1771.  [IS85 

jodges,  that  this  assertion  is  not  well  founded, 
and  that  farther  relief  in  some  cases  is  desirable* 
These  letters,  and  tjie  answers  of  Mr.  Justice 
Deoison  and  Mr.  Justice  Wilmot  to  the  tenth 
quest iun  proposed  by  the  House  of  liords  to  the 
judges,  with  the  other  evidence  above-adduced, 
seem  to  prove,  eontriry  to  the  assertioos  ia  ^ 
Burrow,  S396  and  3588,  that  on  thia  occasioa 
there  was  a  final  diflerence  of  opiniou  ia  tha 
court  of  Kiog's-bencb." 


the  court  or  judge  proceeding  on  any  writ  of 
Habeas  Corpus  ad  Subjiciendum  awarded  in 
casfs  of  confinement,  not  fur  a  criminal  or  sup* 
posed  criminal  matter,  to  make  such  order  in 
regard  to  the  payment  of  the  charges  and  ez* 
pences  of  bringing  up  the  party  so  confined  or 
restrained,  and  for  carrying  him  or  her  back  to 
bia  or  her  place  of  coufiuemeut  in  case  of  ro- 
manding,  as  to  such  court  or  judge  shall  upoo 
examination  thereof  seem  meet ;  and  tor  noa- 
payment  thereof  to  award  process  of  contempt, 
whereupon  such  proceedings  shall  be  bad  as  io 
other  cases  of  contempt  for  non-payment  of 
costs. 

*<  And  be  it  declared  and  enacted  by  the  so* 
thority  aforesaid,  that  an  Habeas  Corpus,  ao* 
cording  to  the  true  intent  and  meaning  of  this 
act,  may  be  directed  and  run  inUy  any  county 
palatine,  tbe  cinque  ports,  or  any  other  privi- 
leged places  within  that  part  of  Great  Britain 
called  England,  dominiou  of  Wales,  and  town 
of  Berwick-upon-Tweed,  and  the  isles  of  Jer* 
sey,  Guernsey,  and  Man  ;  and  also  into  any 
port,  harbour,  road,  creek,  or  bay,  upon  the 
coast  of  England  or  Wales,  although  tbe  same 
should  lie  out  of  the  body  of  any  county,  any 
law  or  usage  to  the  contrary  iu  any  wise  not- 
withstanding. 

"  Provided  always,  that  nothing  in  this  act 
contained  shall  extend  to  discharge  out  of  pri- 
son any  person  charged  io  debt  or  other  action, 
or  with  process  in  any  civil  suit. 

**  And  be  it  farther  enacted  by  tbe  authority 
aforesaid,  that  the  several  provisions  made  by 
this  act  touching  the  making  writs  of  Habeas 
Corpus  issuing  in  time  of  vacation  returnable 
in  the  court  of  KJngVbench,  or  for  making 
such  writs  awarded  in  term-time  returnable  ia 
the  vacation,  as  the  cases  may  respectively 
happen  ;  and  also  for  awarding  process  of  con*- 
temptin  the  time  of  vacation  against  the  per*- 
son  or  persiuis  neglecting  or  refusing  to  naako 
return  of  such  writs,  or  to  pay  obedience  tbere-^ 
to,  ahall  extend- to  alt  write  of  Habeas  Corpus 
awarded  in  pursuance  of  a  certain  act  pssseil 
in  the  dlst  year  of  king  Charles  the  seoood, 
intituled.  An  Act  for  tbe  better  securing  the 
liberty  of  the  subject,  and  for  preventioo  of  im- 
prisonment beyond  the  sess ;  in  as  ample  and 
oenefleial  a  manner  as  if  such  writs  and  the 
said  cases  arising  thereon  hsd  been  hereia  be> 
fore  specially  Duoed  and  profided  for*'*^ 


l3St} 


14  GEORGE  m. 


Addenda-^Tke  Grttutda  Cote. 


[13EB 


Case  of  the  Islasd  of  Grbvada, 
pp.  239,  et  ieq. 

EdwHdi  (Hist,  of  the  Wert  IdiUm,  book  3, 
'cbap.  1}  g>'e>  ID  hiatnricti  aocouot  ot'  lbs  dul* 
of  iMir  lud  one  lisif  in  Ihe  huodred  wbica 
gave  riie  to  IhU  cue :  and  be  obterrea  that  the 
olauie  in  the  Act  of  Auembl^  of  Barbadora, 
(lee  p.  851)  wliich  exemitla  the  Uodt  called 
tbe  tea  Ihuuwnd  acres,  and  alao  that  which  ati- 
yulatea  Tor  the  buitdin|f  a  (ession  boose  and  a 
priaon,  aod  providing  for  alt  otbsr  public 
cbar^ei  iacumbeat  on  tbe  goTerDmeiit  out  of 
the  iQoaey  to  be  raised  by  tbe  act,  have  been 
equally  diaregarJed  by  the  crown.  Tbe  for- 
mer of  (hose  clauses  i«  not  aet  forth  in  the  re- 
port orCaropbellir.  Hall.  Edward*  exbibiti  it 
M  follow*: 

"  Provided  oeTertfaple**,  that  neither  Ibii 
act,  oor  any  thing  therein  Gonlained,  aball  ex- 
tend or  be  conArued  (a  bar  hie  rnnjesty,  ur  hi* 
■aid  excellency,  from  hi*  or  their  right  to  any 
land  granted,  or  any  incroaclimenis  made  U|ion 
the  aea,  since  the  year  one  thousand  sik  hun- 
dred and  ftfiy,  or  to  any  land*  connnonly  called 
or  known  by  the  name  of  ihc  ten  thousand 
acres,  the  merchants  land,  granted  by  the  late 
earl  of  Carlisle,  or  bi«  father,  untoHarmaduke 
Hawiten,  esq.  William  Perkins,  Alexander 
Bannister,  fiJmuad  Fnrster,  captain  Wheattey, 
aad  others  Ibeir  associates,  on  certain  cotc- 
Danta  and  conditiuiis :  PniTJdeit  alto,  that  the 
gruwth  end  pruluce  of  the  aaiil  landa,  men- 
lioued  in  the  preceding  proriso,  be  mil  liable  to 
■ny  tax,  impost,  or  cnslnm,  iini>OBcd  by  tbji 
act,  any  lliins:  in  the  «ame  lecniln^  to  tbe  con- 
trary notivjiliatandjiig." 

In  the  House  of  Commons  oti  Monday, 
March   lath,    1701-2,   (eifhi   days  after   the     had'escaped' 


tbe  wiodwan]  of  Jamaica,  iroatd  be  in  daan 
of  being  loal,  if  an  euemj  ahouM  attadi  f, 
which  woald  b«  a  rart  Ion  to  EDgland  :  sad 
praying,  that  tbe  said  duljr  of  four  and  a  half 
per  cent  may  b«  applied  to  the  san  for  which 
It  was  giren,  in  order  to  tbe  dclcncc  and  mm- 
rity  of  the  aaid  aland. 

It  was  ordered,  That  Ihe  PelitioB  iie  on  ibi 
UUe. 

On  the  I4lli  of  (he  same  mootli,  cahod 
GrauTille,  from  tbe  committee  of  tbe  whak 
Hoase  to  whom  had  been  cammitled  the  Bl 
lor  the  better  support  of  her  majertj'*  hoaM' 
hold  and  of  the  honour  end  dignity  of  iha 
crown,  reported,  that  they  bad  dincted  hia  t* 
moTO  tbe  Houae  that  an  bumble  addrcaaaiy 
be  made  to  ber  roajeaty,  that  the  doty  or  !■- 

Bnt  of  four  and  a  half  per  cent,  ariuf  ■ 
arbadoei  and  the  Leeward  lalanda,  aa^NI 
to  an  annuity  payable  to  the  lieira  and  sMpa 
of  the  earl  ot  Kinooule,  be  applied  fer  iboR- 
pairing  and  erecting  aucb  turtificatNO*  sal 
other  public  use*  for  the  aafety  of  lbs  mi 
island*  as  her  majesty  shall  direct ;  andtbalH 
annual  account  how  the  aaid  duliea  ahall  bn* 
been  expended,  may  be  laid  before  tbe  B**M 
ofCommon*.  Andaucbanaddreaa waacfdtni 
by  the  House. 

And  on  the  30lh,  Mr.  Secretary  VeniMK- 
portcd  to  the  Houae  that  such  addresabanf 
been  presented,  her  msjeaty  waa  pleased  la 
say  that  she  would  gi'e  directions  aneordi*||lf. 
It  is  obieriable,  that  the  pensioe*  giaald 
in  the  early  part  of  tbe  reign  nt'hiapreseatnt- 
jeaty  (George  the  Srd)  to  the  family  of  tbe  bit 
earl  of  Clialham,  end  those  aubsequentJy  gnal- 
ed  to  Mr.  Burke,  were  charged  a^ioa  tbi*  <atr  - 
of  four  and  a  luilf  percent.  Mr- Burke,  is  )^ 
veningto  onenf  his  Hefcrin  Billa  (staLStG- 
3,  c.  83J,  --'•-  ■ 


This  of  the  (iiur  and  ■  half  per  cents  'm 
grace"  [ihe  duke  of  Bedford]  ■'  imigiM 


e  to  c 
granted  to   her  majesty  fur  ihe  better  iiupport  ,  bel'ure  hi*  grace  w 
of  her  majesty's  houshold,  atid  of  Ihe  huuour  i  in  my  eye.     It  was  luii  in  lue  eye 
and  di^nityuf  IhecrowD,  !  who  novked  with  roe.     Itwastenoi 

A    I'elilion   of   the  agents,    planters,    and  ;  On  principle  I  did  what  was  tli 
merchants,  concerned  in,  and  trading  in  the  '  '  " 

island  of  Barhailues,  ivns  presenieil  lu  ihe 
House  and  read  ;  setting  forth.  That  there  is  a 
duty  of  lour  and  a  half  per  cent,  on  ibe  com- 
modities  of  the  said  island  exported  thence  ; 
whii'h  was  granted  by  an  act  of  the  said  inland 
in  September  lti63,  fur  the  reparailon  and 
building  of  lonilicalinns,  and  defraying  all 
Other  public  charges  incident  to  Ihe  guvern- 
■nent  there  ;  which  lie*  been  collected  by  of- 
ficers appointed  by  the  cnai  miss  loners  of  the 
custom*  in  England,  and  applied  to  other 
uses  ;  whereby  the  torliticalinos  are  run  very 
much  out  of  repair,  and  other  public  necessary 
works  are  unbuilt,  aoil  iheir  magazine  uo- 
nrofided,  so  that,  in  case  of  a  war,  ihe  said 
lalaod  aod  all  other  the  sugar  plautaiioaa  to 


ipie  what  was  lell  undone  wis  oaiiiu^- 
I  did  nut  dnrr  to  rob  the  nation  iif  all  InmliO 
reward  merit."  Letter  to  a  Noble  Lord  oa in 
Attacks  made  upon  Mr.  Burke  and  his  Pentitu 
o.D.  1796.  Burke's  Woi  ks,  vol.8,  p.  H,i^ 
8vo  edition. 

The  short-hand  writer's  report  meniinw' 
p.  239,  coniainsofMr.  M'DouBld'*  aruimtfC 
only  tlie  reply,  p.  303,  4,  5. 

U|inn  the  clause  in  the  comroissiDn  U  f 
nerul  Melville  (p.  347),  whirh  requires  him  w 
execute  bis  ulhce  agreeably  "  to  ihcinilrK- 
lionsnud  aiilburiiies  therewith  Kirau  lobm' 
to  such  tartlirr  powers,  in  struct  ioo!i,  and  uilki>- 
riiies,  at  should,  at  any  lime  therrato,  l« 
g^ninied  Or  apgrainied  him  under  tbe  k«^ 
aigncl  and  sign  manual,  or  hy  hb  «nkt  ja  ■ 


JldJenda^—Cau  of  Home. 


A.  D.  177*. 


inm 


Hindi,"  there  u^  tone  rdvaMe  obser- 
ia  iheCanadiaB  Freeholder,  ?ol.  %  pp. 
fff.  See,  alio,  fol.  19,  p.  1168  of  Ibif 
on. 

[>b8er?ab1e,  that  the  words  *  in  as  mach 
iy  are  printed  thus  separately  in  LofTt) 
)ccur  in  the  letters  patent  of  July  S20, 
».  1250,  last  line  but  one),  are  somewhat 
ous.  They  may  mean  *  in  so  far  as,' 
y  may  mean  *  beaiuse*  or  *  since,*  there- 
mi  ng  that  the  poll-tax  mentioned  in  that 
)f  the  letters  patent  was  not  contrary  to 
8  of  Great  Britain. 

clause  in  the  arg^oroent  (p.  391)  at  the 
ting  that  the  language  of  king  Edward 
was,  that  every  part  of  his  dominions, 
lis  possession,  was  feudatory  to  him,  is 
lat  too  strong ;  the  passage  referred  to 
1  to  relate  to  Wales  only. 
I  respect  to  the  proceedings  in  Qno  War- 
ind  also  in  Scire  Facias)  which  were  had 
the  North  American  provincial  go?em- 
tn  the  latter  end  of  the  reign  of  Charles 
,  and  which  are  alluded  to  in  Mr.  Har- 
argument,  p.  299,  see  ?ol.  8,  pp.  1067, 

391,  afler  the  passage  extracted  from 
»ctaniation  of  October  7,  1763,  it  is  ma* 
t  refer  to  what  follows  that  passage  in 
Kslaf nation  as  set  forth  an  the  special 

p.  241. 

observations  inserted  pp.  331, 333,  upon 
msfteWrs  judgment,  were  written  by  Mr. 
ari»lial).     As  that  learned  gentleman  is 

of  the  king's  sworn  Serjeants,  it  is  pro- 
lat  Edwards  called  him  *  one  of  his  ma- 
terjeants  at  law,'  in  contemplation  of  the 
«Tit,  in  obedience  to  whicn  the  learned 

to  whom  it  is  directeil  take  upon  them- 
hat  drgree.  Concerning  this,  tee  Ser- 
Wynne's  Observations  of  the  Antiquity 
ftiity  of  the  Degree  of  Serjeants  at  Law. 
(4,  I.  5.     BIr.  Baron  Maseres  has  told 

was  inforinetl  by  Mr.  Justice  Willts 
',  that  he  did  not  concur  in  the  doctrine 
ord  Mansfield  in  the  case  of  Campbell 

laid  down,  respecting  the  right  ot  the 
o  legislate  antecedently  to  a  renuncia* 
luch  right  for  a  conquered  colony. 


Case  of   Horne, 
pp.  651 9  et  seq. 

apsthe  following  extract  from  Doilson's 
Sir  Michael  Foster  may  be  thought  to 
illustration  on  the  turn  of  Mr.  Thnr- 
lifid  some  years  before  this  trial  of  Mr. 
;  and  also  on  some  of  Mr.  Home's  ob- 
us  respecting  the  influence  of  an  ap- 
*nt  to  the  office  of  Attorney  General : 
the  Lent  assises  for  Surrey,  in  1758, 
Jtment  against  Martha  Gray,  the  keeper 
t-Sheen  gate  in  Richmond-park,  of 
mrk  the  princess  Amelia,  daughter  of 
lorge  S,  WM'thcft  the  ranger,  for  ob* 


ftmeting  at  that  gate  e  common   footMy' 
throogh  the  park,  was  tried  before  Mr.  Justice 
Foster,  who  greatly  distingeished  himaelf  on 
the  occasion  by  his  firmness  and  integrity.    I 
am  happy  to  have  it  in  my  power  to  give  n 
particular  account  of  the  proceedings  at  the 
trial,  written  at  the  time  b]r  a  learned  lawyer, 
who  hath  since  filled  the  highest  station  m  the 
profeuion.     Mr.  Thurlow,  now  lord  Thortow, 
wrote  the  following  letter,  the  original  of  whidi 
is  in  my  possession,  to  Mr.  Ewen,  a  nephew  of 
Mr.  Justice  Foster,  then  and  for  many  yearn 
afterwards,  clerk  of  the  peace  for  Wiltshire : 
*<  Dear  Sir; 
*<  I  write  at  the  hazard  of  your  thinking  me 
impertinent,  to  give  you  the  pleasure  of  hearing 
that  of  your  uncle  which  in  all  probability  you 
will  not  hear  from  him  ;   I  mean  the  great  ho- 
nour and  general  esteem  which  he  has  gained, 
or  rather  accumulated,  by  lib  inflexible  and 
spirited  manner  of  trying  the  Richmond  eause, 
which  has  been  so  long  depending,  and  so  dif^ 
ferently  treated  by  other  judges.     You  have 
heard  what  a  deficiency  there  was  of  the  spe- 
cial jury,  which  was  imputed  to  their  back- 
wardness to  serve  a  prosecution   against  the 
princess.    He  has  fined  all  the  absenten  20/. 
a- piece.    They  made  him  wait  two  hours,  and 
at  last  resort  to  a  tales.    When  the  prosecutors 
had  gone  through  part  of  their  evidence,  sir 
Richard  Lloyd,  who  went  down  on  the  part  of 
the  crown,  said,  that  it  was  needless  for  them 
to  go  on  upon  the  right,  as  the  crown  was  not 
prepared  to  try  that,  this  being  an  indictment 
which  could  not  possibly  determine  it,  because 
the  obstruction  was  charged  to  be  in  the  parish 
of  Wimbleton,  whereas  it  was  in  truth  in  Mort- 
lake,  wjiich  was  a  distinct  parish  from  Wim- 
bleton.   They  maintained  their  own  poor,  up- 
held their  own  church,  and  paid  tithes  to  their 
own  parson  ;    and  Domesday- book  mentions 
Mortlake.    On  the  other  side,  it  was  said,  that 
Domesday -book  mentions  it  as  a  baron*s  fee, 
and  not  as  a  parish ;  and  that  the  survey  in  the 
time  of  Henry  8,  mentions  Wimbleton  cum  ca* 
pellU  tuis  annexis,  and  also  that  a  grant  of  it  in 
the  time  of  Edward  6,  makes  a  provision  of 
tithes  for  the  vicar  to  officiate  in  the  chapel  of 
Alortlake.    The  judge  turned  to  the  jury,  and 
said,  he  thought  they  were  come  there  to  try  a 
right,    which  the  subject  claimed  to  n  way 
through  Richmond-park,  and  not  to  cavil  about 
little  low  objections,  which  have  no  relation  to 
that  right.     He  said,  it  is  proved  to  be  in  Wim- 
bleton parish ;   but  it  would  have  been  enough 
if  the  place,  in  which  the   obstruction   wae 
charged,  had  been  only  reputed  to  be  in  Wim- 
bleton, because  the  defendant  and  jury  must 
have  been  as  sensible  of  that  reputation  as  the 
prosecutors ;    but  had  it  not  been  so,  he  should 
have  tliought  it  below  the  honour  of  the  crown, 
after  this  business  had  been  depending  three 
assizes,  to  send  one  of  their  select  counsel,  not 
to  try  the  right,  but  to  hinge  uiton  so  small  a ' 
point  as  this.     Upon  which,  sir  Richard  Lloyd 
made  a  speech,  setting  forth  the  gracious  dis- 
position of  the  king  u  sufiering  this  eante  te^ 


UM] 


16  GEORGE  m. 


AddemiatoAii  Wabam^^ 


[1391 


bclrinl.  "Iiich  be  »uld  ba»  mpprcMfd  »itk  I  b;  Ibcir  TUe,  lanfi  the  wbele  rmtm  af  juHin 
ft  wii^li;  hremlli,  by  laAa'iog  a  uolCe  p'tatqttixa  ibrniiKh  llir  kinplon.  Bc«irfra  ibcniJBnMM 
}tt  Mil'red.  The  jndife  »>^<  be  wtt  lint  of  I  to  Ibe  tul jcri,  their  jfnDlinp  a  kbU  fn^u  m 
tbnt  nfiiniaa.  The  iulijrcl  is  iniemlnl  in  luch  |  in  elTrci  ku  iucniMihiDHii  upon  ihc  nijal  pt- 
ipilidmeiiti  M  thnM  liir  couiinuJDK  iiiiuancea,      rogatite," 

Kmt  canhavpiHireiiiedybulltiis.il  tlieirrigbK  ,    ,  ;„  _  v-t^  .»  ti.- t  =.._  :_  »i      ir— j 

be  e«c..«d.ed  ..poo  ;   -Wrel-re   be   ilioiild  '  ,,1^°^, ,"  ■>"'^ '?  r  ?^"* '"  ^»'- W*'" 
ti.i»b  II  t  denial  ..rj"'"ice  lo  ««p  •  pn^cuUon  '  f*"  "eda.on  i*  the  IMo^t^g  puuge: 
',  Mbidt  bis  ttbute  prerO|{alite         "Tbemnien^eri  iiereindkieilii] 
After  wbtclj,  llie  |  iJie  re'niuliuni  ut  ibe  Huuse  ot'  C 

Irue  liillt  were  fuuod  ■gainst  llieiB,  hit  fonhtf 
proceedinifi  wrre  itnppei)  by  (be  AltaTBi;Gf 
neral  entering  a  noli  proieguL  Ai  the  t^ 
meuli  urf^ by  Mr.  Adair,  « ho  ■■  irniiiil 
for  itie  printer*,  on  ihenin^cauMafiiaMiba 
meuure.ire  eslremrij'  (Mirioin,  And  dM|I» 
rally  bnuvn,  we  aball  aobjniD  Ibem  far  ikt » 
torriialiuD  of  Ibe  reader,  end  tor  the  bellcTt)i> 
ciitatiun  of  tfaii  and  otbcr  lellera  open  tbeiob- 
ject  of  iliis  imporliDt  diainiie. 

"  Mr.  Adair,  ill  pQr!>uaDt:cfirnoticr,illnM 
Ibe  Altnrney  General,  Mr.  Ol'  (irrr.  tm  ikt 
171b  of  May,  1771,  and  after  the  iiMficiMl 
unil  an  affidatii  ut'Uie  defendant  bad  bcca  icii 
Sliobe  QB  Cnlluwi ;_ 

"  ll  rnjulrci  no  arguments  to  ahev,  llri 
though  Hie  enlerini!  a  niitiproirqui  on  priim- 
bona  at  the  suit  of  Die  kin^  only,  iiin» 
dnubleJ  prerogiiire  Of  the  crnwa  ;  yet  Ut  d 
other  prerogaliTn,  il  ii  inleadeil  lor  the  gnorf 
gone]  of  the  iiilijecl,  anil  not  Tor  the  bindrMCi 
or  intprrnpiiontilpiililic jualice. 

"  It  ji  indeed  a  discretionary  power,  bolilii 
lo  be  exercised  nnt  accordiiifr  to  an  arbitmr 
bnt  a  Mnnd  and  hgil  diaereiiuD.  Jt  1*  fiir  Oii 
reason,  l!Sr,  (bat  u  ia  not  leri  tn  the  wanUa  <a- 
price  oratarouTile,  or  the  arbitrary  mill  tft 
miuiatvr,  lo  be  executed  at  pleasurr,  hatilil 
depofiled  at  a  fulibc  trtist  in  the  hind*  oT  Ikt 
Alturnt-y  (JMiiral,  that  iUp  cxtcIh' >iI  ri  nu 
b«!.liwis4bvbinkoii*le.lKe  of  ibo  lawi  >b1 
cuiiNliluliuu  of  the  kln[;dniii. 

"  Al»iiy  i-easiHH  iiiiiy  l«^  Niii;crotieil  whv  iha 
IMiwcr  sbuiilil  1)1-  iii'ist  ap.inn^lv  rxcKiiti  a 
caMKn|-'|irnsei^iiliuiil)y  iiMlicltiifut. 

"Though  Hie.  kind's  iiainc  is  iirrpwin'r 
iMvd  ae  llw  jroiicral  guardian  ul'  i 

is  itnothcr  p;irly  eontvmcd  in  in  _ 

injure!  |«rly,  who  n  for  the  tniihl  part  the  r<»l, 
as  the  kiuK  i^i  ihc  numinal  pmit-trulur. 

"Tlip  praciiccionot'ciitcrini^u  Qo/i;rnv,^i 
on  inilklinenlit  is  bin  iil'  iiiiii!erii  il^iie. 

'•  In  the  I'Bse  ci!«nil.liiid  ami  Smiili  in  ik 
0th  M...I.  ■id.  liiili.  clii,.!"  j»,iicf,  ».ii.l,  '  He 
'  hull  kiiiiuii  it  l<L<>iit,'bt  lerv  )iarr|  that  tlir  tl- 
ti)rney  Geni'ml  !iliiiui<l  ■■nti'i'  noU  yirmrvii  "p" 
iiidi<Mtiit'Ui«,  and  ilKti  it  bp>^aii  iirst  lu  be  prV- 
riied  ill  l!(o  I.Ltler  iii.l  ol  kiii^r  Lliarlen  ilir  Wi 
rpt|rn,nndb(!arilereil  iTi'i-fdc^ms  to  be  ieveli(<l, 
if  any  were,  in  .Mr.  .iiiomiy  I'iilmef  ot'  >»■ 
till|(lln Ill's  lime  ;  niid  at  HiiuUier  ilav  be  ilrftir- 
ed.  thai  iu  aII  kiiii:  Cliarlts  ihe  Isi's  i,uKib»t 
uni n^>  precedi'nt  uf  a   noli  pro^guioam^ 

"  I  therefore  submit  tn  you,  that  (tilling  bnc 
to  ilneriuinc  u|M)n  Ihe  ijiphcation  of  a  |Hiii«H' 
rcccut  in  itt  cuaiiueueeuteiit,  umI  nt'  vbkb  ** 


<IOM  lint  eilrnd  tu  purdoi 

Cf  idenre  wat  i^iic  ibraui[h ;    and  the  judf{i 

•immt'd  up  khurtly,  but  clearly,  for  iba  prote- 

"  It  Kite  me,  who  am  a  ilraD^  lo  bin), 
■reat  pleaHure  to  Imr,  that  wc  haie  one  Kn^- 
riiih  Judijc,  wbum  nolhing- can  tempi  or  rri^hlcD, 
ready  and  able  la  bald  up  ibe  lawi  of  bii  cuun- 
try  ai  a|[realatii<:ldar(lieri);btsof  llie  people. 
I  preMiiiM  itiat  it  will  (jire  yuu  tiill  i^reaier  lo 
heur,  that  y«iir  friend  and  relitioa  ii  that  jud^e : 
uhI  that  ia  Ihe  only  apaloKy  I  have  to  make 
lor  Imublin^  you  wiili  thii,  I  am,  disar  Sir, 
your  moat  humble  cerrant,     E.  Thublow.'* 

"  Fyc-litt-rourl,  Inner  Temple, 
April  n,  1758." 

Somewbal  connvcled  with  what  Mr.  Thur- 
low  reijurla  Mr.  Justice  Foster  to  have  laid  uf 
the  noli  proHytti,  are  the  ful1uwiQ<r  itarliculua, 
which  Miave  exiracieil  from  the  3d  Tolumt  of 
Mr.  «.  Wundfair*  recently  |mblislied  eJilion 
«r  Ihe  Letters  of  Juiilua,  and  the  I7th  folume 
of  the  Parliamentary  Hlxtnry. 

Cnmby,  lord  mBvnr  (nee  hia  Caw.fol.  19,  p. 
J13T}0Ji*Kr  aijd  Wilkes,  aldermen  (if  Lnnduo, 
haTini;  di<irliari(ed  a  i>rinier,  who  in  the  ciiy  of 
liondon,  bad  hecii  by  n  mefiBeiif^r  of  Ihe  House 
of  (,'uiiimoiis  Bp]irelieiid<'d  fur  lireach  of  priri- 
legn  nf  parliaiiiciil,  and  having  Bi^ciu'il  a  war- 
rant ufciiniiiiilinrnl  uf  the  nieshciiiffY  (wbiim 
howe*cr  they  discbaTtiil  U[i'in  hail)  to  «ne  of 
the  city  prisiiiis  liir  ni.->aii1t  nnd  faliie  iiiiprisoii- 
mcnt  (if  tliii  |>riiiter,  the  Hmise  of  Cimnions 
ordered,  "  That  James  .U'irgan,  clerk  of  the 
lord  mayor,  du  ut  the  tabic  expiiiii[c  tlic  mi- 
ll bvliire  the  Iwd  mayir,  relalive  to 
ii;er  of  IbiH  House  gii'mfC  security 
for  lii«  a))pearanci!  nt  the  ikrxt  general  (iiiatlcr 
aiMsiiius  iif^thr  piMce;"  and  be  D<'«uriiiti<'ly  at 
the  liihle  expun^riid  tlie  same. 

"  Thnt  U'l  other  pmsecutinn,  siiil,  or  pro- 
cceliii^,  III-  rnniiiitni^il,  iir  cnrriid  on  fur,  or 
«n  ncr-iiiiil  uf  ilie  .said  jirult:ndt;d  assaullor  liklsc 
imprisunnu'iit." 

Junius  (.Miscdlniipnus  l^lten,  N"  !)j,  dated 
91b  April  1(71,  and  •.ii^iiiil  A  VVIiitf)  in  rcldli'iii 
lo  thuiic  transiicliunii,  writes,  "  I  wixti  ihdl 
crave  anil  mibiT  nu-n  would  con-ider,  indcpen- 
Mutllv  iif  tlif  oth'T  qut'iitinus  liefure  ui,  bow 
far  this  particular  piccvdtnt  may  extend.  If 
the  House  nf  t'oininims  may  iiiltn'|H)bf,  in  a 
Miiitli!  ioBtaiicr,  belwern  Ihe  xiilijrrl,  w liii  iiim- 
plaius,  and  ibe  Uus.  which  oukIiI  id  (H-titnt,  I 
■ce  nu  M-aGOu  why  they  may  nol,  at  any  lime, 

iiLeted.     Hee  '2 


Til  mayor 
iilc«  lakeii 


f  S9S]  Case  of  Home. 

Are  told  by  so  respectable  an  authority,  that  it 
has  been  looked  upon  as  a  hardship  in  itself,) 
Toa  will  require  the  most  cofrent  reasons  to  in- 
flttce  joa  to  exert  it  apon  this  or  any  other  oc- 
casion. 

*■  Those  reasons  most  arise  either  from  the 
(»ndact  of  the  prosecotor,  the  personal  situa- 
tion and  circnimstance  of  the  defendant,  or  the 
flubJ^i  matter  of  the  prusecuiion. 

**  I  do  not  find  from  the  affidavit  of  the  de- 
ffMlant,  which  is  the  only  information  I  have 
bad  of  the  ip'onnds  of  his  application  to  yon, 
that  be  complains  of  any  particular  hardship  or 
oppression,  arising  either  from  unnecessary  de- 
Iqr,  unusnal  rigour,  or  any  other  misconduct 
ifi  the  prosecutor :  he  must  therefore  expect  the 
extraordinary  interpOsitioYi  of  the  prerogafire  in 
hh  behalf  in  this  instance  either  from  something 
pecoliarly  farourable  in  his  personal  situation, 
which  entitles  him  to  the  protection  of  the 
crowta,  or  from  the  charp^  af^ainst  him  being 
tofilly  groundless  and  unfit  to  be  discussed  in  a 
court  of  justice. 

**  As  to  the  first  of  these  points,  if  we  con- 
sider Mr.  Whittam  not  being  a  magistrate's 
cohstabley  or  any  otiier  officer  intrusted  with 
the  execution  of  the  laws,  but  acting  merely  in 
•  private  capacity,  as  wantonly  assaulting  one 
of  the  kin(j;*s  subjects,  in  his  own  house,  who 
was  not  even  accused  of  an  v  crime,  and  vio- 
lently attempting  to  deprive  iiim  of  his  liberty ; 
if,  I  say,  we  consider  him  In  this  point  of  vievr» 
he  can  hardly  be  thought  a  fit  object  of  the 
roj'al  favour  and  protection:  bntif  we  view  him 
io  the  light  in  which  he  has  thought  proper  to 
place  himself  by  his  own  affidavit,  he  wiU  be 
found,  if  possible,  still  less  entitled  to  that  ex- 
ertion of  prerogative  for  which  he  has  applied. 
He  tells  von,  Sir,  that  he  is  a  messenger  of  the 
House  of  Commons,  that  in  that  character,  and 
sicting  under  the  express  orders  and  authority 
of  that  House,  he  did  the  fact  with  which  he  is 
charged  in  the  indictment.  Does  he  mean,  Sir, 
tliat  yon  should  consider  this  as  a  reason  for 
granting  a  noli  prosequi  ?  When  was  it  hearri 
Eefore  that  an  exertion  of  prerogative  was  ne< 
cessary  to  support  the  authority  and  privileges 
of  the  House  of  Commons  ?  When  was  that 
House  known  to  sue  to  the  <;ervants  of  the 
crown  to  screen  th.-'ir  officers  from  the  laws,  or 
protect  them  from  the  indignation  of  an  iucon- 
sidrrtble  printer  ? 

"  I  believe  when  any  of  their  priviIe<Tes  have 
been  realtj^  invaded, 'th^y  have  never  been 
found  wanting  either  in  pcJwcr  or  inclination  to 
■dpport  them  ;  and  I  am  satisfifd  that  if  the 
House  were  now  sittini;,  3Ir.  Whittam  would 
not  have  dared  to  make  an  application  so  ma- 
nifestly tending  to  expose  their  privileges  and 
aatbonty  tu  ridicule  and  contciiipl.  Hut,  Sir, 
I  am  persuaded  thnt  the  honour  and  di^^nity  of 
the  House  of  Comuinns  are  safe  in  your  liHnds, 
AOd  that  you  will  suffer  no  act  to  proceed  from 
^rou  that  can  throw  even  an  oblique  imputation 
upon  them. 

"  If  there  is  for  these  reasons  nothing  in  Mr. 

ITYiittant's  personal  situation}  or  circumstances, 

VOL.  \X. 


A.  D.  1776.  [1394 

wliich  can  entitle  him  to  an  extraordinary  in- 
terposition in  his  favour,  it  remains  only  to  be 
considered  whether  any  motive  can  he  suggest- 
ed from  the  subject-matter  of  the  prosecution  to 
induce  you  to  put  a  stop  to  it  by  an  exertion  of 
the  roval  prerogative. 

*'  l1)e  charge  set  forth  in  the  indictment,  and 
not  denied  by  the  defendant's  affidavit,  is  I'ur 
assaulling  and  imprisoning  the  prosecutor,  Mr. 
Miller.  It  will  not  be  contended  that  there 
appears  any  thing  upon  the  face  of  the  indict- 
ment oppressive,  illegal,  unfit  to  come  before  a 
court  of  justice,  or  which  affords  any  motive 
whatsoever  for  granting  the  noli  prosequi ;  the 
reason,  therefore,  if  any,  must  arise  I'roin  the 
matters  set  forth  by  the  defendant's  affidavit. 
The  affidavit  states,  that  the  defendant  is  one  of 
the  messengers  of  the  House  of  Commons ; 
that  the  S|)eaker's  warrant  for  apprehending 
the  prosecutor  wns  issued  by  order  of  the 
House,  and  that  in  consequence  thereof,  the 
defendant,  to  whom  the  warrant  was  delivered, 
did  make  the  arrest  with  which  he  is  charged 
in  the  indictment,  and  that  he  used  no  violence 
in  so  doing  other  than  seizing  Mr.  Miller  by  the 
arm,  as  is  usual  in  arrests. 

'*  I  apprehend  it  is  uot  incumlient  upon  me 
here  to  consider,  as  I  submit  it  is  not  com|ie- 
tentfor  you.  Sir,  to  determine  in  this  summary 
manner,  whether  the  matters  here  set  forth  do 
or  do  not  amount  to  a  good  defeuce,  or  legal . 
justification.  We  are  not  now  to  try  the  cause ; 
but  you.  Sir,  I  am  confident,  will  not  inter|iose 
the  prerofi;ative  of  the  king  to  prevent  our  try- 
ing It  in  the  regular  course  before  the  proper 
jurisdiction,  unless  the  prokccutioo,  as  it  now 
appears  before  you,  is  so  clearly  auit  uianifestly 
groundless,  andf  unfit  for  discussion  .iu  a  court 
of  law,  that  it  would  be  an  abuse  and  uiockery 
of  public  justice  to  bring  it  to  a  trial.  Jf  the 
authority  under  wiiich  Mr.  Whittam  alleges 
himself  to  have  acted  was  not  competent  to 
authorise  the  fact  which  he  cf*miiiilted,  or  if 
that  authority  never  was  in  fact  delegated  to 
him,  in  either  of  those  cases  the  prosecution  is 
well  foundf^d  in  \ii\\ .  If  an}'  doubt  or  question 
can  be  raised  on  either  of  these  points,  it  is  not 
so  clearly  groundless  as  to  justify  the  putting 
a  stop  to  ii  by  prerogative  before  thobc  qiU'S'- 
tions  are  legally  d«'termioed. 

**  It  might  well  be  questioned,  whether  the 
House  of  Commoiib  has  any  |N»wer  by  the  laws 
or  constitution  of  this  kingdom  tu  aiithoriKi'  the 
issuinff  of  such  a  warrant  a^  that  under  colour 
of  which  Mr.  Miller  wan  apprehfuiled. 

'*  It  iiiit^ht  be  said,  and  h>ip|i«)rti  il  ton  by  the 
greatest  iiUthoritii*s,  that  thi*y  cannut  by  any 
act  of  theirs  singly,  create  any  new  power  oV 
privilege  Io  tlieinselvcH.  That  there  was  m  iiiii«* 
when  they  e%i(!<?ntly  ni'ithcr  pussessi'd  nor 
claimc<l  any  such  power  as  that  in  que  stiou  ; 
and  when  the  authority  of  nn  act  oi  puiliarumt 
was  thoiiifht  nf^rssary  t'»  pnnish  eifo  so  un- 
di^niahle  n  breach  ofprivilrirc.  '>^  *hi'  .1  Aauliing 
the  person  of  a  meinhir  H:(i'tiiti!>ir  uiMin  hn 
duty  in  parllameut.  Tiie  *'t:iiiitp,  .'^-:r,  wlwU  I 
hero  allude  to,  is  the  ]  Itii  ot  II .  0,  c.  11,  which 

lb 


UBS} 


nOEOBOBIIL 


wmmfmmwhm  thnr  M  Ml 
An' CM  bijr  M  ciiMr  ■ 
qgMU.    AHtlMMd 
miif  if  il  were  mcmmw  to  4iif«to  Iht 
tfly  ef  llie  Bmme  ef  Ciwmim  to  mm  Iht 
MrrMi  ftr  Hm  BBwifwt  ef  Mn  Mi 
iMitWMtfeiMlftr 
lUl  wbcilwr  Uwy  bad, 
Ibcjr  Mfcr  MiiftetfifetiM 
Mrttovily  wbfltoMfCf  to  Miks  lbs 


•TMiMllhtpem, 


«TW  fwiMl,  Sr,  Mte  coImt  «r  wUdb 
■r.  WMmb  MlM,  if  •  warrMi  pMNlMif  to 

BaiiMiM  n  pofWHyMaav  aaanMrav  IIni  Hmhs 

kbrtcitod  «  tba  wanMl  itodf,  if  far  taluaf 
Mr.  Miller  iato  tbe  eoitoij  of  tbe  8erjtMi  a^ 
Araw,  ar  liif  depatjr ;  aad  Mr.  WlMttaai  it  4a- 
■criM  IB  tiM  dnvraoa  af  tlM  veiy  eaoM  war^ 
raat  to  be  aeiUwr  tba  aM  aar  tbaaclicr  af  tlieie. 
Ma  aiiiberity  wbatoearer  ohi  ba  eeotejeri  to 
Mf.  Wiritttn  bjr  nrtaa  ef  ao  enler,  ia  wincb  lie 
if  nalMOiedyaiMi  irbieb  parliMlariy  paiata  aot 
certoia  pavaaM,  lo  eaatradidiM  ftooi  all  eiliera. 
Tbie  warraal,  tbereftra  (ea  fiir  ae  il  relatea 
to  Mr.  WbiUam,)ap|warf  tobaitooed  by  tbe 
Speaber,  merelj  ^  bia  airo  aatlNNrilj,  uaav* 
Ibarized  by  any  arder  af  tba  HaMa  ef  Ccm- 
moof.  HastbeSpealwruypawertoeanMBtt, 
oaleff  be  ilerivea  it  fton  tlie  ardeis  af  tlM 
Bailee  f  If  lie  baa  oat,  wbieb  mnatJiegraQlBdt 
be  is  boaod  ttrictly  aod  literally  to  purioe  that 
order  which  creates  hie  autbonlv :  at  far  as  he 
exceeds  it,  he  acts  without  aiithority  himself, 
aod  most  clearly  can  coof  ey  none  to  any  other 
|»erson.  Mr.  Whittam,  therefore,  in  this  case, 
acting  without  any  legal  authority  whatefer,  in 
the  arrest  of  the  prosecutor,  a  prosecution 
grounded  upon  that  cannot  be  considered  as 
totally  foid  of  foundation.  But  supposing  for 
a  moment  that  the  prosecution  was  frivolous 
and  ill-grounded,  I  submit  that  that  alone  would 
not  be  a  reason  for  the  extraordinary  ioterposi- 
tion  of  tbe  crown.  If  it  would  in  this  case,  it 
must  in  efery  other;  e?ery  defendant  who 
fancied  himaelf  unjustly  prosecuted  would  ap- 
|ily  for  protection  to  the  crown ;  and  atoMat 
every  indictment  must  first  be  tried  by  tbe 
ilttomey  General  before  it  could  come  rega- 
larlv  into  a  court  of  justice.  I  presume  you 
will  conceive  it  waa  not  for  these  purposes  that 
this  prerogative  was  rested  in  your  hands ;  and 
that  there  must  appear  some  strong  reasons 
peculiar  to  the  case  to  shew  why  it  is  improper 
and  unfit  for  public  discussion,  besides  merely 
that  of  tbe  prosecution  being  ill-grounded,  to 
induce  you  to  make  tliia  extraordinary  interpo- 
attioo.  I  Bubanlt  to  yau.  Sir,  with  great  derar- 
4acf|  tbatlbmappeaia  no  such  reaaona  iu  tbia 


ariM 

ttar^;  aiidtba 
baaaalalnMlii 
tba 

astlMitof  aM  lactaiaiijr 
tiMafittoMr.WbiMM 
aasfiaocd  af  il  by  a  di 
«riaw. 


ly  people  latoaa 


uNMi  tha  nwa^ 


fim  Mbaut  to  jraa,  Sb,  fbi 

VM,  aa  AliaiMy  OaMial.  wS  sat  tbiak 

to  Ibia  eaaa  to  gTMl  a  Mfi/raaafML'* 

<'  Mr.  JUicrme^,  QmtnL    JH  yw 
uy  afideooaf^ 

^ykx.AiA.  WoaibrM«lhcr 
Ibw  wbal  appeals  bi  tba  afiteritaribadB- 
fendant  bimadfy  and  tba  warrant  to  which  1 
refers.** 

*^  Mr.  Attorney  GemeroL  Yoaaraeztoeaidj 
right  in  this,  that  it  is  not  at  all  a  fit  tbiag  fir 
tbe  Attorney  General  to  try  ettber  tbo  Act  apoa 
which  the  defendant  ia  iiidicled,  or  to  deieh 
mine  the  law.  The  only  question  ia  this,  whe> 
tlier  it  is  fit  for  tbe  king  to  interpoM  aa  the  pn- 
secutorofthiaofleocer  Tbal,  Itabeil,sboaU 
be  the  ground  of  your  argunie&t,  and  tbe  poist 
upon  which  I  expected  aatia&clioD.  The  si- 
davit  itself  states  tha  messenger  of  tbe  Hosm 
of  Commons  to  be  acting  oi^er  tbe  aothoritf 
of  tbe  Honae  of  Commona ;  and  if  tbit  was  tks 
only  way  in  wbidi  that  qncatioo  oonld  be 
brought  before  a  court  of  law,  I  aboold  hs 
obliged  to  give  an  opinion  wballMr  it  ought, « 
whether  it  ought  not. . 

«  The  only  point  I  bare  to  conaider  ia,  wb^ 
ther  it  be  fit  for  the  luime  of  tbe  oiown  to  aa* 
pear  in  proaecnting  one  who  appears  to  baM 
measenger  of  the  Houae  of  Cooimoaai  aad  a 
be  armed  by  the  authority  of  that  Hoasa  ftr 
doing  the  very  thing  be  baa  dona  aader  Ito 
orders  of  the  House?  I  don't  BMaa  to  pM 
over  the  objection  wbicb  bM  boM  nada^  Ibil 
the  Speaker  of  tha  Hoaaa,  by  oidan  af  lbs 
House,  diractio^  tba  waoaailaa 


'  ■.  -.^^ 


lao7] 


Cau  of  Home. 


A.  D.  irze. 


[13!» 


ftamed  in  such  order,  wbeOier  that  order  extends 
only  to  arrestiiisr  the  prosecutor,  and  taking 
hinn  into  the  custody  of  the  Seijeant  at  Arms,  or 
his  deputy :  I  dare  say  I  take  Mr.  Adair's  oh- 
jeetion  perfectly  right ;  the  order  of  the  House 
IS  fortaldng  hiro  into  the  custody  of  the  Ser- 
jeant at  Arms  or  hb  deputy ;  and  the  objection 
IS,  thai  the  person  in  whose  custody  the  prose- 
cutor was  originally  taken,  is  neither  the  Ser- 
jeant al  Arms,  or  bis  deputy ;  and  the  doubt 
yoQ  raise  upon  it  is,  whetner  the  Speaker  of 
the  House  of  Commons  can  authorise  another 
persoo  to  arrest  and  bring  him  into  the  custody 
of  the  Serjeant  at  Arms,  or  his  deputy ;  for  the 

a  east  at  Arms,  or  his  deputy,  is  tne  proper 
the  only  custody  1  know  of  betongiog  to 
the  House,  and  the  gentleman's  argument  i< 
that  in  point  of  the  arrest  it  cannot  be  made 
without  the  Serjeant,  or  deputy  Segeant,  with 
resnaot  to  the  orders  of  the  House  ol  Commons, 
ami  the  direction  of  the  warrant  by  the  Speaker, 
which  is  a  question  of  law  to  be  sure.     It  has 
heoi  constant  in  point  of  practice  for  the  mes- 
aengera  to  be  employed  (in  the  orders  of  the 
Mouse,  and  for  other  than  messengers  to  be 
emplayed)  upon  the  ?ery  same  occasion.  There 
ia  nothing  so  constant  as  the  messengers  ail  to 
ba  employed:  there  are  sonne  few  instances 
where  more  than  the  messengers  hare  been 
cmptoycd  upon  these  occasions.    The  difficulty 
vpoQ  it  was,  whether  they  should  or  not  be  in- 
■erted  in  the  warrant:  or  whether  if  they 
were  not  inserted  in  the  warrant,  it  could  be 
csonatrued  under  the  general  description  of  the 
ScHTieant  at  Arms,  or  his  deputy  ;  or  whether 
that  authority  could  go  to  warrant  those  which 
might  be  appointed  by  the  Serjeant  al  Arms,  or 
bis  deputy,  upon  that  occasion.    It  was  thought 
more  proper  to  make  a  warrant  directed  to  the 
person  to  be  empk>yed,  though  it  was  men- 
tioned in  the  orders  of  the  House  that  the  cus- 
tody was  to  be  that  of  the  Serjeant  at  Arms,  or 
bis  deputy,  according  to  the  usual  form  of  their 
orden. 

**  But  the  only  point  for  me  to  consider  is, 
bow  far  it  is  fit  the -king  should  be  the  prose- 
cutor of  a  serf  ant  of  the  House  of  Commons  in 
the  exertion  'of  a  pririlege  which  they  now 
claim,  which  they  na?e  claimed  for  ages,  and 
iMf  e  been  in  the  possession  of  for  ages,  and  that 
the  king  should  be  brought  into  a  proceeding 
•gainst  the  servant  of  the  House  as  a  prosecu- 
tor. The  noU  pro$equi  is  called  a  prerogatire 
right  of  the  crown ;  it  amounta  to  no  more 
than  this,  that  the  king  makes  his  election  whe- 
ther he  will  continue  or  not  to  be  the  prosecu- 
tor upon  an  indictment,  and  the  noii  prmtqui  is 
entered  in  the  same  words  in  case  of  the  crown 
as  of  a  private  person.  The  entry  upon  the 
record  is  exactly  the  same  by  the  Attorney 
€leneral  as  by  a  private  plaintiff  upon  record  in 
any  civil  suit. 

*'  I  did  expect  that  you  wouhl  have  given  me 
aome  reason  for  entertaining  an  opinion,  that  it 
vras  decent  and  fit  for  the  crown  to  continue 
and  stand  forth  aa  a  prosecutor  for  the  messen- 
ger of  the  House  of  Commons  acting  under 


their  direction,  in  maintenance  of  a  privilege 
they  have  claimed  and  held  so  long.  That  ia 
the  only  point  I  put  it  upon.  The  affidavit  aa 
made  by  the  defendant  makes  it  necessary  to 
consider  him  as  an  officer  of  the  House. 

<*  I  did  not  indeed  expect  any  disputes  upon 
it,  or  that  it  would  be  pul  upon  so  small  a 
ground ;  the  reason  I  expected  was,  that  it  wan 
becoming  an  officer  of  the  crown,  in  the  name 
of  the  crown,  to  continue  a  prosecution  by  the 
crown  against  the  messenger  of  the  House  of 
Commons  acting  under  the  authority  of  thn 
House  of  Commons.'' 

**  Mr.  Adair  expressing  a  doubt  whether  it 
would  be  proper  for  him  to  make  any  reply  to 
this,  the  Attorney  General  said  he  should  be 
glad  to  hear  him. 

**  Mr.  Adair.     With  reffard  to  what  you 
have  suggested,  it  is  true  the^  entry  upon  re- 
cord is  tne  same  in  the  case  of  the  crown  aa 
of  a  private  person,  yet  in  a  prosecution  by  in- 
dictment the  crown  is  not  solely  concerned. 
To  make  the  case  exactly  similar,  it  should  be 
an  information  ex  officio^  or  any  other  really 
and  truly  a  crown  prosecution,  and  then  tlie 
'  entering  noli  prosequi  upon  that,  would  be  the 
same  as  upon  private  actions.    But  in  the  case 
of  indictmento  the  king  being  in  fact  a  nominal 
prosecutor,  though  his  name  is  necessary,  and 
the  injured  party  being  the  true  prosecutor, 
who  applies  to  the  laws  of  his  country  for  jus- 
tice against  the  offender,  who  has  violated  those 
laws  and  particularly  injured  him :   if  in  that 
case  the  king  puts  a  stop  to  this  prosecution  by 
withdrawing  his  name  from  it,  it  is  the  same  in 
effect,  though  not  in  form,  as  if  he  sent  hia 
mandate,  and  said  that  prosecution  should  not 
pfo  on :  because  if  he  withdraws  his  name  from 
It,  that  prosecution  cannot  by  ihe  laws  go  any 
further,  the  prosecutor  himself  cannot  proceed 
in  his  own  name ;  the  withdrawing  that  name 
has  the  same  effect  as  the  actual  interposition 
of  prerogative  by  the  Attorney  General,  and 
operatea  the  same  as  a  pardon.    Mr.  Whittaui 
being  a^eged  to  have  acted  under  the  authority 
of  the  Hoose  of  Commons,  to  have  had  a  war- 
rant directed  to  him ;   the  question  is  not  whe- 
ther the  warrant  is  legal  or  not,  but  whether  it 
is  proper  for  the  crown  to  put  a  stop  to  that 
prosecution,  and  whether  tne  privileges- of  the 
House  of  Commons  being  said  to  be  concerned, 
any  interposition  of  the  crown  be  necessary  to 
support  their  authority.    If  Wbittaro  has  acted 
in  pursuance  of  the  order  of  the  House,  if  those 
orders  are  such  as  the  House  has  a  competent 
authority  to  make,  I  submit  that  it  cannot  be  n 
doubt  that  that  matter  pleaded  or  brought  in  n 
regular  manner  before  a  c<»urt  of  justice  would 
be  a  sufficient  defence.     If  the  courts  of  law 
sre  of  opinion  that  the  House  has  that  autho- 
rity, and  that  it  was  regularly  delegated   to 
Whittam,  they  would  necessarily  be  of  opinion 
to  acquit  him ;  and  U|M)n  that  ground  there 
appears  to  be  no  necessity  for  the  crown  with- 
drawing itself  from  a  prosecution,  which  by  no 
pomible  means  can  prove  oppressive  or  inju- 
rious to  the  defendant.     If  he  haa  acted  under 


feMpw,  §ar  ihe  Mke  of  justice  uid 
ne   hUc^  Ami  juilKmcni  ab 

tUHMMolM-don  II 


■  It^  utkmkj,  he  iDDst  be  If^ally  oe^uiUed 
m  a  toort  of  juatfee.    But  if  lliv  aulhorii;  is 

re  uid  the  liberty  uf 

il  abouIJ   be  ura- 

•  Fuuri  III'  law.     I  beiievt: 

—  J. iiol  cniiienij.  ibat  Ihc  <fe* 

finiMM  kn  beta  guilty  of  lliet  kind  nf  ofTence, 
Ibr  wltieh  U  Baug  id  progecuie  bim  wjih  any 
tfgouri  badDD'tiHran  to  oppreu  bim,  or  ]>ru- 
MMtrurdWnkeotpuniihiututonly;  whuUter 
It  u  3^  or  S,ODO  ia  indifferenl  to  bim  ;  ibe  ooly 
ntoffbewi^MMtobaTetbequeBlioD  declijtil 
W  ■  legal  caapolctii  JimiidictiDD.  I  Til  comc» 
VwaUri^  befbra  the  Courl,  though  i>«rIiii(>-< 
nm  diia  Miotmcbt  il  could  uoi,  but  iritduci, 
Ik  quMliMi  b,  wb«lbcr  ilie  Socaker  of  Hit 

goiiae  of  Coiaawka  hud  a  luRieicnt  t«eal  lu- 
otitj  to  ■HlboriM'  ib«l  arrcBl,  ur  wbelbo-  the 
JlcTnidaiit  baa  actually  arlti  iiui)'-r  ih&t  autlio- 
My,  HL'b  aa  it  was ;  »ud  1  aulnnii  lo  your 
MuaidmUiaD,  wbellier,  upon  that  |ii>int,  aucb 
InterpodtioD  aspean  lu  be  ueceiiHry  mlhi«  case, 
Htber  npoa  behair  ol'  Ihe  delviiJanl,  or  of  tlit 
i«Irilem«ribe  Ilousc  uf  Commons." 

' "  mw.  Attanug  General.  1  doo't  unl  it  upon 
,^t«idei1»eai'laAtr.  WbiLUm,  ur  the  point  or 
aririlege  of  (be  Hoose  of  Coiutnon  s,  but  merely 
■Don  tM  fbot  of  decency,  as  the  circumilance 
ipctbaenwntaikiilf  a  part  id  the  prosecution 
j»)ndi  tbcy  imul  do  if  ibey  go  oa  wiili  it) 
"iltlMiDMataeer  of  the  House  of  Com- 


AJdftf^0.rPf»if''^''*^ 


m\ 


man,  aodnc  nnidar  the  auibnriiy  of  ibe 
nut  of  dm  SMakar.  punuant  lo  aa  order  uftlie 
Boon." 

Mr.  Oa  Onj,  tlic  Altoroey  GenerBl,  was 
•ftemarda  Cbiaf  Juslice  of  (lie  Coaimon 
JMaaa,  ami  Hr.  Adair,  aubaequeniiy,  Recordei 


lam  Eorry  lofioil  in  Mr.  Gilbert  Wakefield's 
BUrooira  of  hii  own  Life  ibe  followiog  pas- 
aa^e  recpecling  the  Kicliniuud  Purk  Irani^- 
aettona: 

"  By  one  of  those  scandalous  manarchkul 


encroschi^BU  wbiob  h»ie  di»tia|[iuslied  lh(  i 
present  reigu  at  Ricbuiood,  and  esseotiiS;  in- 
paired  die  beamy  and  conteoience  of  tiiailM. 
reiilriul  Paiadi*''.  tl>f  fiMflHay  tbrou^  Sic^ 
moiid  Park  U  WimbJcdda,  "t-aat  Sheen,  aa^ 
Kingston,  waa  sbui  up,  aittl  do  pusag«  ak 
lowed  widiOQt  a  tic)[et-"  (S»o.  17S2.  p-  itS^ 
It  has  bern  Seen  ibat  Ihe  nbsiruclioo  >]f 
tnaJe  ID  the  rei^o  [>f  kin?  Cear|{e  3.  I  hi^ 
DO  su^picioo  that  Ur.  VVui,eK(Jd  desiyneil  q| 
misrcprescnlaiion.  I  oWrte  that  Dt.  I>ita|^' 
iu  big  preface  lo  Dodsoa's  Life  of  Foaler,  aif 
a  second  ediliaa  (1804)  of  >Vake6dil't  W^ 
moira:  ihatedilion,  1  bclicTe,  I  oeier  taw. 

Pi  6BRi  Fbt  WM9  coMfnnMf  nit  la^Aii 
abancMr  af  lkdn«x>  Me  fnlop  H«iMi 
mA  (Amfl  U|ll,'lSJM)  is  >  Afeale,  ia  Dml 
FNtf.  inoAlbaMI  Ntif-M  fiw.  3,  c.  43),  la 
aalhicam  Ate alberraBn 'oT  Cita  eaaaMMJ 
■ubrfc  T^pecti^  limWaMba  «dmiUad^irii 


OfdeacM  cndpricaL 


Wbi  1813;  >rbe  daie  6r«  'elvk  abaadwi^ 
bii  cterki^  ebriraetvi-V  and  o^farin^  oa  a  lif 
proftaiiaa,'orfxenMwsl»eBUlH.  naa^- 
dcadW  aa^^eitb«.ib  ihe  «»%e<r*t 
pnMeiiniHnmB  mtMeoTCoiuaMiao  ttaaa* 
W  a  titaMi«a«ii  dUbU^Dtr  tf  Uw  M* 
[A nAMlfwta^:  >•  1? N«7  AiCU 

P.  no-  Tbff  ^llnioa,  to  «ba  trnit>Nat<( 
Ibe  PMvUvaaA  hv  IM  amWiiilioy  «(V«db 
I  apprabaRd,  otiatei  miba8fra)0MtehKb,« 
FebruaTv  91,  1TT7,  wh  pmched  by  arcb- 
biabop  Harkbau),  beti>r«  the  iocorjioralcd  Sa- 
ciety  for  propaptipg  the  Goapel  in  Fcrtip 
ParU,  which  sennpD,  in  compljuw  wiib  i* 
requeit  of  tbe  Society,  waa  ptiUisbed  by  ik 
praadiar. 


END   OF   VOL.   XX. 


XHE  PARUAMENTARY  DEBATES,  FROM 

*  THE  YEAR  1803  DOWN  TO  THE  PRESENT  TIME; 
fonning  a  GoDtinaatioD  of  tbe  Work  entitled,  *'  The  Par- 
I.IAMB1ITART  HisToiY  OP  Emoland,  from  the  earliest  Period  to 
the  Year  1803.**-— Poblished  onder  the  SaperiDtendence  of 
T.  C  Hansard. 

The  Subscribers  are  informed  that  the  Volumes  of  the  above 
Work  comprising  the  Debates  in  both  Houses  from  the  Open- 
ing of  the  New  Parliament,  NoTember  24,  1812,  to  the  Close 
of  the  Session,  July  22,  1813,  may  be  had  of  their  respective 
BookseUen.»A<sr6oroagA  Omrt,  10<A  Fth,  1814. 

*#*  Complete  Sets  of  the  Work,  in  26  Volumes,  may  be 
had  of  the  Publishers.  The  Debates  of  the  present  Session 
will  be  published  as  speedily  as  possible :  and  all  Communi- 
cations forwarded  to  Mr.  Hansard  will  be  attended  to. 


Alto, 

»pHE  PARUAMENTARY  HISTORY  op  ENG- 

^  LAND,  from  the  Earliest  Period  to  the  Year  1803,  ftoin 
which  last  mentioned  epoch  it  is  continued  downwards  to  the 
present  time  in  the  Work  entitled,  "  The  Parliambntart 
Debatis,'*  published  under  the  Superintendence  of  T.  C.  Han- 
sard. 

Tbe  Nineteenth  Volume  is  ready  for  delivery,  bringing  the 
Parliamentary  History  of  England  down  to  the  Year  1778. 

*<  To  present  the  Public  with  correct  Reports  of  the  multi- 
farious  Debates  relating  to  the  War  with  America  which  took 
place  during  this  memorable  period — and  which  Debates,  from 
the  confused  manner  they  have  heretofore  appeared  in,  have 
been  rendered  unintelligible,  and,  to  the  generality  of  readers, 
nearly  useless  has  been  tbe  anxious  endeavour  of  the  Editor* 
And  he  hopes,  in  particular,  that  the  transactions,  in  both 
Houses,  during  the  laborious  Session  which  opened  on  the  18th 
of  November  1777,  and  closed  on  the  3d  of  June  1778— a  Ses- 
sion in  which  a  greater  number  of  interestbg  public  questions 
were  agitated  than,  perhaps,  in  any  other  within  tbe  space  of 
the  preceding  century — will  be  found  detailed  with  a  careluU 
ness  commensurate  with  their  importance.'* — Pre/age, 

Printed  for  Longman,  Hurst,  Rees,  Orme,  and  Brown ;  J. 
Richardson;  Black,  Parry,  and  Co.;  J.Haf chard;  J.  Ridg- 
way;  E.  Jeffory;  J.  Booker;  J.  Rodwell;  Cradock  and  Joy ; 
R.H.Evaiis;Budd and  Calkin;  J.Booth;  and T.  C. Hansard. 


..V' 


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